The federal government has no legal standing to sue on behalf of the Temiar Orang Asli in a land dispute in Kelantan, the Court of Appeal held.

The three-person bench chaired by judge Lau Bee Lan unanimously made this ruling today in allowing the Kelantan government’s application to strike out the federal government’s suit, which is linked to alleged encroachment into the Temiar’s customary land in Pos Simpor, Gua Musang.

"We disagree with the arguments that the federal government has the locus standi (legal standing) to be the plaintiff in this case," Lau ruled.

She noted that there is no provision in the Federal Constitution that allows the federal government to institute legal action on behalf of aboriginal peoples.

However, the judge pointed out that the Temiar Orang Asli are not precluded from directly instituting their own legal action over the issue (by being the direct plaintiffs). She also made no order as to costs for the appeal.

On Aug 20, 2019, the Kota Bharu High Court denied the Kelantan government's bid to strike out the lawsuit, when it ruled that the court has the jurisdiction to hear the legal action that targeted the PAS-led state government. 

Earlier on Jan 18 that same year during the previous Pakatan Harapan administration, then attorney-general Tommy Thomas announced the federal government filed the legal action, to safeguard the welfare of the Orang Asli, who protested against the encroachment of their customary land. 

Thomas had contended that the Kelantan government and its agencies had granted logging rights in Gua Musang to private companies without consulting the Temiar community or offering them compensation.

Today was set for the Court of Appeal, which also had judges P Ravinthran and Mohd Sofian Abd Razak on the bench, to deliver its decision on the Kelantan government’s appeal to strike out the federal government’s suit.

The Perikatan Nasional coalition has since taken over the reins of the federal administration since early 2020. 

When contacted after the online Court of Appeal proceedings conducted via Zoom this morning, the federal government’s counsel Gurdial Singh Nijar said that he would need to take instructions on whether to appeal against the decision.

“We have to take instructions. Also, we will wait for the full grounds (of the ruling) by the Court of Appeal,” the lawyer said.

Gurdial noted though that if an appeal to the Federal Court is made, it would be important to focus on the issues raised for the first time as to the locus standi of the federal government to act on behalf of Orang Asli communities, as part of their fiduciary duty owed to the communities.

Counsel Khoo Guan Huat appeared for the Kelantan government, while lawyer Elaine Gan held a watching brief for the Bar Council during the proceedings.

The federal government’s suit, which was filed at the Kota Bharu High Court, named the Kelantan government, the state director of the Lands and Mines Department, the state director of the Forestry Department and five private entities as defendants.

It had sought legal recognition of the Temiar community's native land rights in Pos Simpor, and injunctions to prevent private entities from encroaching on and destroying native land for commercial profit.

The Temiar Orang Asli have been fighting loggers for years, setting up blockades, which would be demolished by state government officers or those working for private companies.

Besides loggers, a more recent threat to their lands has been durian plantations. - Mkini