MODUS OPERANDI FOR REDEEMING LOST LAND RIGHTS RIGHTFULLY AND LEGALLY BELONGING TO MALAYSIA’S FIRST CITIZENS -ORANG ASLI OF PENINSULAR MALAYSIA ~

Continuing Legal Education Series by Judge Aidun Naidu, Southern Cherokee Nation of Kentucky; Little Shell Pembina Band of North Dakota, United States of America.

Rapid City, South Dakota, January 11, 2008

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A.     USUCAPION AND USUFRUCTUS

It is said and believed, as a rule of practice, that to succeed in any lawsuit one ought to check, recheck and cross-check all the facts surrounding any number of legal issues, and thereafter, apply those facts as evidence to the existing principles of law, maxims and doctrines, settled cases useable as precedents, statutes, customs, traditions and mores, restatements of the law, and scholarly works by recognized giants in the field of law to be played out in court as winning briefs and great oral arguments whose sole purpose and objective is to win powerful judgments in favor of the plaintiff complainant.

That is the first step. You win. Then comes the enforcement phase. The Court does not have the power of the sword and the purse. That is the domain of the executive and the legislature, respectively.

You can still lose. Unless you are sovereign. That is, you have your own Police Force, Prisons, and a standing army. Nobody terrorizes you without getting arrested, charged, tried, convicted and sentenced.

The aim of this lecture is to apply this practice discipline and see how this applies to the land rights of Malaysia’s Orang Asli - all eighteen distinct tribes - and how these dispossessed People could use the discipline of law to redeem their land and establish their land rights for all time.

Roman and Scots law – some of the sources of the Anglo-American jurisprudence - recognize usucapion which refers to the acquisition of property by lengthened possession. This right is founded on the premise that the party acquiring the property must be in a bona fide and unchallenged possession of the subject property for one year if it was moveable and two years if immoveable. The Emperor Justinian, it is reported, amended this arrangement by stipulation in his famous Codes that the acquisition of moveables by usucapion ought to be three years and that immoveables should be acquired by “possession of long time.” The concept is thus founded on sound unchallenged principles bearing legitimacy in times of peace.

The Latin maxim usucapio constituta est ut aliquis litium finis esset means that usucapion was instituted that there might be an end of lawsuits. This maxim found expression and utterance in constitutions and enacted laws so that after a certain term or period no question should be possible concerning the ownership of property.

Therefore, it is safe to assume, based on this maxim, that it is vexatious, unfair and unjust to legislate a property law to someone’s detriment. This is good news for the Orang Asli as long as the law is just and fair, and that it imposes no injury or mischief on anyone’s vested right and interest to property.

Roman and Scots law also recognize the concept of usufructus which refers to the right to use and profit from another’s property on the condition that it remains uninjured and that a fiduciary fee is paid.

These concepts stem from the recognition of allodial title held by aboriginal peoples under native customary rights. Allodium is defined as “land held absolutely in one’s own right, and not of any lord or superior. An estate held by absolute ownership, without recognizing any superior to whom any duty is due on account hereof.” (Black’s Law Dictionary, Seventh ed. page 76).

If the concepts of usucapion and usufructus are to be recognized in the Malaysian Orang Asli context it follows that one ought to examine Malaysia’s Federal Constitution (FC); National Land Code (Act 56 of 1965); the Aboriginal Peoples Act 1954 (Act 134); the Specific Relief Act 1950 (Act 137); the Land Acquisition Act 1960 (Act 486); the Government Proceedings Act 1956 (Act 359); the Adorna Properties Case, Sagong Tasi v Kerajaan Negeri Selangor, Nor Nyawai v. Borneo Plantations Sdn. Bhd. & Others, and other cases and statutes in order to connect the dots and discover where disparity, unfairness, unconstitutional and illegal actions has been occasioned by parties – both public and private - to the detriment of the Orang Asli.

There is another source of irritation that was occasioned with the introduction of the Anglo-Saxon land title system into an Asian country such as Malaya by the British colonials whose imperialistic proclivities were unabashed. This smacks of potestas gladii – the power of the sword where might is right. I will fight you for it in a nice way by introducing a civilized weapon – legislation. This is the ultimate deception especially when the laws made pursuant to an intention to steal masquerades as legal, lawful, and legitimate.

