THE DESTINY OF MALAYSIA’S ORANG ASLI

A Preliminary Report compiled by Chief Judge Aidun Silver Eagle Naidu of the Southern Cherokee Nation of Kentucky; The Little Shell Pembina Nation of North Dakota; United States of America

Introduction

Most history books written about the Golden Chersonese, the Malay Archipelago, Malaya – the various names attached to present day Malaysia - extol the virtues of economic and political development starting with a story of Prince Parameswara as the founder of the Malay Kingdom of Malacca, A.D. 1400-1511. Rarely are the Orang Asli mentioned. There is ample mention of the Portuguese, Dutch and the British. I support the fact, as a post-structuralist, that history can be fictionalized and manipulated unabashedly.

The fact that the Orang Asli were ignored in historical texts and references could be attributed to the ignorance of the designers, planners and schemers of things to come. It has happened to aboriginal groups around the world by imperialistic avarice. Oral history has proved this time and again.

The Orang Asli of Malaysia are not mentioned or included in the supreme law of Malaysia – Part I, Article 4 (1)of the Federal Constitution (“This Constitution is the supreme law of the Federation ………& rdquo;) except for the natives of Sabah and Sarawak in Part XII, Article 153, in reference to “Reservation of quotas in respect of services, permits, etc., for Malays and natives of any of the States of Sabah and Sarawak.” The obvious burning question that should arise and emerge is whether this exclusion of the Orang Asli was by design which escalated into a commission by omission, or by forgetfulness on the part of the planners and drafters of the Federal Commission. Either way, a future amendment could have solved the conundrum although it has been proudly claimed that the Federal Constitution was amended some seven hundred times probably in defiance of the 1956 Reid Commission which did not include a Malayan judge, jurist, legal scholar, or an eminent lawyer.

The Aboriginal Peoples Act 1954 (Act 134), enacted in 1954 as Ordinance No. 3 of 1954, was revised and published in 1974 as Laws of Malaysia Act 134. The revised Act came into force on 1.7.1974. The Act states that it is “An Act to provide for the protection, well-being and advancement of the aboriginal peoples of West Malaysia.

Therefore, Act 134 is considered to be a valid Act for the protection of the eighteen Orang Asli groups identified as the Temuan, Semelai, Jakun, Orang Kuala, Seletar, and Kanaq classified as Proto-Malays; the Semakbri, Jahut,Mahmari (Pulau Carey), Chewong and Batik are classified as Senoi; while the Jahai, Semai, Temiar, Kingsiew, Lanoh and Kintah are classified as Negrito.

It should be noted that this Act was enacted before Merdeka Day.

Sovereignty of the Orang Asli

As a distinct ethnic minority group the Orang Asli ought to enjoy special inalienable rights based on the rules of natural law and natural justice by virtue of the fact that they were living in, and occupying, the Malay archipelago as the original custodians of the environment and the adjoining land mass. They hunted, fished, gathered and raised families as distinct primitive communities with their very own distinct Native Code. They took care of the land as one would take care of his or her mother. Land is mother in the aboriginal thought process. Your mother is not for sale. For the Anglo-Saxon frame of mind, land is a commodity capable of being bought, sold, bartered or traded.

An inevitable clash of civilizations.

The fact that foreigners arrived in the Malay archipelago bringing with them their laws and ideas of socio-economic and geopolitical protocols does not justify marginalizing and sidelining the Orang Asli. The British introduced the concept of land titles -a legal fiction - which created the Malays reservations, the concept of freehold and leasehold titles. The right to land occupancy under a “customary community title of a permanent nature” was declared as settled law by the Malaysian Court of Appeals in the Sagong Tasi case in 2006. The defendants dared not appeal the decision to the apex court for obvious reasons – it would have opened a gargantuan can of worms. Surely the British who introduced their anachronistic common law system in these climes were well aware of customary community title of a permanent nature.

Although several thousand Orang Asli embraced Islam, this conversion did not make them “ Malays” as defined in Part XII, Article 160 (2) of the Federal Constitution which states that “’Malay&rsquo ; means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom……&rd quo;.

