Following this verdict, a three-member bench chaired by judge Lau Bee Lan struck out the suit filed by Putrajaya in early 2019.
Lau said even though Putrajaya had the fiduciary duty under the Federal Constitution, it did not confer it the right to institute the action on behalf of the Orang Asli.
“This subject matter does not fall under Article 128(1)(b) of the constitution,” she said in allowing an appeal by the PAS-led state government against an August 2019 High Court ruling.
Lau, who sat with P Ravinthran and Mohd Sofian Abdul Razak, however, said the Orang Asli could file an action against the state in their personal capacity.
Lawyer Khoo Guan Huat, who appeared for the state, submitted before the bench on April 23 that both governments had a common fiduciary duty under the law to protect the indigenous people.
Khoo said the rights of both sovereign states were enshrined in the constitution and the Aboriginal Peoples Act 1954.
He said Putrajaya was relying on equality and equal protection of the law to bring the action on behalf of the Orang Asli.
“However, nothing is mentioned in the statement of claim about how the federal government is adversely affected,” he said.
Khoo also submitted that should the Court of Appeal rule that the federal government had legal standing, then the suit would be a dispute between two states, and head straight to the Federal Court.
“Under our constitution, only the apex court has the jurisdiction to hear such matters, as stated under Article 128,” he said.
Ad hoc federal counsel Gurdial Singh Nijar said Putrajaya filed the suit as the state had breached its responsibility to a group of settlers in Gua Musang.
“The state and its agencies issued licences to private companies to trespass into the ancestral land of the Orang Asli,” he said, adding that Putrajaya came in as trustee of the natives to proactively commence action.
Apart from the Kelantan government, the director of lands and mines, and director of the state Forestry Department were named as defendants.
Others were Fleet Precision Sdn Bhd, Koperasi Kijang Mas Negeri Kelantan Bhd, KPG Maju Enterprise Sdn Bhd, Ringgit Saksama (M) Sdn Bhd and M7 Plantation Bhd.
Gurdial said the High Court had jurisdiction to hear the dispute as it was purely a commercial case.
The Kelantan government and its agencies had granted logging licences to private companies, allowing them to enter the native land of the Temiar Orang Asli in Pos Simpor.
Vast areas of forest were reportedly cleared to make way for durian and rubber tree plantations.
In its statement of claim, Putrajaya said this had deprived the Temiar Orang Asli of their native land and resources and caused widespread erosion, pollution and irreparable damage to the ecology and landscape of Pos Simpor.
Lawyer G Ragumaren, who was given a special licence to represent Putrajaya together with Nijar, said he would await instruction from the Attorney-General’s Chambers (AGC) on whether to file an appeal.
“The Court of Appeal has taken a narrow interpretation of the constitution,” he told FMT, adding that the AGC had 30 days to make a decision.
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