Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 MarsdenLR 2386

FEDERAL COURT PUTRAJAYA
BATO BAGI & ORS – Appellant
Versus
KERAJAAN NEGERI SARAWAK & ANOTHER APPEAL – Respondent
[Civil Appeal No: 01-4-2011(Q) & 01-5-2011(Q)]

Petitioner Advocates:Sulaiman Abdullah,Baru Bian ,Respondent Advocate: JC Fong,Marjanah Adenan

The extinguishment of native customary rights under the Sarawak Land Code is constitutional provided compensation is assured and there is no requirement for prior consultation with affected parties.

Headnote:(A) Sarawak Land Code - Sections 5(3) and (4) - Federal Constitution - Articles 5 and 13 - Extinguishment of native customary rights - Plaintiffs claimed extinguishment violated their rights, contending it was unconstitutional - High Court held that extinguishment was lawful and compensated as per law, and no requirement for prior consultation - Appeals dismissed. (Paras 18, 28, 45, 56, 64, 178)

(B) Constitutionality of Legislation - Discretion in extinguishing rights - Court emphasized that the extinguishment must be for public purposes - Guanrantee of compensation does not necessarily imply adequacy unless challenged - Failure to seek prior consultation deemed not illegal. (Paras 179, 180)

Table of Content
1. judge expressing opinion on appeal (Para 1)
2. native customary rights extinguished for project (Para 2 , 3)
3. claims of violation of constitution rights (Para 4 , 5)
4. challenges to the extinguishment of rights. (Para 6)
5. arguments for declaration and trial request (Para 7 , 8)
6. court's reasoning on public purpose (Para 9 , 10)
7. issue of compensation and lack of trial necessity (Para 11)
8. provisions of sarawak land code on rights (Para 12 , 13)
9. establishment of loss of livelihood (Para 14)
10. differences between appeals on land use (Para 15 , 16)
11. question of law regarding constitutionality (Para 17 , 18)
12. need for consideration of pre-acquisition hearing (Para 19)
13. compensation provisions and their implications (Para 20 , 21)
14. failure to provide guidelines for compensation (Para 22 , 23)
15. obligation to ensure rights are protected (Para 24)
16. global norms and domestic laws (Para 25)
17. right to return land after extinguishment (Para 26)
18. court's decision and dismissal of the appeal (Para 27 , 28)
19. constitutional investments and implications (Para 29)
20. reference to international norms (Para 30)
21. observations on existing practices (Para 31)
22. conclusion on the government’s duty (Para 32)
23. judiciary's role in protecting rights and norms (Para 33)
24. final appeal's dismissal and reasoning (Para 34)
25. right to seek judicial review and appeal procedure (Para 35 , 36)
26. reflections on the case and lessons learned (Para 37)
27. constitutionality of the sarawak land code. (Para 44 , 55 , 56 , 57)
28. impact of provisions on native customary rights. (Para 117 , 118 , 119 , 120)

[1] I have had the privilege of reading the judgments of my learned brothers Richard Malanjum CJSS and Raus Sharif FCJ. I shall not be repeating the facts and issues discussed by them in their respective judgments. I however like to add my opinion and express my decision in this appeal. Detailed facts can be found in their judgments as well as reported judgments in the Court of Appeal, Bato Bagi & Ors v. Government of the State of Sarawak, 2011 MarsdenLR 4760 , Jalang Paran & Anor v. Government Of The State Of Sarawak & Anor, 2010 MarsdenLR 3605 and in the High Court [2008] 2 MLRH 160, [2008] 6 CLJ 867 (for Bato Bagi) and [2007] 1 MLJ 412 (for Jalang). For my judgment, I am only reciting facts material to my grounds.

[2] Bato Bagi and six other plaintiffs in the Appeal No 01-4-2011(Q) are natives of Sarawak enjoying native customary rights over the lands which were needed for the Bakun dam. Their rights were extinguished by the State Government of Sarawak ("the government").

[3] Jalang anak Paran and Kampung anak Ameh in the Appeal No 01-5-2011(Q) are also natives enjoying customary rights over another land which was required for Pulpwood Mill. Their native customary rights over the land were also extinguished.

[4] They now claim that the extinguishment violated their rights under arts 5 and 13 of the Federal Constitution . Leave was granted on the question of whether the extinguishment contravened those articles and therefore void.

[5] Both these appeals were heard together although factually there were some variances. While Bato Bagi and his friends lands are now flooded for the Bakun dam, Jalang and his friends lands are until now not being utilized for the Pulpwood Mill. Another major distinction was that while Bato Bagi did not agree to facts, issues and documents, Jalang consented that his actions be dealt with by way of parties agreeing to facts, issues, bundle of documents and written submissions.

[6] Their cases at the High Court were decided pursuant to O 14A of the Rules of the High 1980. Appeals to the Court of Appeal were dismissed.

[7] Bato Bagi while seeking for a declaration that s 5(3) and (4) of Sarawak Land Code ("Code") are unconstitutional and therefore the extinguishment of their customary rights was invalid and void, pleaded for in the alternative adequate compensation and damages.

[8] Both Bato Bagi a

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2011 MarsdenLR 2386

FEDERAL COURT PUTRAJAYABATO BAGI & ORS – AppellantVersusKERAJAAN NEGERI SARAWAK & ANOTHER APPEAL – Respondent[Civil Appeal No: 01-4-2011(Q) & 01-5-2011(Q)]

The extinguishment of native customary rights under the Sarawak Land Code is constitutional provided compensation is assured and there is no requirement for prior consultation with affected parties.

Cases Referred (5)

FEDERAL COURT PUTRAJAYA
BATO BAGI & ORS – Appellant
Versus
KERAJAAN NEGERI SARAWAK & ANOTHER APPEAL – Respondent
[Civil Appeal No: 01-4-2011(Q) & 01-5-2011(Q)]