There seems to be a tacit satisfaction on the part of the lawmakers that issuance of a  British land title – an alien introduction stemming from an alien culture -  extinguishes native customary title, or terminates the permanent tenancy of land occupation and ownership by an aboriginal. To add insult to injury an act of the legislature on the part of the lawmakers to make things right without so much as consultation with the Orang Asli is perceived as formal and normal. I wonder if this is a civilized way to steal land under the guise of an enacted law.

B.    & nbsp; SOVEREIGNTY OF THE ORANG ASLI AS A DISTINCT COMMUNITY

Since there is no mention of the Orang Asli in the Federal Constitution (FC) of Malaysia, it is safe to conclude that the Aboriginal Peoples Act 1954 (APA) confers sovereignty on the Orang Asli based on the premise that there is no Malay Peoples Act, Indian Peoples Act, Chinese Peoples Act, Eurasian Peoples Act, etc. in Malaysia to confer the same sovereignty on Malays, Indian, Chinese, Eurasians and others born of miscegenation except for fundamental liberties (Part II, Articles 5, 6, 7, 8, 9, 10, 11, 12 and 13) that all Malaysians enjoy in Malaysia under the protection and guarantee of the FC.

APA was promulgated in 1954 before the ratification of the FC in 1956 and 1957 in consequence of the Reid Commission’s findings. It may be wise also to conclude that the Orang Asli were not mentioned in the FC because of the existence of the APA, and that the APA is not to be subsumed by the FC. As the first occupants of the Malay Archipelago, the Golden Chersonese, and Malaya, there is no doubt in my mind that the Orang Asli are a sovereign people. They hunted, gathered, farmed, took care of the environment, had a native code to address grievances, disputes, and conflicts, and raised families and communities way before the arrival of Prince Parameswara, the Portuguese, Admiral Cheng Ho, the Dutch and the British. Obviously, I refer to the historical texts available that suggest that these events happened although I was not physically present to witness the course of history in the Malay Archipelago.

Mind you, I happen to believe that history can be fictionalized depending on who is writing it, and who stands to gain from such distortions and misinformation.

The word “sovereignty” is used to denote the concept of unlimited power and authority. In the United States, the Native Americans are regarded as quasi-sovereigns by subtle governmental insinuations rearing its ugly head as court decisions, regulations and the dastardly Bureau of Indian Affairs. There is no such thing as a “quasi-sovereign.” Either you have unlimited power and authority or you don’t. If you have limited power and authority, then, you are not a sovereign.

1. THE LAWS OF THE LAND AND HOW THE DISENFRANCHISED  ORANG ASLI COULD EMPLOY THESE LAWS COLLECTIVELY TO PREVAIL IN THEIR EFFORT TO GAIN THAT WHICH THEY LOST.

When you apply the concepts of usucapion and usufructus in the Malaysian Orang Asli land rights and ownership context as the nation’s first peoples, there is absolutely no doubt that the Orang Alsi enjoy usucapion as first possessors while the Malaysian government – whether municipal, state, or federal – have the privilege of usufructus. A privilege is not the same as a right. The former has limited authority in terms of scope, scale, effect, and impact. The latter is a legally protected interest enforceable in a court of law – and a court of justice.

Let us now examine how the various laws of Malaysia have a direct bearing on usucapion and usufructus. Bear with me as I connect the dots and I pray you will be able to come with me as I embark on a journey knowing that these are not unchartered waters. Give me your comments, inputs and suggestions as lawyers and law students, and to those who are attending the Word In Action Ministry Law College (WIAM), you will need to dig into the realms of research and thinking to see where we are going with these.

1. The Federal Constitution (FC)

The FC is a contract, a covenant, a compact, an agreement made between the government and the governed. It outlines a list of things the government is allowed under law, rationale, reason, justice, conscience and fairness without terrorizing the governed. The Lockean concept as adopted by the Framers of the American Constitution. There are those who refer to the Framers as “Founding Fathers” as if the government is a parent !!! No thanks. I had excellent parents. They made me excel in speaking my mind when it works well and to keep a lid on it when it goes south.