This conversion to Islam of the willing Orang Asli is not dissimilar to the Native Americans who were coerced into accepting Christianity so that they could become “civilized.” The Anglo-Saxon state of mind in America was that it was “manifest destiny” that the doctrine of “discovery and conquest” was inevitable. The fact that Christopher Columbus discovered America, upon which is based the dubious claim to “manifest destiny” and “the doctrine of discovery and conquest”, is akin to the child who discovered a refrigerator in the family kitchen.

In the context of Islam, it has been reported that Prime Minister Abdullah Badawi, in an address to the Oxford center for Islamic Studies on October 1, 2004, stated that one of the ten fundamentals which Muslim countries must demonstrate as Islam Hadhari (or Civilizational Islam) is a willingness for the protection of the rights of minority groups and women. The Orang Asli are a minority group. Has Muslim Malaysia protected the rights of the Orang Asli? It is worth remembering that a right has been defined as a legally protected interested that is enforceable in a court of law, even a Syariah Court where Islam Hadhari is valid and potent.

The sovereignty of the Orang Asli, thus, as a distinct people, has to be established - notwithstanding the absence of the mention of the Orang Asli in the Federal Constitution – by employing the following protocols:

1.     Appointment of a Commissioner and Deputy Commissioner for Aboriginal Affairs by the Yang di-Pertuan Agong pursuant to Article 5 of the Aboriginal Peoples Act 1954. The Jabatan Hal Ehwal Orang Asli cannot substitute this requirement as stipulated in the Act. In fact, the Yang di-Pertuan Agong has to exercise his vested executive authority (Federal Constitution, Part IV, Chapter 3, Article 39 which states that the “executive authority of the Federation shall be vested in the Yang di-Pertuan Agong and exercisable by him ………..”) to remove the Jabatan Hal Ehwal Orang Asli’s responsibilities, duties, and functions and hand them altogether to the Commissioner and Deputy Commissioner of Aboriganal Affairs.

2.     Establishment of native courts outside of influence and intrusion of the federal or state governments pursuant to Part X, Article 145 (3) where the “Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings before a Syariah Court, a native court or a court martial.” (emphasis mine)

There is clear, concise, and cogent language in the Federal Constitution that obviates the need for the federal or state government to interfere, intercede, or intrude upon native concerns, cases, causes, controversies and conflicts.

3.     The establishment of a Orang Asli Police Force outside the sphere of influence of the Royal Malaysian Police Force. The connotation “Royal” is evidence of the executive authority of the Yang di-Pertuan Agong  from a constitutional standpoint.

4.     The payment of rents and royalties to the Orang Asli  by all public and private sector companies, firms, organizations, agencies, departments, etc. that have constructed roads and highways, airports, hotels, schools, dams, mines, parks, stadiums, and various other amenities and facilities upon Orang Asli lands which traditionally enjoy  “customary community title of a permanent nature.” Since when did the lessee not pay the lessor for the use and enjoyment of the latter’s land? If Malaysia is adhering to and complying with the British common law system, then this argument about the payment of rents and royalties is just, conscionable, fair and ethical. Five hundred years does not become a fading memory when it comes to collecting money especially when the beneficiary is the Orang Asli.

5.     The establishment of a Orang Asli Bank so that the Office of the Commissioner of Aboriginal Affairs is able to make allocation of funds required for the advancement and well being of the Orang Asli without state or federal influence, control, and involvement.

6.     Representation of the Orang Asli in Parliament especially in the Dewan Rakyat.  Appointing a Senator from the rank and file of the Orang Asli will not cut it. An Orang Asli  Member of Parliament in the Dewan Rakyat who has the confidence and support of the Orang Asli to voice their concerns and questions in Parliament is sorely and surely needed post haste.

7.     Establishment of an independent educational institution solely for the Orang Asli to be trained in economics, law, politics, sociology, finance, agriculture, and other useful disciplines that would serve to advance their status quo.

This Orang Asli educational institution is to be funded by the funds currently allocated from the federal government and from funds that are due and payable to the Orang Asli as outlined and mentioned in (4) above.

There may be very many valid areas of constitutional import that have to be ironed out with the Orang Asli.

This Preliminary Report is being sent to the Committee of the Peninsular Malaysia Orang Asli Association.