Over 400 native land dispute cases awaiting judgment in Sarawak, Sabah: UN special rapporteur

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Who is responsible for the failure to protect NCR land?

The task force on this issue announced at the last Universal Periodic Review process is apparently unknown to some relevant stakeholders, says Karima Bennoune.

Sabah and Sarawak

The Malaysian Constitution recognises the status of indigenous peoples in Sabah and Sarawak and has from the beginning granted them a certain degree of protection and autonomy.

The active involvement of indigenous peoples in the management of parks and reserves as well as the representation and integration of arts, crafts, traditional costumes and performances in museums, touristic products and the national arts academy’s curriculum are positive features. However, more must be done to preserve diverse mother tongues and to increase the representation of indigenous peoples in the bodies focused on their issues and rights in all parts of Malaysia.

Some also experience pressure to conform culturally. For example, culturally significant tattoos are beginning to be considered in a negative manner and reportedly may now be prohibited for police officers, a rule which the Special Rapporteur was told may lead to invasive physical exams. Such cultural coercion and fear of it may lead indigenous peoples to remove their children from school which perpetuates their marginalization.

Still, perhaps the single most difficult issue, and one that has been raised with the Malaysian authorities in the past by UN human rights experts, is that of more than 400 cases of customary land disputes still awaiting judgement.

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The task force on this issue announced at the last Universal Periodic Review process is apparently unknown to some relevant stakeholders, who report that they have not been approached or consulted about its work to identify and recognise customary lands. The Special Rapporteur looks forward to receiving further information from the authorities of Sarawak, which she is told is forthcoming.

Peninsular Malaysia

The Orang Asli in peninsular Malaysia do not seem to enjoy the same recognition as the Sabahians and Sarawakians. Some report feeling pressured to conform and become “Malays”, especially at school. There are also reports of attempts to declare Orang Asli as Muslims on their documents and material inducements to convert.

The Special Rapporteur heard reports of pressure at school on Orang Asli children to join Muslim prayers and wear headscarves, and of a dearth of representations of their history and ways of life in the curriculum. Teachers need to be conscious of the influence they can have on all children in their classes, including Orang Asli, and integrate tolerance and respect for diversity in their everyday interactions with children.

The Special Rapporteur expresses grave concern about the reports of bullying of Orang Asli children in schools which contributes to the incidence of dropping out. All relevant agencies must take a strong position against this harmful practice and develop and implement a systematic program to fight against it and provide tools for the teachers and school administrators to prevent and resolve it.

The Special Rapporteur heard accounts of Orang Asli villages being displaced for infrastructure or large scale development projects, which implies loss of their traditional land. The needed process to have land recognised as customary land means engaging in a mapping of the Orang Asli presence that takes into account not only their current active use of the land on which they live but also access to the forest and consideration of their future needs.

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Loss of their lands means active destruction of their ways of life, including their possibility to transmit the rituals, beliefs, knowledge and practices related to it. Considering the number of recommendations that have been made in the past by international bodies and experts, more significant steps must be taken with (not for) the Orang Asli on this matter.

The past recommendations made by relevant UN bodies on the cultural rights issues confronting indigenous peoples in Malaysia must be fully implemented without delay. The Special Rapporteur on the rights of indigenous people should be invited to visit the country as a matter of priority.

The above is an excerpt from Karima Bennoune’s full report of her preliminary observations.

Karima Bennoune was appointed UN Special Rapporteur in the field of cultural rights in October 2015. She grew up in Algeria and the United States. She is Professor of Law and Martin Luther King, Jr Hall Research Scholar at the University of California-Davis School of Law where she teaches courses on human rights and international law. Bennoune has worked in the field of human rights for more than 20 years.

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