The FC is the supreme law of the Federation which states that “any law made after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.” (Article 4)

This is a strong and unequivocal statement which should not, and cannot be taken lightly. In the Malaysian context, I have noticed that this powerful declaration of Article 4 is taken as a spurious, if not ineffective statement of the supreme law. The fact that any law made after August 31, 1957, which is inconsistent with the FC shall be void simply states that that inconsistency need not be challenged and proved in a court of law to be made void, but ipso facto, is void if any parliamentary enactment is inconsistent with the FC. Prima facie and at first blush, it seems to say.

 The special jurisdiction of the Malaysian Supreme Court as to the interpretation of the FC has been repealed. See Article 129. So, where the dickens does one go to have the Constitution interpreted in Malaysia? This is serious. We seem to be cut adrift from firm moorings. We cannot afford to be bobbing up and down as a useless piece of cork in the ocean of uncertainty and inconsistency shoved hither and thither by the undercurrents of distorted and devious constitutional interpretations by some errant minister of the government dedicated to the cliché “rule of law.” Every one I know in academia, in government, in the legal profession, and in the judiciary talk about the rule of law instead of the role of justice. NOBODY has yet to convince me what “rule of law” means. You see,  it has a totally different meaning, definition, and interpretation in the different and separate minds of the legislator, the executive, the judiciary, and the practising lawyer.

However, the apex court, now called the Federal Court, is constitutionally mandated to have jurisdiction as a court of original or consultative jurisdiction other than its function as the final appellate court. See Article 121 (2)(b).  In other words, an aggrieved party has the constitutional and legal right to petition the Federal Court to seek review of a constitutional provision - maybe - without having to go through the usual messy trial process.

Another avenue available is to invoke  the power of the Conference of Rulers (Article 38) and the Yang di-Pertuan Agong as the custodian of executive authority (Article 39). I doubt this has been tried before. The Orang Asli can certainly give it a concerted effort.

Part II, Article 13 reads as follows:

(1)   No person shall be deprived of property save in accordance with law.

(2)   No law shall provide for the compulsory acquisition or use of property without adequate compensation.

Taking (1) and (2) of Article 13 together, the obvious question is whether sufficient and adequate compensation has been paid to the Orang Asli’s usucapion by the Malaysian government since the arrival of Prince Parameswara in Malacca and the inception of the Malacca Sultanate. I think not. I am sure the Orang Asli will agree that whatever they have received as compensation is grossly insufficient if not unfair.

Article 5 of the FC grants a right to livelihood. When the State of Federal government

takes the lands of the Orang Asli for purposes of development and progress, is the compensation adequate to meet the standards of livelihood within the expectation of the dispossessed land owner?

Part IV, Chapter 5, Article 67 deals with “Restriction on introduction of Bills and moving of amendments involving taxation, expenditure, etc.” may defeat the mandates of Part II, Article 13 (1) and (2). It is saying that if you move a Bill asking for compensation for the Orang Asli, we can throw the book at you.

However, there seems to be some light at the end of the tunnel with Part IV, Chapter 6, Article 69 declaring that (1) The Federation has power to acquire, hold and dispose of property of any kind and to make contracts, and (2) The Federation may sue and be sued. This is refreshing given Parliament’s apparent power to restrict Bills involving expenditure incurred by the government to compensate the Orang Asli for use of their customary land.

Part VI, Chapter 4 deals with land. Articles 83 through to Articles 91 deal specifically with various matter relating to the central issue of land.

• Article 83 - acquisition of land for federal purposes: there are eight subsections meandering its intent, content, and extent through language that says everything about usucapion and usufructus without actually mentioning these two words.
• Article 84 - repealed by Act A704 – it will be worth reading up on what was repealed.
• Article 85 - grant to Federation of land reserved for federal purposes.
• Article 86 - disposition of land vested in the Federation
• Article 87 - determination of disputes as to land values
• Article 88 - applications of Articles 83 to 87 to States not having a Ruler
• Article 89 - Malay reservations. There is a curious reference made to “natives” of the State in subsection (6). One wonders whether it refers to a resident of that state who was born thereat, or to an Orang Asli. Another anomaly is to be found in subsection (2) which states that “if any land is not developed or cultivated it may be declared as a Malay reservation in accordance with that law.” No mention is made of any compensation to the original land owner who is the Orang Asli.
• Article 90 - special provisions relating to customary land in Negeri Sembilan and Malacca, and Malay holdings in Trengganu.
• Article 91 - National Land Council.

