Barriers to Orang Asli rights

A suitable amendment to Article 5(1) of the Federal Constitution will promote sustainable development as well as their rights.

THE human rights of indigenous minorities around the world were the subject of a thought-provoking workshop at the University of Auck­land, New Zealand, from May 28 to 29. The Constitutional position of the natives of Sabah and Sarawak and the Orang Asli (the indigenous people) of Peninsular Malaysia was also part of the animated discussion.

This column will be confined to the law and practice relating to the Orang Asli.

Constitutional rights: Several pro­visions of our Federal Consti­tution permit systemic affirmative action in favour of indigenous minorities like the aboriginal Orang Asli, who are the earliest inhabi­tants of the Malay Peninsula, and the natives of Sabah and Sarawak.

In Article 8(5)(c), the Constitution confers powers (but not duties) on federal and state governments to advance the welfare of the aborigi­nes. Article 8(5)(c) states that the Constitution’s equality clause does not prohibit any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula, including the reservation of land or the reservation to aborigines of a reasonable proportion of positions in the public service.

Commendable though this provision is, there is a wide gap bet­ween what the Constitution says and what the administrative reality on the ground is. After 67 years of independence, the Orang Asli remain the poorest and most marginalised community.

Article 45(2) empowers the federal King to appoint to the Senate some Senators representing the interests of the aborigines.

Article 160(2) defines the term “law” to include written law, common law, and any custom or usage having the force of law in the Federation. The inclusion of common law permits our courts to drink from the fountain of common law in other countries. The inclusion of custom within the concept of law is also of immense importance because it permits the courts to implement the ancient customary practises of indigenous groups like the Orang Asli.

Statutory protection: Many federal statutes authorise the Fed­e­ral Government to protect and regulate the lives of the Orang Asli communities, such as the Aborig­i­nal Peoples Act 1954 (APA), Natio­nal Forestry Act 1984, National Parks Act 1980, Wildlife Conser­vation Act 2010, and National Land Code (NLC) 1965.

Section 6 of the APA prohibits the alienation of aboriginal land to non-aboriginals. Section 10 lays down that Orang Asli customary rights hold precedence even over Malay Reservation rights. Sub- sec­tion 4(2)(a) of the NLC states that it does not have any effect on any legal provisions in force on custo­mary land rights.

Administrative protection: Soon after independence in 1957, a special administrative department – now known as the Depart-ment of Orang Asli Development (Jakoa) – was set up to oversee the welfare and development of the Orang Asli community.

Judicial decisions: Till the late 1990s, the courts were generally of the view that neither the Consti­tu­tion nor federal and state enactments explicitly recognised the customary land rights of Orang Asli communities.

While the National Forestry Act 1984 and Wildlife Conservation Act 2010 address limited rights to take forest produce and hunt, “these provisions primarily grant usufructuary rights (right to use) rather than ownership or proprietary rights”.

“Essentially, the Orang Asli live on state land as tenants-at-will, with the state having ultimate discretion.”

However, one can happily report that in the last 30 years, there have been strong winds of change in judicial thinking. In a long line of cases, courts have upheld the customary right to a native title. Courts have affirmed that indigenous customary land rights are protected by the Federal Constitution under the provision of fundamental liberties, which include the right to life, equality, and property.

The concepts of life and liberty in Article 5(1) and the right to pro­perty in Article 13 are now interpreted prismatically to include the right to customary and heritage land. In Adong Bin Kuwau v Johor (1997), the court awarded dama­ges twice the market value due to the land’s heritage value. The court relied on cases from New Zealand and Australia.

In some cases, exemplary damages were awarded where the facts show a wrongful and harsh eviction, as in Sagong Tasi v Selan­gor (2002). Even if ownership does not exist, damages can be awarded as trespass is against possession and not ownership.

