Indigenous World 2020: Malaysia

Written on 11 May 2020. Posted in Malaysia

As of 2017, the Indigenous Peoples of Malaysia were estimated to account for around 13.8% of the 31,660,700 million national population. They are collectively known as Orang Asal. The Orang Asli are the Indigenous Peoples of Peninsular Malaysia.

The 18 Orang Asli subgroups within the Negrito (Semang), Senoi and Aboriginal-Malay groups account for 198,000 or 0.7% of the population of Peninsular Malaysia (31,005,066). In Sarawak, the Indigenous Peoples are collectively known as natives (Dayak and/or Orang Ulu). They include the Iban, Bidayuh, Kenyah, Kayan, Kedayan, Lunbawang, Punan, Bisayah, Kelabit, Berawan, Kejaman, Ukit, Sekapan, Melanau and Penan. They constitute around 1,932,600 or 70.5% of Sarawak’s population of 2,707,600 people. In Sabah, the 39 different Indigenous ethnic groups are known as natives or Anak Negeri and make up about 2,233,100 or 58.6% of Sabah’s population of 3,813,200. The main groups are the Dusun, Murut, Paitan and Bajau groups. While the Malays are also Indigenous to Malaysia, they are not categorised as Indigenous Peoples because they constitute the majority and are politically, economically and socially dominant.

In Sarawak and Sabah, laws introduced by the British during their colonial rule recognising the customary land rights and customary law of the Indigenous Peoples are still in place. However, they are not properly implemented, and are even outright ignored by the government, which gives priority to large-scale resource extraction and the plantations of private companies and state agencies over the rights and interests of the Indigenous communities. In Peninsular Malaysia, while there is a clear lack of reference to Orang Asli customary land rights in the National Land Code, Orang Asli customary tenure is recognised under common law. The principal act that governs Orang Asli administration, including occupation of the land, is the Aboriginal Peoples Act 1954.

Malaysia has adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and endorsed the Outcome Document of the World Conference on Indigenous Peoples but has not ratified ILO Convention 169.

Institutionalising poverty through non-recognition

Reporting on his visit to Malaysia in August 2019, the UN Special Rapporteur on extreme poverty and human rights, Philip Alston, reported that Malaysia was vastly under-counting its rate of poverty. He opined that the official poverty rate of 0.4 % was unrealistic and that the actual rate was in the region of 16-20%.¹ He added that poverty and low incomes among Indigenous Peoples are routinely obscured by official public statistics which aggregate outcomes for Indigenous Peoples and Malays in the umbrella category of Bumiputera (sons of the soil).²

Even so, statistics from a decade ago (the latest available), reveal Indigenous poverty rates that vastly exceed national averages: 22.8% in Sabah and 6.4%  in Sarawak in 2009 and 31.16  % for the Orang Asli in 2010.³ These dismaying aggregated figures further hide an appalling reality: almost all the Orang Asli – 99.29% to be more precise – are in the bottom 40% income (B40) group.⁴

Indigenous poverty in Malaysia has been linked to a number of factors, not in the least the destruction and degradation of their traditional lands and territories. This was most clearly played out in May-June 2019 when 16 Batek-Orang Asli died within a span of six weeks due to a “mysterious” disease. The Health Ministry however later deemed this tragedy to be the result of a measles outbreak. This despite only four of the victims having been confirmed to have had measles in their autopsies. It is however the general consensus of those familiar with the people and their situation, that since 2009 the community was subjected to  a series of external forces that their hunting-and-foraging lifestyle was severely impeded, and this compromised their ability to live healthily and happily.⁵

Logging and oil palm plantation activities began in the traditional territories of the Batek in the 1980s reaching their doorstep in 2010. An iron and manganese mine was also allowed to operate just upstream of their settlement. All these severely affected their source of livelihood and subsistence as well as polluted their source of water. Water tests by two independent laboratories and one by the government lab, all acknowledged the higher-than-safe levels of iron and manganese as well as deduced that the level of e-coli bacteria in the water samples, made it unsafe for drinking.⁶ Nevertheless, despite the high number of “mysterious” deaths, the state government and the Health Ministry deemed that neither an inquest nor an inquiry was necessary to try to find out the real cause and circumstances of the deaths.⁷

