ALSA UNIVERSITY OF MALAYA MOOT COMPETITION (2012) - RESPONDENTS WRITTEN SUBMISSION PDF

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COPYRIGHT*: Mooting Society Faculty of Law Sultan Zainal Abidin University MALAYSIA *Some rights are reserved by the respective moot competition’s organizers such as ILSA and Red Cross Society. BRIEF HISTORY OF UNISZA MOOTING TEAM From the humble beginning in 2008, under the supervision of Faculty’s...

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COPYRIGHT*: Mooting Society Faculty of Law Sultan Zainal Abidin University MALAYSIA *Some rights are reserved by the respective moot competition’s organizers such as ILSA and Red Cross Society.

BRIEF HISTORY OF UNISZA MOOTING TEAM From the humble beginning in 2008, under the supervision of Faculty’s lecturer, Mr. Nazli, a team consisted of 4 Mooters and Researchers participated in the Red Cross International Humanitarian Law Moot Court Competition at University of Malaya. Truth be told, the pioneer team first attempt was not something they wish to remember, clinching the last position in the rankings for both Applicant and Respondent sides. They did not give up. From 2009 until 2010, a few teams were sent by the Faculty to the Philip C. Jessup International Law Moot Court Competition (2009) organized by University of Malaya, and then, in the Philip C. Jessup International Law Moot Court Competition (2010) organized by National University of Malaysia. The teams did not win, however the rankings had been tremendously improved. This was achieved albeit the team has no coach. After three years of constant struggle in mooting, a “coach-less” team was sent to Mumbai, INDIA to participate in the 2011 version of D.M. Harish Memorial Government Law College International Moot Court Competition. Out of almost 30 teams across the world which participated in the competition, they finished in the top-20 for oral submission and top-10 for written submission. Among formidable opponents joining the contest including the teams from New York University and Melbourne University. In the same year, again, a “coach-less” team was sent to Tokyo, JAPAN to participate in the Asia Cup International Law Moot Court Competition (2011). Sponsored by Japan Ministry of Foreign Affairs (in the forms of return flight tickets and hotel accommodation), they flew to Japanese capital city, finishing 4th (out of 10 teams) for oral submission and 2nd (out of 10 teams) for written submission. The team received the Outstanding Achievement Memorial Award, outshining top Asia law schools and regional mooting powerhouses such as those from Singapore, Hong Kong and the Philippines.

"Two roads diverged in the woods... ... and I took the road less travelled" And It Hurt, Man!!! Really Bad! ROCKS! THORNS! GLASS! - Kid President

TEAM R001 IN THE FEDERAL COURT OF MALAYSIA AT FEDERAL TERRITORY OF PUTRAJAYA MALAYSIA

BETWEEN 1. KKK 2. OTHERS

…APPELANTS

AND

1. DISTRICT LAND ADMINISTRATOR, STATE OF JOHOR 2. CHIEF MINISTER, STATE OF JOHOR 3. OTHERS

…RESPONDENTS

WRITTEN SUBMISSION (RESPONDENTS)

ALSA UNIVERSITY OF MALAYA MOOT COMPETITION 2012 FACULTY OF LAW, UNIVERSITY OF MALAYA KUALA LUMPUR

SUMMARY OF FACTS More than a couple of years ago, twenty-six farming families had their crops destroyed and livelihood deprived when they were forcefully evicted from their respective farms which they had occupied and toiled for the past 50 years under TOL. The affected land was cleared for a commercial project undertaken by a governmentlinked company (GLC). The commercial project is intended to cater to the demands for shophouses and office spaces in the area as a result of some commercial projects planned for the area. The affected farmers stay nearby in Kampung Gajah. The village headman, who only wanted to be known as Mr. KKK, informed the press that the affected farmers suffered an estimated loss of at least RM400,000. There was a very tense standoff between the farmers and the authorities concerned before the demolition exercise began. The farmers tried to negotiate with the Land Office officials and others present. They moved in quickly by force and destroyed everything including shelters, a guardhouse, farming equipments, water pumps and a temple and a shrine. According to Mr. KKK, prior to the incident, a signboard was abruptly erected at the affected land without any prior notice to the farmers. This was a couple of months before the raiding party descended upon the farms. This was quickly followed by town council officials who came to put up notices informing the farmers that they had to vacate the land in a couple of months. The aggrieved farmers had occupied the said land under TOL for some five decades. Several months before the eviction, the Land Office as usual collected the TOL renewal fees Respondents’ Summary of Facts | Page i

