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Federal govt has no locus standi to act against Kelantan in Orang Asli dispute, says Court of Appeal

PUTRAJAYA (June 3): A three-member Court of Appeal (CoA) today allowed the appeal by the Kelantan government and ruled that the federal government has no legal standing to act for the Temiar Orang Asli tribe over its purported customary land in Pos Simpor, Gua Musang.

However, it ruled that the Temiar Orang Asli can initiate the legal action themselves and not through the federal government.

Justice Datuk Lau Bee Lan, who led the bench, said they are unanimously allowing the Kelantan government's appeal to strike out the suit by the federal government on behalf of the Temiar Orang Asli.

“We disagree that the federal government has the locus standi (legal standing) to act for the Temiar Orang Asli community. We ruled that it does not fall within the federal and state dispute as stipulated in the Federal Constitution on alleged infringement of property rights by the federal government.

“The Constitution cannot confer the right to the federal government to sue as a plaintiff (to represent the Orang Asli),” Lau said in the brief broad grounds.

Sitting with her were CoA judges Justices Datuk P Ravinthran and Datuk Mohd Soffian Abdul Razak. The decision was delivered online.

With the decision today, the suit by the federal government is struck out and for the following reasons, it is allowing two other appeals — including by the companies named in the suit — to set aside the suit.

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

The bench made no order as to the costs of striking out of the suit.

The Kelantan government was represented by counsel Khoo Guan Huat, Nik Habri Muhammad from the Kelantan legal advisor office and Joshua Teng, while the federal government was led by ad hoc federal counsel Datuk Dr Gurdial Singh Nijar and G Ragumaren.

Kota Baru court initially dismissed application to strike out suit

On Aug 20, 2019, the Kota Bharu 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 filed the application to strike out the suit on the 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 against encroachment on 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 as well as clearing of land to plant rubber trees and durian trees on the native land of the Temiar Orang Asli.

In January 2019, former attorney-general Tan Sri 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.

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