Such an inquiry or inquest would have exposed that their deaths was the result of a cumulative effect of loss of their subsistence resource base. Before the 1950s, the Bateks in this region claimed 470,959.6 hectares of forest lands as their customary territory. However, in 2010, only 453.5 hectares of this remained as forest areas for the Kuala Koh community.⁸ Of this, the Department of Orang Asli Affairs (JAKOA), acting as the “god-parent” of the Orang Asli^,9 then applied for only 243 hectares to be gazetted as an Orang Asli reserve. In the end, the state government of Kelantan only approved 5.7 hectares for them.¹⁰ Without an intact resource base for their subsistence needs, without the ability to practice their traditional way of life, and without full control of their lives, they became malnourished, underweight, and depressive. Their body resistance plummeted as a result. With such body resistance levels, even preventable diseases such as measles turned fatal. The general reluctance of state governments to recognise the customary lands and territories of the Orang Asli was again revealed in the state of Perak. In response to blockades erected by the Temiar-Orang Asli to protest against the logging in their customary territories, the Menteri Besar (Chief Minister) of Perak declared that the logging was legal and that the Temiars were residing illegally on state land. He added that his state government maintained the view that under the State Constitution no land is recognised as customary land either for Indigenous Peoples or any other race.¹¹ In reality, however, the courts have ruled, even in his state of Perak, that the Orang Asli do enjoy proprietary rights both under common law and statutory law.¹²

Another bite at the apple

The persistent stand of the state not to recognise the customary land rights of the Orang Asal or Indigenous Peoples of Malaysia, has been taken to a more crushing legal level in the state of Sarawak. The far-reaching decision of the Federal Court in the Tuai Rumah Sandah case discussed in The Indigenous World 2019, was further reinforced when the

Federal Court dismissed an application to review its own 2016 decision over native customary land rights. That is to say, since the written laws of Sarawak did not accord the “force of law” to the broader categories of land incorporating the traditional territory (pemakai menoa) and communal forest (pulau galau), the natives could not stake a customary claim to them. Only the settled, cleared and cultivated lands could be recognised as native customary right, and not the “forest at large”.

Four of the five judges on the review panel rejected the application for a review, arguing that the Sarawak natives’ submission that the earlier panel of judges had erred in law and had made various obvious errors was not a valid and legitimate basis to seek a review of the Federal Court decision. The judges had said that it was not for the Federal Court review panel to resolve whether the earlier panel in the same case had interpreted or applied the law correctly or not, for that it was a matter of opinion.¹³

The fifth judge on the panel, the Chief Judge of Sabah and Sarawak, however, gave a dissenting judgment that resonated well with the Orang Asal in those states. In his 49-page dissenting judgment, he had allowed the review applications and ordered the appeals to be reheard before another panel of judges, one of which must be a judge cloaked with Borneo judicial experience. He said there was coram¹⁴ failure as the judges who presided on the Federal Court earlier panel had never served at the High Court of Sabah and Sarawak. He also ruled that the April 2018 amendment to the Sarawak Land Code, legally recognises pemakai menoa and pulau galau, and so allows the panel to set aside the 2016 Federal Court judgment.

This ambiguity is set to be argued once again as the Chief Judge of Sabah and Sarawak, who chaired a Federal Court panel in September 2019, allowed an application for leave by Tuai Rumah (longhouse chief) Ramba Bungkong to appeal on several points of law. The chief judge opined that the decision in TR Sandah ought to be revisited and ventilated again in the Federal Court via this case. It is worth noting that several other cases were also granted leave to the same effect.¹⁵

In the meantime, short of the state government amending the law (again) to fully take into account the rights to pemakai menoa and pulau galau lands, the outcome of these subsequent review attempts will continue to have far reaching impact on the current cases already in court, as well as the extent of native customary rights generally. As it is, several new native customary rights (NCR) cases were filed in the Sarawak High Court in 2019, a clear indication that the customary rights of the native peoples there are still not fully recognised.

