The Indigenous Peoples (IP) of Malaysia are collectively called the Orang Asal.1 They are composed of the aborigines (Orang Asli) of Peninsular Malaysia and the natives of Sabah and Sarawak. Together, the Orang Asal makes up 13.8 percent of the total population of Malaysia.2
By virtue of Articles 73,3 74(1),4 and 74(2)5 of the Federal Constitution of Malaysia, both the Federal and State legislatures have jurisdiction over the administration of the Orang Asal in Malaysia, whereby, depending on the subject matter, the administration of the Orang Asal could either fall under the Federal or State jurisdiction, or could form the matter under both the Federal and State legislatures concurrently. The Federal Constitution’s Ninth Schedule provides several lists that enumerate the matters which are either under the separate or shared jurisdiction of the Federal and State legislatures.6
Good Practices in Promoting and Protecting the Rights of the Orang Asal in Malaysia
i. Establishment of the Legitimate/Special Interests of the Orang Asal in Malaysia and their Protection
The foremost important piece of legislation that establishes and protects the special interests of the Orang Asal in Malaysia is the Federal Constitution of Malaysia. The Federal Constitution, while underscoring that all persons are equal before the law, has a few exceptions for the Orang Asal, in that it allows for affirmative action for the protection and advancement of the special interests of Orang Asli in Peninsular Malaysia and natives of Sabah and Sarawak.
In the context of the Orang Asli in Peninsular Malaysia, while the Federal Constitution generally proscribes discrimination,7 Article 8(5)(c) states that those anti-discrimination provisions do 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 suitable positions in the public service.”8
Further, the Federal Constitution affords the special position and protection to the natives of Sabah and Sarawak. Article 153(1) of the Federal Constitution provides that “it shall be the responsibility of the Yang di-Pertuan Agong [King] to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.”9 Article 153 goes on to specify the approaches in order to protect those legitimate interests, such as establishing quotas for entry into the civil service, as well as for the attainment of public scholarships and education.10
With respect to native land in Sabah and Sarawak, Article 161A(5) of the Federal Constitution has excluded the application of Article 8 concerning equality and non- discrimination to any State law that seeks to reserve or alienate land for their natives, or for giving the natives preferential treatment for the alienation of land by the State.11
ii. Representation of the Orang Asal in the Government
In Malaysia, representation of the Orang Asal and their interests in the Government is guaranteed by the Federal Constitution. In the context of the Orang Asal’s representation in the Senate, Article 45(2) of the Federal Constitution, which provides the composition of the Malaysian Senate, states the following:12
The members to be appointed by the Yang di-Pertuan Agong shall be persons who in his opinion have rendered distinguished public service or have achieved distinction in the professions, commerce, industry, agriculture, cultural activities or social service or are representative of racial minorities or are capable of representing the interests of the aborigines.
With respect to the Orang Asal’s representation in the public service, Article 8(5)(c) of the Federal Constitution allows for the reservation of a reasonable proportion of suitable positions in the public service especially for the Orang Asli in Peninsular Malaysia.13 Additionally, Article 153(2) provides that the Yang di-Pertuan Agong shall exercise his function under the Constitution and federal law to reserve for, among others, the natives of Sabah and Sarawak, reasonable proportions of positions in public service (other than the public service of a State).14
iii. Native Court
The Native Court Enactment 199215 provides for a three-tier native court system in Sabah including a Native Court of Appeal, a District Native Court and a Native Court,16 whereas in Sarawak, there is a six-level court system including a Native Court of Appeal, a Resident Native Court, a District Native Court, a Chief’s Superior Court, a Chief’s Court, and a Headman’s Court.17
Generally, both Native Courts in Sabah and Sarawak have jurisdiction to preside over:18
On the other hand, the operation of the Native Courts is not without challenges. Some of the stumbling blocks that impede effective execution of legal practice in the court system include:
- The lack of jurisdiction of Native Courts in respect of any cause or matter within the jurisdiction of the Civil or Syari’ah Courts;20
- Lack of staff in the Native Courts. Native Courts staff are normally seconded from district offices, which may at times lead to conflict of interest, in particular cases against the government or its officials;
- The involvement of political powers in the appointment of District Chief, Native Chief and village chiefs who are key Native Courts personnel;21
- Lack of financial resources to ensure effective operation of the courts; and
- Awareness and practice of customs and Adat by current younger leaders as the future preservation and adherence of customs heavily depend on their actual practice.22
Despite the above challenges, the Native Court in Malaysia is an important institution as it empowers the natives in Sabah and Sarawak to realize their right to maintain their juridical system. At the same time, this institution is able to preserve the adherence to the Adat among the natives. The Native Court is also a cheaper alternative for those who wish to bring their matter to court, in comparison to the Civil and Syari’ah Courts.23
The following section highlights some of the contemporary and persisting issues that impede the promotion and protection of the rights of the IP in Malaysia.
