The extinguishment of native customary rights for public purposes is not unconstitutional, provided adequate compensation mechanisms are available as per the Sarawak Land Code and the Federal Constitution.

ZAKI TUN AZMI CJ

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 Jalanq Paran & Anor v Government Of The State Of Sarawak & Anor

Bato Bagi and six other plaintiffs in the Appeal 01-4-2011(0) 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").

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.

They now claim that the extinguishment violated their rights under article 5 and 13of the Federal Constitution . Leave was granted on the question of whether the extinguishment contravenes those Articles and therefore void.

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.

Their cases at the High Court were decided pursuant to order 14A of the Rules of the High Court 1980 . Appeals to the Court of Appeal were dismissed.

Bato Bagi while seeking for a declaration that section 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.

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.

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 understandable as there can be only one purpose for extinguishment which is public purpose. Be that as it may, one can and should imply from the above sections that the Minister is under a duty to disclose the reason of extinguishment and failure to do so would be a breach of a statutory duty on the part of the Minister"

The Appellants' counsel gravamen is that the Government should have consulted the natives so that the natives would be able to air their views, eg. instead of extinguishing their rights over a certain area the Government may, after hearing their views decide to acquire another area.

Speaking about compensation many of the natives who