The three-member panel of judges led by outgoing Chief Justice Zaki Azmi, chief judge of Sabah and Sarawak Richad Malanjum and Federal Court Judge Md Raus Sharif made a unanimous decision to dismiss the case, brought by Bato Bagi and five others.
Bato, along with five others, are suing the state government over the loss of their lands to the Bakun dam project.
This is also Justice Zaki's last judgment. He steps down on Monday, after reaching the retirement age of 66.
The decision by Chief Justice Zaki Azmi (left) and the Chief Judge of Sabah and Sarawak Richard Malanjum, both of whom refused to answer the question, was to let other pending cases deal with the issue.The other Federal Court judge, Justice Md Raus Sharif, answered the question in the negative, and said the seizure was not unconstitutional.
However, all three judges unanimously decided to dispose of lawyer Baru Bian's appeal following the land seizure in Bakun by the state government 14 years ago to build the multi-billion ringgit dam and a wood pulp mill.
The question posed before the court was “whether section 5(3) and (4) of the Sarawak Land Code relating to the extinguishment of native customary rights are ultra vires of Article 5 (right to life) and Article 13 (right to property) of the federal constitution.”
Zaki in his 15-page judgment, which was the last to be read out, said there seems to possibly be other grounds for challenging the unconstitutionality of section 5(3) and (4) of the Code.
Unfortunately, he said as pointed by Justice Malanjum these were not raised or properly canvassed before the court.
“A lengthy part of the submission was for the case to be reverted to the High Court for a full trial, which for reasons mentioned I do not find it proper to do so. I will therefore have to decide the question based on the arguments put before us.
“Based on those arguments and after having read the grounds of the other two judgments I would associate with the Chief Judge of Sabah and Sarawak and find I do not need to answer the question,” he said, adding the court unanimously made no orders as to cost here and below.
Following this, Zaki ruled in dismissing the appeal and upholding the orders by the two courts ie the Sarawak High Court and Court of Appeal below.
The Chief Justice, noted before the start in delivering the decision that this was one of the most difficult verdicts he had to make in his three years' tenure as the top judge in the country.
Normally the Federal Court being the highest court in the land can determine on constitutional interpretation, but it chose not to due to arguments that there is not much before them to decide.
'Bring it to arbitration'
Zaki noted that while parties are not satisfied with the amount of compensation, the matter should have been brought to arbitration.
“In my opinion during that arbitration they could have raised all the issues regarding loss of their farms, burial grounds and other matters affecting their livelihood. There is no need for this case to be sent back for trial.
“To me that wold be unnecessary waste of money and time. Bato Bagi has accepted the compensation without referring it to arbitration. How could he now come before us to review the compensation or the extinguishment of the natives rights itself?,” the parting Chief justice said in his final judgment.
Justice Malanjum, in his 37-page detailed judgment, wrote he was of the view the court was not fully assisted although the question posed was staring at the parties.
“There was no discussion on whether the courts below were correct in their approaches in construing the relevant provisions of the constitution or whether they adopted the right test in considering the constitutionality of the impugned sections.”
Not mere existence
The Chief Judge of Sabah and Sarawak noted that the expression of life in Article 5 (1) does not refer to mere existence.
It, he said, incorporates all those facets that are an integral part of the life itself and those matters which go to form the quality of life.
“Of these are the right to seek and be engaged in lawful and gainful employment and to receive those benefits that our society has to offer to its members. It includes the right to live in a reasonably healthy and pollution free environment.
“If indeed extinguishment of their native customary rights has an adverse effect on the livelihood of the natives in the same way as dismissal has on the livelihood of a gainfully employed person... then it is only fair in my view that before any extinguishments direction is issued the holders of native customary rights should be given the opportunity to present their case,” he said.
Malanjum said this is essential justice and procedural fairness which a public decision-maker should ensure as having been meted out.
Justice Raus in holding sections 5 (3) and (4) of the Sarawak Land Code as constitutional said he was always guided by the principle that when the court is faced with the issue of constitutionality of a provision or statute, the court should be slow in striking down the impugned provision for being unconstitutional.