Challenges
i. Customary Land rights
The IP have a special bond with their customary land, which is part of their identity. Customary land constitutes an integral element of their culture and way of life. Through their deep understanding of, and connection with the land, indigenous communities have been able to manage their resources for generations.
The Federal Constitution of Malaysia gives a certain level of protection for the natives of Sabah and Sarawak to continue their special relationship with their land, including spelling out the fiduciary obligation of the Federal and State Governments that ensures the respect, recognition and protection of customary land rights. However, the Orang Asli in Peninsular Malaysia is left out in this specific provision.
Mainstream development and forest conservation have greatly infringed the IP’s claim to their customary land. This often means that their livelihood and future are seriously threatened. Many indigenous communities continue to be expelled from their territories under the pretext of the establishment of protected areas, including forest reserves and national parks. Forced displacement of the IP from their traditional lands as a result of laws and policies that favor the interests of commercial companies and the Government are major factors in the impoverishment of these communities.
Over the years of conducting various studies and receiving complaints from the IP, SUHAKAM has found that many issues exist with regard to native customary right (NCR) to land, such as:
The violations against the IP’s land rights continue to affect not only their livelihood, but also their cultural and traditional practices as well as identity. In addition, many development projects have negative repercussions towards the ecosystem, affecting the IP’s right to clean environment, which, according to Article 2924 of United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), must be respected.
Various development projects by the Government have negatively affected indigenous communities especially their NCR to land. Among these projects are:
(a) Bakun Dam, Sarawak
The construction of the Bakun Dam, one of the largest dams in Asia, has forced thousands of indigenous communities to be relocated. This is clearly inconsistent with Article 1025 of UNDRIP.
(b) Tasik Chini, Pahang
Logging, clearing of land for agriculture and unstructured mining activities at the vicinity of Lake Chini in Pekan, Pahang, have affected eleven indigenous villages around the Lake. Pollution and forest deterioration have resulted in lower income, social conflict and threats on those advocating for their rights among affected indigenous communities.
Land issues do not only affect IP’s rights to life, to own property, to practice their culture, traditions and to preserve their identity, but also affect the whole ecosystem and their right to clean environment, which according to Article 29 of UNDRIP, must be respected.
(ii) Free, Prior and Informed Consent (FPIC)
During the Public Hearings of SUHAKAM’s NI on the Land Rights of Indigenous Peoples, SUHAKAM received numerous complaints from the IP regarding the non-application of the principle of Free, Prior and Informed Consent (FPIC) for development projects affecting them. Indigenous communities have the right to decide whether they will agree to the project or not once they have a full and accurate understanding of the implications of the project on them and their customary land.
However in Malaysia, the respect towards the FPIC principle is nearly non-existent, and as such, violates the international standard. Numerous reports and complaints show that the Social and Environmental Impact Assessments (SEIA/EIA) that are required before certain projects commence were not conducted in a proper manner and that communities were often not consulted.
