The Malaysian United Democratic Alliance (Muda) wants the Perikatan Nasional government to explain the attorney-general’s decision to drop the case filed by the then Pakatan Harapan administration in 2019 against the Kelantan government on behalf of the Temiar Orang Asli tribe.
“The case filed by the Harapan government is historic as it is the first time the federal government has sued on behalf of the aborigines in its capacity as the protector of the underprivileged communities in Malaysia (parens patriae).
“In this case, the Kelantan government allegedly licensed a private company to carry out logging activities on the Temiar Orang Asli’s, which directly caused them to lose customary land and become victims of environmental pollution,” said Muda vice-president Lim Wei Jiet in a statement.
In legal principle, parens patriae refers to the power of the state to intervene against a negligent or abusive parent, legal guardian or caretaker, and to act as the parent of the individual, child, or animal in need of protection.
The three-person Court of Appeal bench chaired by judge Lau Bee Lan had ruled that the federal government has no locus standi (legal standing) to be the plaintiff in the suit initially filed at a High Court in Kelantan.
She noted that there is no provision in the Federal Constitution that allows the federal government to institute legal action on behalf of aboriginal peoples.
However, the judge pointed out that the Temiar Orang Asli are not precluded from directly instituting their own legal action over the issue, being the direct plaintiffs.
Lim said the federal government could have filed for leave to appeal to the Federal Court within a month.
“So the question is, why did the PN government not do so and closed the case instead? Especially when the case raises a question of public interest law that has never been determined by the Federal Court.
“Is it because PAS, which leads the Kelantan state government, is now in line with the PN federal government?” asked Lim
He said the development was very unfortunate.
“The message sent by the PN government is that it does not care about the issue of Orang Asli customary land encroachment, which is becoming more widespread due to greedy logging in Malaysia, especially in Kelantan.
“It also sends a message that the PN government underestimates the issue of environmental pollution in Malaysia.
“Muda recommends that the attorney-general and the PN government continue this case by filing an appeal to the Federal Court immediately, so that the rights of Orang Asli and Orang Asal in Malaysia can continue to be defended,” he added.
This decision followed the Kelantan government’s earlier successful appeal for the Court of Appeal to strike out the federal government’s suit over purported encroachment into the Temiar’s customary land in Pos Simpor, Gua Musang.
Counsel Gurdial Singh Nijar, who represented the federal government in the suit, confirmed that the government is not pursuing the appeal before the Federal Court.
On Aug 20, 2019, the Kota Bharu High Court jhad earlier denied the Kelantan government's bid to strike out the lawsuit, when it ruled that the court has the jurisdiction to hear the legal action that targeted the PAS-led state government. The state administration then appealed to the Court of Appeal.
Earlier on Jan 18 that same year during the previous Pakatan Harapan administration, then attorney-general Tommy Thomas announced that the federal government filed the legal action to safeguard the welfare of the Orang Asli, who protested against the encroachment of their customary land.
Thomas had contended that the Kelantan government and its agencies granted logging rights in Gua Musang to private companies without consulting the Temiar community or offering them compensation.
The federal government’s suit, which was filed at the Kota Bharu High Court, named the Kelantan government, the state director of the Lands and Mines Department, the state director of the Forestry Department and five private entities, as defendants.
It had sought legal recognition of the Temiar community’s native land rights in Pos Simpor, and injunctions to prevent private entities from encroaching on and destroying native land for commercial profit.
The Temiar Orang Asli have been fighting loggers for years, setting up blockades, which would be demolished by state government officers or those working for private companies.
Besides loggers, a more recent threat to their lands has been durian plantations.