“The approach of the court while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality. The court should try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain,” Raus cited former Federal Court judge Gopal Sri Ram.
Background of the suit
Bato Bagi, five longhouse residents of Uma Balui Ukap at Batu Kalo, Uma Lesong at Batu Keling, Uma Bakah at Long Bulan, Rumah Kulit at Long Jawe and Rumah Ukit at Long Ayak on June 23, 1997, claimed native customary rights over lands along Batang Balui and its tributaries in the Belaga District of Kapit division. Other claimants, Jalang anak Paran and Kamong Anak Amih, had their lands taken for the Borneo Pulp and Paper Sdn Bhd.
They were ordered to vacate the land and surrender their native customary rights for the construction of the dam.
The indigenous people wanted the order to be declared void on the grounds that:
- The directive violated the plaintiffs' fundamental rights under Articles 5(1) of the federal constitution, and/or Article 8 of the federal constitution and/or Art. 13(2) of the federal constitution;
- The directive was in violation of Article 39(1) and (2) of the constitution of the state of Sarawak and/or Article 153 of the federal constitution; and
- The directive was made pursuant to sections 5(3) and (4) of the Sarawak Land Code, which are void and unconstitutional as being in violation of Article 5(1) of the federal donstitution and/or Article 8 of the federal constitution and/or Article 39(1) and (2) of the constitution of the state of Sarawak and/or Article 153 of the federal constitution.
Bato has since passed away.
Disappointment at decision
Counsel for the natives Baru Bian expressed disappointment at the apex court not allowing the appeal but rejoiced that there is an opportunity for the issue to be brought up again in other cases.
“There are many similar cases affecting NCR land which had been seized by the Sarawak government without considering the livelihood of the people. This cases will be coming up and it gives us another bite to challenge the constitutionality of the land grab,” Baru (left in photo) said.
Sahabat Alam Malaysia representative Mohideen Abdul Kadeer also expressed disappointment at the court not wanting to interpret the question.
He said the case took 10 years for it to come to the Federal Court, and it missed a golden opportunity to put such matter at rest and resolve other pending NCR land cases.
“Our concern is not only the livelihood of the person affected but also the ecological impact of such projects which would affect climate change,” he said.
Before the start of the case Baru led prayers in Bahasa Malaysia for a positive ruling in court but this was not to be.
The question posed before the court was "whether section 5(3) and (4) of the Sarawak Land Code relating to the extinguishment of native customary rights are ultra vires Article 5 (Right to life) and Article 13 (right to property) of the Federal Constitution."
Islamic International University professor Abdul Aziz Bari said by refusing to deal with the constitutionality issue, the Federal court has abdicated its duty.
"Under the Federal Constitution, the Federal Court which is the highest court of the land is essentially the constitutional court of the country; the main tribunal whose major duty is to take care of the constitution," he said.
Abdul Aziz (left) pointed out that their refusal meant that they had failed to fulfill their oath when taking office by saying "I will faithfully discharge my judicial duties in that office to the best ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its constitution."The don added that the court is the custodian of justice, so the judges have let the citizens down for the constitution is the supreme law of the land, one that protects them from arbitrariness whether in the form of laws passed by the legislature or through executive decisions.
"It is the duty of the judiciary to declare the rights of the citizens, being custodial of justice," he said
Abdul Aziz said from the law standpoint when the decision is not decided unanimously, then there is a loophole.
“Since there is only one judge who made a ruling (on the constitutional question) on it, this case cannot be a strong authority.
“In any case, one wonders why the two did not make up their mind? Is it a case of just wanting to let go this one and later the court can take a more restrictive approach?” he asked, adding that the bottom line is the same; that the land grab is now deemed legal and the citizens have lost.
The law expert said the right to property is guaranteed by the constitution under Article 13 of the supreme law of the nation.
“There seems to be a kind of politics or manoeuvring here,” observed Abdul Aziz.
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