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Malaysia at UPR: OHCHR’s summary forgets Sabah and Sarawak

During the upcoming fourth session from 2-13 February 2009, the Human Rights Council is scheduled to examine the human rights situation in Malaysia under the Universal Periodic Review.

On 19 November 2008, Malaysia submitted its national report to the Human Rights Council. Malaysia’s national report comprising 114 paragraphs in VI Parts, among others, summarizes Malaysia’s efforts for promotion and protection of human rights; its achievements, best practices, challenges, constraints and national priorities; and capacity building.

Various non-governmental organizations – national, regional and inter-national – submitted stakeholders’ submission. In order to bring out the exact situation of human rights of the indigenous peoples in Malaysia, it is pertinent to critically analyse Malaysia’s national report vis-à-vis various stakeholders’ submissions, reports and the compilation prepared by the Office of the High Commissioner for Human rights.

Summary of Malaysia’s national report (on the rights of the indigenous people)

In sub-part B (Challenges, constraints and national priorities) in Part IV of its national report, Malaysia devoted 11 paragraphs to highlight its efforts for uplift of the indigenous peoples and minorities. Malaysia considers lifting indigenous groups from backwardness through assimilation into mainstream society as the most significant challenge. Malaysia states that it has developed comprehensive policies and strategies to uplift the status and quality of life of the indigenous community via socioeconomic programmes as well as through prioritising the preservation of traditional cultural heritage of the indigenous peoples. It particularly highlighted the Constitution, the Aboriginal People Act, 1954; the Department of Orang Asli Affairs, State Committee on Penan Affairs and various programs formulated and implemented under the Committee are Penan Volunteer Corps, Service Centres, Education Assistance, Health and Medical Services and Agriculture Extension Services.

On land rights, Malaysia states about the gazetting of 2,128 hectares of land to the Penans as native customary rights (NCR) by Sarawak State Government in 1981 and development of these areas for commercial plantation for the benefit of 154 Penans. Malaysia’s national report further states that a total of 52,864 hectares of land in the Baram district was allocated to the seminomadic Penans for hunting and gathering purposes.

OHCHR’s compilation of UN information

Except the Convention on the Elimination of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC), Malaysia has not ratified any of the major United Nations conventions.

Malaysia has neither issued any standing invitation to any of the Special Rapporteurs nor agreed upon the requests by many Special Rapporteurs to visit the country. A request by the Special Rapporteur on indigenous peoples has been pending since 2005.

The UN Committee on the Rights of the Child has recommended that Malaysia undertake steps to prevent and combat discriminatory disparities against children belonging to vulnerable groups, including the Orang Asli, indigenous and minority children living in Sabah and Sarawak and particularly in remote areas.

On 14 January 2008, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people and the Special Representative of the Secretary- General on the situation of human rights defenders raised concerns with the Government of Malaysia on the death of an aboriginal leader involved in anti-logging campaigns in the Upper Baram region.

OHCHR’s summary of stakeholders’ submissions

From various stakeholders’ submissions, the Office of the High Commissioner on Human Rights (OHCHR) summarized the following issues with regard to indigenous people in Malaysia:

“The Orang Asal, or indigenous peoples, consist of more than 80 ethno-linguistic groups, each with its own culture, language and territory, as indicated by the Jaringan Orang Asal Semalaysia (JOAS). Collectively, the 4 million indigenous peoples are among the poorest and most marginalised. SUHAKAM noted that the rights of indigenous people to customary land should be upheld; and existing state legislations should be reviewed. SUHAKAM noted that the Malaysian Court has progressively recognised customary land rights. BCM noted that State Governments have cleared ancestral land and/or alienated land occupied or utilised by aborigines to third parties (e.g. for logging, palm cultivation) and has only offered to pay compensation for loss of agricultural products planted on such land. According to BCM, the GOM has found it difficult to extend to the aboriginal community the right to proper education and health services. 105 COMANGO also indicated that there is also an ‘Islamisation policy’ that targets the conversion of the Orang Asli community.”

For reasons best known, OHCHR, though it confirmed the receipt of the submission by AITPN, has failed to mention AITPN and in this process has omitted a number of critical issues, raised by AITPN, from the stakeholder’s summary report. AITPN summarises the concerns with regard to the situation of indigenous peoples in Sabah and Sawarak.

i. Preference for logging and plantations over cultivation in Sabah

In southern part of Sabah, the State has given the lands which lie within the Kalabakan Forest Reserve to several companies against the repeated appeals from the Serudung Murut of Kalabakan. Several indigenous communities have established settlements and farms in forest reserves as more lands are being taken for oil palm plantations. The process of demarcation and recognition of customary lands is very slow, while the alienation of large areas for plantations, logging and protected areas is rapid. The National Human Rights Commission urged the government to consider the problems faced by the villagers who have been residing in the areas since before it was gazetted as a Forest Reserve.[1]

In recent years, the government rapidly expanded oil palm cultivation especially in States of Sarawak and Sabah. At least 55-59 percent of oil palm expansion between 1990 and 2005 occurred at the cost of forests. The area of oil palm plantations more than doubled to 3.6 million hectares and at least 1.04 million hectares were converted for the oilseed during the period.[2]

Further, Native Customary Lands are being converted to corporate monocultures in Sarawak. The Sarawak’s Land and Survey Department signs away NCR lands before communities give prior informed consent. For example, a South Korean-Malaysian joint venture is about to set up a cassava plantation on about 2,000 hectares of Native Customary Rights (NCR) land initially in Balut area in Julau district. The State Land and Survey Department reportedly confirmed the land status. The government states that the project will benefit the people and landowners besides creating jobs and business opportunities, etc.[3]

