Having looked back at the Top 10 of 2010, we must naturally look forward at the twelve months that will make up 2011. Again, the 170+ members of the LoyarBurok e-group came up with their individual Top 10 wishlists for 2011, which were then shortlisted into a list of 28 items, which were then voted on by hush-hush email ballot.
This then is the list of LoyarBurok’s 10 wishes for 2011. Some items are a combination of several similar items, as suggested by LoyarBurokkers, and the brief notes that accompany each item are based on suggestions emailed in by LoyarBurokkers together with their votes.
The list is presented based on the number of votes received, in descending order (ie. the one with the most votes comes first).
(1) Repeal of the ISA, UUCA/AUKU and other preventive legislation
There’s not much left to write about the ISA, UUCA (or AUKU) that hasn’t already been said, written, debated, or argued. But the fact that this item was the overwhelming top-voted item on the wishlist speaks volumes. It says that we must not rest until these legislation are repealed. So we must continue to speak up, write, debate, and argue. Do not allow the powers-that-be to assume that the matter will simply disappear. Do not wait until the ISA is used on one of your loved ones before making your voice heard.
One of the suggestions was that LoyarBurok conduct and publish interviews of former Kamunting prisoners — find out about their background, how and why they were detained, and their experiences. Let them tell their stories. These interviews should not just cover popular figures from Ops Lalang, but should include regular victims too. Rallies are one way of making a stand against these legislation, but many people feel detached from the ISA or the UUCA/AUKU. They cannot identify, or humanise, the issue. LoyarBurok should help the public to understand, relate to, and humanise the abuses that these legislation lead to — how they cause often irreparable damage to the lives of the people involved.
(2) A more mature Malaysia
The “mature Malaysia” theme covered many areas.
Most LoyarBurokkers focused on the upcoming general elections, anticipated by mid-2011. It is hoped that Malaysians would use their right to vote maturely, and be able to consider the real issues instead of being distracted or swayed by the rhetoric of politicians in all the parties. Malaysians must reject vote-buying, and not fall for the “race card” that will inevitably be pulled out come the elections. The right to vote should, and must, be exercised with the clear intention of not only putting the best possible representatives in power, but also to hold their elected representatives accountable for what they do with their positions.
The rakyat must become more involved in the governance of this country. This involvement must go beyond “liking” a Facebook page, or “retweeting” a tweet. Malaysians must take individual responsibility to ensure that civil society, and Malaysia as a whole, continues to mature.
It is hoped that the voter education initiatives which have gained good traction in 2010 will continue to persevere leading up to the general elections. Perhaps LoyarBurok could play a role in this by organising forums with key representatives or political commentators, or even by using written interviews or dialogues like the LoyarBorak series.
(3) Implementation of principles of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP)
The UNDRIP was adopted on 13 September 2007 by a majority of 144 states in favour, including Malaysia. Malaysia has subsequently voted thrice in favour in total, both at the Human Rights Council and the General Assembly. However, since its adoption, there has been minimal progress in its implementation at the national and state levels. LoyarBurokkers hope that the Malaysian government, and society at large implement the principles listed in the UNDRIP. This includes adequate consultation and obtained consent with indigenous peoples, when decisions affecting their rights or interests are made.
The UNDRIP has been used extensively in court case litigations in regards of Native Customary Rights of indigenous communities, and this has resulted in several landmark court judgements upholding the indigenous peoples land rights. Yet the Malaysian government and agencies continue to view the UNDRIP as a non-binding document, and disregard it as such. This narrow viewpoint overlooks the fact that the UNDRIP is in the human rights charter, and therefore Malaysia has the very least, a moral obligation to use the UNDRIP as a minimum standard to uphold and respect the rights of its indigenous peoples.
(4) Recognition of customary land rights of indigenous peoples
LoyarBurokkers want to see the Malaysian government recognise customary land and rights of its indigenous peoples, and overall fundamental rights to the environment and resources in their territories. Indigenous peoples should be recognised as rights holders in this process, and not mere stakeholders, and should be engaged as such.