Some judges have held that native rights are not impliedly repealed if the statute is silent on indigenous rights. Statutes on land matters must be read side by side with common law and custom. There is growing protection from the judiciary of indigenous, custo­mary land rights of the Orang Asli in Malaya despite the existence of statutes with ouster clauses and executive decisions that subject custom to executive policies.

Hurdles: The Federal Consti­tu­tion stipulates that while matters of land and forests are under the jurisdiction of the 13 states, Orang Asli affairs fall under federal jurisdiction. As such, the regulation of all Orang Asli affairs is deemed to fall entirely under the Aboriginal Peoples Act 1954 regulated by Jakoa, a federal department.

Conflicts of federal-state laws often exist. The Orang Asli affected by adverse official decisions can obtain no effective, expeditious solution. Poverty, and a lack of legal literacy and legal aid hinder their quest for justice. Even if there are rights, there are no adequate remedies.

In the APA 1954, aborigine lands are divided into three categories: Aboriginal Inhabitated Place, Abo­riginal Area, and Aboriginal Reser­ves. Dealings and commercial acti­vi­ties in these lands by non-abori­gines are strictly regulated. Unfor­tunately, the law permits state governments to degazette aborigine lands. Such degazetting is often abused to support predatory “deve­­lopment” policies and exploi­tative commercial plans. All in all, the size of Orang Asli customary territories appears to be at the mercy of the state.

Aborigines can be ordered to vacate degazetted areas. Compen­sa­tion may be paid for the loss of crops, but no compensation is paid for the loss of the land itself. The amount to be paid is discretionary. Such laws appear to be a blatant violation of Article 13(2) of the Constitution, which requires “adequate compensation” for all acquisition or requisition of property.

Unlike Native Courts in Sabah and Sarawak, there are no special courts or tribunals for Orang Asli affairs in Peninsular Malaysia. There is no requirement that Jakoa must be headed by an Orang Asli.

In Malaysia’s dualistic legal system, international laws like the UN Declaration on the Rights of Indi­g­e­nous People are not law till adopted in the domestic legal system.

The first-past-the-post, single- mem­ber electoral constituency system in Malaysia works to the detri­ment of small minorities with no electoral majority in any consti­tuency. The Orang Asli are not a political force. To give them some clout, the following recommendations are proposed:

(a) The rights to “life”, “liberty” and “property” in the Constitution have been shown by some judges to be capable of prismatic interpretations. For example, “life” can include “livelihood”. Such an app­roach may help the quest for Orang Asli rights.

(b) Article 153 should be amended to include the Orang Asli in its protection.

(c) Under Article 89, degazetting of a Malay Reserve requires elaborate procedures and special majorities in Parliament. The degazetting of Orang Asli heritage lands should similarly require difficult procedures.

(d) Pre-independence laws like the Aborigines Peoples Act 1954 with unconstitutional provisions on compensation should be subjected to judicial scrutiny under Article 162(6).

(e) Orang Asli rights should be linked with the theory of sustainable development. Environmentally predatory policies are a direct attack on the economic, cultural and religious rights of the Orang Asli and the natives of Sabah and Sarawak, whose lives are intertwi­ned with the land from which they derive their sustenance and the forests wherein the souls of their ancestors dwell.

(f) The constitutional guarantee of the right to “life” in Malaysia’s Article 5(1) is silent on the right of citizens to a healthy and sustainable environment, fresh water, clean air, preservation of ancestral lands and the right to livelihood.

Though a few judges have interpreted the concept of “life” to inc­lude “livelihood” and the “necessities of life”, such interpretations have very little impact on predatory development policies driven by greed, corruption, and obsession with the desire for more and more growth – forgetting that growth for the sake of growth is the ideolo­gy of the cancer cell.

A suitable amendment to Article 5(1) will promote sustainable development as well as the rights of our indigenous communities.

Emeritus Prof Datuk Dr Shad Saleem Faruqi wishes all Muslims a blessed Aidiladha. The views expressed here are the writer’s own.