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Putrajaya cannot sue Kelantan on behalf of Orang Asli, says lawyer

Free Malaysia Today logo Free Malaysia Today 23/4/2021 V Anbalagan
a group of people standing around each other: Lawyer G Ragumaren briefing three representatives of the Temiar Orang Asli at today’s court proceeding. © Provided by Free Malaysia Today Lawyer G Ragumaren briefing three representatives of the Temiar Orang Asli at today’s court proceeding.

PUTRAJAYA: The federal government has no legal standing to file a suit against the Kelantan government over alleged encroachments into Orang Asli settlements in Gua Musang as both have a common fiduciary duty under the law to protect the indigenous people, the Court of Appeal heard today.

Lawyer Khoo Guan Huat, who is appearing for the PAS-led government, said the rights of both sovereign states were enshrined in the Federal Constitution and the Aboriginal Peoples Act 1954.

“They are relying on the Constitution, especially Article 8, on equality and equal protection of the law to bring the action on behalf of the Orang Asli.

“However, nothing is mentioned in the statement of claim about how the federal government is adversely affected,” he said in his submission before a three-member bench chaired by Lau Bee Lan.

The state is appealing against an August 2019 High Court ruling which dismissed its application to strike out the suit for lack of locus standi.

Khoo said the federal government’s ability (to sue) also depended on whether it could enforce a remedy obtained from the court.

“In our case, the federal government is saying it can do so on behalf of the Orang Asli,” he said.

Khoo said Putrajaya could only engage private lawyers to represent the Orang Asli against the state.

The lawyer said should this appellate court rule that the federal government had the legal standing, then the suit would be a dispute between two states, minus other private parties, and head straight to the Federal Court.

“Under our Constitution, only the apex court has the jurisdiction to hear such matters, as stated under Article 128,” he said.

Ad hoc federal counsel Gurdial Singh Nijar, in his reply, said Putrajaya filed a suit in January 2019 under the Pakatan Harapan government as the state had breached its responsibility to a group of settlers in Gua Musang.

“The state and its agencies issued licences to private companies to trespass into the ancestral land of the Orang Asli,” he said, adding that Putrajaya came in as trustee of the natives to proactively commence action.

Gurdial and lawyer G Ragumaren were given a special licence in 2019 to represent the federal government against the Kelantan state, the director of lands and mines, and director of the state Forestry Department.

Fleet Precision Sdn Bhd, Koperasi Kijang Mas Negeri Kelantan Bhd, KPG Maju Enterprise Sdn Bhd, Ringgit Saksama (M) Sdn Bhd and M7 Plantation Bhd were also named as defendants in the suit.

Gurdial said the High Court had jurisdiction to hear the dispute as it was purely a commercial case.

He said the right of the private companies to be heard and file appeal would be denied if the dispute was determined as between two states and heard in the apex court.

The Kelantan government and its agencies had granted logging licences to private companies, allowing them to enter the native land of the Temiar Orang Asli in Pos Simpor.

Vast areas of forest were reportedly cleared to make way for durian and rubber tree plantations.

In its statement of claim, Putrajaya said this had deprived the Temiar Orang Asli of their native land and resources and caused widespread erosion, pollution and irreparable damage to the ecology and landscape of Pos Simpor.

Lau, who sat with P Ravinthran and Mohd Sofian Abdul Razak, will deliver judgment on June 3.

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