The customary land and rights of indigenous peoples, based on traditional practices and cultural values, has been long since ignored and undermined through laws in Malaysia. Under the 1957 Sarawak Land Code for example, the Dayaks’ rights to land are recognised and protected by law, yet in practice, these rights are ignored or not enforced, to the benefit of the forestry and plantation sectors. Most indigenous communities in Sarawak classify land into two general categories: temuda (in Iban language) (land cleared for farming, and land left fallow to regenerate into forest), and communal land for foraging, hunting, burial grounds. The areas combined form the pemakai menoa (in Iban).
The state government views Native Customary Land as land cultivated at that time, excluding other areas including the menoa and land left fallow. As well, the state government does not recognise Native Customary Rights on any land that has not been continuously cultivated. Timber and plantation licenses have been issued over the years on Native Customary Lands on the viewpoint that such areas are ‘idle’ and should be developed on large-scale to alleviate poverty. In turn, indigenous communities argue that their development and cultural integration is locked into land security. The Sarawak Land Code has had a number of amendments, in which the Chief Minister has the powers to extinguish Native Customary Rights altogether. These amendments have since been challenged in courts by many rural communities on the grounds that they may be unconstitutional.
Until today, the onus is still placed on the indigenous peoples to prove that they have rights to the lands that their ancestors have lived on for centuries.
(5) More public interest litigation
It is hoped that LoyarBurokker lawyers will take up innovative and cutting-edge test cases in 2011, particularly public interest cases involving freedom of expression and media freedom, religious freedom, the iniquitous death penalty and the more than 40-year old state of emergency in Malaysia.
It is essential that these issues continue to be challenged in the courts of law. Irrespective of the seemingly insurmountable wall of resistance in such sensitive and entrenched matters, the cause of justice must continue to be fought for by those who are in a position to do so.
(6) A more progressive judiciary
The KPI issue has been a major point of contention for lawyers throughout 2010. Many consultations and dialogues have been held, many articles have been written, and yet nothing has changed.
LoyarBurokkers hope that the judiciary will focus on delivering sound decisions, not just on KPIs. The judiciary should realise that law is what keeps society intact and civil. It’s one of its key pillars. They should look at other ways of evaluating their performance. “Clearing the backlog of cases” is an amateur attempt at measuring performance for a group of individuals who are supposed to ensure justice is delivered, no matter how long it takes.
(7) A thorough re-evaluation of the Jabatan Hal Ehwal Orang Asli (JHEOA)
The underlying wish from LoyarBurokkers is that the Orang Asli are finally able to self-determine, and self-govern their development in alignment with their culture, and customs.
The Orang Asli essentially seek recognition —
Orang Asli claim for the recognition of rights to their respective customary lands and resources. This would include security of tenure over such lands and resources in a manner that affords due respect to Orang Asli laws, customs and traditions. On a more holistic note, they seek respect and recognition of their traditional institutions and the right to free, prior and informed consent and/or meaningful participation and consultation in matters affecting their lands and resources.
Orang Asli are not anti-development but much to the contrary, demand development. However, development should afford them dignity and respect as first peoples. Collaborative measures that allow them to develop their own priorities in respect of such matters are the order of the day. Paternalistic policies as practised by the JHOEA and ‘one-size-fits-all’ poverty eradication policies should be jettisoned in favour of policies that emphasise respect, recognition, empowerment and equal partnership. Many individuals from the Orang Asli community, particularly activists, have called for the abolition of the JHOEA. However, though that may arguably be a step in the right direction, it may not be the complete answer.
The reality is that these aspirations would only be realistic if there is systemic institutional and legal reform in all matters pertaining to Orang Asli. This requires true political will and the stamp of legitimacy from the rakyat. The best wish the Orang Asli could have is for all Malaysians to wake up one morning and find that they have “internalised” the rights of Orang Asli as citizens and Indigenous peoples. No more pity, no more civilising missions, no more subtle proselytisation. Just respecting human rights and dignity in whatever form it manifests itself. Yes, this would include that very odd notion of collective human rights.
Any development/construction of all controversial large-scale projects that will displace thousands of indigenous peoples, and irrevocably change the environment in the country, must be halted, until there is transparency, complete disclosure of who benefits from the project, proper consultation and consent from affected indigenous peoples, and public participation in prior-approved Environmental Impact Assessments (“EIA”).
