The current attitude of ‘charity’ or ‘welfare’ towards indigenous rights should be discarded in favour of social justice, equality and reconciliation for past injustices, says Yogeswaran Subramaniam.
The latest episode in the long-drawn struggle for indigenous minority rights in Malaysia took an unfortunate but all too familiar turn on 13 September 2008 when members of the Polis Di Raja Malaysia threatened and prevented over 100 Indigenous People (Orang Asli from Peninsular Malaysia and native peoples from Sabah and Sarawak) from walking to the Royal Palace to present a memorandum to the Yang DiPertuan Agung.
The memorandum, a culmination of comprehensive research on policies and laws affecting Indigenous Peoples done under the auspices of the Indigenous Peoples Network of Malaysia (or Jaringan Orang Asal SeMalaysia, JOAS), in essence requests the Malaysian government to recognise the rights due to them in accordance with the Federal Constitution and the standards contained in the recent United Nations Declaration on Indigenous Peoples 2007 (UNDRIP).
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The JOAS is an umbrella network of 21 indigenous interest organisations that advocate indigenous rights, an issue concerning all 4 million Indigenous Peoples in Malaysia (15 per cent of the total population of Malaysia). Regrettably, many in this community are among the poorest in Malaysia, a manifestation of their marginalisation and disenfranchisement from mainstream society. More than 50 per cent of the Orang Asli, for example, live below the poverty line in this day and age when poverty levels in Malaysia are well below 3 per cent.
The indigenous position
Citing provisions of the Federal Constitution relating to fundamental liberties and the Yang Dipertuan Agung’s powers and responsibilities to safeguard the interests of the native peoples of Sabah and Sarawak and the UNDRIP, the memorandum puts forward the position and requests of Indigenous Peoples with regard to their rights to self-determination, customary lands, freedom of religion and citizenship.
The UNDRIP, although not legally binding, was voted for twice by Malaysia at the United Nations Human Rights Council and General Assembly level before its adoption one year ago on 13 September 2007. More specifically, paragraph 24 of the preamble to the UNDRIP declares it as ‘a standard of achievement to be pursued in a spirit of partnership and mutual respect’. It follows that Malaysia’s resounding thumbs-up to the UNDRIP creates an obvious moral duty for the Malaysian Government to undertake appropriate measures to achieve the ends of the UNDRIP.
In respect of the right to self-determination to freely pursue their economic, social, spiritual and cultural development as contained in articles 3 and 12 of the UNDRIP, the memorandum states that indigenous minorities face pressured assimilation into mainstream society. The existing 1961 Policy on the Administration of Orang Asli (‘the 1961 Policy) is explicit in its objective of ultimately integrating the Orang Asli into mainstream Malay society. To the average Malaysian, opposition to this policy may be seen to be anti-development but this is, with respect, an ignorant misconception.
Indigenous Peoples throughout the world, including Malaysia want development as much as the next person but on their own terms. Losing their identity as a price for ‘development’ is consequently non-negotiable. The choice whether to change one’s identity is individual and should not be pushed by any form of government policy. Such policy is surely not in the spirit of ‘mutual respect’ as it presupposes that one culture is superior to the other. The golden rule that is contained in just about all religious teaching states ‘do unto others as you would have them do unto you’. Would the rest of us Malaysians wholeheartedly agree to lose our respective identities in exchange for perceived ‘development’?
The United Nations has recognised that control over their lands is an enabler for Indigenous communities to maintain their institutions, cultures and traditions and promote their development in accordance with their aspirations and needs (UNDRIP preamble paragraph 10). Consequently, article 26 of the UNDRIP provides for States to give recognition to the traditional lands of Indigenous communities.
In line with international jurisprudence and Malaysian laws, the courts in Malaysia have also recognised customary rights of Indigenous minority communities to their traditional lands. But the response of the Federal Government to this recognition has not been too far short of hostile (see ‘Payback Time’, Aliran Monthly (2007) vol 27 no 6). Instead of implementing laws and policies to give effect to these rights, every customary land rights claim or appeal is contested with renewed vigour. The recent move by the newly elected Selangor State government (not the Federal Government) to attempt to settle the landmark Sagong case outside court (see ‘Light at the End of the Tunnel?’, Aliran Monthly (2008) vol 28 no 6) is a positive sign but it is too early to tell whether the aspirations of the Indigenous community will come to fruition.
