Malaysia: Court adjourns Appeal but gives an ‘opinion’

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    The Court of Appeal sat today (12 October 2017) to hear the appeal of the State and Federal governments against the decision of the Johor Bahru High Court recognizing that the Jakun-Orang Asli had customary rights to 15,000 acres, part of which was in the Endau-Rompin National Park.

    The High Court decision also ruled that the eviction notice served on them earlier – which prompted the Orang Asli to file the case – was clearly ‘flawed and defective’ in law.

    Two busloads of villagers from Kampung Peta, a 7-hour journey away, were joined by Orang Asli supporters from other states and ethnic groups who came to show their support. It being a weekend in Johor, many parents brought their children along.

    Many of the Orang Asli however were not able to enter the court room due to lack of seats in the public gallery.

    The hearing proper began at 10.20 am. The panel of judges, or corum, comprised Justice Ummi Kathum (chair), J. Vernon Ong and J. Zaleha Yusof.

    At the start of the proceedings, the chair of the corum announced that one of the judges, Justice Vernon Ong, was feeling unwell and indicated that the hearing today needed to be adjourned. However, she allowed for some very brief preliminary comments from lawyers on both sides.

    Following the preliminary comments from the lawyers, the chairman of the corum, Justice Ummi Kalthum, chose to give some remarks which bordered on giving an opinion on the case which she has yet to hear.

    The late Mr. Rajkumar (at left) discussing the extent of the Jakun’s customary territories with the late Batin Sangka in Mr. Rajkumar’s office prior to the filing of the case in the High Court in 2013.

    For one, she referred to a fact of the case – on the eviction notice that prompted the Orang Asli to file the Judicial Review action – and asked whether the notice was directed at any one at all?

    She also questioned whether the High Court judge was right in ordering the gazettal of the Orang Asli customary area without knowing its exact boundary?

    The panel chair also expressed concern that she was ‘uncomfortable’ with the case, insofar as to whether a Judicial Review, and not a Writ of Summons, was the correct procedural action that the Orang Asli plaintiffs should have taken.

    The panel chair also urged the parties to try to seek a settlement, or come to some understanding, so that both parties do not lose out.

    Uneasy

    To those in the audience, it was uneasy to see a learned judge make such comments which exposes her position on the case before her, even before the panel had heard the merits of the case.

    Towards the end, the panel chairman mentioned that Justice Vernon Ong was recusing himself as he had been a party to an earlier matter in this case.

    The panel chair also agreed to record the names of other judges who had been involved in this case, and who should not, rightfully, be hearing this appeal as well.

    The court then set 23 November 2017 to be the next hearing date. It should be noted however that this would be the 3rd adjournment for this appeal.

    The Orang Asli were represented by the pro bono legal team from the Malaysian Bar Council comprising Steven Thiru, Dr. Yogeswaran and Savreena Kaur. Steven’s pupil, Muhammad Zarqali, assisted. The late M. Rajkumar was the lead solicitor at the High Court stage and the earlier Court of Appeal proceedings.

    The State and Federal Governments were represented by the Assistant State Legal Adviser Abdul Malik bin Ayob and the legal firm of Skrine & Co. (represented by Khoo Guan Huat and Tan Huoi Wen).

    [Photos by Colin Nicholas, Herry Kok, Lili Li, Mohjoey Moriol]

    COAC | 12 October 2017