Light at the end of the tunnel?

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A landmark case is in the Federal Court that has wider implications for the protection of Orang Asli land rights, says a hopeful Yogeswaran Subramaniam.

On 14 April 2008, the Federal Court appeal in State of Selangor & Ors v Sagong bin Tasi & OrsSagong case’) against, amongst others, the court’s recognition of Orang Asli proprietary rights to their customary and ancestral traditional lands was adjourned following a request from the Selangor state government to re-examine their decision to proceed with the appeal. The Selangor state government was reportedly aiming for a fair settlement in the shortest possible time (The Star Online, 14 April 2008). (‘the

This development must be seen as an encouraging sign for the many Orang Asli who have lived for generations on their traditional lands without security of tenure until the recent recognition of their customary rights over land by the Courts (see Adong bin Kuwau &Ors v Kerajaan Negeri Johor & Anor [1997] 1 MLJ 418).(The Aboriginal Peoples Act 1954 provides that a State Authority may revoke a declaration of an Aboriginal Reserve at any time and the rights of occupancy on an Aboriginal Reserve shall be no better than a tenant at will.)  

The new Selangor State Government must be commended for having the gumption and compassion to take this independent stand, having fiercely contested the Sagong case together with the three other defendants, the Federal Government of Malaysia, United Engineers (M) Bhd and Lembaga Lebuhraya Malaysia for more than a decade.  

Unfortunately, the news is not all that great for the Orang Asli because, as at the time of writing, the Federal Government has still to reconsider its relentless contest and pursuit of appeals in the Sagong case despite having lost at the trial of this case.

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After a full trial in 2002, the Shah Alam High Court in the Sagong case awarded compensation for land acquired from a Temuan community who occupied what is now part of the KLIA Highway.  In doing so, the Court decided that the proprietary interest of aboriginal people in their customary and ancestral land was an interest in the land. Accordingly, compensation was awarded pursuant to the Land Acquisition Act 1960 without the need for a title under the National Land Code 1965.

In line with the Civil Law Act 1956 that allows for the application of common law in Malaysia and concurrent developments on indigenous land rights internationally, the Court exercised its discretion to do justice in recognising Orang Asli customary title to lands which they had traditionally occupied for generations.

Fighting tooth and nail

The subsequent appeal to the Court of Appeal – there were other grounds for the appeal but the one of importance for present purposes is the Court’s recognition of Orang Asli customary title – was dismissed.

Yet, the defendants have appealed against the decision to the Federal Court. Admittedly, all parties have a right to appeal, but the disappointment is with the Federal Government’s decision to fight this case tooth and nail. Remarkably, the very government that insists on contesting this case all the way to the highest court of the land has a discretion under the Federal Constitution to legislate for the ‘welfare of  the Aborigines’ (see Schedule 9 Federal List no 16)  and the ‘protection, well-being or advancement of the aboriginal peoples’ (see Article 8(5)(c)).

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To compound matters, the Federal Government argues in the Sagong case that the Court should not have exercised its discretion to recognise Orang Asli customary title when the Government themselves have failed to legislate to provide Orang Asli security of tenure over their traditional lands for decades!

Instead of this seemingly antagonistic stance, the Federal Government is urged to take this opportunity to try and win the hearts of the Orang Asli as a community by settling out of court as proposed by the Selangor State Government. Considering that customary and ancestral lands occupied by the Orang Asli amount to around 1 per cent of the total land area of Peninsular Malaysia (much of which is in the hinterlands) and around 50 per cent of them live below the poverty line, is this too much to ask for? A settlement may possibly pave the way towards the enactment of laws that would truly protect Orang Asli lands.

If this route is taken, such laws should be drafted on the understanding that unlike other communities in Peninsular Malaysia, protection of Orang Asli lands does not only involve mainly economic considerations but an inextricable link with the preservation and survival of the Orang Asli identity, culture and way of life.

Without the policy makers and legislators appreciating and acting on this reality, the Orang Asli struggle for their own special place in the Malaysian sun will just continue where it left off.

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