Perak MB has erroneous assumptions on Orang Asli customary land rights

The Malaysian Bar views with concern recent media reports on the Perak menteri besar’s suggestion that there are no Orang Asli customary or ancestral lands in Perak as these lands are not recognised by the Perak Constitution and law.

In this regard, the menteri besar’s contention that the Perak Constitution and written law must expressly sanction Orang Asli customary or ancestral land before they are legally recognised is legally erroneous.

The definition of “law” in Article 160(2) of the Federal Constitution expressly includes the “common law”, which incorporates principles of domestic law developed through the Malaysian courts.

For more than 20 years, the Malaysian Federal Court and Court of Appeal have repeatedly recognised the continuity of the Peninsular Malaysia Orang Asli’s right to lands and resources that they have held, based on their own customs, usages and laws.

This is provided that they have been in prior and continuous occupation, use and enjoyment of such lands and resources in accordance with their own traditions (see Kerajaan Negeri Johor v Adong Bin Kuwau [1998] 2 MLJ 158; Kerajaan Negeri Selangor v Sagong Bin Tasi [2005] 6 MLJ 289).

Contrary to the justification provided by the Perak menteri besar, such rights can be found to exist by the courts without formal recognition by the state executive and legislature due to the special constitutional and legal position of the Orang Asli (see Kerajaan Negeri Johor v Adong Bin Kuwau [1998] 2 MLJ 158; Kerajaan Negeri Selangor v Sagong Bin Tasi [2005] 6 MLJ 289; Ketua Pengarah Jabatan Hal Ehwal Orang Asli v Mohamad Bin Nohing (Batin Kampung Bukit Rok) and another appeal [2015] 6 MLJ 527).

It is also equally clear that these legal principles on Orang Asli customary land rights have been found to apply to the state of Perak (see Kong Chee Wai v Pengarah Tanah Dan Galian Perak [2016] 1 CLJ 605 (affirmed by the Court of Appeal in Kong Chee Wai & Anor v Pengarah Tanah dan Galian Perak, Civil Appeal No. A-01-(NCVC)(A)-38S-12/2015, Oct 24, 2016).

Accordingly, the Malaysian Bar reminds the Perak state government to exercise due care and diligence when making public statements on the extent of the legal rights afforded to the Orang Asli.

The Malaysian Bar also reiterates its call upon the Perak state government to honour its legal and fiduciary duty to protect Orang Asli lands (see Kong Chee Wai v Pengarah Tanah Dan Galian Perak [2016] 1 CLJ 605 (affirmed by the Court of Appeal in Kong Chee Wai & Anor v Pengarah Tanah dan Galian Perak, Civil Appeal No. A-01-(NCVC)(A)-38S-12/2015, Oct 24, 2016); Kerajaan Negeri Selangor v Sagong Bin Tasi [2005] 6 MLJ 289) as made in its earlier statements on Feb 26, 2019 and May 25, 2019, and to:

(1) impose, as an interim measure, a moratorium on the creation of any land and resource interest and the continuation of resource extraction and enforcement activities within areas claimed to be Orang Asli customary areas, pending the resolution of the affected Orang Asli community’s customary territorial claims; and;

(2) take all appropriate measures — including legislative measures — to achieve the spirit and intent of the United Nations Declaration on the Rights of Indigenous Peoples (2007).

Abdul Fareed Abdul Gafoor is Malaysian Bar president.

The views expressed are those of the author and do not necessarily reflect those of FMT.