OCTOBER 14 — The Malaysian Bar is appalled at the recent reported treatment of approximately 200 Temiar Orang Asli who had erected a blockade in protest against logging activities carried out within the Balah forest reserve near Gua Musang, Kelantan. These logging activities encroached upon lands claimed by the local Temiar community to be their customary lands.
The affected Orang Asli were compelled to lodge police reports against the agents of the logging companies for alleged criminal intimidation in the form of verbal threats, the discharge of firearms and the use of chainsaws to disrupt the blockade, and for the alleged impersonation of police and enforcement officers.
The Malaysian Bar demands that the relevant authorities conduct a full investigation into these matters, and bring to justice all parties responsible for any illegal conduct or the violation of any rights.
The Malaysian Bar also views with concern the position taken by the State and Federal Governments regarding the rights of the affected Temiar Orang Asli over the lands in question and, more generally, Orang Asli rights in and over their customary and traditional areas.
The Kelantan state government’s reported response to the blockade suggests that it asserts the absolute right to grant logging licences that include areas which overlap with Orang Asli customary areas.
The federal government claims that it has no legal power to compel the Kelantan state government, on the grounds that matters relating to lands come within the exclusive constitutional jurisdiction of the state government.
Orang Asli enjoy customary rights in respect of lands that they have inhabited for generations, without express executive or legislative recognition. In protesting against the logging activities by way of a blockade — an action the affected Orang Asli undertook in order to claim customary title under Malaysian law — they were merely exerting control over land that they assert to be part of their traditional areas.
The Malaysian superior courts have recognised and repeatedly reaffirmed these rights since 1997 due to, among other factors, the special position of the Orang Asli under Article 8(5)(c) of the Federal Constitution.
These pre-existing rights enjoyed by the Orang Asli as the first peoples of Peninsular Malaysia continue to exist and can only be removed by plain and obvious words in legislation, and not by the creation of reserves or, for that matter, the granting of any logging licence by any State Government.
There are no such explicit and unambiguous provisions in any federal and state legislation, which can only mean that the Orang Asli still continue to possess rights in and over their customary areas.
While state governments possess constitutional powers in respect of matters relating to lands, many court decisions favouring Orang Asli customary rights have unequivocally established that such powers are not absolute. The Malaysian courts have also ruled that the Federal and State Governments owe a fiduciary duty to protect Orang Asli land rights, and must not act in a manner inconsistent with such rights.
It is unconscionable for the federal government to abdicate its responsibility by saying that it has no constitutional power over matters relating to lands in Peninsular Malaysia. Article 83 of the Federal Constitution clothes the federal government with the legal power to acquire state land for federal purposes, which include the welfare of the Orang Asli.
In the past, the federal government has legislated and formulated policies in respect of land and resource matters through the National Land Council, where it holds de facto control and power. It is therefore disingenuous of the Federal Government to suggest that it is completely powerless to assist the Orang Asli in gaining legal recognition to their customary areas.
We have been informed that the Orang Asli in the Balah forest reserve have been denied access to legal counsel, as their lawyer was prohibited by State Forestry Department enforcement officers from entering the area two days ago. This barricade apparently also blocks the Orang Asli’s access to traders, and to food aid from outsiders such as non-governmental organisations.
Such action by the authorities represent a blatant attempt to deprive the Orang Asli of the fundamental constitutional right of access to legal counsel, which other citizens routinely enjoy. The Malaysian Bar calls on the authorities to dismantle this blockade, which is another act of discrimination against this marginalised and vulnerable people that deserves nothing less than unreserved condemnation.
The Malaysian Bar also calls upon the Federal Government to immediately act upon its June 2015 decision to implement the 18 recommendations contained in the 2013 Suhakam Report of the National Inquiry into the Land Rights of Indigenous Peoples in Malaysia, for the recognition of Orang Asli and Sabah and Sarawak native land and resource areas.
Such an approach would also be in line with the express commitment undertaken by the Malaysian Government when it voted in favour of adopting the United Nations Declaration on the Rights of Indigenous Peoples in 2007.
We urge the Kelantan State Government to forthwith halt all logging activities carried out in Orang Asli areas, and we call upon the Federal and State Governments to revise their land, resource and environmental policies in a manner that gives full effect to the legal pronouncements of the Malaysian superior courts recognising Orang Asli customary rights to their lands, territories and resources.
* Press release by Steven Thiru, Malaysian Bar president, on October 14, 2016
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.
 Adong bin Kuwau & Ors v Kerajaan Negeri Johor  2 MLJ 158 (Court of Appeal); Superintendent of Land & Surveys Miri Division & Anor v Madeli bin Salleh (suing as Administrator of the Estate of the deceased, Salleh bin Kilong)  2 MLJ 677 (Federal Court).
 Ketua Pengarah Jabatan Hal Ehwal Ehwal Orang Asli & Anor v Mohamad bin Nohing (Batin Kampung Bukit Rok) & Ors and another appeal  6 MLJ 527 (Court of Appeal).
 Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors  6 MLJ 289 (Court of Appeal).
 Article 91 of the Federal Constitution.
 Accessible here.