PUTRAJAYA – The Court of Appeal has fixed June 3 to deliver its decision in an appeal by the Kelantan administration, which failed to strike out a suit by the federal government over the customary land of the Temiar Orang Asli tribe in Pos Simpor, Gua Musang.
Justice Datuk Lau Bee Lan, leading a three-member panel, fixed the date after hearing submissions from lawyers Khoo Guat Huat, representing the Kelantan government, and Datuk Gurdial Singh Nijar, appearing for Putrajaya.
“We won’t decide today. We’re giving another date,” said Lau, who presided along with justices Datuk P. Ravinthran and Datuk Mohd Sofian Abd Razak.
On August 20, 2019, the Kota Baru High Court dismissed the Kelantan government’s application to strike out the suit, after ruling that the high court has jurisdiction to hear the legal action filed by the federal government against the PAS-led state administration.
The Kelantan government filed its application on the grounds that the federal government does not possess locus standi to institute the action.
The federal government filed the suit against the Kelantan government, state land and mines director, state Forestry Department director, and five private entities.
It brought the action in respect of its constitutional and fiduciary duty to safeguard the welfare of the Orang Asli, who have been protesting over encroachment on their customary land.
In the statement of claim, the federal government said the Kelantan administration issued licences to private companies to allow them to carry out commercial activities, such as logging, and land-clearing to plant rubber and durian trees, on the Temiar’s native land.
In January 2019, former attorney-general Tan Sri Tommy Thomas was reported as saying for the first time since the country’s independence, the federal government was taking court action on behalf of the Orang Asli to accord them their constitutional and legal rights, to protect and encourage their well-being and progress.
In today’s appeal proceedings, Khoo argued that the federal government does not have locus standi to file the suit on behalf of the Orang Asli.
He said the Kelantan government does not owe the federal government a duty upon which the latter may be entitled to take action.
He said if the federal government possesses locus standi to sue, it would be a dispute between the federal and state governments.
If it is such a dispute, he said, the matter should be heard at the Federal Court, and not the high court.
Gurdial Singh argued that it is a private suit involving the rights of the Orang Asli.
He said the federal government has a duty to safeguard the community’s welfare and interests.
“The federal government has a proactive duty to do all that is necessary to fulfil its fiduciary duty to protect and advance the welfare of the Orang Asli.”
He said there are triable issues to be determine between all the parties, and the matter should be ventilated and resolved by way of evidence in a full trial.
Lawyer Lim Kon Keen, appearing for the private companies, adopted Khoo’s submissions. – Bernama, April 23, 2021