from the affected farmers but told them to wait as their applications for renewal were pending consideration by the relevant authorities. The plight of the farmers began some three decades ago. Fearful of loss of livelihood and the little piece of land where each toiled for their livelihood, their representatives began visiting to the Land Office and meeting their elected representatives. Each time they were told to wait and be patient. The affected farmers had through their village headman applied several times for land titles or at least long leases. The Menteri Besar had also promised to help them to obtain titles or at least long leases for the affected plots of land. Frustrated with the authorities concerned, the affected farmers finally commenced a class action with the help of an NGO against the Land Office, the State Government and elected representatives of the locality. They claimed general, special and aggravated damages. The defendants immediately applied to the High Court for striking out the action. The High Court judge allowed the application of the defendants for striking out and rejected all the arguments of the plaintiffs’ counsel from the perspective of public law. The High Court dismissed the plaintiffs’/applicants’ action with costs. The appeal came before the Court of Appeal and it suffered the same fate as the Court of Appeal fully concurred with the decision of the High Court. The case now comes before the Federal Court. The appellants seek to re-open and resubmit several important arguments, all from the perspective of public law. The counsel representing the respondents strongly opposes the appellants’ arguments as unheard of or unprecedented and without any basis in the field of public law in any common law country. This court sits as the Federal Court. A panel of three judges sits to hear this appeal because of the important public law interest and issues raised before the court.

Respondents’ Summary of Facts | Page ii

SUMMARY OF ARGUMENTS I.

THE APPELLANTS COULD NOT HAVE ACQUIRED ANY FORM OF PROPRIETARY RIGHT OR INTEREST IN THE LAND

AND

NO

FUNDAMENTAL

RIGHTS

AND

LEGITIMATE EXPECTATIONS OF THE APPELLANTS HAVE BEEN VIOLATED. A. The Appellants’s claim is not sustainable in view of the current law 1. The type of land that the Appellants seek to acquire right or interest is Temporary Occupation License (“TOL”) land a. TOL is temporary in nature b. The power to renew the TOL rests entirely upon the discretion of the State Authority 2. The Appellants have no proprietary right over the land occupied 3. State Authority is not required to inform the Appellants about its future plans 4. The Appellants are considered as trespassers 5. TOL only grants the Appellants ‘right to access’ 6. The Appellants have breached the condition of TOL 7. Anything that had been built by the Appellants including the crops planted belongs exclusively to the State Authority 8. The rules of equity do not apply in this case a. It only applicable in limited circumstances b. In any event, the maxim of ‘equity must come with clean hands’ applies B. The Rules of Natural Justice have been observed 1. Right to license is not absolute 2. Right to hearing is not absolute 3. Duty to give reasons is not compulsory 4. Sufficient notice and reasonable time to vacate the land have been given to the Appellants

Respondents’ Summary of Arguments | Page I

II.

THE NATIONAL LAND CODE 1965 AND THE TORRENS SYSTEM CAN OVERRIDE THE FUNDAMENTAL RIGHTS AND LEGITIMATE EXPECTATION OF THE APPELLANTS A. The fundamental rights of the Appellants as guaranteed by the Federal Constitution can be overridden ‘in accordance with the law’ 1. The Article 5(1) has been observed 2. The Article 13(1) has been observed B. The existence of legitimate expectation if any, can be overriden with compelling public interest and policy 1. The payment of renewal fees cannot establish legitimate expectation 2. The promise by the Chief Minister (MB) is not legally binding, thus it cannot establish legitimate expectation

III.

THE RESPONDENTS HAVE COMPLIED WITH THE TEST OF

REASONABLENESS

AND

THE

PRINCIPLE

OF

SUBSTANTIVE FAIRNESS CANNOT BE INVOKED BY THE APPELLANTS IN THIS PROCEEDINGS A. The test of reasonableness strongly discouraged interference with the Respondents’ decisions and judgments B. The principle of substantive fairness cannot become an independent ground for judicial review IV.

ORDER

53

ADDRESSING

IS

THE THE

SOLE ISSUE

PROCEDURAL OF

REGIME

ALLEGATION

OF

FUNDAMENTAL RIGHTS VIOLATION A. The Appellants shall initiate the action by way of application of judicial review (Order 53 Rules of High Court 1980) 1. The Entrenched Principle of Judicial Review 2. Judicial Review is an exclusive procedure Respondents’ Summary of Arguments | Page II

3. Order 53 mandate the check and balance of public authorities in Public Law 4. Waiving Order 53 deemed the Appellants’ failure to prove reasonable grounds to challenge the decision 5. Judicial review is a prerogative rights governing disputes in Public Law 6. Judicial review is formulated by reference to the omnipresent provisions of arts 5(1) and 8(1) of the Federal Constitution. 7. Appellant’s application for a declaratory relief is a mere tactical approach to evade the applicability of Order 53 and abusing the court’s procedure. Appellant lack of legal standing and had no proprietary interest upon the disputed land. 8. Allegation of violation of fundamental rights committed by the Respondents is unreasonable and a fallacy 9. In the event Appellant did suffered damage and their fundamental rights may have been adversely affected, such damage are justified and validly deprived 10.Relatively even in an exceptional case, Order 53 is deemed to be an exclusive procedure 11.Alternatively, judicial review is available notwithstanding the right of an appeal in an ordinary court V.

