Orang Asli customary lands and article 153: A small caveat

A commentary on the recent unsuccesful attempt to table a motion for a debate calling for the inclusion of Orang Asli in article 153 of the Federal Constitution and the government’s intent on moulding 18 Orang Asli distinct groups what seems to be “1OrangAsli.”

Last month, Parti Keadilan Rakyat’s Kamarul Baharin Abbas unsuccessfully attempted to table a motion for a debate to call for the inclusion of Orang Asli in article 153 of the Federal Constitution. Apparently, this call originated from a group of Orang Asli leaders.

As many of us are aware, article 153(1) of the Federal Constitution obliges the Yang Di-Pertuan Agong to safeguard the special position of the Malays, natives of Sabah and Sarawak and the legitimate interests of other communities. Benefits under article 153 relate to the reasonable reservation of quotas in respect of public service, education and permits and licences for trade and business. It is commonly understood that Orang Asli do not come within this provision.

It must be noted that the word “land” is not mentioned in article 153. The absence of the word “land” in article 153 is not mind-boggling. Malay reservation lands are constitutionally protected by article 89. In Sabah and Sarawak, there are explicit legal provisions recognising native customary rights in respect of land, a matter within the competence of the respective state governments (see Federal Constitution, Ninth schedule List IIA item 2(a), (b) and 13).

Orang Asli already possess a special status under the Federal Constitution. Article 8(5)(c) enables laws to be enacted for “the protection, well being or advancement of the aboriginal peoples of the Malay peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service” without offending the principle of equality enshrined in article 8(1). Further, the term “law” includes any customs or usages having the force of law (article 160).

As evidenced by their memorandum handed to the Federal Government during the Orang Asli protest on 17 March 2010, Orang Asli demand for, recognition and protection of their customary lands and territories and, free prior and informed consent and the right to develop their own priorities in matters concerning their lands and territories. These demands are far from unreasonable as they are contained in the United Nations Declaration on the Rights of Indigenous Peoples 2007, a document voted for twice by the Government of Malaysia.

The Government’s persistent non-recognition of Orang Asli lands, territories and resources in their policies suggests “development” of Orang Asli must be at the cost of sacrificing customary lands. Development need not be a zero sum game. Experiences from other jurisdictions have shown that an acceptable compromise can be reached between the socio-economic development of Indigenous communities and the preservation and development of customary lands, territories on their own terms. All that is required is the political will and effective engagement between the State and Indigenous communities.

Unfortunately, the empowerment and self-determination route as contained in the provisions of the United Nations Declaration on the Rights of Indigenous Peoples 2007 remains a distant dream for Orang Asli. Orang Asli are faced with a Government that seems intent on moulding the 18 distinct Orang Asli groups into a homogeneous cluster of oil palm small holders who have little management and control over their lands or for that matter, future direction.

Are such policies to protect the Orang Asli or control them? Is this what is meant by 1Malaysia or should I say, 1Orang Asli?

In melodramatic terms, enter the white knights to champion the Orang Asli cause and save them from certain doom. The silver bullet: The inclusion of Orang Asli under article 153.

This begs the question, would a simple amendment to include “Orang Asli” compel the Government to protect and recognise Orang Asli customary rights? The answer is an emphatic NO. Customary land rights are not covered by article 153. From a rights perspective, Orang Asli would be in exactly the same constitutional position unless the courts come to their rescue yet again. Put another way, Orang Asli would be left with article 8(5)(c) and the common law in respect of their customary lands, territories and resources.

Despite possessing ample power under article 8(5)(c), the Government’s performance in respect of the recognition and protection of customary lands, territories and resources has been undeniably poor. Orang Asli continue to be dispossessed of their lands and have, for some time now, resorted to the courts for justice. It can safely be said article 8(5)(c) has not inspired the Government to legislate and act effectively for the protection and recognition of Orang Asli customary lands. An amendment to article 153 to cover Orang Asli will not automatically increase Orang Asli rights to their customary lands, territories and resources.

The situation in Sabah and Sarawak fortifies the point. In Sabah and Sarawak, article 153 of the Federal Constitution has not safeguarded native customary lands. Despite possessing better statutory protection than Orang Asli, native customary lands in Sabah and Sarawak are regularly encroached and expropriated to the detriment of Indigenous communities.

It is nonetheless heartening to see politicians taking up the Orang Asli cause. There is also no doubt that the possible inclusion of Orang Asli under article 153 of the Federal Constitution would be beneficial to them.

However, merely including Orang Asli under article 153 in its present form is not the be-all and end-all of Orang Asli issues. Quite to the contrary, it is a glaringly incomplete picture. Effective ownership and control over customary lands, territories and resources, a vital ingredient in Orang Asli vitality and development, would still be in a constitutional limbo.

Advocates of Orang Asli rights must appreciate that effective recognition and protection of Orang Asli customary lands, territories and resources is essential for Orang Asli economic, social and cultural development. They go hand in hand. Failure to internalise this concept on the part of advocates compromises Orang Asli aspirations from the outset and risks doing more harm than good.

Yogeswaran Subramaniam, an Advocate & Solicitor and a member of Aliran, is pursuing a doctoral thesis in the reform of Orang Asli land rights at the Faculty of Law, University of New South Wales, Sydney.