2010 MarsdenLR 2949

LOW HOP BING, SYED AHMAD HELMY, MOHAMAD APANDI ALI
JALANG PARAN & ANOR – Appellant
Versus
GOVERNMENT OF THE STATE OF SARAWAK & ANOR – Respondent

Native customary rights in Sarawak can be extinguished under law with adequate compensation, and procedural challenges must be pursued through judicial review under the appropriate public law framework.

Headnote:(A) Land Code of Sarawak - Section 5(3) and (4) - Federal Constitution - Articles 5(1), 8, 13(2), 153, and Sarawak State Constitution - Article 39 - Native customary rights - Plaintiffs challenge the extinguishment of their rights deemed unlawful and unconstitutional - The trial judge upheld the validity of the Ministerial Direction, stating it does not contravene the Federal Constitution. (Paras 2, 20, 23, 25)

(B) Public Law - The court held that challenges to ministerial directions regarding native rights must proceed under judicial review - Native customary rights are not merely property rights but integral to the plaintiffs' existence and lifestyle. (Paras 10, 12, 36, 38)

(C) Procedural Fairness - The court ruled that pre-acquisition hearings are not mandated by law concerning the extinguishment of native rights, affirming that such rights can be extinguished by lawful acts. (Paras 28, 30, 31)

Facts of the case:
The plaintiffs sought declaratory relief against the government for extinguishing their native customary rights via a ministerial direction, arguing it was unconstitutional and violated their fundamental rights to life.

Findings of Court:
The trial judge's ruling that the ministerial direction is valid and the challenge must proceed as judicial review is affirmed by the appellate court.

Issues: The main issues include the validity of the ministerial direction, the requirement for procedural review, and the extent of native rights.

Ratio Decidendi: The court reasoned that native customary rights, although significant, can be extinguished under law with compensation, and procedural fairness is not guaranteed prior to such acts.

Result: Appeal dismissed.