The extinguishment of native customary rights for public projects must comply with constitutional provisions of due process and compensation, while the necessity for prior consultation remains a contested issue.

Zaki Tun Azmi CJ:

(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) 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 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 art. 5 and 13 of the Federal Constitution . Leave was granted on the question of whether the extinguishment contravenes those articles and therefore void.

(5) Both these appeals were heard together although factually there are some variances. While Bato Bagi and his friends lands is now flooded for the Bakun dam, Jalang and his friends lands is until now not being utilized for the Pulpwood Mill. Another major distinction is 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 Court 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 and Jalang urge this court to remit the case back for a full trial with witnesses and evidence. They contend that it is necessary for the court to fully understand the facts before it can make a decision as to the unconstitutionality of the provisions. They say that the court must give them an opportunity to raise issues relating to, eg. their customs including their burial grounds, their ways of livelihood etc. They contend there should have been pre-acquisition or consultation hearing before extinguishment. They also allege that the survey was not properly done. They need these facts to prove their claim and the quantum of damages.

(9) During the course of argument, the appellants counsel admitted that the Government must be empowered to extinguish the rights over this land for public purposes and development. The High Court judges held that the acquisition were in fact for public purpose. David Wong J in Jalang held:

So the only reason for the extinguishment must be for the benefit of the State and public purpose. It is not disputed by counsel on both sides that there is no specific provision requiring the first defendant to disclose the purpose of extinguishment which in my view is un