|
 KUALA LUMPUR, Wed: This session was moderated by Mr. Augustine Anthony
and has a distinguished panel consisting of Prof. Ramy Bulan from Univeristy of
Malaya, Puan Tijag Yok Chopil who is a orang asli representative from Bidor,
Perak, and Colin Nicholas who is the coordinator of the Centre of Orang Asli
Concerns (COrang AsliC).
The session kicked start with the speech by Prof. Ramy Bulan, touching upon the
Constitutional Safeguards for Native Cultural and Customary Rights,
specifically in relation to the natives in Sabah and Sarawak. Prof Ramy refers
to the assurance given by our Founding Father, Tunku Abdul Rahman, who said that
the religion and culture of the natives would not be lost by joining Malaysia,
and they are at liberty to pursue their own customs, the right to study the
language of their forefathers.
Prof Ramy then went on to discuss what it means by ‘preservation of the natives’
culture, and the need for safeguards in relation to the position and special
privileges for indigenous people as ‘founder citizens’ and to ensure that Borneo
states will be treated on equal terms. Prof Ramy specifically stressed that
safeguards must be made in respect of the natives’ religion, which is a
fundamental element of culture and the identity of a people, and is the medium
of intergenerational transmission of meanings, and also a means of individual as
well as a group empowerment. However, she also noted that native languages are
becoming endangered, and there is a real danger of the death of their mother
tongues. A provision to salvage this situation only came about in 1996, with the
passing of the Education Act, which provides that ‘facilities for the teaching
of indigenous languages shall be made available if it is a reasonable and
practicable to do so and if the parents of at least 15 pupils in the school so
request.’ Ironically, she said, the children will only learn their mother tongue
as a secondary or third language after Malay and English.
Prof Ramy then highlighted other statutory provisions which seek to preserve the
rights and customs of the natives under the Federal Constitution, namely: -
* Article 153 where privileges given to Malays are extended to natives of Sabah
& Sarawak.
* Article 161(5) which provides that Art. 8 shall not
invalidate any law for the reservation and alienation of lands for natives or
for giving them preferential treatment with regards to alienation of land by the
State.
* Article 150(6A) which provides that Parliament’s power to
make laws with respect to any matter if it appears to parliament that the law is
required by reason of the emergency shall not extend to any matter of native law
and customs in the State of Sabah and Sarawak
Porf Ramy then touched upon the distinction between ‘Native’ or ‘Aboriginal
Titles versus Native Customary Rights to Land’. According to her learned view,
Native Title is a narrower recognition of the native rights under their own laws
to land, whereas the native rights are broader rights which includes fishing,
hunting, foraging that flows from site specific occupation and livelihood.
Native Title, according to Prof. Ramy, is a sui generis right, forming a
kind by itself, which has been established in the Malaysian courts through cases
like Adong bin Kuwau v Kerajaan Negeri Johor [1997] 1 MLJ 418, Nor
Anak Nyawai & Ors v Borneo Pulp Plantations Sdn Bhd v. Superintendent of Lands
and Survey & Anor [2001] 2 CLJ 297, and Sagong Tasi & Ors v Kerajaan
Negeri Selangor & Ors [2002] 2 MLJ 591.
Having heard the academic’s perspective on the rights of the natives, the
session continues with the very humbling and interesting account of the real
life of the Orang Asli by Tijah Yol Chopil. An Orang Asli herself from the semai
community in Perak, she claims that the Orang Asli know nothing about the
contents of our Federal Constitution, a clear indication that the protection
provided by the Constitution to the Orang Asli, if any, has been ineffective so
far. She stated that after 50 years of independence, the basic rights and
culture of the Orang Asli have not been protected or preserved.
To the Orang Asli, they live in harmony in accordance with their own
Constitution or system, which she outlined as follows: -
(i) Negrik/ Wilayah which are areas demarcated by the Orang Asli based on the
various signs of the nature such as the hill, the river, the rocks, historical
places or legends. Each group in the society will managed their own negrik
in accordance with their knowledge and skill inherited from their ancestors.
Each occupant will have freedom and absolute right to know, learn, use, explore,
collect and protect the Negrik and each Neglik will be self governance
and self sufficient without the need to fight or steal from another Neglik.
(ii) Wilayah Tanah Adat negrik and Zon
The Orang Asli also practise zoning of their lands according
to their use, purpose, meaning. For example, “Jeres’ is a thick forest which is
used as a ‘fixed saving centre’ with big trees and natural resources, farms and
grave yards, rivers and swamps, all of which are meant for long term use and
preservation. ‘Pabel’ or ‘selai manah’ are areas for padi planting, ‘genei’
which consists of housing accommodation and fruit farm. The purpose of zoning is
to preserve the natural resources for the generations to come, to maintain the
ecological balance, to ensure the land structure is not destroyed, and that heir
legends and history are preserved. At the same time, effective zoning will also
prevent disputes between different negrik over the limited natural resources.