(iii) Education
Education of indigenous children is at a worrying level. Many indigenous children fail to master the 3M skills (reading, writing, arithmetic). In addition, the number of indigenous children who drop out from schools before Standard Six is alarming.26 As a result, indigenous students fail to master core subjects, including the Malay language, English, Mathematics and Science. For example, almost 50 percent of indigenous children at Kampung Kolam Air Pantai, Seremban in Negeri Sembilan have been reported to be uninterested in going to school,27 while a higher number of indigenous children were reported to have dropped out in Sabah and Sarawak.28
Most of Orang Asli students claim that the main reasons for the high percentage of school dropouts among them are due to:29
The academic achievement of Orang Asli students in school is still very low compared to other Malaysians.30
(iv) Economic development
The IP in Malaysia are sadly, often associated with poverty and low income. It was estimated in 1999 that 50.9 percent of the Orang Asli falls below the poverty line, while 15.4 percent falls under the hardcore poor category.31 Indigenous economic system is characterized by small but diverse economic activities, placing great importance on land resources, economic self-sufficiency, social support and barter trade.32
The IP have varied occupations and ways of life. Orang Asli communities such as the Orang Laut, Orang Seletar and Mah Meri, for example, live close to the coast and are mainly fishermen. Some Temuan, Jakun and Semai people have taken to permanent agriculture and now manage their own rubber, oil palm or cocoa farms. About 40 percent of the Orang Asli population - including Semai, Temiar, Che Wong, Jahut, Semelai and Semoq Beri - however, live close to, or within forested areas. Here they engage in hill rice cultivation and do some hunting and gathering. These communities also trade in petai (a type of bean), durian, rattan and resins to make their ends meet. A very small number of these indigenous communities, especially among the Negrito groups (such as Jahai and Lanoh) are still semi-nomadic, preferring to take advantage of the seasonal bounties of the forest. A fair number also live in urban areas and are engaged in both waged and salaried jobs.33
Among the issues that impede economic development and growth for the IP in Malaysia are large-scale land development programs, non-recognition of indigenous subsistence economic activities and lack of opportunities.
(v) Legal system
IP possess their own traditional judicial system, which covers legal aspects including customary laws, conflict resolution and arbitration and their traditional institution that implements and monitors its legal system.
In the states of Sabah and Sarawak, native courts for the IP had been formalized by the British colonial rulers in recognition of the traditional legal systems. These courts, play an important role in resolving disputes within the indigenous communities. However, such courts do not exist in Peninsular Malaysia for the Orang Asli. In this regard, many advocates of the rights of the IP are calling for the establishment of native courts in Peninsular Malaysia. Native Courts serve as a crucial mechanism in recognizing the indigenous legal system.34
Conclusion
While there are still many issues concerning the rights of the IP in Malaysia that need to be looked into and addressed, efforts have been made by various stakeholders to find measures that may mitigate if not resolve these issues. Some of these measures have proven to be effective and some can even be considered as good practices.
In addressing the rights of the IP, it is crucial to take cognizance of some of the main concerns, which are as follows:
i. Restitution of customary lands that have not been given such recognition, redress mechanisms for the loss of the land, review compensation payment made on land taken for development and enhancement of the capacity of land departments;
ii. Adoption by government bodies of the human rights-based approach to development with the application of the Free, Prior and Informed Consent principle;
iii. Promotion of sustainable development models with active involvement and participation of the IP in Forest Management and other areas, which do not have an adverse effect on the indigenous communities; and
iv. Immediate implementation of corrective measures on indigenous issues especially in relation to health, education, economic development, civil and political reformation, laws and policies as well as social and cultural heritage.
For further information, please contact: SUHAKAM, 11th Floor, Menara TH Perdana, Jalan Sultan Ismail, Kuala Lumpur 50250, Malaysia; ph 603-2612 5600; fax 603-2612 5620; e-mail : humanrights@suhakam.org.my; www.suhakam.org.my.
* This is an edited excerpt of the report prepared by the SUHAKAM under the project entitled "South East Asia National Human Rights Institutions Forum (SEANF) Project on Good Practices in Promoting and Protecting the Rights of Indigenous Peoples."
Endnotes
1 Human Rights Commission of Malaysia (SUHAKAM), Report of the National Inquiry into the Land Rights of Indigenous Peoples, (SUHAKAM, 2013).
