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GLOBALISATION : ACCESS TO JUSTICE –
INTERNATIONAL COVENANTS AND PROTECTION OF NATIVE RIGHTS

Presented by
Mr. Gerawat Gala
Advocate of the High Court in Sabah and Sarawak

[©Paper co-authored by Datuk J C Fong (State Attorney-General, Sarawak), and Mr. Gerawat Gala, Mr. Stanley Eddy and Mr. Kilat Beriak of the Sarawak Bar]

1.      PREAMBLE

1.1    Malaysia has the Federal Constitution as its supreme law (Article 4(1)). 

1.2    The present Constitution has its origin from the Report of the Reid Commission which published its report in February 1957.  The then Government appointed a Working Committee, comprising 4 members of the ruling Alliance Party, four Rulers and two British officials, to consider the Report. The Working Committee made various recommendations which included entrenchment of the special privileges for the Malays. Whilst the Reid Commission proposed that the special privileges should be reviewed after 15 years, the Working Committee came to the conclusion that the Yang di-Pertuan Agong should review them from time to time, with no limitation as to time.

1.3    The Working Committee’s proposals were then incorporated in Article 153 of the Federal Constitution. These special privileges were extended to the natives of the States of Sabah and Sarawak vide the Constitution (Amendment) Act 1971 (Act A30). Additional provisions to protect the special position of the natives of the two Borneo States appear in Article 161A of the Federal Constitution, and these include, giving them preferential treatment as regards alienation of land by the State. Further, Article 39 of the Constitution of the State of Sarawak have provisions identical to Article 153 of the Federal Constitution which entrusts the responsibility of safeguarding the special position of natives in Sarawak and the legitimate interests of other communities, to the Yang di-Pertua Negeri.^[1]

1.4    The rationale for Article 153 of the Federal Constitution and Article 39 of the Constitution of the State of Sarawak is that Bumiputras constitute, historically and, even to our present day situation, economically disadvantaged groups who would fall further behind in economic reality if no constitutionally sanctioned mechanism is in place, to aid in their advancement.  What is enacted in Article 153 is similar to clause 19(1)(d) of the Federation of Malaya Agreement which provided that it was the responsibility of the High Commissioner to safeguard the special position of the Malays and the legitimate interests of other communities.  Four fundamental issues in respect of which special safeguards for the Bumiputras should be accorded were: land, admission to public services, the issue of permits or licences for the operation of certain businesses, and scholarships, bursaries and other forms of aid for educational purposes.

1.5    Tun Suffian, Lord President, in reference to Article 153, said in his book, An Introduction to the Constitution of Malaysia (2^nd Ed) p.321:

“Protective provisions were written into the Malaysian Constitution not with the intention of pulling back the advancement of the non-indigenous people but with the intention of securing the advancement of the indigenous people who, through no fault of their own, were and are educationally, socially and economically less advanced.”

1.6    The Courts have given judicial recognition to the need to safeguard the special position of the Bumiputras. The Federal Court in Fan Yew Teng vs Public Prosecutor [1975] 2 MLJ 235 @ page 238 per Lee Hun Hoe CJ (Borneo) held:-

“That the Yang di-Pertuan Agong is to safeguard the special position of Malays and natives in Sabah and Sarawak and the legitimate interest of other communities is clearly spelt out in Article 153 of the Federal Constitution.  These provisions cannot be questioned and are necessary to assist the less advanced or fortunate in the light of the conditions prevailing in the country at the time of independence.”

1.7    Article 8 proclaims that “all persons are equal before the law and entitled to the equal protection of the law”. This Article, however, allows for exceptions to the rule of equal protection.  It does not invalidate or prohibit any provision in our law for the protection, well being and advancement of the aboriginal peoples of the Malay Peninsula (including reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service.

1.8    Since the special privileges to the Malays and other natives of the Borneo States are protected by the Federal and State Constitutions, and are excluded from the constitutional safeguards of equal protection for all citizens, could these special privileges withstand the pressures and effects of globalisation – with its pursuit for equal treatment for imported and locally produced goods as well as foreign and domestic services and the concept of “treating other people equally”?

1.9    On the international platform, the rights of indigenous peoples have been studied by a Working Group on indigenous population under the UN Commission on Human Rights and the Economic and Social Council of the UN. The draft Declaration on the Rights of Indigenous Peoples will be discussed in paragraph 6 of this Paper.

