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ORANG ASLI AND THE CONSTITUTION Protecting Customary Lands and Cultural Rights

Posted by mayashanti5282046 于 十一月 21, 2008

Colin Nicholas

Paper presented at the14th Malaysian Law Conference, organised by the
Bar Council of Malaysia, 29-31 October 2007, Kuala Lumpur Convention Centre.

Today, as it was in the past, the Orang Asli are locked in a dynamic struggle with the wider society over the control of resources they declare as their own, over attempts at denying and redefining their cultural identity, and over concerns of political access and economic distribution.

They find themselves poised against the machinations of the nation state that they now are a part of. It also the state – which, by its very nature, is politically organised to assert and maintain control over its citizens – that, in current times, is largely responsible for the ever-changing conditions of Orang Asli society.


The State and Orang Asli Wellbeing
Developmental and ideological policies pursued by the state consciously or unconsciously ignore the economic and social interest of the Orang Asli in part because the state has also come to regard the Orang Asli as being no different from the other citizen groups, and therefore not warranting of government on different terms, including in respect of Orang Asli claims to their territories by custom and history. That is to say, the Orang Asli are not recognised as a people.

But the Orang Asli are not simply aggregates of separate individuals belonging to a category or ethnic group. Rather, they are a distinct group that is associated with particular territorial bases. Indeed, the attachment of the Orang Asli to particular localities (or ecological niches) is one of their most notable and politically significant features whereas identification of self with locality is alien to the logic of modern political-economy.

To the Orang Asli, the environment is more than a collection of water, animals, plants and landforms. It is the basis of their spirituality and the source of their identity. It is to be treated with appropriate respect and must be kept in balance. Disrupting this balance (such as through pollution, over-developing, or over-hunting) will only result in tragedy, not just for the environment but for the people as well.

For this reason, the Orang Asli child learns from the elders about the riches of the environment and how it will forever protect them as long as they reciprocate the relationship. The usefulness of the products of the forest – for fuel, medicines, food, building materials, crafts, and for peace of mind – are continually shown to the child. The child itself is encouraged to use the forest as its playground.

That the forest is a living entity, with a soul and spirituality of its own, is also imparted to the child. The child believes in all this because the parents themselves believe in it. Remove this dominion and you remove the very basis of the fabric of Orang Asli society. As they say, it takes a village to raise a child. And that village is situated in a specific ecological niche.

Governments, and the people who represent them, somehow can never comprehend the need for the Orang Asli to identify with specific territories or customary lands. Governments, also, are generally motivated by a range of specifically short-term political, social, and bureaucratic interests that are sometimes contradictory and inconsistent in themselves, and these often cause significant changes in the lives of Orang Asli. The changes habitually conform to state interests and frequently produce a pattern of policy failure and local crises accompanied by a growing pattern of local dependency and reduced local autonomy on the part of the Orang Asli.

A reduction in local autonomy, nevertheless, is the key instrument for the state to effect control over Orang Asli society and resources. It can be said that Orang Asli have begun to be a target of internal colonialism. This is a state in which indigenous peoples are subjected to administrative control, dispossession of lands and resources, and forced or induced assimilation. The reasons for the propagation of internal colonialism are varied, but are usually related to areas of control. Ironically – and yet demonstrative of its effectiveness – such domination eventually becomes so successful that it is culturally accepted and becomes a fact of life for the Orang Asli.

But why is the state reluctant to accord autonomy to the Orang Asli? This has to do, in large part, with the fact that the Orang Asli occupy the last remaining resource frontiers in a nation-state dominated by a profiteering system searching for geographical space and natural resources.

So if their traditional lands have provided the Orang Asli with both content and form of their culture, their displacement from it, or its environmental destruction – an integral part of modern development – would destroy the fabric of Orang Asli societies in an unprecedented manner such that de-culturisation occurs. Precisely for this reason, therefore, the unrestrained state chooses not to recognise Orang Asli ownership and control of their customary lands – and in so doing asserts its control over a people, remove any remnant of autonomy-aspiring pockets of individuals among them

It soon becomes clear to the Orang Asli therefore that the agenda of the state are quite distinct from that of their own. As a result, conflicts frequently result, especially over claims to the Orang Asli’s traditional territories. And it is in the contesting claims over their traditional territories that the Orang Asli are today finding themselves increasingly having to resort to legal avenues in order to hold on to the basis of their identity as a distinct people.

Are there Protections for the Orang Asli
in the Constitution?

