Regressive to reverse landmark ruling, court told
Arfa'eza A Aziz
Jun 14, 05 7:07pm

Reversing a landmark ruling that recognised the Orang Asli’s right to their ancestral land would be a regressive step for the Malaysian judiciary, a senior counsel told the Court of Appeal today.

Dr Cyrus V Das also pointed out that the court must keep up with the worldwide recognition accorded to aboriginal rights.

In view of this, the lawyer urged the court to dismiss the government’s appeal against the landmark judgment by the Shah Alam High Court three years ago.

Citing several landmark judgments by the courts in Australia and South Africa, Das said the customary tenure and rights of aboriginals were recognised under common law in Commonwealth countries.

He said there was no compelling reason for the appellate court to reverse the 2002 decision which concluded that “the propriety interest of the Orang Asli in their customary and ancestral land is an interest in and to the land”.

“Malaysia should not take backward steps in denying these rights to the Orang Asli,” he said, adding that it took the Commonwealth courts over a century to accord the aboriginals their rights.

Careful consideration

Justice Gopal Sri Ram (left) who heard the appeal with justices Ariffin Zakaria and Nik Hashim Nik Abdul Rahman, noted the importance of the issue and assured the counsel that the court would consider his arguments carefully.

Gopal proceeded to hear arguments from both the four appellants: the federal government, Selangor state government, Malaysian Highway Authorities (MHA) and United Engineers Malaysia Bhd (UEM) before reserving judgment.

“This is an important appeal because we are going to decide whether they (the Temuan tribe) have customary title on a state-owned land. We need to address all mutual considerations and arguments that were carefully formulated before us,” said the judge.

He also assured all parties that a judgment would be delivered as soon as possible.

On April 12, 2002, High Court Judge Mohd Noor Ahmad ordered both the federal and state governments, MHA and UEM to pay damages to Sagong Tasi and six others for the loss of their 38-acre land near Dengkil which was acquired for the building of a highway to the Kuala Lumpur International Airport in Sepang.

In his judgment, the judge recognised the existence of Orang Asli native (in this case the Temuan) land title in common law and ordered the compensation to be assessed according to the Land Acquisition Act 1960. He also ordered MHA and UEM to pay damages for trespassing.

Prior to the judgment, the government had considered the Orang Asli as mere tenants. Revocation of their ancestral land was not protected under the Land Acquisitions Act, unlike in cases involving private land.

Discriminatory compensation

Earlier, Das also submitted that the government cannot practice discriminatory legal regimes in making compensations on acquired lands with similar features.

He cited the RM782,193 compensation the government paid to one Tan Zee Chow for acquiring six acres of land located next to the plaintiffs’ land.

“This means that the government had paid about RM106,000 compensation per acre to Tan. Compare that to what was received by the plaintiffs,” he said.

He also cited another transaction involving a nearby village known as Kampung Bangkang where the government had paid a total of RM96,000 for the acquisition of an acre of land.

“The land also belonged to Ghani Kunchang a member of another Orang Asli tribe and apart from the damages for the loss of the land, they were awarded another RM10,700 for the loss of crops,” he said.

The court also heard disputes as to whether the Temuan tribe was treated in a harsh and oppressive manner by the defendants, as alleged by Das yesterday.

Counsel for MHA, Ramesh Sangvhi claimed there was no such thing.

“The perception was made as if we had acted on the plaintiffs immediately after the 14-day notice expired. Prior to the notice, there was negotiation, discussions and meetings between them and us with regards to the type and amount of compensation,” he said.

He said the meetings between the affected tribe members and the Persatuan Orang Asli Semenanjung Malaysia (Poasm) were held between June and September 1995. It led to a dead end as the plaintiffs were adamant to claim compensation for the loss of the land.

Ramesh also denied that the plaintiffs were homeless for one night, stating that his client had prepared alternative housing for them when their houses and crops were destroyed by the police and Federal Reserve Unit.

‘Disgrace to humanity’

At this point, Justice Gopal chided the lawyer for his client’s failure to deal with the matter civilly. “Throwing people out of their houses is an utter disgrace to humanity,” he said.

To this, Ramesh replied: “Our attempts to discuss failed. Ten months or so was lost then and caused the project to be stalled at that time it was the pet project of the then prime minister...”

Gopal interjected: “What is 10 months compared to the 210 years of ancestral occupation on the land? Why can’t you be more civilised in dealing with the matter?”

As to the claims that the plaintiffs were forced to pick up the cheques issued by MHA for the loss of crops and fruit trees from the police, Ramesh explained that it had to be delivered through the police as attempts to deliver the cheques through the Orang Asli Affairs Department had failed.

However, the lawyer could not answer why MHA did not choose to leave the cheques with the department or Poasm.

“Why should you bother to get the police to take them to the police station for them to sign and accept the cheques? If they were not bothered to get the cheques why didn’t you just leave them there?” asked Justice Ariffin

As the lawyer struggled to answer, Gopal said: “I’ll tell you why... you were trying to get them to sign and take the money so that they can leave your alone!”