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The Malaysian Bar notes the recent observations made in the Dewan Rakyat (House of Representatives) by Deputy Speaker, Dato’ Dr Ramli bin Dato’ Mohd Nor (“Dato’ Ramli”), regarding a proposed constitutional amendment to move Orang Asli matters from the Federal List to the Concurrent List. The Bar believes that these observations contain legal inaccuracies and omissions.
Firstly, in response to what Dato’ Ramli said about the distinctive use of “Orang Asli” and “Orang Asal”, indeed the Bahasa Malaysia version of the Federal Constitution (Perlembagaan Persekutuan) uses the terms“ Orang Asli” for the aborigines (indigenous peoples) from the Peninsula, and “anak negeri” for the natives of Sabah and Sarawak. Nonetheless, the Malaysian Bar opines that “Orang Asal” is a widely accepted generic term to describe indigenous peoples internationally, including our very own indigenous groups in Malaysia, from both the Peninsula, and Sabah and Sarawak.
It is the Bar’s position that State and Federal constitutional arrangements do not cause a legal impasse for the protection and recognition of Orang Asli land and resources in the Peninsula.
With regard to land matters, under Article 83 of the Federal Constitution, the Federal Government has the power to acquire land from the State for Federal purposes, which clearly includes Orang Asli matters.
Additionally, under Article 91 of the Federal Constitution, the Federal Government has the constitutional powers to pass land policies across Peninsular Malaysia through consensus with State Governments at the National Land Council.
The Bar’s point of view is that, currently, there are sufficient Federal powers to resolve Orang Asli land issues. Examples of laws and policies that have been passed through the aforementioned National Land Council include the National Land Code, and more pertinently, the policy on Orang Asli land titles in 2009.
We believe that shifting Orang Asli matters to the Concurrent List as proposed would not add much value to the law since each State can still act independently in respect of such matters.
Furthermore, having Orang Asli matters under the Concurrent List can result in potential confusion, disputes, and delays in the efficient administration of these matters.
Even so, we applaud Dato’ Ramli for the initiative to consult and engage all parties concerned, especially the Orang Asli themselves. We have also requested a meeting with Dato’ Ramli via a letter dated 29 July 2024, to discuss the matter further.
The Malaysian Bar is firm with our view that during engagements with the Orang Asli — in line with the principles of parliamentary democracy and universal best practices of free, prior, and informed consent of indigenous peoples in matters affecting them — the intent and wording of the proposed amendment should be fully disclosed and explained to the Orang Asli as early as possible to enable them to make an informed choice about their destiny.
Thus, we reiterate our call on the Malaysian Government to fulfil its obligations under the United Nations Declaration on the Rights of Indigenous Peoples 2007 (“UNDRIP”). In accordance with Article 19 of UNDRIP, the Government has a duty to “consult and cooperate in good faith” with the Orang Asli, and obtain their “free, prior and informed consent” in matters affecting them.
Mohamad Ezri b Abdul Wahab
President
Malaysian Bar
19 August 2024