2.      GOVERNMENT’S DUTY TOWARDS PROTECTION OF SPECIAL PRIVILEGES

2.1    There are laws in place which ensure Bumiputras have access to the Courts to challenge any encroachment on their special rights and privileges. In the Sarawak context, their native customary land cannot be taken away, even for public purposes, without compensation (See: Sections 5(3) & (4) & 15 of the Land Code (Cap. 81) of Sarawak).  If compensation paid for the termination of their rights over land are considered inadequate by them, they could call for their dispute over compensation or any decision of the Superintendent of Lands & Surveys, to be referred to arbitration by arbitrators appointed by the Chief Judge of Sabah and Sarawak. Under Section 25 of the Courts of Judicature Act 1964 and Section 44 of the Specific Relief Act 1950, the natives could seek judicial review of executive action or decision which affects their rights or obtain a declaration of their rights. Their rights of access to the Courts to safeguard their special privileges are guaranteed by the relevant laws.

2.2    The Courts have also held that the Government has a fiduciary duty to protect the welfare of the aborigines including their land rights, and not to act in a manner inconsistent with those rights. The High Court in Shah Alam held in Sagong bin Tasi vs. Kerajaan Negeri Selangor & Ors [2002] 2 MLJ 591:-

“And in the Wik People’s case [The Wik Peoples vs. The State of Queensland & Ors [1996] 187 CLR1] it was reiterated that the fiduciary must act consistent with its duties to protect the welfare of the aboriginal people. The remedy where the Government as trustee or fiduciary has breached its duties, is in the usual form of legal remedies, namely by declaration of rights, injunctions or a claim in damages and compensation.”

2.3    From these judicial pronouncements, it is clear that legal remedies will be available where the Government fails in carrying out its fiduciary duties to “protect the welfare of the natives” or acts in the manner inconsistent with their rights.

2.4    In the case of Kerajaan Negeri Selangor & Others vs. Sagong bin Tasi (Civil Appeal No. B-02-419-2002 – CLJ Bulletin 39/2005) the Court of Appeal awarded damages or compensation to natives, viz. the Orang Asli people, over land which they claimed to be their customary land even though such land were not gazetted as Aboriginal Reserve under the Aboriginal Peoples Act 1954, holding, inter alia, that “the failure or neglect of the first defendant (Government of Selangor) to gazette the area in question also amounted to a breach of fiduciary duty”.

2.5    The Native Court systems in Sabah and Sarawak, established by legislations passed by virtue of constitutional authority conferred under Item 13 of List IIA - Supplement to State List for States of Sabah and Sarawak in the Ninth Schedule to the Federal Constitution, also accord recognition, protection and enforcement of native customs, including native marriages, divorce, maintenance of children of customary marriages between natives, distribution of properties and disputes over land held under customary tenure.

2.6    The Court of Appeal held in Superintendent of Land & Surveys, Bintulu vs. Nor anak Nyawai & Ors [2005] 3 CLJ 555 that “the common feature which forms the basis of claim for native customary rights is the continuous occupation of land” and that “although the natives may not hold any title to land and may be termed licencees, such licence cannot be terminable at will. Theirs are native customary rights which can only be extinguished in accordance with the laws and this is after payment of compensation”.

2.7    In Sarawak, the Majlis Adat Istiadat is a body which is established by law to codify native customs and under the Native Customs (Declaration) Ordinance, 1996, codes of native customs may be compiled and published by the Majlis Adat Istiadat after consultation with the Chiefs and Headmen of the various native communities and with the approval of the State Cabinet. Under that Ordinance, any code of native customs published would be conclusive as to the customs of any native race and shall not be questioned in any Court who would have to recognise and enforce the same.^[2]

2.8    The rights of access to the Courts for the natives to protect their special rights including rights to land and property, or to practise their customs and traditional way of life, are protected by the Federal and State Constitutions, as well by laws passed by the Parliament or the State Legislatures. If globalisation and the resultant liberalisation of trade have any adverse effect on the natives’ rights including their rights to their customary law, then recourse to the Court to seek legal remedies in the protection thereof, would remain available based on current constitutional and statutory provisions.

3.      SPECIAL PRIVILEGES AND GOVERNMENT POLICIES

3.1    In accordance with the provisions of Article 153 and the discharge of its fiduciary duties towards the Bumiputras, the Government had introduced the First Outline Perspective Plan (OPPI) (1971-1990) which sets out the broad socio-economic framework within which the objectives of the New Economic Policy (NEP) were to be achieved.

