Malaysia:
Extinguishing Indigenous Peoples Rights
The Human Rights Council is scheduled to examine human rights situation in Malaysia under the Universal Periodic Review during the fourth session from 2 to 13 February 2009. In September 2008, AITPN presented its submission to the OHCHR on the situation of indigenous peoples in Malaysia. Excerpts from the submission are given below.
Why UPR is important for Malaysia
Malaysia, the typical “police state” of Asia has not ratified any major UN conventions except the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women. The Universal Periodic Review of the Human Rights Council which will scrutinize human rights records of the government of Malaysia including on indigenous peoples provides possibly the only opportunity to highlight the situation of indigenous peoples.
Indigenous peoples who constitute about 12% of the 28.6 million population of Malaysia have been specifically targeted for not giving their lands for plantations, logging, dams etc. Poor indigenous peoples - the Orang Aslis of Peninsular Malaysia, the Dayaks of Sarawak and the Natives or Anak Negeri of Sabah are being forced to approach the judiciary to fight against the companies and government which obviously are more resourceful.
In its submission to the OHCHR this excerpt, AITPN discusses the conditions of the Orang Aslis.
The Orang Aslis: The second class Bhumiputras
According to the records of the Department of Orang Asli Affairs (JHEOA), a total of 147,412 Orang Aslis or mere 0.6% of the national population were living in 869 villages in 2004.
The Orang Aslis, literally meaning first peoples have been treated as second class Bhumiputras, sons of the soil. The Special Provision made under Article 153 of the Constitution of Malaysia ensures “the special position of the Malays and natives of any of the States of Sabah and Sarawak” and makes no reference to the Orang Aslis. The references to the Orang Aslis under Article 8(5)(c), Article 45(2), Article 160(2) and Article 89 of the Federal Constitution of Malaysia failed to address discrimination against the Orang Aslis.
Non-recognition of land rights
The Orang Aslis possess over 1,38,862.2 hectares of land but they are not recognized as the lawful owners of their lands. The Malaysian government maintains the obnoxious position that the Orang Aslis “have no rights in the land itself” as they are mere “tenants” on the lands they occupy.
Under Section 12 of the Aboriginal People’s Act of 1954, the authorities may at any time seize or take under its control by providing compensation for the loss of whatever grown on the land. Section 12 of the Act provides that “if any land is excised from any aboriginal area or aboriginal reserve or if any land in any aboriginal area is alienated, granted, leased for any purpose or otherwise disposed of, or if any right or privilege in any aboriginal area or aboriginal reserve granted to any aborigine or aboriginal community is revoked wholly or in part, the State Authority may grant compensation therefore and may pay such compensation to the persons entitled in his opinion thereto or may, if he thinks fit, pay the same to the Director General to be held by him as a common fund for such persons or for such aboriginal community as shall be directed, and to be administered in such manner as may be prescribed by the Minister.”
Under this Act, indigenous Orang Aslis have been victims of systematic discrimination and forcible evictions by the State and the private companies.
The government has the right to gazette lands as Orang Asli Reserve and to degazette the same. However, land approved for gazetting as Orang Asli Reserves dating back to the 1960s was never officially gazetted. Some of these areas have been reclassified as State land or Malay Reserve land or given to individuals or corporations without the consent or knowledge of the Orang Aslis. In fact, the areas of the Orang Asli gazetted reserves have been decreasing over the years. For example, in 1990, 20,666.96 hectares was gazetted as Orang Asli Reserves. However, by 2003 only 19,222.15 hectares remained, with 1,444.81 hectares degazetted. During the same period, there was an increase in applications for Orang Asli Reserves, from 67,019.46 hectares to 79,715.53 hectares. A majority of these new applications were to replace Orang Asli lands de-gazetted for development projects, such as the Kuala Lumpur International Airport and Selangor Dam or for new resettlement schemes.
The litigation against the forcible evictions of Temuan Orang Aslis: Will the customary rights be recognized?
In 1995, the State government of Selangor forcibly acquired 38 acres of land from 23 families belonging to indigenous Temuan tribe for the construction of the Nilai-Banting highway linking with the Kuala Lumpur International Airport. The eviction was done in haste so as to complete the highway project in time for the 1998 Commonwealth Games held in Kuala Lumpur. Their dwelling houses and standing plantations of oil palm, rubber and fruit trees were indiscriminately destroyed. The displaced Temuan tribes were given nominal compensation only for trees, fruits, crops and houses in accordance with section 12 of the Aboriginal People’s Act of 1954.