PROCEDURAL RULES GOVERNING AN APPLICATION FOR JUDICIAL REVIEW MAY NOT BE WAIVED OR AVOIDED IN AN APPROPRIATE CASE IN PURSUIT FOR THE PROTECTION OF FUNDAMENTAL RIGHTS OF POOR AND IGNORANT

A. The Order 53 ought not to be refused as a matter of discretion having regard to the availability of an alternative remedy 1. Order 53 is essential to maintain the safeguard provided in Public Law in protecting public authorities from allegation of maladministration 2. Waiving the prerogative procedure of Order 53 is an abuse of court process and remedied no parties Respondents’ Summary of Arguments | Page III

3. Application by an ordinary action is irrelevant and inappropriate to warrant check and balance of public authorities in Public Law 4. Order 53 infinitely coherent with the Rule of Law 5. Order 53 promotes Judicial Independence 6. Order 53 is a Judicial Control being the shield for the protection of constitutionality matters 7. Judicial review is the backbone of administrative law and ensure good governance 8. Alternatively, if the Appellant succeed to waive Order 53, a mere declaration by an ordinary action will not be appropriate 9. Order 53 coherent with the principles of Natural Justice and evasion from it will tantamount to redundancy of Prerogative Orders 10.Order 53 recognized the Principle of Proportionality 11.Judicial review shall be maintained to promote procedural uniformity

Respondents’ Summary of Arguments | Page IV

PLEADINGS I.

THE APPELLANTS COULD NOT HAVE ACQUIRED ANY FORM OF PROPRIETARY RIGHT OR INTEREST IN THE LAND AND NO FUNDAMENTAL RIGHTS AND LEGITIMATE EXPECTATIONS OF THE APPELLANTS HAVE BEEN VIOLATED. A. The Appellants’s claim is not sustainable in view of the current law 1. The type of land that the Appellants seek to acquire right or interest is Temporary Occupation License (“TOL”) land a. TOL is temporary in nature A TOL is a permission granted by the State Authority to any person or body for the

purpose of a specified activity on the land, without which, the person or body would be PARA. 1

deemed an unlawful occupier.1 This mechanism is inbuilt in the National Land Code 1965 (“NLC 1965”) from sections 65 to 69. The issuance and renewal of TOL is done by the Land Administrator, on behalf of the State Authority.2 A temporary occupation license, as the name suggests, is merely temporary in nature. It does not in any way grant to the TOL holder any security of tenure whatsoever.3 b. The power to renew the TOL rests entirely upon the discretion of the State Authority This can be gathered from the use of the word ‘may’ in Section 67(3) of the NLC 1965 as

PARA. 2

well as observation in the case of Teh Bee v. K. Maruthamuthu that “The TOL holder under a temporary occupation license obtains no legal or equitable rights over the land he occupies by virtue of the license other than to occupy the land temporarily from year if he can have his 1

Nik Abdul Rashid, “Lesen Tumpangan Sementara: Suatu Persoalan” [1978] JMCL 85; Salleh Buang, ‘Temporary occupation licenses: some proposals for reform’, [1987] 2 MLJ cclii; Land Administration and the Right of Access to Land: An Analysis of the Concept of Temporary Occupation License Under Malaysian Land Law, [2011] 3 MLJ lxxx, pg. 5. 2 Section 66, NLC 1965 3 Ainul Jaria Maidin, et. al. “Principles of Malaysian Land Law”, Kuala Lumpur : LexisNexis, MLJ, 2008, pg. 117-122.

Respondents’ Written Submission | Page 1

license renewed annually… but there is no obligation on the part of the authorities to grant a renewal of a temporary occupation license for any subsequent year…”4 2. The Appellants have no proprietary right over the land occupied As a TOL is a license, a TOL holder merely has possessory rights and not proprietary rights over the land.5 This is expressly provided in section 68 of the NLC, thus PARA. 3

the words ‘…a temporary occupation license shall not be capable of assignment…’The only interests that is protected is those statutory interests of the land such as lease, chargee or easement holder. It thus falls in the complete discretion of the state authority to re-issue or refuse to re-issue fresh license. The exercise of this discretionary power is by all means absolute.