3.2    The OPPI was followed by the New Development Policy (NDP) –(1990-2000) which was to continue with strategies to correct economic imbalances to create a more just, united, peaceful and prosperous society. More effective methods were devised to reduce poverty, irrespective of race, as well as to restructure society so as to achieve an equitable distribution of wealth and healthy, sustained economic growth. The NDP placed greater focus on growth and lesser emphasis on setting targets on ethnic restructuring and income distribution. The Third Outline Perspective Plan (2001-2010) has now been introduced, to continue the Government’s policies on poverty eradication and equitable wealth distribution.

3.3    In the pursuit of the abovementioned policies, corporations have been restructured to accommodate Bumiputra equity ownership, specified number of places in local institutions of higher learning have been reserved for Bumiputra students, certain contracts have been awarded to Bumiputra companies and Government assistance, financial or otherwise, have been granted to the Bumiputras to develop their entrepreneurial skills and new businesses.

3.4    These policies have been credited to have sustained peace and stability in our multi-racial nation, promoted national integration, accounted for steady economic growth and reduction in poverty levels. Today, Malaysia is one of the most progressive and economically advanced nations amongst those countries which attained nationhood after the Second World War. However, several vital goals of these policies have yet to be achieved. The original NEP goal of a 30% equity ownership by Bumiputras and State agencies who act as trustees for Bumiputras, has not been attained. By 1999, equity ownership by Bumiputra interests was just over 19% of the total – the same level as in 1990. Equity ownership by Malaysian Chinese also fell to just under 40%, but foreign ownership increased to almost 33%.^[3]

3.5    But, are we, Malaysians, generally, and the Bumiputra communities particularly, ready for Globalisation and liberalisation of our Economy, especially, as appears from para 3.4 above, the goals of the NEP especially with regard to Bumiputra equity ownership in Malaysian corporate sectors is still short of the 30% target?

4.      GLOBALISATION

4.1    The term “Globalisation” in its economic sense involves:-

• The integration of economies worldwide where world economy is viewed as a single market and production area with regional or sub-sectors rather than a set of national economies linked by trade and investment flows.

• Cross border operations of economic activities – production, investment, financing, technology utilisation and marketing.

• Optimal utilisation of global resources including competitive sourcing of inputs for achieving cost competitiveness in production, economies of scale in operations and efficient technology utilisation.

• Easy movement of product and factor flows across borders involving merchandise trade, services, investment, financial capital, technology and labour.

• The internationalisation of consumption – consumers are buying more foreign products.

• Competition, production and markets become global in nature and goods and services become less distinguishable or identifiable with their country of origins.^[4]

4.2    While Globalisation has its positive aspects in allowing greater realisation of potentials and economies of scale in terms of productivity and operation through cross border utilisation of technology and skills and the maximisation of returns and savings on investments which productivity within national boundaries cannot provide, it is generally acknowledged that Globalisation also has negative effects. Amongst these is loss of sovereignty over national objectives or goods and priorities to multilateral and global rules, norms, and requirements. National opportunities and objectives may be sidelined or marginalised. There are strong perceptions, rightly or wrongly, that Globalisation will have adverse implications on the economies of the developing and Third World countries, and benefit only the rich and powerful nations. Hence, the public demonstrations and outcries at the regular Economic Summits of the leaders of the world’s most economically powerful nations.

4.3    The trend towards trade liberalisation is likely to intensify and accelerate. Benefits could be derived from this phenomenon, as global competition could result in improved efficiency, productivity and elevation in the level of skills and knowledge of the workforce. These assumptions have yet to be fully tested especially in the developing world.

4.4    Malaysia’s position is that “it will also have to ensure that its liberalisation commitments take into account the level of development, the level of existing foreign participation in the national economy and the governing regulatory environment”.^[5] In the Malaysian context, unless the policy goals as set out in the Third Outline Perspective Plan (2001-2010) are achieved, liberalisation of the local Economy has the effect of adversely affecting the realisation of distribution of wealth and poverty reduction especially in relation to the economically disadvantaged Bumiputra communities, which Article 153 of the Federal Constitution is intended to facilitate.