As a result of Native Customary Rights (NCR) being continuously eroded, on 20 February 2008, a memorandum containing land claims from 32,352 natives over a collective area of 339,984 acres from 18 districts in Sabah was submitted to Head of State Tun Ahmadshah Abdullah and Chief Minister Datuk Seri Musa Aman.[4]

ii. Targeting the Penans of Sarawak

The conditions of the indigenous Penans in Sarawak State remained deplorable. In July 2007, the SUHAKAM following a fact-finding mission issued statement identifying seven key areas requiring “drastic improvement” by the government in order to improve the situation of the Penans. The SUHAKAM listed the following concerns – land rights; Environmental Impact Assessment (EIA) reports; poverty; personal identification documents; education; health and the duty of the Sarawak State government to protect the rights of the Penans. The SUHAKAM stressed the need to amend the Sarawak Land Code of 1958 as the Code has no provision on the rights of the Penans to land ownership.[5]

Certifying the extinction process:

In 2001, the Malysian Timber Certification Council (MTCC) started a dubious method of legalizing its illegal trade of timber by issuing “certificates” in the name of promoting environmentally sound logging practices. The MTCC issues two types of certificates - Certificate for Forest Management and Certificate for Chain-of-Custody. The Certificate for Forest Management certifies that the Forest Management Units (FMU) is sustainably managed and that timber was harvested legally. The Certificate for Chainof- Custody assures the buyers that timber products originated from MTCC-certified FMUs. MTTC states that participation and consent of local communities, particularly forest-dwelling indigenous people, is a key criterion for issuing of such “certificates”.[6]

However, since 2001, the Network of Indigenous Peoples and Non- Governmental Organisations on Forest Issues (JOANGOHutan) withdrew from talks with the government on certification process. The organisation held that the scheme is “only concerned with the sustainability of timber production and not the socialcultural sustainability of indigenous livelihoods”. Like elsewhere, participation of indigenous peoples is tokenism at its best.[7]

In January 2007, the Sarawak authorities prevented the indigenous leaders from meeting an official delegation of European Union which visited Sarawak as part of the negotiations between the EU and Malaysia to reach a “Voluntary Partnership Agreement” to control illegal logging and work towards sustainable forest management in Malaysia.[8]

The socalled certification process by the MTCC has been allowing the illegal loggers to flout the sustainable forestry practices and indigenous peoples’ rights over their lands and resources. The MTCC has reportedly certified 4.73 million hectares of Permanent Forest Reserves (PFR) that include eight forest management units (FMU) in the peninsula and the Selaan-Linau FMU in Sarawak. The practice is therefore proving to be disastrous for the survival of the indigenous peoples who are largely dependent on forests produce.[9]

Manipulating Environmental Impact Assessment

Environment Impact Assessments for projects are often manipulated by the authorities. In the Belaga in Sarawak, the Environmental Impact Assessment (EIA) done by JB Agriculture Management Services for an oil palm and forest plantation totally overlook the presence of the Penans by saying that there was no evidence of human settlements in Ulu Belaga forests. However, the Malaysian Human Rights Commission (SUHAKAM) following a fact-finding mission to Sarawak in September 2006 found contradictions and inconsistencies in the EIA on Shin Yang Forest Plantation which stretches between Batang Belaga and Sungai Murum. The EIA of the plantation scheme erroneously declared that there is no human settlement in the 155,930ha project area. Earlier, in 1999, Shin Yang had obtained a 60-year Licence for Planted Forest. The project is divided into 80% forest plantation and 20% oil palm. Suhakam which released its report ‘Penan in Ulu Belaga: Right to Land and Socio-Economic Development’ in August 2007 revealed that 19% of the Penan population of 15,500 reside in Ulu Belaga, with 20 settlements in the disputed region.[10]

Killing as the response

Those who oppose logging were targeted. Many Penans have been arrested and jailed for their actions. In December 2007, a village chieftain identified as Kelesau Naan (70) was found dead in the jungles of Borneo in Sarawak state. Some of his bones were reportedly fractured indicating that he had been assaulted. He disappeared on 23 October 2007 while checking an animal trap near the remote village of Long Kerong in eastern Sarawak State. Kelesau Naan has been a key figure in antilogging efforts by the Penans.[11] Many supporting activists who carried out fact-finding missions or spoke out against atrocities perpetrated by logging companies, police, etc were banned from entering Sarawak.[12]

On 28 January 2008, an Iban village chief and two others identified as Tuai Rumah Taman Anak Embat (55), Robert Anak Gickson Sawing (23) and Alu Anak Embat (58) were arrested for setting up a blockade to stop encroachment by plantation company, Saradu Plantation Sdn Bhd for logging activities into their Native Customary Rights (NCR) land in Ulu Balingian.[13]

iii. Displacement due to Bakun Dam in Sarawak

In late 2007, the government of Malaysia decided to resume the controversial Bakun Hydro Electric Project in Sarawak to its original design to generate 2,400 megawatts of electricity power.[14] The Dam has already destroyed 23,000 hectares of virgin rainforest and displaced 9,000 indigenous people. The communities claimed that the survey conducted on the ground was not properly carried out. On 9 August 2007, Australiabased Rio Tinto Aluminium signed a deal with Malaysian conglomerate Cahya Mata Sarawak for a joint study to build a US$ 2 billion smelter in Similajau near Bintulu, 80 km inland from the Bakun Dam.[15] The indigenous people were struggling to survive on resettlement sites due to unemployment and hunger. The indigenous people displaced by the dam project claimed that they have not been properly resettled and adequately compensated. However, the State government has denied these and claimed that only the older generation had reservations about the resettlement program.[16]