On March 17, 2010 took to Putrajaya to show their discontent over the proposed Orang Asli land policy and to present a memorandum on the same. Yogeswaran Subramaniam looks at what the OA community wants and examines if their demands are “relevant” from the government’s perspective.
In an unprecedented event, 2,500 Orang Asli from various parts of Peninsular Malaysia congregated in Putrajaya on 17 March 2010 to show their discontent over a proposed Orang Asli land policy approved by the National Land Council three months earlier. The merits of the proposed policy have been discussed elsewhere (see e.g. Proposed Orang Asli Land Policy: Planned Poverty?) and will not be repeated here.
This article seeks to address two other fundamental questions:
i) What do the Orang Asli community want in terms of land?
ii) Are these demands, from a government perspective, “relevant”?
The answer can be found in the memorandum presented to both the Prime Minister’s Department and Rural and Regional Development Ministry on that day.
The memorandum was reportedly signed by over 12,000 Orang Asli. Perhaps more importantly, this number included the Persatuan Orang Asli Semenanjung Malaysia, Gabungan NGO Orang Asli Semenanjung Malaysia and many influential Orang Asli leaders. Thus, the memorandum can safely be said to contain the voice of a substantial section of the Orang Asli population.
Despite its importance, relatively little media attention has been given to the contents of the protest memorandum. Worse still, there are reports that have completely missed the crux of Orang Asli grouses against the proposed policy. Based on the contents of the memorandum, this article seeks, in simple terms, to remedy some misconceptions on the land needs of the Orang Asli and make an argument for the memorandum’s relevance.
In summary, the memorandum unreservedly (1) objects to the proposed land policy; and (2) demands retraction of the proposed land policy and calls for the recognition of Orang Asli customary territories having regard to, amongst others, international standards as contained in the United Nations Declaration on the Rights of Indigenous Peoples. The main text of the protest memorandum (in Bahasa Malaysia) as provided by the Jaringan Kampong Orang Asli Perak can be accessed here.
Contrary to some reports, it is not the size of the plantation lands under the proposed policy that is in issue but the whole underlying concept of the policy. As can be observed from the memorandum, the Orang Asli reject the policy as a whole. Moreover, the Orang Asli want recognition of their customary lands and, at the same time, development of these lands on their own terms.
This brings me to an age-old argument against the recognition of Indigenous customary land rights. Certain quarters argue that such recognition is an obstacle to social and economic development. It is said that recognition would trap communities like the Orang Asli in some sort of time warp that would not see them enjoy the fruits of modern mainstream development.
Recent experience from other jurisdictions has shown that this is not the case. Customary land rights strengthen autonomy, social norms of responsibility and social capital of Indigenous communities. Economically, these land rights can provide a means for development through its intrinsic value, which can be exploited when desired and if in the interests of the community.
Like many other Indigenous communities worldwide, it would seem that the Orang Asli are not anti-development but wish to chart their own destiny through a process of gradual empowerment that affords them dignity and autonomy. Orang Asli control over their customary lands and its usage coupled with government guidance is the key if this route is to be taken.
The application of standard development and poverty eradication policies to Orang Asli over-simplifies Orang Asli culture and may well produce adverse results. Whilst it is true that Orang Asli are in desperate need of improved infrastructure, health and education, and their special attachment to the lands should be factored into the implementation of any such policies.
No other community in Peninsular Malaysia, whether marginalised or not, has a similar social, economic and cultural dependence on customary lands. On this score alone, the government ought to introduce policies that cater to Orang Asli sensitivities and distinctiveness so that an equitable outcome is achieved. This would necessarily include the recognition of Orang Asli customary land rights.
Other than moral and sympathetic reasons, should the government bother at all about the memorandum? It does not take a take a “legal expert” to conclude that, unlike Malays and natives of Sabah and Sarawak, Orang Asli are not explicitly mentioned in the special privilege provision in the Federal Constitution (article 153).
However, Art 8(5)(c) of the Federal Constitution and the case of Kerajaan Negeri Selangor v Sagong bin Tasi ( 6 MLJ 289) place Orang Asli in a special position if compared to other communities in Malaysia.
Under Art 8(5)(c), the Federal government is empowered to legislate for the “protection, well-being or advancement” of the Orang Asli. To argue that legislation or executive action resulting in the cultural devastation of Orang Asli is for their “protection, well-being or advancement” would be, at best, arduous.
Further, the common law fiduciary duty owed by the government to the Orang Asli as affirmed by the Court of Appeal in Kerajaan Negeri Selangor v Sagong bin Tasi ( 6 MLJ 289 at pp 311-4) may be used to test any government action in relation to the Orang Asli. Accordingly, there are legal reasons for the government to consider policies affecting Orang Asli carefully.
That said, it is heartening to note that the Federal Government, in response to the memorandum, has initiated dialogue with the Orang Asli to review the proposed policy. I earnestly hope that the government silences its critics (including me) and rethinks its intransigent stand on Orang Asli customary land rights thus far. In this sense, the government’s response would be a stern examination of the extent of their will in applying the “cultural diversity” principle of the 1Malaysia concept.
LB: This article was previously published in Aliran. Yogeswaran Subramaniam, an Aliran member, is pursing a doctoral thesis in the Reform of Orang Asli Land rights at the Faculty of Law, University of New South Wales, Sydney.