Increasingly, of late, when protests, dialogues, appeals and blockades have failed to secure their rights to their customary lands, the Orang Asli have been forced to resort to the courts. It is to the Constitution, in particular, that they turn to as a last resort to seek justice and fairness. But does the Constitution protect the Orang Asli?

First, it should be pointed out that writing a constitution involves consensus, consultation, compromise, and a conscience. The Orang Asli were evidently left out of the process when Malaya’s Constitution was being debated and drafted. This is why, as several legal commentators have long pointed out, there are glaring omissions in the Constitution where Orang Asli rights are concerned.

In fact, we can even say that the Constitution, to some extent, actually discriminates against the Orang Asli. For example, under Article 153, they are left out of the categories of peoples who are accorded special privileges (viz. the Malays and natives of Sabah and Sarawak). This article posits the mandatory duty of safe-guarding the special position on these privileged communities in specific areas of economic activity, education and employment on the Yang DiPertuan Agung.

The Orang Asli are, in fact, mentioned in only four places in the Federal Constitution. And that too in a rather unclear way so much so that it has also become increasingly difficult to argue for the same rights and privileges that are accorded to, for example, the Malays (on account of their claim to indigenity). The four places where the Orang Asli are mentioned in the Federal Constitution are:

• Article 8(5)(c), which legitimizes discriminatory legislation in favour of Orang Asli by way of provisions in the law of their protection, well-being and advancement (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service.

• Article 45(2), which provide for the appointment of Senators “capable of representing the interest of the aborigines”.

• Article 160(2) which rather unhelpfully defines an aborigine as “an aborigine of the Malay Peninsula” and Ninth Schedule; List 1 that vests upon the Federal Government legislative authority for the “welfare of the aborigines”.

• Article 89, where an indirect reference to Orang Asli is inferentially made in with regard to Malay Reservations.

But in reality, the government has chosen to interpret the vagueness in the Constitution in its favour, rather than to protect the rights and interests of the Orang Asli indigenes. Thus, while the Constitution does authorise the government to enact laws that are in obvious favour of the Orang Asli – “for their protection, wellbeing and advancement” – it has not done so.

Was there Intent to Protect?
However, in the early debates on the protection of the rights of the Orang Asli, including that of their customary lands, suggests that there is consensus that the laws of this land should take the cue from the Constitution and proactively provide for the protection of Orang Asli rights.

The Legislative Council Debates of 1953-1954 contained a promise that there would be sufficient gazetting of Orang Asli traditional territories as Orang Asli reserves. Tok Pangku Pandak Hamid, the nominated Legislative Council member for the Aborigines (equivalent to our present-day Senator for the Orang Asli) had asked whether the government had taken any steps to ensure that the hereditary lands of the Aborigines were reserved for their use. To this, the then Minister of Education, Mohd Khir Johari, had replied that,

“under the Aboriginal Peoples Ordinance (No. 3 of 1954, Clause 7) there is provision for the gazetting of Aborigine Reserves. Steps are now being taken to create these reserves.…”

En. Mohd Khir Johari had also stated that,

“At the moment there are in existence in the Federation 58 gazetted Aborigine Reserves covering in all approximately 30 square miles (7,770 ha), and including some 5,200 aborigines. An additional 120 areas are currently under consideration, with a view to gazetting as Reserves. They cover about 389 sq. miles (100,750 ha) and include approximately 21,000 aborigines.”

This promise was never fully kept. Of the total 108,520 hectares to be gazetted as Orang Asli reserves, only 19,222 hectares are gazetted today i.e. only 18 percent of the promise has been kept. Also, it should be stressed that the promised figure only involved 26,200 Orang Asli out of a population of about 100,000 then. In fact today, only about 110 out 869 Orang Asli settlements (i.e. only 13 percent) are gazetted as Orang Asli reserves.

The question of adequate gazetting was also noted by Mohd Tap bin Salleh, a former Assistant Director-General of the JHEOA, in his 1990 doctoral study on the administration of the Orang Asli. He concluded that about 60-70% of Orang Asli lands were unprotected (Mohd Tap 1990: 71). In the same research, he also succinctly captured the adverse consequences of the non-gazetting or under-gazetting of Orang Asli lands, as follows:

On the other hand, compared to the limited rights of these (Orang Asli) communities that occupy legally designated areas and reserves, those Orang Asli communities that occupy areas in which other rural populations are facing an acute shortage of land, are denied even these limited rights. In spite of longstanding requests for all traditionally occupied Orang Asli areas to be declared reserves or areas so that their rights, however, limited, can be protected, scores of state authorities have been reluctant to agree to these requests. This has resulted in about 60-70 percent of Orang Asli communities having no legal rights or protection over the land they have traditionally occupied for a long time. The majority of these communities have become victims of newly created laws and regulations. They have suddenly found themselves to be illegal occupants of newly designated forest reserves, nature reserves, catchment areas and areas earmarked by the government for special development. As a result, scores of Orang Asli communities, although recognised as having the moral rights, but not the legal rights to occupy the land they are in, are facing constant harassment and constant encroachment by outsiders.

