Reports
NST 16 Feb 2006 – Sagong Tasi Breaks Grounds on Human Rights NST 20 Sept 2005 – Court Affirms Land Belongs to Orang Asli The Star 20 Sept 2005 – Orang Asli Win, As Judge Dismisses State’s Appeal The Star 15 Jun 2005 – Judgment Reserved on Native Right to State LandJudgements
19 Sept 2005
NST, February 16, 2006
Sagong Tasi breaks ground on human rights, 16.02.2005
How is Malaysia’s human rights law developing? Legal experts and activists tell SANTHA OORJITHAM that a recent Court of Appeal decision has been the turning point for upholding human rights norms.
SAGONG Tasi is a 74-year-old Orang Asli of the Temuan tribe from Dengkil, Selangor. He is poor, living without basic amenities and often ill. But he and six other family heads from Bukit Tampoi are at the centre of a landmark judgment which lawyers and human rights activists believe will make their task easier in the future.
The 59-page judgment illustrated a move, in cases where there is a conflict between existing law and the Federal Constitution, to apply that law with whatever modifications are necessary to bring it in line with the Constitution.
Through such interpretations, judges say they are introducing international human rights law into the domestic system, while taking a liberal rather then a literal approach to the human rights guaranteed under Part II of the Constitution.
Last September, the Court of Appeal upheld an earlier Shah Alam High Court decision that the seven Orang Asli were customary owners of a piece of land acquired for the Kuala Lumpur-Nilai Highway.
The High Court had declared that the Orang Asli owned the land under a customary community title of a permanent nature.
It ordered the Selangor Government to compensate them for the land and ordered United Engineers (M) Bhd (UEM) and the Malaysian Highwat Authority (MHA) to pay damages for trespassing.
The appellate court went further, allowing the Orang Asli’s cross-appeal for exemplary damages. (The Selangor Government, Federal Government, UEM and MHA are asking for leave to appeal to the Federal Court.)
Court of Appeal judge Datuk Gopal Sri Ram, who read out the judgment, said the Aboriginal Peoples Act 1954, which was to “protect and uplift the First Peoples of this country”, was a human rights statute “acquiring a quasi-constitutional status giving it preeminence over ordinary legislation. It must, therefore, receive a broad and liberal interpretation”.
What Sri Ram and judges Datuk Arifin Zakaria and Datuk Nik Hashim Nik Abdul Rahman did was to look at the conflict between Section 12 of the 1954 Act, which says, “the State Authority may grant compensation therefor” and Article 13(2) of the Federal Constitution which states that, “no law shall provide for compulsory acquisition or use of property without adequate compensation”.
The Court of Appeal said the relevant section of the 1954 Act had to be brought into conformity with the Constitution. This was done, not by reading the words in Section 12 as giving the State Authority the discretion to grant compensation or not, but by reading it as, “State Authority shall grant adequate compensation therefor”
“Sri Ram’s view and the view of a number of human rights activists is that courts are free to construe statues as they think they should be construed,” says Malik Imtiaz Sarwar, deputy presidents of the National Human-Rights Society.
“All they have to do is look at the fundamental liberties in Part II of the Constitution and construe that broadly and dynamically.”
In a speech titled “Human Rights: Incorporating International Law into the Present System” at a LexisNexis conference in 2003, Sri Ram had explained that there were two ways to incorporate international law into Malaysia’s Constitutional law.
One way is through the “interpretive jurisdiction” of the courts.
“Courts may, through the interpretation of municipal law, in particular the Federal Constitutional, introduce principles of International human rights law into the domestic system.” the judge told the conference.
Sri Ram said there was “ample scope” for Malaysian courts to rely on international law principles and documents to develop the country’s human rights law. And the principal document, he said, was the Universal Declaration of Human Rights 1948.
Parliament passed the Human Rights Commission of Malaysia Act 1999 which says, in Section 4(4), that “regard shall be had to the Universal Declaration of Human Rights 1948 to the extent that is not inconsistent with the Federal Constitution”.
“Since we are a member of the United Nations, where the 1948 Declaration is not inconsistent with the Constitution, we must adopt it,” agrees Datuk Seri Nazri Aziz, chairman of the Parliamentary Caucus on Human Rights and Good Governance.
But, the Minister in the Prime Minister’s Department stresses: “The Constitution must prevail.” And legislation such as the Internal Security Act “must take precedence over whatever is provided for in the Universal Declaratiob of Human Rights”.
The Suhakam Act defines human rights as the basic or fundamental rights or liberties guaranteed in Part II of the Constitution.
“Courts are under a duty to take a prismatic approach when interpreting these human rights.” Sri Ram said, “On no account should a literal approach be adopted.”
He cited the example of freedom of speech, which would include not only the right to speak or print but also the right to distribute, the right to receive, the right to read and freedom of inquiry, freedom of thought and freedom to teach.
“When prismatically interpreted, the Part II liberties are entirely consistent with the terms of the 1948 Declaration,” the judge said.
Human rights activists say the recent Sagong Tasi case showed such a “prismatic” interpretation.
The judgment stressed the “fiduciary” duty of the Government towards the Orang Asli, noting that “the very authority – the state – that is enjoined by the law to protect the aborigines, turned upon them”.
“The landmark ruling was a long time coming,” says Dr Colin Nicholas, co-ordinator and founder of the Centre for Orang Asli Concerns and expert witness in the trial.
“There is enough in the law to recognise and give due respect to human rights, but the authorities and the people were abusing the legislation and reading it to suit their own interests.”