4.5    Therefore, Malaysia, like other developing countries, faces a number of issues and challenges in order to place itself in the mainstream of economic Globalisation. One of the major challenges is to subjugate some of its national policy considerations to keep the domestic economy open in order to integrate into a world economy. Domestic rules and policies may have to conform to global rules which could have a negative impact on the development objectives of the nation.  The standardisation of trade and monetary policies and systems and labour rights and issues have caused much concern and may have their painful drawbacks.  Dr. Mohammed Noman Galal writing in the International Politics Journal (July 2001) noted:

“While standardisation could be a good thing for industry, human beings and their lives – and consequently societies and political, social and cultural systems – cannot be the same everywhere.  Life has its own dynamics and characteristics, and societies also have their own.”

4.6    Would measures and effects introduced by Globalisation put a strain upon the special privileges and safeguards accorded to the Malays and other native of the Borneo States? Having regard to what “Globalisation” (as set out in para 4.1 above) entails, there might be little impact on the special privileges which Bumiputras enjoy in relation to land reservation or alienation or their rights to land acquired through practice of customs or Adat which have been codified and have the force of law, and through various methods of creating such rights as recognised by statutes. But, Globalisation could impact directly on the policies and rules on corporate restructuring to ensure that Bumiputras have 30% of the corporate equity ownership and preference accorded to Bumiputra companies in relation to the grant of permits or licences for trade or business under Article 153(6) of the Federal Constitution. Indirectly, policies on education may have to change to cater for or to produce a workforce that could compete on a global platform in terms of knowledge, skills and competency. Articles 153(6), (7), (8) and (8A) makes no allowances to accommodate the requirements of Globalisation or the opening of the domestic economy or market to other global players or competitors.

5.      SAFEGUARDING THE SPECIAL PRIVILEGES OF NATIVES

5.1    There is no time limitation on the continuation of the safeguards for special privileges accorded by Article 153 to the Bumiputras.  Recent judicial decisions clearly conclude that the Yang di-Pertuan Agong, acting on the advice of the Cabinet, has a fiduciary duty to protect the rights and special privileges of the Malays and other indigenous communities of the East Malaysian States.

5.2    Where the demands of trade and services liberalisation transgress on or have the effect of eroding these special rights and privileges of the Bumiputras, it is believed that the Courts could and would, based upon established judicial precedents, intervene.

5.3    It is to be noted that if during any proceedings before a High Court or any Subordinate Court, there is any concern or dispute as to whether any act, activity, rule, measure or policy would infringe Article 153 or any other provisions of the Federal Constitution which safeguard the special rights of the Malays and other natives, the matter could be referred to the Federal Court for decision under Section 84 of the Courts of Judicature Act 1964 (Act 91). The Federal Court will determine the issue as if it were an appeal to that Court (See: Section 85 of Act 91).

5.4    As and when Globalisation takes hold in Malaysia, it is likely that the citizens’ rights of access to the Courts will not be affected and issues on whether certain measures introduced to facilitate the implementation of Malaysia’s commitment to liberalise trade, infringe Article 153 or any of the policies or measures to advance the safeguards of Bumiputra interests, will be brought to Court, and the Courts have shown its willingness to ensure that the Government discharges what the Courts deem to be its fiduciary duties to the Bumiputras.  Any decision of the Courts on such issues will throw light on how or what measures introduced to facilitate or implement the norms and requirements of Globalisation or trade liberalisation would offend the constitutional protection accorded to the Bumiputras in our country.

6.      INTERNATIONAL COVENANTS

6.1    At international level, safeguards for the rights of the Bumiputra communities in Malaysia would be reinforced if the draft UN Declaration on the Rights of Indigenous Peoples (“the draft Declaration”) were to be adopted by the General Assembly, and Malaysia agrees to become a signatory or party to that Declaration.

6.2    Essentially, the draft Declaration emphasises that the United Nations has an important and continuing role to play in promoting and protecting the rights of the indigenous peoples. Amongst the covenants is that indigenous peoples have the right to enjoy fully all rights established under international labour law and national labour legislation.

