THE Malaysian Bar refers to the recent news where Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi revealed that amendments to the Aboriginal Peoples Act 1954 (Act 134) (“APA”) focusing on the registration of marriages and birth, and land ownership of Orang Asli, would be tabled in Parliament soon.
The deputy prime minister announced that the proposed amendments are to address: (i) constraints in existing statutory laws concerning Orang Asli land ownership, where the Orang Asli should be given legal rights to their foraging areas and permanent titles to land; and (ii) matters relating to the registration of Orang Asli marriages and births, as many faced issues regarding documentation of customary marriages, resulting in their children not possessing valid citizenship documents.
While the federal government’s initiative to deal with these long outstanding issues is laudable, little is publicly known about the details of the proposed amendments. In this regard, the Malaysian Bar calls upon the government to engage in meaningful consultations with the Orang Asli community and all other relevant stakeholders, including all civil society organisations that work closely with the Orang Asli community, well in advance before tabling any amendments to the APA. Article 19 of the 2007 United Nations Declaration on the Rights of Indigenous Peoples – which was voted for adoption by the Malaysian government – provides that:
“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”
As the proposed amendments directly affect Orang Asli customary lands, territories, and resources, it is imperative that the government consult the Orang Asli community beforehand with respect to the proposed amendments in the light of the state and federal governments’ fiduciary duty owed to the Orang Asli relating to their customary land rights (Kerajaan Negeri Selangor v Sagong bin Tasi [2005] 6 MLJ 289).
Accordingly, the Malaysian Bar reiterates its repeated calls for the federal and state governments, to:
as an interim measure, impose a moratorium on the creation of any land and resource interests and the continuation of resource extraction and enforcement activities within places claimed to be Orang Asli customary areas, pending the finalisation of the affected Orang Asli community’s customary territorial claims and the proposed amendment to the APA;
implement the 18 recommendations contained in the 2013 Suhakam (Human Rights Commission of Malaysia) Report of the National Inquiry into the Land Rights of the Indigenous Peoples in Malaysia; and
in consultation and cooperation with the Orang Asli, take legislative measures that reflect the spirit and intent of the United Nations Declaration on the Rights of Indigenous Peoples. – The Vibes, March 22, 2023
Karen Cheah Yee Lynn is Malaysian Bar president