2 Ibid.
3 Federal Constitution of Malaysia, (n. 11), Article 73.
4 Ibid., Article 74.
5 Ibid., Article 74(2).
6 Ibid., Ninth Schedule.
7 Ibid., Article 8(1), 8(2), 8(3), 8(4).
8 Ibid., Article 8(5)(c).
9 Ibid., Article 153 (1).
10 Ibid., Article 153(2), 153(3), 153(4), 153(8A).
11 Ibid., Article 161A(5).
12 Ibid., Article 45(2).
13 Ibid., Article 8(5)(c).
14 Ibid., Article 153(2).
15 Native Court Enactment, 1992 [En. No. 3/1992]; Native Courts Ordinance, 1992 [Ord. No. 9/92].
16 Native Court Enactment, 1922 (n 51).
17 Native Court Enactment, 1922 [En. No. 3/1992]; Native Courts Ordinance, 1992 [Ord. No. 9/92].
18 Laws of Malaysia. Interpretation Ordinance (Definition of Native) Cap 64 [10 December 1952], Section 2; Native Court Enactment (n. 51); Native Courts Ordinance, 1992 (n 51).
19 Ibid.
20 Native Court Enactment (n. 51), Section 9.
21 Ramy Bulan, “Indigenous Peoples and the Right to Participate in Decision Making in Malaysia” in International Expert Seminar on Indigenous Peoples and The Right to Participate in Decision Making, Chiang Mai, Thailand, 20-22 January 2010, <www2.ohchr.org/english/issues/indigenous/ExpertMechanism/3rd/docs/contributions/UniversityMalaya.doc> accessed 16 September 2014; Native Court Rules 1993; Native Courts Ordinance, 1992 (n 51); Native Court Enactment (n. 51).
22 Ramy Bulan (n 56) 10.
23 Nancy Lai, “Upko fully backs proposed Native Judicial Dept.” Borneo Post Online (Penampang, 12 July 2010) <www.theborneopost.com/2010/07/12/upko-fully-backs-proposed-native-judicial-dept/> accessed 29 October 2014.
24 UNDRIP (n 48), Article 29.
25 UNDRIP (n 48), Article 10.
26 Johari Talibet al., “Bagaimana kanak-kanak Orang Asli gagal di sekolah?,” MALIM: Jurnal Pengajian Umum Asia Tenggara 8, 2007, 51-76, <http://journalarticle.ukm.my/1142/1/1.pdf>.
27 Utusan Online, “50% anak Orang Asli enggan kesekolah,” Utusan Online (Seremban, 26 September 2011) <www.utusan.com.my/utusan/info.asp?y=2011&dt=0927&pub=Utusan_Malaysia&sec=Selatan&pg=ws _03.htm#ixzz2FYUwQem5>, accessed 20 December 2012.
28 Liz Gooch, “Indigenous Malaysians Miss School, Agency Finds,” The New York Times Online (Kuala Lumpur, 9 September 2012) <www.nytimes.com/2012/09/10/world/asia/10iht-educmalay10.html>, accessed 1 August 2013.
29 Based on a research by University Utara Malaysia entitled “Children of the Orang Asli Minority in Malaysia: Achieving the Malay Language Literacy” carried out by Abdul Sukor Shaari, Nuraini Yusoff, Mohd Izam Ghazali and Mohd Hasani Dali in 2011.
30 Toh Kit Siang, Pendidikan Orang Asli: Projek Sarjana Muda, Universiti Kebangsaan Malaysia, Bangi. 2008.
31 Prof. Madya Dr. Mohd Fauzi Mohd Harun et al., “Analisis Faktor Kemiskinan Orang Asli: Aplikasi Model Multinomial Logit,” in Technical Report, Institute of Research, Development and Commercialization (Universiti Teknologi MARA, 2010) <http://eprints.uitm.edu.my/3304/1/LP_MOHD_FAUZI_MOHD_HARUN_10_24.pdf>.
32 Jannie Lasimbang, “Prinsip Sistem Ekonomi dan Teknologi Orang Asal” in World Indigenous Peoples Day, held in Sabah, 8 August 2011.
33 Colin Nicholas, “The Orang Asli of Peninsular Malaysia,” Magic River, 1997, www.magickriver.net/oa.htm, accessed on 8 August 2012.
34 Jannie Lasimbang, ‘Sistem Perundangan Orang Asli di Malaysia’ in Round Table Discussion on Indigenous Legal System, held on 18 May 2012.