There is absolutely no mention of the Orang Asli or their customary lands in these Articles 83 through to 91. Article 90 mentions “customary land” but that’s it. There is no definition or explanation of what “customary land” means.

Part XIII, Article 167 - Rights, liabilities and obligations - (7) : The Federation shall make annual payments as fell to be made before Merdeka Day under Article II of the Treaty made on the sixth day of May, eighteen hundred and sixty-nine, between Her Majesty of the one part and the King of Siam of the other part relative to the State of Kedah. Subsections (1), (2), (3), (4) and (5) are repealed.  Now, here we have a situation where Queen Victoria’s contract with the King of Siam and the State of Kedah is still legislatively protected at the expense of the Orang Asli. Nobody advised Her Majesty that in matters of land acquisition the rightful owners have to be consulted. In this case, the Orang Asli.

There is an obscure mention of the word “aborigine” in Part XII, Article 160 (2) which “means an aborigine of the Malay Peninsula.” Apart from this definition, there is nothing. There is no mention or reference made to the Orang Asli. One could only wish that Article 160(2) had said “an aborigine is person who is also referred to as Orang Asli as a term to identify the country’s first citizens”, or something to that effect to make things palatable and acceptable to Malaysia First Citizens- the Orang Asli.

1. National Land Code (Act 56 of 1965)

The legislative intent of this Act is to amend and consolidate  the laws relating to land and land tenure, the registration of title to land and of dealings therewith and the collection of revenue thereform within the States of Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor, Trengganu and the Federal Territory of Kuala Lumpur, and for purposes connected therewith.

That just about covers all the land belonging to all the eighteen Orang Asli Tribes. The presence of any reference to the eighteen Orang Tribes is acutely felt by the absence of its mention.

There are 447 Articles in the Code. The Savings Clause in Article 4 (1) states: Nothing in this Act shall affect the past operation of, or anything done under, any previous land law or, so far as they relate to land, the provisions of any other law passed before the commencement of this Act.” Usucapion and usfructus?

Section 4 (2) goes further to state that “Except in so far as it is expressly provided to the contrary, nothing in this Act shall affect the provisions of (a) any law for the time being in force relating to customary tenure.” (Emphasis mine)

Therefore Section 4(1) and (2) offer great statutory remedy, comfort and solace, in my opinion, to the Orang Asli to vigorously pursue their lost land rights via the aegis of usucapion and usufructus.

Chapter 3, Section 19 - Information to kept secret. The statute seems to frown upon transparency when it forbids its employees and officers to “maintain, and aid in maintaining, the secrecy of all matters which come to his knowledge in the performance of his duties.” So if the land officer finds an offending document evidencing fraud, or deception, or theft, or ownership of land by the Orang Asli, he is required, by law, to maintain secrecy. He is prevented from being a whistleblower.  One can only wonder what lurks behind the scenes. There goes accountability out of the window as unwanted dishwater. Talk of hidden hands.

Chapter 2, Section 51 – Classification of land – again no mention of customary land titles. It classifies land as land above the shore-line (town land, village land, country land); and foreshore and sea-bed.

The fact that land has been alienated in Malaysia simply puts to rest the truism and belief that it belonged to someone else eons before the Lockean concept of government by the consent emerged upon our shores.

Chapter 4, Section 175A – Power to replace register document of title where the register is lost, etc., - I have always been fascinated, and amused, at the use of the word “etc.” For me, it means anything ranging from a fading memory to burning the register with intent to destroy original records so that the original owner of land does not have a leg to stand on.

Chapter 5, Section 126 – Breach of complex condition (offers some solace and comfort to the Orang Asli) when it states that “ Where any condition consists of two or more separate obligations or liabilities, a failure to fulfill any of those obligations or liabilities shall constitute a breach of condition.”