To most Malaysians, the Bakun dam is the most familiar issue, in regards of controversial large-scale development projects in the country. To make way for the Bakun dam, some 10,000 indigenous peoples were removed from their ancestral lands; lands to which these communities have strong associations with, where their ancestors were buried, and which their self-sufficient livelihoods were dependent on.
While the Sarawak government commissioned many studies on the impact of the Bakun dam, particularly in regards of the resettlement of the communities, these studies are not made available to the public, having being classified under the Official Secrets Act. What is certain is that these communities were not adequately consulted of their forced resettlement, and there are claims of lack of transparency in the compensation process. The compensation in turn was used to offset the new compulsory house purchase worth RM52,000/family. Claims of poor, shoddy construction of the new houses, are compounded with the fact that these communities now live in a monetized economy where everything now costs money: food, transport, water, electricity, housing. These communities have been taken away from what used to be a self-sufficient, autonomous culture and lifestyle to an environment where they are now dependent upon the government for jobs promised to them on oil palm plantations.
The Bakun dam epitomises what indigenous peoples go through in the face of projects that affect the lands they customarily own. In Peninsular Malaysia, the most familiar Orang Asli land issue is Tagong Tasi case; in Sabah, it is the Kaiduan Dam. Different indigenous groups, different lands, yet the same prevailing problem: that there is no free, prior, and informed consent (FPIC) from the affected indigenous communities. FPIC is a key principle in international law and jurisprudence related to indigenous peoples, and states the right of indigenous peoples to be fully informed and to reject or give consent based on their collective decision making process to any project that affects them. It is also a key provision of the UNDRIP.
Twelve more dams are being planned for Sarawak, and thousands of indigenous peoples are going to be displaced. If “development to alleviate poverty” is the rallying cry in defense of these large-scale projects, we need to ensure that it is done right, if needed at all. If not, we face further disempowerment and impoverishment of already marginalised society.
(9) Further growth of LoyarBurok
Being LoyarBurokkers, we obviously want LoyarBurok to get bigger and better! The general wish is for 2011 to bring further diversification of the LoyarBurok pool (“you don’t have to be a lawyer to be a LoyarBurokker”) — more bankers, economists, doctors, journalists, poets, environmentalists, etc (yes, even corporate lawyers!) and champions of specific issues like family, women’s rights, the environment, Orang Asli & Asal, etc.
The future offerings from LoyarBaca — LoyarBurok’s publishing arm which launched Perak: A State of Crisis — is widely anticipated. Many suggestions came in including publishing excerpts from the hard life “regular” Malaysians go through. Many were of the opinion that LoyarBurok has a readily-available treasure trove of possible publishable material, such as the articles on the UUCA, LGBT and sexuality rights, and series such as LoyarBorak and Ask Lord Bobo.
There were also strong calls for LoyarBurok projects which have been discussed, but which have yet to take off, such as the LoyarBurok “training centre” which would develop a pool of new talent and expand the number of civil society activists, as well as the “Judge watch” project, through which the individual judges would be profiled (including judicial temperament), and their judgments would be summarised and commented on.
(10) Amendment of Sarawak Natural Resources and Environment Ordinance 1994 (“NREO 1994”)
That the NREO 1994 be amended in respect of the EIA process to allow public participation prior to the approval of the EIA in Sarawak.
In Sarawak, both the Federal and State environmental laws apply in respect to the implementation of the EIA, i.e. the Environmental Quality Act, 1974 and the Natural Resources and Environment Ordinance 1993 (NREO 1993), respectively.
In the NREO 1993, public participation in preparation of the detailed EIA is not mandatory. It is up to the developer to decide to involve the public. As well, in practice, the Natural Resources and Environment Board (the state authority in evaluation process for EIA reports) does not require the submission of a Preliminary nor a Detailed EIA. It is deemed unnecessary to categorise the EIA reports as Article 3 (2) of the Natural Resources and Environment, Order 1997, states that the developer is required to consult with the Controller on the scope and depth of the report, before preparing a report for submission.
The nature of the EIA process in Sarawak therefore is neither transparent nor good governance, as there is no opportunity for the public to be involved in the planning and decision making, particularly in large-scale projects that affect thousands of livelihoods. Sarawak prides itself for good forestry and wildlife protection laws and often touts it so on national and international platforms. Therefore, would an amendment to the NREO 1993 allowing for better governance and transparency in the EIA process be in the cards? We hope so.