The activist says it will be easier to take up such cases in the future.
Malik Imtiaz says the Sagong Tasi case is an “amazing breakthrough in human rights jurisprudence”, not only for the principles involved but also for the procedural differences.
“Human rights is not just about the substantive norms but also the procedures by which you bring your case to court and how you bring it,” he says. “There are many little facets in that judgment which are quite stunning.”
For example, the general rule has been that hearsay evidence is not permissible. But oral tradition was all that the Orang Asli had to back their claims to the land.
The Shah Alam High Court recognised their oral testimony, he notes. “They gave weight to that evidence, which has never been done in this country before.”
Calling the decision a turning point, Malik Imtiaz says: It is now easier for us to mount an argument against the Government of the State or the Federation for breaches of duty or wrongdoing, through recognition of the role of the Government as trustee of the people.”
Claimants, he says, will not have such an uphill tasks in establishing the Government’s fiduciary duty.
“By recognition of the Government’s stand as a trustee, that duty is implied and it’s easier for easier for lawyers to take that up.”
NST Tuesday, September 20, 2005
Court affirms land belongs to Orang Asli
PUTRAJAYA, Mon. – The Court of Appeal today affirmed the decision of a lower court which declared that a 15.39ha plot in Kampung Bukit Tampoi, Dengkil, belonged to seven Orang Asli from the Temuan tribe.
Judge Datuk Gopal Sri Ram said the Orang Asli had ownership of the land under a customary community title of a permanent nature.
“The trial judge did not fall into any error when he held that the Orang Asli had rights to the land,” he said in his 59-page judgement.
Concurring with Sri Ram in the unanimous decision were Datuk Arifin Zakaria and Datuk Nik Hashim Nik Abdul Rahman. They have since been elevated to the Federal Court.
The land was acquired by the Government to build the Kuala Lumpur-Nilai highway in 1995.
The plaintiffs – Sagong Tasi, 73, Kachut Tunchit, 40, Dabat Chabat, 74, Kepal Kepong, 64, Sani Saken, 37, Ilas Senin, 42, and Tok Batin Tukas anak Siam, 54 – sued the Selangor Government, the Federal Government, the Malaysian Highway Authority (MHA) and United Engineers (M) Bhd for loss of their land and dwellings.
The four defendants appealed against the decision while the Orang Asli cross-appealed.
Sri Ram said the appellate court also agreed with the April 2002 ruling of the High Court in Shah Alam that the Orang Asli be compensated under the Land Acquisition Act 1960, which paid a higher amount, instead of the Aboriginal People’s Act 1954.
“The Aboriginal People’s Act deals only with claims which the Orang Asli may have for fruit or rubber trees. It has nothing to do with the deprivation of their customary land,” he said.
The appellate court also allowed the cross-appeal of the Orang Asli for exemplary damages, which the High Court did not order.
Sri Ram said the high-handed tactics were employed by MHA but it was fortunate the police were present to keep the peace.
He said the plaintiffs’ houses and meeting halls were forcibly demolished and they were asked to go and fend for themselves “in unkind weather”.
“Looking at the evidence in totality, I am satisfied that this is a proper case for an award for exemplary damages,” he said.
Sri Ram remarked that the incident was a sad case because of the treatment the Orang Asli received from the defendants, especially the State that was supposed to protect them.
Datuk Dr V.Cyrus Das, who appeared for the Orang Asli, said the decision was strong vindication of the land rights of the Orang Asli in the peninsula.
The Star WEDNESDAY 15 June 2005
Judgment reserved on native right to state land
PUTRAJAYA: The Court of Appeal reserved judgment on whether several members of the Temuan tribe have customary title to a 15.39ha plot of land in Kampung Bukit Tampoi, Dengkil.
This is an important point because we need to decide whether they (the orang asli) have customary title on state land, as this is a matter of government concern,” Justice Gopal Sri Ram, who headed a three man bench, said yesterday.
The Selangor government together with United Engineers (M) Bhd (UEM), Malaysian Highway Authority (MHA) and the Federal Government are appealing against the High Court decision on April 12, 2002, that the land that was acquired for the construction of Elite Highway in 1995 was customary and ancestral land occupied by that tribe for generations.
The Government and UEM took the case to the Court of Appeal before an assessment could be made on the amount the tribe should be given.
The Temuan tribe was represented by Sagong Tasi and seven others.
Earlier, Sagong’s counsel Datuk Dr Cyrus Das told the court that the Government should not deprive the orang asli of their rights as there was a global trench to award such rights to these people.
“Malaysia shold not be seen as taking a step behind,” he said, adding that countries like Australia and South Africa have recognised the rights of their indigenous people.
Senior Federal Counsel Datuk Abd Rahim Uda countered that the native land was not customary land as that privilege was only awarded to lands in Negeri Sembilan and Malacca.
He also said the Aboriginal Act was not written law that gave customary tenure to the orang asli.
UEM counsel Tan Sri Zaki Azmi said the High Court judge was wrong when he found that UEM and MHA had trespassed on orang asli land.
He argues that the Aboriginal Act was based on the premise that land belonged to the state, and the appellate court needed to only confine itself to this statute and the Federal Constitution.
Reports
NST 16 Feb 2006 – Sagong Tasi Breaks Grounds on Human Rights NST 20 Sept 2005 – Court Affirms Land Belongs to Orang Asli The Star 20 Sept 2005 – Orang Asli Win, As Judge Dismisses State’s Appeal The Star 15 Jun 2005 – Judgment Reserved on Native Right to State LandJudgements
19 Sept 2005