Do we have “complex condition” here since the municipal, state, and federal governments, through its agencies and departments, have appropriated land belonging to the Orang Asli whose only proof and evidence that they own ALL land in Malaysia is that they were here first and always enjoyed usucapion?

Which brings us to the all time favorite, Section 340 - Registration to confer indefeasible title or interest, except in certain circumstances. – The dictionary definition of “indefeasible&rdquo ; – “not to be annulled, forfeited or made void” is a good foundational premise to start our enquiry into usucapion.

Subsection(2) (a) of Section 340 states that where fraud or misrepresentation is evidenced and proven, then indefeasibility does not attach. In other words, where fraud and misrepresented has been occasioned, a party claiming his or her right to land fraudulently obtained by misrepresentation loses that right in that the title is voided, forfeited or annulled. But sadly, the Federal Court in the Adorna Properties Case did not think so although the statute is crystal clear in its intent, content, and extent as to fraud and misrepresentation. In the Adorna Properties case, a Thai woman who owned a piece of land in Penang lost to a fraudulent transfer of title of her land to a fraudster who sold the land to Adorna Properties.

The only reason I can think of as to why the apex court did not uphold Section 340 of the National land Code in reference to fraud, misrepresentation, or forgery is that the Government of Malaysia may have had a hand in the decision because Section 340 has the authority, power, capacity, capability, and legal standing to be of great advantage and benefit to the Orang Asli’s stand on land rights. The apex court found it necessary to declare this great injustice to the hapless Thai woman as a precedent for future claims of forgery, fraud and misrepresentation. 

Be that as it may, Section 341 - Adverse possession not to extinguish titles or interests – clearly states that there is no time bar under the Limitation Act of 1953 for the proprietor of land to bring an action in court to recover his property. Five hundred years of land grabbing may yet be vindicated in favour of the Orang Asli if Section 341 is unleashed against the Government of Malaysia.

1. The Land Acquisition Act 1960 (Act 486)

The legislative intent of this Act is relating to the acquisition of land, the assessment of compensation to be made on account of such acquisition, and other matters incidental thereto.

Part I, Section 2(1) - Interpretation – provides a definition for land as “alienated land within the meaning of State land law, land occupied under customary right and land occupied in expectation of title. (Emphasis mine)

That’s it. There is no other mention or definition, hide or hair about what “customary right” means. It is to be concluded that this is a direct reference to usucapion.

Then there is the ominous sounding Section 3(b) - Matters to be neglected in determining compensation – In determining the amount of compensation to be awarded for any scheduled land acquired under this Act, any disinclination of the person interested to part with the land acquired shall not be taken into consideration (Emphasis mine).

Naidu Translation: I am the Government of Malaysia, or Mr. Private Party interested in buying your land Mr. Orang Asli. I understand you are disinclined to sell it. Well tough, I am going to buy it whether you like it or not, or whether your ancestors are buried under the land or not. See you in Court where the one Judge will decide who is right. Look at Section 40A(1).

    & nbsp;   &n bsp; 4. The Aboriginal Peoples Act 1954 (Act 134)

The legislative intent of this Act is to provide for the protection, well-being and advancement of the aboriginal peoples of West Malaysia. [25^th February, 1954]

It would appear that Sabah and Sarawk were still a twinkle in the eye of the future Framers of Malaysia.

Section 6 mentions in detail the meaning, definition, scope, scale, effect and impact of Aboriginal areas. Section 7 deals with Aboriginal reserves. Subsection (2) states that “within an aboriginal reserve no land shall be declared a Malay reservation under any written law relating to Malay Reservations.

That’s all there is to it. Any law relating to, referring to, insinuating at, or declaring to assert Malay Reservation status is void according to subsection (2) above.

Section 19 states that the Minister (no specification as to which ministry) “may make regulations for carrying into effect the purposes of this Act…..”.

Naidu Translation: I am the Minister. I do not need legislation. I have the power to make regulations which is the same effect as enacted law. You understand. That is my right under the Act. Parry and thrust. I give you one hundred and take back ninety nine. Goodbye. OK. Selamat Jalan.