Being a civil servant, Mohd Tap appears to be parroting the oft-repeated assertion that the Orang Asli do not hold legal rights to the customary lands, only a moral claim. Notwithstanding the proclamations of our courts thus far – that the Orang Asli can claim common law title to their traditional territories without the necessity of showing a piece of document from the state saying so – the authorities should be reminded that the 1961 Statement of Policy Regarding the Administration of the Orang Asli in Peninsular Malaysia clearly reaffirms the rights of the Orang Asli, both as enshrined in the Constitution, and as envisaged by our founding legislators.

(The Statement of Policy has been confirmed to be still in force by a Director-General of the JHEOA during testimony under oath during the Sagong Tasi land rights case in 2001.)

The 1961 Policy Statement in fact carried some important broad principles and “special measures” to be adopted “for the protection of the institutions, customs, mode of life, person, property and labour of the Orang Asli”, as set out in Section 1, paras (a) to (f) on pages 2 to 3 of the document.

In particular, the more pertinent clauses are:

Para (a): The aborigines (Orang Asli), being one of the ethnic minorities of the Federation, must be allowed to benefit on an equal footing from the rights and opportunities which the law grants to the other communities. …

Para (b): The social, economic and cultural development of the aborigines should be promoted with the ultimate object of natural integration as opposed to artificial assimilation. … Due account must be taken of the cultural and religious values and of the forms of social control existing among the various communities, and of the economic change.

Para (c): The aborigines shall be allowed to retain their own customs, political system, laws, and institutions when they are not incompatible with the national legal system. In this respect, the methods of social control of the deep jungle groups shall be used as far as possible for dealing with crimes or offences committed by aborigines.

Para (d): The special position in respect of land usage and land rights shall be recognized. … Also, the Orang Asli will not be moved from their traditional areas without their consent.

Thus, while ensuring and securing the identity and autonomy of the Orang Asli, the 1961 Policy Statement specifically assured the Orang Asli they will not be moved from their traditional areas without their consent, further reinforcing their moral and legal right to their customary lands.

The Tunku himself recognised that the Orang Asli had rightful claims to their traditional territories. In his address announcing the new Radio Malaya Programme for the Orang Asli on 3 February 1959, he had said to the Orang Asli listening in,

The Emergency is coming to an end, and you are now able to return to the place of your choice and live in peace as before. … Do not forget, my government is working to enable you to return to your original dwelling place and live as you choose.

The early intent of the government to protect Orang Asli culture and lands was recently reinforced by its endorsement of the United Nations Declaration of the Rights of Indigenous Peoples (DRIP) – first as a member for the Human Rights Council which, on 30 June 2006, supported the resolution to put the Declaration before the General Assembly for adoption, and then again as a member state which voted on 13 September 2007 for the Declaration together with the majority of other nations.

However, despite all the protections, despite all the good intentions, and despite all international posturing, the sad reality is that the Orang Asli today justifiably fear for their identity, culture and especially for their traditional lands.

Some of the lands that were approved for gazetting as Orang Asli Reserves as far back as the 1960s, were never administratively gazetted thus placing these lands in serious jeopardy of being lost to others. And for no fault of the rightful customary owners. In fact, some of these areas have already been reclassified as state land or Malay Reserve Land or given to individuals and corporations – without the Orang Asli’s knowledge, let alone consent.

Missing Protections:
The Orang Asli Land Situation Today

From Table 1, we note that only 19,222.15 hectares have been gazetted as Orang Asli reserves in accordance with the Aboriginal Peoples Act. This represents only 15.1 per cent of the total land area (127,698.54 hectares) in 2003 that, in the eyes of the authorities, are Orang Asli inhabited places, Orang Asli areas or Orang Asli reserves as stipulated in the same Aboriginal Peoples Act.

Orang Asli are also said to be occupying 9,873.04 hectares of land without authorisation while 644.17 hectares are said to be legally owned by Orang Asli by way of individual lands titles (Table 2). That is to say, as of 31 December 2003, only 0.5 per cent of Orang Asli had titles to their lands (and most these Orang Asli have done so on their own accord).