3. State Authority is not required to inform the Appellants about its future plans

Holding a license on a piece of land would not stop the state authority to exercise its powers to alienate the same land to a different person notwithstanding that such land is in fact PARA. 4

still possessed by another on a temporary occupation license.6 That is so, since the state authority is not under a legal obligation to inform an existing holder of the ‘temporary occupation license’ about its future plans on not renewing the license or that it intends to alienate the same land to a different person.7

4. The Appellants are considered as trespassers In Public Prosecutor v. Yap Tai8, the respondent had been occupying State land for a PARA. 5

number of years. The last license issued to her expired in December 1945 and not further renewal was granted. In May 1946, she was asked to leave and to demolish her house within 80 days of the service of the notice. She failed to do so and was prosecuted for unlawful occupation of State Land. The District Judge dismissed the summons on the ground that the 4

[1977] 2 MLJ 7 Section 68, NLC 1965 6 See Teh Bee v K Maruthamuthu [1977] 2 MLJ 7 (FC) at p 8. 7 Teh Bee v K Maruthamuthu [1977] 2 MLJ 7 (FC) at p 8. 8 [1947] 13 MLJ 50 5

Respondents’ Written Submission | Page 2

occupation was not unlawful. The Court regarded her occupation as that of a tenant holding over after the expiry of a tenancy or a lease. On appeal by the Public Prosecutor, SpencerWilkinson J. held that the District Judge was in error and that her true position was that of a trespasser. 5. TOL only grants the Appellants ‘right to access’ TOL is right to access only. However, it should be added that despite this inherent right of PARA. 6

access to land, an individual citizen cannot legally sue the government to land alienated or leased to him/her.9 In the case of Public Prosecutor v Yap Tai (f), in which it mentioned that the license does not vest in the licensee any right to possess state land. The licensee, according to the court, cannot be treated similar to a tenant since the licensee does not pay rent but only a license fee.10

6. The Appellants have breached the condition of TOL TOL land cannot be used for the planting of permanent crops or for the erection of any permanent building or other permanent structure. The word ‘permanent’ is not PARA. 7

defined in the NLC 1965. However, from the duration of a TOL, ‘permanent crops’ can be taken to mean crops that take more than one calendar year to yield produce. ‘Permanent buildings’ would refer to buildings that are taken to be fixtures and part of the land and the removal of which would cause irreparable damage to the land.11 The permission thus granted must be used according to any restriction laid down in the license.12 Neither the planting of permanent economic trees nor the erection of buildings

PARA. 8

or any other permanent structures is allowed on the land. A breach of any such condition would entitle the state authority to immediate requisition or termination of the license without any compensation. The appellants in this case have breached the provisions of TOL by planting permanent crops and building permanent structures.13 Form 4A of the NLC 1965

9

Sidek bin Haji Muhamad & 461 Ors v The Government of the State of Perak & Ors [1982] 1 MLJ 313. Public Prosecutor v Yap Tai (f) [1947] MLJ 50 at p 51. 11 Ainul Jaria Maidin, et. al. “Principles of Malaysian Land Law”, Kuala Lumpur : LexisNexis, MLJ, 2008, pg. 117-122. 12 Section 67 of the National Land Code. 13 Leong Chiew & Anor v. Nobel Rights Sdn Bhd [2002] 1 LNS 479; Mohamed v. Kunji Mohidin [1966] 1 LNS 108; See also Form 4A, National Land Code 1965, pg. 338 10

Respondents’ Written Submission | Page 3

prohibited such act.14 This is supported by a body of case law such as in the case of Leong Chiew & Anor v. Nobel Rights Sdn Bhd15 and Mohamed v. Kunji Mohidin.16 In our case, the facts show that the Appellants had built permanent structures such as a guardhouse, a temple and a shrine as well as planted permanent crops such as pineapples which take at least 1 ½ years to harvest.17 The pineapples plant can survive up to 50 years.18

7. Anything that had been built by the Appellants including the crops planted belongs exclusively to the State Authority In the case of Papoo v. Veeriah, Good J observed that “…if people choose to deal in buildings erected on state land which is subject to a TOL, if they acquire such buildings for valuable consideration, they do so at their own risk because they know, or they ought to know and they must be deemed to know, that such buildings cannot be the subject of private PARA. 9

transactions unless in the absence of any contract to the contrary to which the state government may be a party, such buildings are clearly the property of the state.”19 Section 47 of the NLC 1965 very clearly states, to the effect that, upon the termination of any license on state land, there shall vest in the State Authority ‘all buildings o...