ACKNOWLEDGING LAND RIGHTS OF THE ORANG ASLI: A HISTORICAL PERSPECTIVE OF LAWS IN PENINSULAR MALAYSIA

Abstract

The perspective that the Orang Asli communities do not have legal rights to their customary land remains despite common law recognition by the courts in a series of cases since two decades ago. To the contrary, this article argues that such a perspective has no basis under the law. By using a historical research approach, it is shown that it has never been the case under the law, policy and practices that the customary land of the Orang Asli was denied their entitlement. In practice, the law and official policy and their development in history observe and acknowledge the existing rights to land and resources, which arose from custom of the local inhabitants including the Orang Asli. The law inherently recognises the Orang Asli as having their own distinct political and social identities. The article provides a historical perspective of law and official practices in the Malay Peninsula in relation to land rights of the Orang Asli and trace their origin to British conduct in North America and the Indian Empire which directly influenced their actions in the Malay states. The reality is that, rather than the denial of the land rights of the Orang Asli under the law, there were other factors that led to the continued loss of their land. Conflicting economic interests and cultural attitudes compounded by a change towards legal positivism that came to prevail both, in international law and national legal systems, hampered the recognition of law relating to the land rights of the Orang Asli, who are a minority group that lacks political power. Following this argument, the development of Malaysian common law, beginning from the case of Adong bin Kuwau v Kerajaan Negeri Johor in 1997 that addressed the concerns of the Orang Asli, as well as the natives in East Malaysia, is not novel; it is merely the application of a long standing legal principle in the jurisdiction.