Never mind the Legislature gave you Section 7 subsection (2). But look at Section 19. OK.

This is legal terrorism. Plain and simple. This is the talk and walk of civilized people. We make laws. We break laws. Makers breakers. What the hell are you going to do about it?

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1. The Specific Relief Act 1950 (Act 137)

The legislative intent of the Act is that it relates to specific relief.

Part 1, subsection 1.2[2] states that “it is undoubtedly good law that where a statute creates a right and, in plain language, gives a specific remedy or appoints a special tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal, and not to others.”

[RCA Sdn. Bhd. v. Pekerja-Pekerja RCA Sdn. Bhd. & Ors.[1999] 1 MLJ 309 (SC: Lee Hun Hoe CJ (Borneo), Harun Hashim and Gunn  Chit Tuan SCJJ); see  also Metal Industry Employees Union v. Registrar of Trade Unions [1976] 1 MLJ 220 and Electrical Industry Workers Union v. Registrar of Trade Unions & Anor. ]1976] 1 MLJ 177; Manggai v. Government of Sarawak & Anor. [1970] 2 MLJ 41; Wilkinson v. Barking Corp. (1948) 1 KB 721; Pasmore v. The Oswaldtwistle Urban District Council (1898) AC 387]

Clear, concise and cogent language. Interpretation unnecessary like television on wedding night. The Orang Asli have to enforce their rights when they gather together all the eighteen Tribes, and have their day in Court. The Federal Court as a court of original jurisdiction. [Article 121(2)(b)]. No need to go through trial court phase and all.

Subsection [3] – it is trite that all forms of specific relief are in the discretion of the court. It is equally trite that the discretion conferred is not a fanciful one. It is a discretion that must be exercised in accordance with sound principles.

[Loo Choo Teng & Anor. v. Cheok Swee Lee & Ors. and another appeal [2000] 2 MLJ 257 (CA: Gopal Sri Ram, Siti Norma Yaakob and Denis Ong JJCA)]

Section 4 stipulates five ways how relief is given. The eighteen Tribes of Orang Asli can and should avail themselves of these five methods.

Section 7.5 is interesting where it mentions English cases on ‘self-help’. “English law permits though it does not encourage a person who is actually entitled to the possession of immovable property (not one who erroneously, however honestly and plausibly, thinks himself entitled) and is out of possession to re-enter without breach of the peace if he can. This concession to self-help was inevitable in days when the superior courts were closed for a great part of the year and twenty miles were counted a long day’s journey.”

[Pollock & Mulla’s commentary on section 6 of the Indian Specific Relief Acts, 1963.; Low Kum Yoon v. The Kim Huah [1976] 1 MLJ 83 (OCJ: Arulandom J)]

Imagine the eighteen Tribes walking all over Malaysia and exercising their right to self-help. And why not. Twenty miles is a long days journey if they cannot afford a car and petrol.

Section 7.6 [4]: Self-help, however, is not to be encouraged because of the disturbance which might follow but the legality of it is beyond question.  [Trustees of Leong San Tong Khoo Kongsi(Penang) Registered & Ors. v. Poh Swee Siang [1987] 2 MLJ 611 (SC: G Seah, Hashim Yeop A Sani & Wan Hamzah SCJJ); Perumahan Farlim (Pg) Sdn. Bhd. & Ors. v. Cheng Hang Guan & Ors. [1989] 3 MLJ 223 (SC: Lee Hun Hoe CJ (Borneo) (Harun Hashim and Mohamed Yusoff SCJJ)]

Section 8.3 grants any person, for example the eighteen Tribes of Orang Asli, the right to recover possession of his immovable property nothwithstanding any other title that may be set up in the suit. The language suggests that if and when the Orang Asli go to the Federal Court with their customary native title it will stump and trump the English common land title adopted in Malaysia as a colonial millstone especially when the civilized world knows it is an imperfect title.

All this is fine and dandy, according to this section, provided there is no disturbance to the peace or breaches of the peace. I can only hope the media does not inflame passions when the Orang Asli decide to enforce their rights under law, by law, through law, in law, at law, and, in due course of law.