Articles 32 and 10 of the UNDRIP provide for free prior and informed consent before the resettlement of Indigenous communities and the prohibition of forced removal from their lands. The memorandum contends direct violation of these provisions and cites, amongst others, the loss of 7,000 hectares of Orang Asli reserve land in Selangor through de-gazetting without their knowledge and the recent Kelau dam project, where government agents intentionally misrepresented Orang Asli in order to carry out forced resettlement. International standards aside, these actions appear to contradict the government’s very own 1961 Policy that provides for Orang Asli not to be ‘moved from traditional areas without their full consent’!
In contravention of article 20 of the UNDRIP that gives Indigenous Peoples the right to maintain and develop political, economic and social systems or institutions, the government is said to be increasingly interfering in indigenous traditional systems, especially the selection and appointment of customary leaders. For example, the Guidelines for the Appointment of Orang Asli Headmen dictates that the government has the final say in who becomes the community head. This outdated paternalistic approach firstly, assumes that Orang Asli are not competent enough to select their own communal leaders and secondly, can be used as a method to control the Orang Asli.
The memorandum also appears to attack the open Islamisation policy observed by the Government since the early 1980s in Peninsular Malaysia contending that Indigenous Peoples should be free to choose any religion they wish to profess as guaranteed under Article 11 of the Federal Constitution. Another issue raised in the memorandum is the disproportionate number of Indigenous People not having proper documentation. This disturbing revelation not only has the consequence of depriving these people of the benefits of citizenship, but also affects all Malaysians as it calls into question our national registration system.
The demands under the memorandum
Accordingly, the memorandum demands the following:
• Immediately halt the indiscriminate acquisition of indigenous customary lands and introduce an appropriate legal process for the restitution of lands taken in such manner.
• Ensure that the acquisition of customary lands adheres to the principles of ‘Free Prior and Informed Consent’ and appropriate compensation (including land, crops, settlements in accordance with its real value) as contained in articles 10, 28 and 32 of the UNDRIP. Demarcation of such lands should include full participation of the Indigenous community involved.
• Ensure that courts prioritise customary land disputes and provide legal aid for indigenous claimants.
• Facilitate the administration and governance of Indigenous affairs by Indigenous Peoples themselves. This can be achieved by the abolition of the Orang Asli Affairs Department and the formation of an Indigenous Peoples Council consisting of Indigenous Peoples. In this respect, a call was also made for the appointment of a special representative by the Indigenous Peoples to represent their interests in the state legislative assembly and Parliament.
• Tender an apology for all injustices and prejudices throughout the history of Malaysia.
• Institutionalise a legislative mechanism that can end discrimination against Indigenous Peoples.
• Improve the quality of education and health of Indigenous Peoples.
• Simplify the process of application for identification documents for Indigenous Peoples.
• Establish a Royal Commission to investigate the issuance of identification documents and citizenship including the status of ‘Bumiputera lain-lain’ by way of identity fraud and forgery.
• As per article 38 of the UNDRIP, repeal or amend any law that violates the UNDRIP or disrespects or fails to protect the Indigenous Peoples such as the Aboriginal Peoples Act 1954, Sarawak Land Code and Sabah Land Acquisition Ordinance.
• As per article 38 and 42 of the UNDRIP, enact laws to recognise and assure the rights of the Indigenous Peoples.
It is unacceptable that Indigenous minorities in Malaysia who are afforded express special privileges and provisions for their well-being and advancement under the Federal Constitution have still to gain their rightful place in Malaysian society. For a nation that prides itself on being multi-racial, multi-cultural and ‘tolerant’, the contents of the memorandum provide sad testimony to the rest of us Malaysians that, once again, all may not be what they seem. Current government laws and policies with regard to Indigenous Peoples still contain a high degree of control and paternalism and seem light years behind the ideals contained in the UNDRIP. As demonstrated in the memorandum, the implementation of these policies is no better.
A change of mindset
Hope, however, springs eternal. If the government were to ever find the will to effectively implement the ‘demands’ in this memorandum, a change of mindset is not only necessary for our government but Malaysian society as a whole. The current attitude of ‘charity’ or ‘welfare’ towards indigenous rights should be discarded in favour of values that hopefully form part of our culture, namely, social justice, equality and reconciliation for past injustices (at least from Merdeka and the formation of Malaysia). Only then can there possibly exist the true ‘spirit of partnership’ and ‘mutual respect’ in the recognition of international indigenous minority rights in Malaysia.
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