Case Study – A Brief Overview Of Kong Chee Wai & Satu Lagi v Pengarah Tanah Dan Galian Perak & Yang Lain dan Satu Lagi Kes

Brief facts of the case

Chee Wai and the rest of the plaintiffs in this case (totaling 143 of them including Chee Wai) are a group of orang asli from the Semai tribe from Kampung Kuala Senta, Perak. The defendants, in this case, are the Land Office of Perak, Perak State Government, and Bionest Corporation Sdn Bhd. 

Briefly, Perak State Government entered into an agreement with Bionest in which the Perak State Government agreed to give a piece of land belonging to the plaintiffs to Bionest. Bionest will convert the land into a spirulina farm. The plaintiffs obviously disagreed and protested (as they claim it was part and parcel of their native customary land), which culminated in Bionest filing a suit in the court ordering the plaintiffs to vacate the piece of land. The plaintiffs reciprocated and similarly filed a suit against Bionest, claiming the land that was given to Bionest was part and parcel of their native customary land which they have been using for the past 200 years.

The parties contention

1) Plaintiffs’ contention

The plaintiffs contended that (amongst many others) the Perak State Government has recognized them as the original settlers in Kampung Kuala Senta. To top it off:

1. A lot of facilities, infrastructures, and basic necessities were built to assist with the living conditions of the plaintiffs in the kampung; and
2. The Department of Orang Asli Development (Jabatan Kebajikan Orang Asli, or ‘JAKOA’ for short) has even applied (on two occasions) to the Perak Land Office to gazette the said land as an orang asli reserve land. However, the application was ignored by the Perak Land Office and the Perak State Government.

Essentially, they are claiming that their rights (also known as native customary rights) under the common law triumph to that of the legal rights (derived from written law) that Bionest had obtained from the Perak State Government.

2) Bionest contention 

On the other hand, Bionest contended that the plaintiffs’ claims and rights are founded upon common law. In this regard: 

1. Even though common law is recognized in Malaysia, its application is limited by law; and
2. In the event where there are common laws that are inconsistent with written laws (as in this case where Bionest obtain rights to the land via written law), the written laws shall prevail.

Essentially, Bionest’s contention is this: common law rights under common law cannot triumph that of legal rights granted by written law.

The court’s decision and rationale

The court sided with the plaintiffs. In coming to its decision, the court relied upon the case of Superintendent of Land & Surveys Miri Division & Anor v Madeli Salleh which states that:

“The Court of Appeal in Superintendent of Lands & Surveys, Bintulu v. Nor Anak Nyawai & Ors and Another Appeal [2006] 1 MLJ 256 endorsed the view of the learned Judge in relation to native customary rights in that the common law respects the pre-existence of rights under native laws or customs though such rights may be taken away by clear and unambiguous words in legislation. By the common law, the Court Appeal must be referring to the English common law as applicable to Sarawak by virtue of s. 3(1)(c) of the Civil Law Act 1956. In this regard, it should be emphasized that the common law is not mere precedence for the purposes of making a judicial decision. It is a substantive law that has the same force and effect as written law. It comes within the term of ‘existing law’ under art. 162 of the Federal Constitution…With respect, we are of the view that the proposition of law as enunciated in these two cases reflected the common law position with regard to native titles throughout the Commonwealth. And it was held by Brennan J, Mason CJ, and McHugh J, concurring, in Mabo (No 2) that by the common law, the Crown may acquire a radical title or ultimate title to the land but the Crown did not thereby acquire absolute beneficial ownership of the land. The Crown’s right or interest is subject to any native rights over such land…”

What the court meant is this: the common laws in relation to the rights of an orang asli in this country have since been recognized as a substantive law that has the same status and effect as a written law. Bionest could not, therefore, claim otherwise.

There you have it, hopefully, you have learned something today.

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