Over in Sabah: hesitant hopes

When the current government won the state elections in 2018, the Kadazandusun communities in Ulu Papar-Sabah, who would have been affected by the Kaiduan Dam proposed by the previous government, weaved a sigh of relief. They expected that the election promise – of cancelling the dam upon – victory would be kept. The dam, if constructed, will not only displace over 3,000 Indigenous villagers but also destroy the Crocker Range, which was declared a Crocker Range Biosphere Reserve by the UN Educational, Scientific and Cultural Organization (UNESCO) in 2014.

To an extent, the new state government did keep its promise and cancelled the Kaiduan Dam. However, while asserting that the state still needed to avert a potential water shortage in the future, it announced the construction of another dam: the Papar Dam. This announcement disappointed the Indigenous activists because, they assert, the new dam project is basically the same as the previously named Kaiduan Dam in all aspects, except perhaps only in its name!¹⁶

Nevertheless, the state of Sabah seems to be the only state that is working, albeit guardedly, towards reinstating or strengthening Indigenous values and systems into its administration. For one, there is talk of setting up a Native Court Judiciary Department under the Ministry of Law and Native Affairs that will be on par with Civil and Syariah Courts in the country.¹⁷ To do this, the said ministry is looking at restructuring the Native Court and lifting the efficacy of customary law as the instrument for dispute resolution at the local or community level.¹⁸ This would involve the continuing training of the customary leaders which, given the small allocation provided for it, seems to forecast a slow progress. There are also other issues to be considered. One is that many of the native leaders are Muslims who no longer practice the adat or traditions and customs and so may face personal contradictions in their application of native law and native rights.

Another area where the Ministry of Law and Native Affairs has been proactive is in its stance on ending under-aged marriages in the state. As in other states in Malaysia, the legal age for marriage in Sabah is 18 for non-Muslims and 16 for Muslims. However, children younger than that can get married with the consent of the Menteri Besar (Chief Minister) or the Syariah Court, or where Native Laws are also applicable in Indigenous communities.¹⁹ When the Sabah Mufti²⁰ proposed to reduce the minimum marriage age for Muslim girls from 16 to 14 years of age, the Chief Minister said in October 2019 that the state would maintain 18 as the minimum age for marriage. However, the Ministry of Law and Native Affairs suspects it will need about a decade to educate, inform and get the full consensus of every stakeholder to accept this fully.²¹

An even more encouraging development in Sabah, is the move to enact the principle of Free, Prior and Informed Consent (FPIC) into law.²² When this comes into force, it will be the first time that a major principle in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) would have the force of law in Malaysia.

