Orang Asli land rights upheld
The verdict shows that there is enough in our local laws to protect the rights of the marginalised and the oppressed if we only want to.
by Colin Nicholas
The 300-plus Orang Asli, from various subgroups, had come from as far as Johor and Pahang to lend support to a group of seven Temuans. A decade ago, the seven had decided enough was enough and took the government and others to court for trampling on their dignity and their rights.
Sagong Tasi (now 74 and after whom the case takes its name), Kachut Tunchit (deceased), Dabat Chabat, Kepal Kepong, Sani Saken, Senin Angin (deceased) and Tukas Siam were among 23 family heads from Bukit Tampoi in Dengkil, Selangor who had 38 acres of their land taken from them. The land was acquired for the construction of the Nilai-Banting highway linking with the new Kuala Lumpur International Airport in 1995. Some also had their crops and dwellings destroyed. While they were paid a nominal amount for these, there was no compensation for the land. The authorities maintained that the Orang Asli were mere tenants on state land and, as such, were not entitled to compensation under the Land Acquisition Act 1960.
With the support of a formidable pro-bono legal team from the Bar Council – led by Dato Dr. Cyrus Das and ably assisted by Jerald Gomez, Rashid Ismail, Sharmila Sekaran and Leena Ghosh – the Shah Alam High Court ruled that the Temuans had native title under common law over their lands. In his April 2002 ruling, Judge Mohd Nor Ahmad, also ordered the four defendants (the Selangor state government, United Engineers Malaysia (UEM), Malaysian Highway Authority (LLM), and the Federal Government) to pay compensation to the Temuan landowners and further ordered that UEM and LLM pay damages for trespassing.
All four defendants appealed and the appeal was heard in June 2005 before Judges Gopal Sri Ram, Ariffin Zakaria and Nik Hashim Nik Abdul Rahman (the latter two have since been promoted to the Federal Court). The three judges unanimously threw out the appeal and held that the High Court was not misdirected when it decided, based on a large quantity of evidence and fact that was not challenged, to rule that the Temuans did indeed have propriety rights over their customary lands. As such, these lands should be treated as titled lands and therefore subject to compensation under the Land Acquisition Act.
But the 59-page judgment of Gopal Sri Ram in the Court of Appeal is more than just an affirmation of the rights of the Orang Asli to their traditional lands. It was a condemnation of the way the Orang Asli have been treated by the authorities and a wake-up call to the government to fulfill its fiduciary responsibility towards the community. In his words, “Here you have a case where the very authority – the State – that is enjoined by the law to protect the aborigines turned upon them and permitted them to be treated in a most shoddy, cruel and oppressive manner.”
Failure in fiduciary duty
Acknowledging that the purpose of the Aboriginal Peoples Act 1954 was to “protect and uplift the First Peoples of this country”, Judge Gopal asserted that “it was therefore fundamentally a human rights statute, acquiring a quasi-constitutional status giving it preeminence over ordinary legislation. It must therefore receive a broad and liberal interpretation.”
This was in keeping with the early debates and discussions as recorded in the Federal Legislative Assembly hansards, newspapers of the day and archival records, which clearly showed that Orang Asli lands were to be recognised. For example, as noted in the judgment, when the Orang Asli representative, Tok Pangku Pandak Hamid, asked the Education Minister if the government had any plans to ensure that the hereditary lands of the Aborigines are reserved for their use, Enche Mohd Khir Johari replied:
Steps are now being taken to create these reserves and there are also in existence others which were gazetted prior to the introduction of the Ordinance…. At the moment there are in existence in the Federation, 58 Gazetted Aborigine Reserves covering in all approximately 30 square miles, and including some 5,200 aborigines. An additional 120 areas are currently under consideration, with a view to gazetting as Reserves. They cover about 389 sq. miles and include approximately 21,000 aborigines.
Alas, as the court was later to find out, none of these good intentions was realised. In the case of Bukit Tampoi, the Temuans faced both under-gazettement as well as non-gazettement of their lands. Thus, as a result of the state and federal governments’ neglect in both under-gazetting and not gazetting areas which they knew were inhabited by the Temuans, the latter’s rights in the land were placed in serious jeopardy. For the state and federal governments now to say that no compensation is payable to the Temuans because the disputed lands were not gazetted is to add salt to injury – injury caused by their own neglect and failure. This prompted Judge Gopal to comment that, “I am yet to see a clearer case of a party taking advantage of its own wrong.”
