Recognizing indigenous identity in postcolonial Malaysian law: Rights and realities for the Orang Asli (aborigines) of Peninsular Malaysia

Abstract

In Southeast Asia, the birth of postcolonial states in the aftermath of the Second World War marked a watershed in political relations between ethnic groups residing within emerging geo-political borders. Plurality and difference were defining characteristics of the social landscape in these nascent states. Colonial laws and policies that divided groups and territories for efficient control influenced the relations between linguistically and culturally distinct groups. The transfer of power to ‘natives’ during decolonization often resulted in indigenous minorities being sidelined politically and legally. Indigenous minorities in Southeast Asia continue to negotiate for more equitable inclusion in contemporary postcolonial states. In some cases, such as in Myanmar, Thailand, Indonesia and the Philippines, these have escalated into separatist movements. Other indigenous minorities however, struggle for the recognition of their identity and rights through – rather than apart from – existing state mechanisms of power, for example by lobbying for changes in existing laws and bringing cases to court. The struggle for recognition of the legal rights of indigenous minorities began, however, before the process of decolonization; colonial powers contended with politically dominant indigenous majorities as they tried to exert influence over territories, and this had impacts on indigenous minorities. The British method of colonization, in particular, which sought to attain ‘indirect rule’ without using military conquest, required the identification and recognition of native structures of power. British administrators exerted influence through the ‘invitation’ of local rulers, which meant that domestic laws and administrative policies were developed as a result of negotiation rather than through direct imposition of English laws and policies. As a result, the legal structures put in place during decolonization meant that some recognition of indigenous customary practices was already incorporated, albeit for certain indigenous groups and not for others. In order to recognize and protect the ‘special rights’ of indigenous persons, it became vital to define the legal identity of individuals. It was necessary for British administrators to determine which groups were ‘indigenous’, what specific criteria were required for demonstrating membership of these groups, and when disputes occurred, to determine which individuals possessed a legitimate claim of belonging. They also had to decide if the rights and privileges were accorded on a group or individual basis. These decisions are neither ahistorical nor apolitical. In this paper, I examine the contemporary case of the Orang Asli, the minority indigenous peoples of the Malay Peninsula. I begin by providing an outline of political developments that have resulted in the legal recognition of three groups of people as having indigenous status. I also review the evolution of the Malaysian legal system in order to provide a context for subsequent discussion. I then look at how Orang Asli are recognized in the Federal Constitution and in statutes, with reference to case law, as the meaning and weight of these written laws were elaborated in court judgements. I then look at three court cases, reviewing the right to engage in commercial activities in aboriginal places as decided in the Koperasi Kijang Mas Bhd & Ors v. Kerajaan Negeri Perak & Ors (1991), hereafter referred to as the Koperasi Kijang Mas case; the recognition of native title and usufructuary rights as recognized in Adong Kuwau & Ors v. Kerajaan Negeri Johor & Anor (1997), hereafter referred to as the Adong Kuwau case, a judgement upheld in the Court of Appeal (Kerajaan Negeri Johor & Anor v. Adong Kuwau & Ors (1998) and the Federal Court;2 as well as proprietary rights in and to the land which were recognized in the Sagong Tasi & Ors v. Kerajaan Negeri Selangor & Ors (2002) ruling, hereafter referred to as the Sagong Tasi case, upheld in the Court of Appeal (see Kerajaan Negeri Selangor & Ors v. Sagong Bin Tasi & Ors (2005) but currently under appeal in the Federal Court. These cases demonstrate how Orang Asli have drawn on international legal frameworks to claim special privileges in ways not possible for other Malaysians, on the basis of their identity.