Challenging land acquisition
26/6/2005
NST-PROP
By Salleh
Buang
A little over three years ago - on April 12, 2002 to be exact - the High
Court sitting in Shah Alam, Selangor, delivered its verdict in the landmark
land acquisition dispute between Sagong Tasi & 6 Ors vs Kerajaan Negeri
Selangor & 3 Ors (2002, 2 AMR 2028).
The judgment was in favour of the seven plaintiffs. Trial judge Datuk Mohd
Noor Ahmad held that the plaintiffs were entitled to be adequately
compensated for their customary land, compulsorily taken by the defendants
to build the highway linking the federal capital with the KL International
Airport (KLIA).
Unhappy, the four defendants appealed against that decision and on June 13
this year, the Court of Appeal began hearing it. Lawyers acting for both
sides made their submissions on points of law and at the end, the court
reserved its judgment.
For Sagong and his fellow villagers, this means more waiting. First, there
was the inevitable waiting for the case to be heard and finally disposed of
at the trial stage. Then, they had to wait for the Court of Appeal to hear
the appeal. Now, they are waiting again until this superior court makes up
its mind.
And what will happen if the court finds for the respondents and dismisses
the appeal by the Selangor Government? Probably, another round of appeal,
this time to the Federal Court.
In view of the nature of the case, it is likely that leave to appeal to the
Federal Court will be granted. So, despite having won their battle in 2002,
Sagong and his friends may have to wait even longer.
Yes, winning their battle the first time around does not, in our legal
system, guarantee that they will win the war in the end. That, of course, is
the essence of the adversarial system we practise, having inherited it from
Westminster. Nothing is certain until the final appeal process up the
judicial ladder has been disposed of.
It is the personal opinion of close friends and senior lawyers in the Klang
Valley that ultimately, Sagong will win the case. They base this on an
earlier landmark decision of the Court of Appeal also involving the Orang
Asli community - the matter of Kerajaan Negeri Johor & Anor vs Adong bin
Kuwau & Ors (1998, 2 AMR 1233).
That, of course, is just an opinion. We have to remember that the courts do
not make their decisions based on popular opinion, one way or the other.
Those who have been following this case since the beginning, and the appeal
last week, would certainly still remember the facts of the present dispute.
But let me briefly recapitulate it for the sake of those who are in the
dark.
The seven plaintiffs - Sagong and the six others - are members of the Temuan
tribe. The first defendant, the Selangor State Government, evicted them and
their families from their land in Kampung Bukit Tampoi in Dengkil, Selangor.
The second defendant is the contractor building the highway. The third
defendant is the Malaysian Highway Authority, while the fourth is the
Federal Government. The Sepang District Office executed the land acquisition
exercise.
The plaintiffs claimed adequate compensation on the basis that the land they
had been occupying for the last two centuries was customary land. They also
claimed damages for illegal eviction from the first defendant, damages for
trespass from the second and third defendants and special damages. The
defendants refused to pay, apart from a small amount for damage caused to
the plaintiffs’ houses and crops on the grounds that the land was, in fact,
State land.
There were several complex legal issues that the trial judge had to consider
and determine. Among them were whether:
-
The land is customary and ancestral land that had been occupied by the
plaintiffs for several generations;
-
The plaintiffs had any proprietary interest in the land under common law;
-
The plaintiffs’ rights under common law and the Aboriginal Peoples Act
1954 are complementary to each other;
-
The plaintiffs’ rights under common law and the 1954 Act are protected
under Article 13 of the Federal Constitution;
-
Compensation paid to the plaintiffs under the 1954 Act was inadequate
within the meaning of Article 13(2) of the Federal Constitution, thus
rendering the deprivation of the land unlawful; and
-
The plaintiffs must be compensated under the Land Acquisition Act 1960.
In his decision, the learned trial judge cited the 1998 Court of Appeal
judgment in the Adong case and said that common law recognises “a form of
native title which reflects the entitlement of the aboriginal people, in
accordance with their laws and customs, to their traditional lands”.
This native right includes “the right to move freely about their land,
without any form of disturbance or interference and also to live from the
produce of the land itself, but not to the land itself …”
Mohd Noor (J) also said that the earlier decision in the Adong case “was
influenced by the persuasive authority” of several landmark decisions from
other Commonwealth countries - such as Canada (the Calder Case) and
Australia (the Mabo No. 2 case)
On page 2,063 of the published judgment, the trial judge categorically
stated: “I follow the Adong case.”
In this case, he added, the Court of Appeal held that the 1954 Act does not
extinguish the rights enjoyed by aboriginal people under common law.
The judge concluded that the plaintiffs’ rights under common law and the
1954 Act are proprietary rights protected under Article 13 of the Federal
Constitution, and that compensation paid to them under the 1954 Act is not
adequate within the meaning of Article 13(2).
That being so, he added, the deprivation of their land was unlawful.
Consequently, the plaintiffs must be compensated under the Land Acquisition
Act 1960.
In the course of the appeal in Putrajaya last week, counsel for the
appellants Datuk Abdul Rahim Uda submitted that the respondents had been
over-compensated by the Shah Alam High Court.
He argued that the respondents were only entitled to compensation provided
under the 1954 Act, and not under the Land Acquisition Act 1960.
“The plaintiffs should not be paid more than what they lost,” he said.
Arguing on behalf of the respondents, lawyer Datuk Dr Cyrus Das said the
High Court in Shah Alam had handed down a correct decision, and urged the
Court of Appeal to uphold it.
The appellants, he said, had treated the respondents shabbily when they were
evicted from their land. They were only given 14 days to vacate the land
that they had been occupying for more than 200 years.
“There was harsh and oppressive conduct by the defendants in this case,” Das
said.
Let us hope that Sagong and friends will not have to wait too long before
the final verdict is in. He is now 73 years old, and time, at least for him,
is running out.