The Department of Orang Asli Affairs (JHEOA) is the government agency set up pursuant to the Aboriginal Peoples Act 1954 and charged with the responsibility of looking after Orang Asli welfare. The judge noted that it made a significant policy statement in 1961 called ‘Statement of Policy Regarding the Administration of Orang Asli of Peninsular Malaysia’ wherein the special position of Aborigines in respect of land usage and land rights shall be recognised and that … Aborigines will not be moved from their traditional areas without their full consent.”
Yet, in the case of Bukit Tampoi, some of the Temuan landowners were brought to the police station and forced to accept their compensation cheques (for their crops and dwellings) in front of the District Officer, the OCPD and the State Assemblyman. All did not cash their cheques immediately and only did so on the advice of their lawyers and under protest. Fresh cheques had to be issued, however, as the validity period of the original cheques had expired.
The judge in his judgment did not go into the details of how the Temuan plaintiffs were forcibly moved from their lands other than to note that, “The plaintiffs and their families were unceremoniously asked to go and fend for themselves in unkind weather.” But he did rule that “looking at the evidence in totality, I am satisfied that this is a proper case for an award of exemplary damages” for the distress and humiliation that the Orang Asli had to undergo when they were forcibly evicted.
Making the Aboriginal Peoples Act compliant with the Constitution
The practice to date has been to use the 1954 Act as the legal basis for compensating the Orang Asli only for their crops and dwellings whenever their lands are taken. The 1954 Act has also been used to argue that the Orang Asli do not hold proprietary interest in their land and that the state governments exercise wide powers as to the disposal and compensation of these lands. The Orang Asli therefore are only tenants-at-will, living on state land at the state’s largesse.
Citing a number of legal precedents and justification, Judge Gopal reversed this interpretation. In the light of the obvious conflict between the 1954 Act and the Federal Constitution - Article 13(2) states that “no law shall provide for compulsory acquisition or use of property without adequate compensation” - he ruled that relevant portions of the 1954 Act had to be brought into conformity with the Constitution.
This is achieved, he says, by not reading the words in section 12 of the 1954 Act, “the State Authority may grant compensation therefor” as conferring a discretion on the State Authority whether to grant compensation or not. Instead, the relevant phrase ought to be read as “the State Authority shall grant adequate compensation therefor.” In so doing, the modification is complete.
This is a pro-active move that can have positive effects in other human rights cases. The judge added, “I am aware that ordinarily we, the judges, are not permitted by our own jurisprudence, to do this. But here you have a direction by the supreme law of the Federation that such modifications as the present must be done.”
The judgment of the Court of Appeal in the case of Sagong Tasi and 6 Ors v Kerajaan Negeri Selangor and 3 Ors is without doubt a landmark decision in many aspects. For certain, it is a refreshing breath of just air given the spate of judicial setbacks indigenous peoples have faced in the courts, especially in Sarawak. It also shows that there is enough in our local laws to protect the rights of the marginalised and the oppressed if we only want to.
Having been closely involved in this case, both at the evidence-gathering stage and in the development of the legal argument, there was never any doubt in my mind that the case for the Orang Asli was based on a very strong evidential, moral and legal foundation. With a hardworking and very committed legal team, it was easy to be reassured of success.
But I couldn’t help feeling insecure on the morning of 19 September given the perception that other factors also come into play in court decisions. Now is the time to relish the short interregnum before the same insecurity reappears when it is time for the Federal Court appeal. It is hoped however that the four parties would accept the unanimous decision of four judges thus far that the Orang Asli have a rightful place on their own lands.
Already three of the affected landowners have died and several of them are getting on in age. Sagong Tasi and Dabak Chabat still live in poverty, frequently ill from old age and from lack of the basics many of us take for granted.
As I was preparing this article, word reached me that the Semoq Beri in Pahang also had their lands encroached upon recently by another highway project and an individual who cut down their durian trees and sold them for timber before settling down to occupy the land as his own. Just another case to add to the growing list of encroachments into Orang Asli areas by authorities and individuals who still choose to regard Orang Asli as tenants on their own land.
In the meantime, the Temuans at Bukit Tampoi are looking for the former Director-General of the Department of Orang Asli Affairs, Tuan Hj Ikram, who had once showed his behind to them at a meeting, saying, “You can kick me here if you win your case in the courts!” They want him to make good at least this promise of his and to see how it is like on the other side of the trampling.
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