(ii) Adat resam and Hukum adat
The adat resam and Hukum adat are morality and laws to the
modern people like us. Both elements governed their lives and protect their
negrik. Although their adat resam and hukum adat are unwritten rules passed on
by words of mouth, it has been effective to govern and regulate the lives of the
Orang Asli from generations to generations.
Tijah is very proud of their Orang Asli community and their adat resam and Hukum
Adat, for obvious reasons. According to her, although their community has been
living in poverty with no education, non-professional, no tall building like
ours, there is no single Orang Asli who does not have a place to sleep or have
to become beggars. Secondly, their community is ‘economic recession proof’, and
they do not migrate to other places when the country faces economic down turn.
They will live, stay and die in Malaysia regardless of how Malaysia fare
economically . Thirdly, unlike the crimes and social ills that we see in our
societies today, the Orang Asli community has been enjoying peace, stability and
a crime free community.
Finally, she argues that the Orang Asli community is not anti development as
perceived by certain sectors. They crave for improvement and development in
their community, but she stressed that such development must be consistent with
their culture and custom. She highlighted that the projects undertaken by
institutions such as FELCRA and FALDA in recent years have not benefited them.
On the contrary, these projects used their names but benefited others, isolated
the Orang Asli from their custom and culture, destroyed their homes and the
natural resources, and made them poorer and more marginalised, destroyed their
history, legends, and the natural resources. Examples she gave are the following
projects: -
* RPS in Betau, Pahang
* RPS and TSK Tanaman Semula Komersial Pos Jernang, Perak
* RPS Lenir Bekok, Johor
Before ending her short but thought-provoking speech, she argued whilst the
country has developed progressively in the past 50 years, the rights of the
Orang Asli are still not been recognised, lest being protected. Although they
are categorized as pribumi, they are not been accorded with the privileges given
to other bumiputras.
The last speaker for the session is Mr Colin Nicholas. Mr Colin gave an overview
of who the Orang Asli are and how our Constitution has, or has not protected
them. According to Mr Colin, the development and ideological policies pursued by
the state has persistently ignored the economic and social interests of the
Orang Asli, in part because they have overlooked or failed to appreciate the
rights, customs and the uniqueness’ of Orang Asli. 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 will only result in tragedy, not just for the environment but for t he
people as well.
The question that Mr Colin posed is this, does the Constitution protect the
Orang Asli? He observed that in fact, the Orang Asli were left out of the
process when Malaya’s Constitution was being debated and drafted, and thus,
there are glaring omissions in the Constitution where Orang Asli rights are
concerned. He argued that in fact, the Constitution, to some extent,
discriminates against the Orang Asli. Art. 153 for example, left out the Orang
Asli from the categories of people who are accorded special privileges viz. the
Malays and natives of Sabah & Sarawak.
The Orang Asli are only mentioned in four places in the Federal Constitution,
namely: -
* Article 8(5)(c) which legitimises discriminatory legislation in favour of
Orang Asli by way of provisions in the law of their protection, well being and
advancement 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 Malaya Peninsula’ and 9th Schedule, List 1, that vests upon the Federal
Government legislative authority for the ‘welfare of the aborigines’.
* An indirect reference to the Orang Asli is inferentially made in Art. 89
regarding Malay Reservations, which would appear to authorize reservations of
such lands in favour of ‘natives of the state’ besides Malays.
Mr Colin argues that in reality, the government has chosen to interpret the
vagueness in the Constitution in its favour, rather than to protect the rights
and interest of the Orang Asli indigenes. Further, 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. In fact, some of these areas have been already
reclassified as state land or Malay Reserve land, or given to individuals and
corporations without the Orang Asli’s knowledge, let alone consent. Mr Colin
also observed that the area of the Orang Asli gazetted reserves have been
decreasing over the years. From 1990 to 2003 for example, a total of 1,444.81
hectares of Orang Asli reserves were de-gazetted.
Mr Colin also raised his reservation about the proposed Orang Asli Land Policy
which 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 of agricultural land and homestead. But the fact is, the
government has already recognised 127,698 hectares as being Orang Asli land.
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 Oran Asli ill stand to
lose 51,798 hectares or 40% their government recognized lands now. They will
also stand to lose all other lands that they are now occupying or state a
customary claim to. Furthermore, these 6.25 acre family plots are only assigned
to them on a 99 year lease basis!
Mr Colin is therefore not positive about the status and position of the Orang
Asli at the present and in the future. He observes that the Orang Asli faces
nothing but an uphill battle in challenging the economic and political powers to
be, and those who are in cahoots with them. He however, places hopes and trust
in our judges to defend the spirit of the Constitution and the good, moral and
legal intentions of our founding lawmakers, as the Orang Asli have looked upon
the courts as their last resorts in their pursuit of justice. He argues that it
is time to resolve the Orang Asli’s problem not as one of welfare and charity,
but a matter of justice.
 |
Subscribe to this comment's feed
Circular No 109/2012: Be a Part of the Bar Council Constitutional Law Committee