6.3    In terms of protection of employment of Bumiputras, the labour legislations of Malaysia such as the Employment Act 1955 and the Labour Ordinances of Sabah and Sarawak respectively, have provisions which are geared towards protecting employment opportunities in the country for Malaysian citizens, particularly Bumiputras. Jobs and employment opportunities which can be undertaken by locals, especially Bumiputras, would not be open to foreign nationals who may only be employed in Malaysia if they obtain a work permit and an appropriate immigration pass to enable them to work in this country. Employers in Sabah and Sarawak (for instance) cannot recruit foreign workers unless they are given a licence to do so by the Director of Labour and such recruitment must comply with the Immigration laws.^[6] It is pertinent to note that Section 119C of the Sarawak Labour Ordinance provides that “No employer shall terminate the contract of service of a resident employee for the purpose of employing a non-resident employee”.^[7]

6.4    Article 18 of the draft Declaration could be used to justify the continuation of legislative measures as contained in the said laws, to protect and safeguard Bumiputra job opportunities in the country. Should the draft Declaration be adopted by the UN General Assembly, those provisions in our Labour Laws which safeguard Bumiputra job opportunities in the country would mitigate against the effects of Globalisation which advocate free flow of labour and transborder supply of services, and the removal of restrictions on liberalisation of trade, etc.

6.5    Article 26 of the draft Declaration reinforces the rights of the native people “to own, develop, control and use” their land. This includes “the right to the full recognition of their laws, traditions and customs, land-tenure systems and institutions for the development and management of resources, and the right to effective measures by States to prevent any interference with, alienation of or encroachment upon these rights”.

6.6    Our local laws, especially the Land Code (Cap. 81) of Sarawak,^[8] the Native Courts Ordinance 1992, the Native Customs (Declaration) Ordinance 1996 and the Land Custody and Development Authority Ordinance 1981 recognise native customs and rights over land, provide the machinery for the protection and enforcement of rights over such land and the establishment of institutions to manage or facilitate the development of native land.^[9] The adoption of the draft Declaration would give added basis for greater acceptance and understanding of the said laws and provide stronger impetus for the Government to accord a higher degree of attention to their implementation and enforcement so as to meet the aspirations of the Bumiputras.

6.7    What is envisaged in the draft Declaration which is actively promoted by the UN Commission on Human Rights would ensure the protection of Bumiputra rights in Malaysia, but what is contained in the draft Declaration would be in conflict with the general concept and effects of Globalisation and the liberalisation of trade and free flow of labour and services as well as the removal of all restrictions on trade and service liberalisation as advocated by WTO.

7.      CONCLUSION

7.1    This potential conflict between the demands of Globalisation and the constitutional safeguards accorded to the Malays and natives of Sabah and Sarawak give credence to the view that in so far as Malaysia is concerned, our Government must ensure that whatever commitments given to the World Trade Organisation has to take into account whether the peoples on whom such special rights and privileges have been conferred, are ready for the challenges of global competition and the withdrawals of subsidies and other aids that Government accords to them under the ongoing Third Outline Perspective Plan, 2001-2010.

7.2    International laws and conventions respect the sovereign right of Malaysia to legislate and pass laws in accordance with the popular or democratic mandate given by the people. So long as the Constitution and laws of the country provide for safeguards of the Bumiputras, their rights to the special protection accorded to them to aid their economic and educational advancement, and their access to justice where infringement of such rights should occur, would not be in jeopardy.

7.3    However, economic realities imposed by Globalisation may compel the Government of the day to review the prevailing constitutional and statutory provisions relating to native rights and their access to the Courts to protect such rights. At that stage, the Government will have to balance the overall economic interests of the nation with the continuation of the Constitutional protection and safeguards accorded to the Bumiputra communities.

[1] Art. 41 of the Constitution of the State of Sabah is identical to Art. 153 of the Federal Constitution and Art. 39 of the Constitution of the State of Sarawak.

[2] See: Sections 3 & 7 of Native Customs (Declaration) Ordinance, 1996 of Sarawak.

[3] See: Table 9 in Economic Governance and Poverty Reduction in Malaysia by Jeffrey Henderson, David Hulme, Richard Phillips and Noorul Ainur M. Nur (May 2002).

[4] Globalisation and Economic Liberalisation – Implications On The Public Service by M. Suppermaniam, Deputy Secretary-General (Trade), MITI, Malaysia.

[5] See note 4.

[6] See: Section 119 of the Sarawak Labour Ordinance (as amended). The Sabah Labour Ordinance has identical provisions.

[7] “Non-resident employee” is defined as a person who does not belong to Sarawak. This provision is similar to Section 60M of Employment Act 1955, but the terms used therein are “local” and “foreign” employees respectively.

[8] See: Sections 5, 15, 18 & 18A of Land Code of Sarawak.

[9] See: Section 11(1) of the Land Custody and Development Authority Ordinance (No. 4 of 1981) of Sarawak.

*This paper was delivered at the 13th Malaysian Law Conference.