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Culture Documents
AG of HK v Ng.
3.
From the Constitutional Perspective:
analyses
Lah Anyies case:
Appeal)
NCR Rights
Denied
Case
(Court of
Sadly, the Malaysian Court of Appeal held that the doctrine of legitimate
expectation cannot create a right when such right does not exist. Here the
Sarawak Land Code was used to deny NCR claim. But it must be
remembered that in Sagong Tasi, the Court of Appeal enhanced the rights
of the natives as contained in the Aborgines Peoples Act 1954 (APA 1954). It is
therefore argued that the stance of the Court of Appeal on legitimate
expectation of the natives was perverse. This is because the earlier NCR
cases have placed NCR on a high and constitutional pedestal by using
common law and statutes and the constitutional provisions.
Bancolts case
Sadly the hopes and rights of the Chagosian islanders had been frustrated by
the House of Lords decision by using the antiquated and oppressive doctrine
of royal prerogative had been used to subvert their rights. The appeal to
the UCHR also failed on contractual ground. It is doubtful if the arbitration
case before UNCLOS will have any chance of success.
It is strongly argued that this case needs to be reconsidered and re-opened
in the UK courts by using the doctrine of fundamental rights at common law
where the most anxious scrutiny test applies and the doctrine of legitimate
expectation which springs from the fundamental right to life at common law.
It is submitted the doctrine of res judicata does not apply here. This because
new and serious points or questions of law will be looked into in the revisited
case.
Laker Airways
Lord Denning in Laker Airways case prevented the doctrine of Royal
Prerogative from being abused to subvert and revoke the aviation license
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outside their settled village where they forage, fish and hunt in that area is
deemed to be part of the NCR. The fact that the Government has refused to
gazette the said land as part of aboriginal area or reserved does not matter
in law. The Court of Appeal in Sagong Tasi & Ors also held that the State
Authority owes a fidiuciary duty to protect the right of the natives.
4.3
Mohamad bin Nohing (Batin Kampung Bukit Rok)
(High Court)
The High Court held that even FELCRA cannot override the rights of the
natives. Not by using Malay Reservation either. Any alienation (of the
land) after the period when the right first accrued to the natives was illegal
and could be regarded as an unlawful encroachment.
4.5.1
6.
Citizens versus Government:
Is poverty or
vulnerability is right or disadvantage or weakness that
can be
taken advantage of or exploited by an
unscrupulous public authority or the rich and the
powerful crony of the Executive acting in cahoots with
the public authority?
Under a written Constitution guaranteeing fundamental rights particularly in
the case of positive rights constitutions (South Africa) or where the
constitutions guarantee social economic rights (India), it is possible to argue
that vulnerability is a fundamental right. It is not a weakness or disadvantage
that can be taken advantage of by the government or any of its
administrative agency. The government is also under a positive or fiduciary
duty to protect the poor, the weak and the ignorant from being exploited by
the rich and the powerful in the society. This is based on the ruling of the
Court of Appeal in Sagong Tasi & Ors.
PIL/SAL is automatically part of the pubic law jurisprudence in India
(Vishakas case) and South Africa (Grootbooms case).
Judicial creativity and strong civil society movement are needed to pressure
the government into accepting this kind of pro-poor policy.
12. Conclusion
The time has come for our laws, Malaysian or elsewhere, to be revisited and
reconsidered particularly in the interest of the poor and vulnerable groups
and the natives. Here it is strongly argued again that poverty and
vulnerability are not a disadvantage in law; conversely they are
fundamental rights and are, therefore, capable of more vigorous or
most anxious scrutiny by the reviewing courts-- from to Ex p Daly (UK:
2001) to Sivarasa Rasiah (Malaysia: 2009) to Kong Yunming (HK: 2013).
The courts are duty bound to protect the poor and the vulnerable!
The courts in Lah Anyie, Bancolt and Law Pang Ching have applied the
wrong test and have therefore caused manifest injustice and unfairness to
the aggrieved parties.
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