Appeals Court to decide on Temiar land dispute on June 3

 

The Court of Appeal has fixed June 3 to deliver its decision in the appeal by the Kelantan government which failed to strike out a lawsuit filed against it by the federal government over customary land of the Temiar Orang Asli tribe in Pos Simpor, Gua Musang.

Judge Lau Bee Lan, who led a three-member panel, fixed the date after hearing submissions from lawyers Khoo Guat Huat representing the Kelantan government and Gurdial Singh Nijar appearing for the federal government in Putrajaya today.

"We won't decide today, we give another date," said Lau who presided with P Ravinthran and Mohd Sofian Abd Razak. 

On Aug 20, 2019, the Kota Bahru High Court dismissed the Kelantan government's application to strike out the suit, after ruling that the High Court has jurisdiction to hear the suit filed by the federal government against the PAS-led Kelantan government.

The Kelantan government had filed the application to strike out the suit on grounds that the Federal government did not possess the locus standi (legal standing) to institute the action.

The federal government filed the suit against the Kelantan government, the state director of Lands and Mines, the state director of the Forestry Department, and five private entities.

The federal government 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 of their customary land.

In the statement of claim, the federal government claimed that the Kelantan government issued licenses to private companies to allow them to carry out commercial activities such as logging works, clearing of the land to plant rubber trees and durian trees on the native land of the Temiar Orang Asli.

On Jan 2019, the former attorney-general Tommy Thomas was reported as saying that 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 did not have the locus standi (legal standing) to file the suit on behalf of the Orang Asli.

He said the Kelantan government did not owe the federal government a duty upon which the federal government may be entitled to take action.

Khoo said if the federal government possessed the locus standi to sue, then it would be a dispute between the federal government and the state government.

He said if it is a dispute between the federal government and the state government, then the matter should be heard in the Federal Court and not the High Court.

Gurdial Singh, however, 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 welfare and interest of the Orang Asli.

"The federal government has a pro-active duty to do all that is necessary to fulfil its fiduciary duty to protect and advance the welfare of the Orang Asli," Gurdial said.

He said there were triable issues to be determined between all the parties and the matter should be ventilated and resolved by way of evidence at the full trial.

Lawyer Lim Kon Keen appearing for the other private companies adopted Khoo's submissions. - Bernama