The government's leave application to appeal against a landmark Orang Asli case has been adjourned to allow the original panel of judges to continue hearing the case.

The government is appealing against the Court of Appeal's decision ordering it compensate seven Temuan tribesmen for the loss of their native customary land.

Following the absence of Federal Court Judge Abdul Malek Ahmad who has fallen ill, Chief Justice Ahmad Fairuz Sheikh Abdul Halim had appointed to the panel Abdul Hamid Mohamad to join Justices Allaudin Mohd Sherif and Augustine Paul.

However, at this morning's hearing at the Federal Court in Putrajaya, senior federal counsel Mary Lim pointed out that Section 78(1) of the Court of Judicature Act 1964 required that in the event of an absence 'due to illness or any other cause', proceedings are to 'continue before... the remaining judges of the court, not being less than two....'

She also pointed out that a previously existing section (Section 42) that provided for the continuation of such hearings based on the respective parties' consent had been amended since 1998 and was thus no more relevant to the present proceedings.

"I am more than happy that this quorum would hear the matter, but Section 78 seems to have taken it out of our choice," said Lim, who is representing the government.

On Sept 19, the Court of Appeal ruled that the government, the Malaysian Highway Authority and private conglomerate United Engineers Malaysia (UEM) Bhd to compensate Sagong Tasi and six others from the Temuan tribe under the Land Acquisition Act 1960 for the loss of their 15.39 hectare native customary land in Kampung Bukit Tampoi, in Dengkil, Selangor.

Earlier, the Shah Alam High Court , after a two-year proceeding, had similarly decided that the Orang Asli tribesmen owned proprietary rights in their customary and traditional land and that they have the right to use and derive profit from the land.

Although he was not against Lim's point, lead counsel for the Orang Asli litigants Dr Cyrus V Das noted that Section 78 (2) of the Act stipulated a rehearing of proceedings in the event a majority ruling of the remaining two judges cannot be obtained.

Abdul Hamid said the panel agreed with Lim's point and would inform the chief justice of his withdrawal from the proceeding. The hearing would adjourn to a date, to be fixed by the court, for Allaudin and Paul to continue hearing the application.