In what seems to mark a significant shift in government policy, the Malaysian Government has sued the State Government of Kelantan for its alleged failure to protect Orang Asli rights to their lands in violation of the Constitution. The Orang Asli (‘original peoples’) are the indigenous peoples of Peninsular Malaysia. Orang Asli spokespersons have been reported to welcome the decision but have called for legal reforms to secure their customary rights through statutory law.
During the British colonial period, the so called ‘aboriginal peoples’ of the Malay Peninsula were tolerated but their rights were never formally recognised. The British sought to encourage the Orang Asli, who lived by hunting and gathering and small-scale shifting cultivation mainly in the forested uplands, to settle down. Small reserves set up for their settlements were gazetted but legally remained Crown lands. Then during the post-second-world-war ‘Emergency’ – a small, vicious, colonial war against a communist insurgency – sharper measures were undertaken by the British to force the Orang Asli into guarded camps, so they could not provide refuge to the forest-based guerrilla. The insurgency soon came to an end but the policy of strict oversight of the Orang Asli by a paternalist administration remained in place.
These laws and policies were inherited by Malaysia at its independence and have since been only slightly modified. Resettlement into centralised villages is still encouraged and measures to recognise land rights have hitherto been limited to providing individual land titles to house plots and fixed farms. However, the courts, drawing on English Common law precedents, have gone much further in recognising that, under the Constitution and laws of Malaysia, the Orang Asli retain customary rights over their traditional territories. The Malaysian National Human Rights Commission (Suhakam) which carried out a national inquiry into the land rights of the indigenous peoples of Malaysia, both in the Peninsula and Malaysian Borneo, has recommended reforms in the law to allow the collective titling of the lands and territories of the Orang Asli, Dayak (in Sarawak) and Kadazan-Dusun (in Sabah).
The recent move by the Federal Government may mark a new commitment by Malaysia to settle these indigenous land claims, which are all too often overlooked by forestry, conservation and development projects. Other welcome news includes the revelation that the government has suspended the Telom dam, which would have impacted Orang Asli rights, while the Sabah Government has decided to reissue communal titles, which had locked Kadazan-Dusun communities into unfair ‘joint ventures’ without their informed consent.