Sadly Section 8.6 states that even if a person is dispossessed of his land by the State with malice, he cannot bring a suit against any State. [Honan Plantations Sdn. Bhd.v. Kerajaan Negeri Johor & Ors. [1998] 5 MLJ 129 (HC: Mohd Ghazali J)]

Section 8.6 is vexatious, preposterous, unfair, unjust, unconscionable and downright unconstitutional.

1. The Government Proceedings Act 1956

The legislative intent of this Act is related to “proceedings by and against the Federal Government and the Governments of the States.”

Section 5 highlights the liability of the Government in tort when a public officer in the employ of the Government has committed nonfeasance, misfeasance or malfeasance.

Section 6 limits the liability of the Government. It exonerates any judicial activity, obviously, but removes immunity from others in the discharge of their official duties in their personal capacities.

Section 18 refers to application of written law relating to procedure. The Government is, for the purposes of this Section, like any other person.

There is more than hope and a prayer for the eighteen Tribes to take on the Government without fear or favor, and still keep the peace at the same time.

1. Nor Nyawai v. Borneo Pulp Plantations Sdn. Bhd. & Others

 The Court of Appeal recognized pre-existing native customary land titles of the native Ibans of Sarawak, but it narrowed the application, applicability, legality and locus standing of native customary right to “settlement areas” and not to areas used for foraging. The Court In other words, the Court restricted the meaning of native customary right and missed the whole concept of inalienable land right based on usucapion!

The Court of Appeal probably never heard of usucapion and usufructus. It went on to say that although restrictions can be imposed on native customary rights to land, there is no question of extinguishing such rights. In typical  English common law fashion a la potestas gladii, the Court coldly stated that native customary right can be taken away by clear and unambiguous words in legislation. Maybe my command of the English Language is inadequate. But what the hell difference is there between “can be taken away by ……legislati on” and “extinguish”? I hate the English common law system as a Malaysian of Indian origin. I am no Englishman and have NO desire to be one. Thank God. I am no anglophile, as well. But, by the same token I have lots of British friends.

The natives of Sarawak have their very own native courts. Maybe it is the high noon of decision-making. These native courts ought to outlaw the findings in Nor Nyawai and entrench its very own stamp upon native customary land rights. After all, the Government of Malaysia cannot interfere as the Attorney General of Malaysia is barred from interceding in a native court suit. (Article 145 (3) FC)

1. Conclusion and Remarks

All said and done, the eighteen tribes of Orang Asli ought to go the Federal Court, as a Coourt of original jurisdiction [Article 121 (2)(b)] and petition the apex court to review their constitutional locus standi as a distinct people while appealing their cause with the Yang di-Pertuan Agong (King) of Malaysia. The King of Malaysia has the right to appoint a Commissioner and as many deputy Commissioners pursuant to Section 5 of the Aboriginal Peoples Act. Article 39 FC vests executive authority of the Federation with the King of Malaysia who is also Supreme Commander of the armed forces of the Federation. The King is also constitutionally empowered to call on the Royal Malaysia Police Force to enforce His Majesty’s Executive Orders.

The time is ripe for the Orang Asli to stand up and be counted. As well, the natives of Sabah and Sarawak do not need the intervention of a High Court Judge of the Malaysian judiciary to oversee the judicial ramifications of a Court of Appeal of the Native Court. Civil and criminal matters involving natives and/with natives, or natives and/with non-natives must be adjudicated in Native Courts. There are enough natives of Sabah and Sarawk, and amongst the Orang Asli who have read law and work as lawyers, magistrates, law professors and scholars. Surely these professionals are eminently qualified, as natives, to help adjudicate native codes and laws in Native Courts without any interference by State or federal governments.

The focus ought to be on the sovereignty of native peoples in Peninsular Malaysia, Sabah and Sarawak. Sovereignty carries with it the attributes of unbridled power, autonomy, control authority, supremacy and immunity (The PACASI Doctrine of Judge Naidu).

You snooze you lose. This is more than a wake-up call. It is time for action and reaction while keeping the peace.

Thank you.