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  1 MLJ 418, Nor Anak Nyawai & Ors v Borneo Pulp Plantations Sdn Bhd v. Superintendent of Lands and Survey & Anor  2 CLJ 297, and Sagong Tasi & Ors v Kerajaan Negeri Selangor & Ors  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.