Orang Asli Land Rights Upheld: The Sagong Tasi Case
Published: 01 January 2005
With the support of a formidable pro-bono legal team from the Bar Council – led by Dato Dr. Cyrus Das and ably assisted by Jerald Gomez, Rashid Ismail, Sharmila Sekaran and Leena Ghosh – the Shah Alam High Court ruled that the Temuans had native title under common law over their lands. Judge Mohd Nor Ahmad, in his April 2002 ruling, also ordered the four defendants (the Selangor state government, United Engineers Malaysia (UEM), Malaysian Highway Authority (LLM), and the Federal Government) to pay compensation to the Temuan landowners, and further ordered that UEM and LLM pay damages for trespassing.
All four defendants appealed and the appeal was heard in June 2005 before Judges Gopal Sri Ram, Ariffin Zakaria and Nik Hashim Nik Abdul Rahman (the latter two have since been promoted to the Federal Court). The 3 judges unanimously threw out the appeal and held that the High Court was not misdirected when it decided, based on a large quantity of evidence and fact that was not challenged, to rule that the Temuans did indeed have propriety rights over their customary lands. As such, these lands should be treated as titled lands and therefore subject to compensation under the Land Acquisition Act.
But the 59-page judgment of Gopal Sri Ram in the Court of Appeal is more than just an affirmation of the rights of the Orang Asli to their traditional lands. It was a condemnation of the way the Orang Asli have been treated by the authorities and a wake-up call to the government to fulfill its fiduciary responsibility towards the community. In his words, "Here you have a case where the very authority – the State – that is enjoined by the law to protect the aborigines, turned upon them and permitted them to be treated in a most shoddy, cruel and oppressive manner."
This was in keeping with the early debates and discussions as recorded in the Federal Legislative Assembly hansards, newspapers of the day and archival records which clearly showed that Orang Asli lands were to be recognized. For example, as noted in the judgment, when the Orang Asli representative, Tok Pangku Pandak Hamid, asked the Minister of Education if the government had any plans to ensure that the hereditary lands of the Aborigines are reserved for their use, Enche Mohd Khir Johari replied:
Alas, as the court was later to find out, none of these good intentions were realized. In the case of Bukit Tampoi, the Temuans faced both under-gazettement as well as non-gazettement of their lands. Thus, as a result of the state and federal governments' neglect in both under-gazetting and not gazetting areas which they knew were inhabited by the Temuans, the latter's rights in the land were placed in serious jeopardy. For the state and federal governments now to say that no compensation is payable to the Temuans because the disputed lands were not gazetted, is to add salt to injury – injury caused by their own neglect and failure. This prompted Judge Gopal to comment that, "I am yet to see a clearer case of a party taking advantage of its own wrong."
Yet in the case of Bukit Tampoi, some of the Temuan landowners were brought to the police station and forced to accept their compensation cheques (for their crops and dwellings) in front of the District Officer, the OCPD and the State Assemblyman. All did not cash their cheques immediately and only did so on the advice of their lawyers and under protest. Fresh cheques had to be issued however as the validity period of the original cheques had expired.
The judge in his judgment did not go into the details of how the Temuan plaintiffs were forcibly moved from their lands, other than to note that, "The plaintiffs and their families were unceremoniously asked to go and fend for themselves in unkind weather." But he did rule that, "Looking at the evidence in totality I am satisfied that this is a proper case for an award of exemplary damages" for the distress and humiliation that the Orang Asli had to undergo when they were forcibly evicted.
Citing a number of legal precedents and justification, Judge Gopal reversed this interpretation. In light of the obvious conflict between the 1954 Act and the Federal Constitution, wherein Article 13(2) states that, "No law shall provide for compulsory acquisition or use of property without adequate compensation," he ruled that relevant portions of the 1954 Act had to be brought into conformity with the Constitution.
This is achieved, he says, by not reading the words in section 12 of the 1954 Act, "the State Authority may grant compensation therefor" as conferring a discretion on the State Authority whether to grant compensation or not. But by reading the relevant phrase as "the State Authority shall grant adequate compensation therefor." In so doing, the modification is complete.
This is a pro-active move that can have positive effects in other human rights cases. The judge added that, "I am aware that ordinarily we, the judges, are not permitted by our own jurisprudence, to do this. But here you have a direction by the supreme law of the Federation that such modifications as the present must be done."
Having been closely involved in this case, both at the evidence-gathering stage and in the development of the legal argument by the lawyers, there was never any doubt in my mind that the case for the Orang Asli was based on a very strong evidential, moral and legal foundation. With a hardworking and very committed legal team, it was easy to be reassured of success. But I couldn't help feeling insecure on the morning of 19 September given the perception that other factors also come into play in court decisions.
And as I was preparing this article, word reached me that the Semoq Beri in Pahang also had their lands encroached upon recently by another highway project and an individual (who cut down their durian trees and sold them for timber, before settling down to occupy the land as his own). Just another case to add to the growing list of encroachments into Orang Asli areas by authorities and individuals who still choose to regard Orang Asli as tenants on their own land.
In the meantime the Temuans at Bukit Tampoi are looking for the former Director-General of the Department of Orang Asli Affairs, Tuan Hj Ikram (seated on the right, closest to the door), who had once showed his butt to them at a meeting saying, "You can kick me here if you win your case in the courts!" They want him to make good at least this promise of his and to see how it is like on the other side of the trampling.