Notes and references

1. “Malaysia vastly undercounting poverty, says UN rights expert” available at: https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews. aspx?NewsID=24915&LangID=E
2. Bumiputera is a sankrit term meaning “sons of the soil”. It was introduced in Malaysia in 1970 to refer to the “Indigenous” communities viz the Malays, the Natives of Sabah and Sarawak and the Orang Asli with a view for preferential economic and social discrimination. The non-bumiputeras would largely constitute the Chinese and the Indians who are perceived as later
3. Statement by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights, on his visit to Malaysia, 13-23 August 2019, available at: https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews. aspx?NewsID=24912&LangID=E.
4. The B40 group represent the bottom 40% of the national population in terms of income. The figure is cited by the Director-General of JAKOA (at 4:30:00 mins) in his interview with The Star entitled “Exclusive: Jakoa DG shares plans for Orang Asli development” available at: https://www.youtube.com/watch?v=mJ_Ncs4KM8g.
5. See Center for Orang Asli Concerns “Kuala Koh Deaths: Non-recognition of Rights the Root Cause”, available at: https://www.facebook.com/notes/center- for-orang-asli-concerns-coac/kuala-koh-deaths-non-recognition-of-rights- the-root-cause/2384927524884493/
6. While this fact is unlikely to be the cause of the high number of “sudden” and “mysterious” deaths, it is believed that the pesticides (from the plantations) and other poisonous materials (used in the mining) could have gotten into the water supply of the Batek after a heavy thunderstorm and so cause the high mortality in such a short
7. See The Sun Daily “No need for inquest on deaths of Kuala Koh Orang Asli: Kelantan government”, available at: https://www.thesundaily.my/local/no-need- for-inquest-on-deaths-of-kuala-koh-orang-asli-kelantan-govt-LX1066926
8. Based on maps published in Karen Lampell Endicott and Kirk M. Endicott (2008), The Headman was a Woman: The Gender Egalitarian Batek of Malaysia, Waveland Press Inc., and community maps produced by JOAS-COAC for the Suhakam National Inquiry into the Land Rights of the Orang Asli/Asal of Malaysia, 2010-2011.
9. See Suhakam (2013), Report of the National Inquiry into the land rights of the Indigenous Peoples at page 135, available at: https://nhri.ohchr.org/EN/Themes/BusinessHR/Business%20Womens%20and%20Childrens%20Rights/ SUHAKAM%20BI%20FINAL.CD.pdf
10. Personal conversation with the Director-General of the Department of Orang Asli Development (JAKOA), December
11. See com “State constitution does not recognise customary land Perak MB”, available at: https://www.malaysiakini.com/news/485908.
12. See Malaysiakini.com “There is legal precedent in Perak recognising Orang Asli land, COAC tells MB”, available at: https://www.malaysiakini.com/news/485974.
13. See the Bar Council statement at https://www.malaymail.com/news/ what-you-think/2019/09/21/tr-sandah-federal-court-review-abdul-fareed- gafoor/1792984; and the report by the Center for Orang Asli Concerns at: facebook.com/notes/center-for-orang-asli-concerns-coac/implications-of- the-tr-sandah-review-rejection/2549567301753847/
14. Coram means non judice, “in the presence of a person not a judge” and is a phrase that describes a proceeding brought before a court that lacks the jurisdiction to hear such a
15. See Dayak Daily “NCR: TR Sandah decision to be revisited as Federal Court allows leave to appeal in Ramba case”, available at: https://dayakdaily.com/ncr- tr-sandah-decision-to-be-revisited-as-federal-court-allows-leave-to-appeal- in-ramba-case/; and Dayak Daily “NCR: TR Sandah decision to be revisited as Federal Court allows leave to appeal in Ramba case”, available at: https:// dayakdaily.com/ncr-tr-sandah-decision-to-be-revisited-as-federal-court- allows-leave-to-appeal-in-ramba-case/
16. See The Borneo Project “Stop the Papar Dam!”, available at: https://org/updates/stop-the-papar-dam. Also The Star “PBS slams Warisan for alleged U-turn on controversial Kaiduan Dam”, available at: https:// www.thestar.com.my/news/nation/2018/08/04/pbs-slams-warisan-for- alleged-u-turn-on-controversial-kaiduan-dam/.
17. See Daily Express “New Native Court Dept mooted”, available at: http://www.com.my/news/143718/new-native-court-dept-mooted/
18. Information gleaned from an interview with Ms Jannie Lasimbang, the Deputy Minister for Law and Native Affairs in Sabah in February
19. See Rojak Daily “Sabah Set To Be One Of The First States To Ban Child Marriage”, available at: https://www.msn.com/en-my/news/other/sabah-set-to- be-one-of-the-first-states-to-ban-child-marriage/ar-BBW5q2m?li=AAaD1A0
20. A mufti is an Islamic jurist qualified to issue a non-binding opinion (fatwa) on a point of Islamic law (sharia).
21. See New Straits Times “More awareness needed on child marriages in Sabah”, available at: https://www.nst.com.my/news/nation/2019/03/473052/more- awareness-needed-child-marriages-sabah
22. Interview with Ms Jannie Lasimbang, the Deputy Minister for Law and Native Affairs in Sabah in February 2020.

Colin Nicholas is the Founder and Coordinator of the Center for Orang Asli Concerns (COAC), which is an associate member of the Jaringan Orang Asal SeMalaysia (JOAS), the Indigenous Peoples Network of Malaysia. This email address is being protected from spambots. You need JavaScript enabled to view it.

This article is part of the 34^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here