A judgement in the Kota Baru High Court today has upended decades of unrestricted abuse against the rights of Malaysia’s native peoples and their environment by states such as Kelantan, Sarawak and elsewhere.
The ruling dismissed Kelantan’s motion to strike out an action brought in defence of the Orang Asli Temiar tribe by the federal government against the state and private businesses, which had been handed licences without consultation with the tribal people now being bulldozed from homelands they have occupied since time immemorial.
It is the first time the federal authorities have embarked on such an action in defence of indigenous rights. Until now Malaysia’s native peoples have been trapped in a losing battle for their homelands (which comprised some of the most prized and spectacular regions of biodiversity on the planet) largely owing to the nature of the constitution, which on the one hand upholds the native customary rights of indigenous landowners but on the other leaves matters over land use to the states themselves.
As part of its political deal struck with allies in the various states ever since independence, the UMNO/BN coalition took the easy option by simply allowing those state governments to hand out disputed licences and manage the growing number of land confrontations themselves, as chainsaws, bulldozers and ready capital provided access to timber across the region.
Isolated, unsupported and impecunious jungle communities were left to fight gruesome legal battles on their own against powerful entities, who more often than not had moved in on their lands illegally and violated constitutional rights in the process. Police sided with the companies and turned a blind eye to thuggery by gangsters hired to intimidate protestors.
Today only the remotest areas of the nation remain untouched. Yet, despite growing national and global concern, the commercial plunderers have proved all the more rapacious as the wealth of timber finally runs out. This issue lies at the heart of the present dispute with the EU over palm oil as western consumers have identified bio-fuel in particular as a driver of deforestation and abuse of native rights.
Kelantan’s treatment of the Temiar has become the landmark case, but the State of Sarawak has announced it plans to continue to log and convert a further 600,000 hectares of mainly disputed land linked to suspect secretive concessions and until this latest development federal government ministers have continued to indicate they had no powers of intervention.
Primary Industries Minister Teresa Kok, for example, has occupied the contradictory position of championing the nation’s top agricultural product against foriegn critics, whilst admitting at the same time she can take no direct responsibility for how it is being produced. She has simply accepted Sarawak’s position that it intends to keep bulldozing hundreds of complaints by rightful native landowners and raised her ‘cap’ on plantation lands to meet that position.
However, it appears the Kelantan tribe sent a personal delegation to the new Prime Minister shortly after GE14 to lay out their grievences and the matter was passed to the newly invigorated federal legal authorities, prompting an unprecedented initiatve.
The Attorney General’s department took the landmark position that its responsibilities in terms of constitutional rights required action and brought a case last year on behalf of the tribal people against the alleged violations of their rights by the state of Kelantan and its business partners.
Making his argument the AG Tommy Thomas summed up the situation facing native peoples across the nation, especially in Sarawak, East Malaysia:
the Temiar were never consulted nor compensation given in denying them the right to their livelihood in their customary land.
Not only were their native customary rights denied, they were also exposed to soil erosion, pollution and widespread damage to the ecological system and landscape in Pos Simpor [Tommy Thomas] said” [ Malaysiakini]
The state government responded with what might be considered an arrogant move. Its lawyers attempted to strike out the entire case on the basis that the federal government has no right (locus standi) to ‘interfere’ in ‘land matters’, calling the case a “frivolous, vexatious, and scandalous and abuse of the court process.”
The likes of Kelantan have enjoyed decades of doing what they like, after all, whatever the constitutional or human rights of people they have deprived of lands and livelihoods.
However, this claim was what was today rejected by the court.
In a key ruling the judge agreed with the federal government that disputes such as that between the Temiar tribe and state officials do not just concern the state governments, which just happen to also be interested parties in such cases:
“The Plaintiff [Federal Government] has locus standi to institute action against the Defendants on the basis of its constitutional and fiduciary duties towards Orang Asli as enumerated in Article 8(5)(c) and Item 16, Federal List, Ninth Schedule of the Federal Constitution and based on judicial precedents; and there are triable issues between Plaintiff and Defendants to be ventilated during trial. It is pre-mature for the court to decide on the question of facts raised by the Defendants in their affidavits.”
ruled the judge, thereby allowing the case to proceed.
Meanwhile, importantly for the native people, the federal government has also applied for an injunction to put the greedy destruction of these Orang Asli lands on hold until the matter has been adjudicated – this will be heard in September. Millions of hectares of native lands have been destroyed in the course of other decades long legal cases, where on occasion local folk have eventually won out only to reclaim lands which have been laid bare by the illegal intruders.
The Malaysian Government’s stand is a landmark development say experts, putting a country that once lagged amongst the worst offenders at the potential forefront of recognising indigenous rights.
And if the new government wins its case there is a potential prize to be had for Malaysia as a whole. Enlightened action in favour of native people and Malaysia’s remaining natural spaces is arguably the best way forward in terms of re-gaining support from global consumers and particularly the EU when it comes to negotiations over palm oil.
Sarawak’s natives ought to start filing their petitions fast to protect their lands also.