In the case, seven affected Temuan Orang Asli including Sagong Bin Tasi filed a case in the Shah Alam High Court, Selangor against the Selangor State government, United Engineers Malaysia, Malaysian Highway Authority, and Federal Government of Malaysia for the loss of their lands and dwelling houses. In an historic ruling in 2002, the Shah Alam High Court ruled that the Orang Aslis have a proprietary interest in the customary and traditional land occupied by them and that they have the right to use and derive profit from the land. The Court held that members of the Temuan tribe were unlawfully evicted from their ancestral land in central Selangor State to make way for the highway and ordered payment of compensation. The four defendents appealed before the Court of Appeal of Malaysia. But the Court of Appeal upheld the historic judgment of the Shah Alam High Court in 2005.
Again the defendants have appealed to the Federal Court, the Highest Court of Malaysia. In April 2008, the case has been postponed by threemember panel led by Chief Justice Datuk Abdul Hamid Mohamad as the newly formed Selangor State government needed time to study the 13-year-old Orang Asli case.
This is a test case on whether the interest of the Orang Asli over customary land is merely a right of usage of the land or it also includes a proprietary interest in the land. The survival of the Orang Asli to a large extent hinges on this keenly awaited judgment.
Exclusion from benefits of development projects
Poverty is widespread among the Orang Asli community. There were about 22,967 Orang Asli families whose monthly incomes are below the poverty line as in mid-2005.
The poverty is a direct consequence of the failure of the initiatives undertaken by the Department of Orang Asli Affairs (JHEOA) such as RPS (Rancangan Perkumpulan Semula, the Regroupment Schemes) launched in late 1970s to assimilate the Orang Aslis. The JHEOA launched RPS in Betau, Pahang; RPS and TSK Tanaman Semula Komersial Pos Jernang, Perak; and RPS Lenir Bekok, Johor. These regroupment schemes were implemented to regroup the scattered Orang Asli settlements located near the main range of Peninsular Malaysia. Under these schemes forest areas were opened up and released by the Forestry Department for land development schemes. The land schemes are transformed into settlements of Malays, rubber and oil palm plantations.
Obviously, the Orang Aslis did not benefit. These projects however isolated the Orang Aslis from their custom and culture, destroyed their homes and the natural resources, and made them poorer and more marginalised.
Further, dam projects are also displacing the Orang Aslis. The Che Wong Orang Asli community is facing relocation because of the Kelau Dam project in Pahang. About 500-plus Orang Aslis are affected by the construction of the Kelau Dam which is expected to inundate 4,090 hectare of land including 1,000 hectare of the Lakum forest reserve, Felda reserves and Orang Asli’s ancestral lands.
Proselytization of the Orang Aslis by the Islamists
In 1960s, a policy of integration of the Orang Aslis was started through the Department of Orang Asli Affairs (JHEOA) with the ultimate aim of integrating them into the mainstream Malay society. However, this has taken a different shape. The Orang Aslis who traditionally do not follow mainstream Muslim religion have been targeted for proselytization by the Islamists.
Preachers who marry Orang Asli women receive a lump sum of 10,000 Ringgit (2,707 dollars) as well as free accommodation, a four-wheel drive vehicle and a monthly allowance of 1,000 Ringgit (Malaysian currency). More than 12,000 Orang Aslis reside in Kelantan State and 2,902 have already converted to Islam. But the provincial government is reportedly unhappy with the slow process of proselytisation and wants to complete the process of conversion by inducements.
In June 2007, authorities in Kelantan State demolished a church shortly after it was built by members of the Temiar tribe in their ancestral land. The village headman and three others have challenged the State government in Court seeking a declaration that the land belonged to them and the demolishment was unlawful. While the Kelantan government claimed that the church was illegally built on State land and villagers ignored notices to stop construction.
Kelantan is a province ruled by the Islamic fundamentalists.
Ineffectiveness of the Department of Orang Asli Affairs
The Department of Orang Asli Affairs (JHEOA) set up pursuant to the Aboriginal Peoples’ Act of 1954 retains a paternalistic attitude towards the Orang Aslis. The JHEOA has been ineffective in safeguarding or guaranteeing their land rights. A 1961 Policy Statement which is still applicable states in respect of Orang Asli’s land rights that “every effort will be made to encourage the more developed groups to adopt a settled way of life and thus to bring them economically into line with other communities in this country.” In the same section, seemingly contradictory duties requires the Department to recognise “the special position of the aborigines in respect of land usage and land rights” and that they “will not be moved from their land without their free consent”.
The JHEOA with a majority of nonindigenous staff is perceived by the Orang Aslis as being distant, unapproachable and irrelevant in representing their interests at the national level. A 2001 resolution passed by the Orang Asli Association of Peninsular Malaysia calls for the dissolution of the Department, or the transfer of the effective control to the Orang Aslis themselves.