Also, only 15.1 per cent of all recognised Orang Asli lands were duly gazetted as Orang Asli reserves. Another 22.5 per cent (28,760.86 hectares) had been duly approved for gazetting as reserves but, alas, the actual administrative gazetting was not done.

In some cases, the approval for gazetting was given in the mid-1960s and mid-1970s, according to the JHEOA’s Data Tanah of the early 1990s, but to date the actual gazettement was never effected.

In some other cases, such as in Kuala Krau and Bera districts in Pahang, Orang Asli lands that were approved for gazetting as Orang Asli reserves in the past eventually became re-classified as “Tanah Kerajaan” (JHEOA Data Klasifikasi Kampung 1997). More often than not, this was done without the knowledge or consent of the Orang Asli concerned.

Table 1
Orang Asli Land Status, 2003 (hectares)


Table 2
Orang Asli Occupied Lands, 2003 (hectares)


Table 3
Change in Orang Asli Land Status
1999-2003 (hectres)


What is also of concern is that even the area of Orang Asli gazetted reserves have been decreasing over the years. From Table 3 above, it will be seen that from 1990 to 2003 a total of 1,444.81 hectares of Orang Asli reserves were de-gazetted.

Furthermore, another 7,315.47 hectares of Orang Asli lands that were approved for gazetting, was not only never gazetted but their ‘approved’ status was eventually revoked. Thus, from 1990 to 2003, at least 8,760.28 hectares of recognized Orang Asli lands had their status retracted.

In the same period, nevertheless, there was an increase of applications for Orang Asli reserves, from 67,019.46 hectares in 1990 to 79,715.53 hectare in 2003. It should be noted however that the majority of these new applications for gazetting were to replace Orang Asli lands that were de-gazetted for development projects (such as the KLIA and Selangor Dam projects) or for new resettlement schemes. Even so, the status of these lands is that of mere ‘applications’. They do not have the legal weight of the second category (‘approved for gazetting but not gazetted yet’) which, it should be added, in itself was also not a good enough category to secure Orang Asli lands.

As noted by the judges in the High Court and Court of Appeal Judgments in the Sagong Tasi case, the main problems facing the Orang Asli with regard to their customary lands is one in which the government has failed in its statutory duty to protect Orang Asli lands from encroachment, exploitation and appropriation by others (including the government itself). As a result of the state and federal governments’ neglect in both under-gazetting and not gazetting areas which they knew were inhabited by the Orang Asli, the latter’s  rights in the land were placed in serious jeopardy.


New Orang Asli Land Policy
to give land to the Orang Asli?

The proposed Orang Asli Land Policy is bandied about as aimed at addressing the Orang Asli land problem. It plans to set aside some 75,900 hectares for 30,000 Orang Asli families, who will each get 6.25 acres (2.53 hectares) of agricultural land and homestead. But as, we have seen above, the government has already recognised 127,698 hectares as being Orang Asli lands, albeit with varying statuses.

Thus, with the setting aside of 75,900 hectares for the Orang Asli under the proposed Orang Asli Land Policy, the reality is that the Orang Asli will stand to lose 51,798 hectares (40 per cent) their government-recognised lands now. They will also stand to lose all other lands that they are now occupying or stake a customary claim to.

Furthermore, these 6.25 acre (2.53 hectares) family plots are assigned to them on a 99-year-lease basis. Nothing, as such, can be more graphic of the Orang Asli’s fate than this twist in the knife: that their inalienable right to their land now has an expiry date!

So how did we come to this stage where Orang Asli rights, especially rights to land, no longer protected? And what is the way out?

Going back to the Constitution
Clearly the economic and political powers-that-be, and those who are in cahoots with them, are using their (immoral) clout to get at the lands and resources of the Orang Asli. And frequently they use their interpretation of the law to deny the Orang Asli their rights to their traditional lands. And they are doing this at an alarmingly increasing rate.

The Orang Asli face an uphill battle in challenging them at all levels. Ultimately, the last bastion of their rights falls at the feet of our judges. Orang Asli are hoping that they will continue to defend the spirit of the Constitution and the good, moral and legal intentions of our founding lawmakers.

Like them, I hold the view that there are protections to Orang Asli rights to land and life in the Constitution, as well as in the policies and intentions of the government.

We can only hope that the courts will continue to guarantee these protections, not as an act of pity or charity, but because the Constitution and our political affirmations require it to be so.

The Orang Asli have looked upon the courts as their last resort in their pursuit of only one thing they seek – justice.

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