76 Chapter 5 | JUDICIAL DEVELOPMENT Nangkai & Ors v. Lembaga Pembangunan Dan Lindungan Tanah & Ors,231 where Justice Albert Linton (now Judge of Court of Appeal) said that such agreement (Principal Deed) had been ‘cleverly devised with legal mechanism and legalistic language which are mere fig leaves too scanty to conceal their violations of Articles 5 and 13 of the Constitution’. In His Lordship’s opinion, ‘the sum total of the rights of the landowners, to put it crudely, and for want of a better word, is zero. They have been deprived of their native customary rights land, which is a source of their livelihood and lost the rights to their property, which are violations of Articles 5 and 13 of the Constitution’. 5.34 Further discussions on loss of livelihood and extinguishment of NCR were the subject matter of Bato Bagi v Sarawak State Government and Jalang Paran v Government of Sarawak. The case raised the issue of whether extinguishment of NCR is ultra vires Article 5, read together with Article 13 of the Federal Constitution. The appellants contended that extinguishment of their rights pursuant to section 5(3) of Sarawak Land Code was void as it violated their constitutional rights to life and livelihood (Article 5), equality (Article 8) and property (Article 13). Alternatively, they claimed adequate compensation having regard to their inextricable link to customary lands. The court at first instance and the Court of Appeal held that the extinguishment was done in a proper manner. The appeal to the Federal Court was dismissed. Raus Shariff FCJ agreed wholly with the courts below, but both Zaki CJ and Malanjum CJSS declined to answer the question saying that the court could do so “when it is fully ventilated instead of being made just a side issue”. 5.35 Malanjum CJSS gave some pointers for the courts in dealing with sections 5(3) and (4) of the Sarawak Land Code. He said “the courts below should have been put on guard as to the adverse effect of the impugned sections to the livelihood and the very existence of the natives”. As to right to life under Article 5, “it does not refer to mere existence but incorporates all those facets of life which go to form the quality of life including their right to be gainfully employed.” ORANG ASLI LAND RIGHTS IN PENINSULAR MALAYSIA 5.36 One of the earliest cases on Orang Asli rights was the case of Koperasi Kijang Mas & 3 Ors v Kerajaan Negeri Perak.232 In that case, the State Government of Perak gave a concession to Syarikat Samudera Budi Sdn Bhd (the company) to log certain areas which included lands previously approved by the State Government as Aboriginal Reserves, for the regroupment schemes of RPS Sungei Banun and RPS Pos Legap.233 The High Court in Ipoh held that the State had breached the Aboriginal Peoples Act, 1954 (revised 1974) (APA). 5.37 The company had no rights to carry on logging activities in those reserves and that only the Orang Asli as defined in the APA had the right to do so. The fact that the lands had yet to be gazetted did not preclude the Orang Asli from exclusive rights to forest products in those areas. The judge opined that gazettement was not a mandatory requirement. The crucial factor was the approval by the State Government that those areas were to be declared as aboriginal reserves. 231 [2011] 1 LNS 145 232 [1991] CLJ 486 233 RPS is the Malay acronym for Rancangan Pengumpulan Semula which is a regroupment settlement scheme aimed at alleviation of Orang Asli poverty. chapter 5_a4.indd 76 7/5/13 6:47 PM