Need For Suhakam To Be More Assertive in Indigenous Rights

DAP Roundtable Conference on Suhakam Annual Report 2001

SCAH, KL, 23 June 2002

Colin Nicholas
Coordinator, Center for Orang Asli Concerns

 

The 2001 Suhakam Annual Report gives more space to indigenous issues compared to its inaugural report the previous year. In particular, special attention is given to the situation of the native peoples in Sarawak. This is in the form of a summarised report of the fact-finding visit in October 2001 by three Commissioners. The (albeit, delayed) mission itself is a commendable move as clearly the first-hand information the Commissioners obtained helped in producing a reasonably sensitive report on the situation of the indigenous peoples in Sarawak in particular, and in Malaysia in general. 

I say a “reasonably sensitive report” because, at times, the report does seem to indicate that Suhakam is unable to differentiate between just and inalienable rights of indigenous peoples and the so-called development ‘benefits’ provided by the government as its responsibility to the people. 

Take the case of the issue of NCR land in Sarawak, for example. It is not difficult to realise that the issue facing the native communities in Bakun revolve around the non-recognition of their rights to their traditional lands. It is also not difficult to appreciate that the plight the Penan communities face at the hands of loggers and those who protect them, also revolve around the non-recognition of the Penans’ right to their traditional lands. Similarly, as also noted in the report (p. 32), the fight between Iban natives and Chinese functionaries of the oil palm company that led to the death of 4 of the latter, was clearly a result of the non-recognition of the rights of the Ibans to their traditional lands. 

But the issue of native rights to traditional lands is no longer a grey area. The High Court in Miri, in fact, in the case of Nor anak Nyawai v Borneo Pulp Plantation Sdn Bhd, in April 2001, had declared that native customary rights exist and extend to all areas that have been customarily settled and used by the indigenous claimants. The High Courts in Sabah and Semenanjung Malaysia have also decided in favour of the rights of the Orang Asal to their traditional or customary lands. I find it incomprehensible therefore that there is no recommendation from Suhakam that clearly calls for the recognition of native customary rights. 

Suhakam’s position on customary land rights 

It appears to me that Suhakam itself does not recognise the rights of indigenous peoples to the traditional or customary lands. Thus, you find recommendations such as: 

“A foundation should be set up, to be funded by the logging companies, to offer financial assistance to the Pribumi where areas they claimed to be NCR land are affected by logging activities” (p. 33, v). This is akin to asking the robber of your property to give you back, out of his kindness, a share of his ill-gotten gains. 

Or in the recommendation that: “Alternative land should be provided in addition to the three acres earlier provided for those who shifted to (the) Sungei Asap Resettlement Area” (p. 33, i). The Commission has failed to see that the issue here is not one of resettlement of squatters or illegal settlers, but of the rightful lands of the native peoples being taken from them, and the need for them to be justly compensated for the lands so acquired. 

That the Commission does not recognise NCR rights is also apparent in the fact that the report makes no clear statement that the alternative land given to the resettled natives  – 3 acres per family in the case of the Bakun resettlement (P. 31), and 2 acres per family in the case of the Iban communities affected by oil palm development by the Sarawak Oil Palm Sdn Bhd (p. 32) – is incommensurate and unjust. 

It takes little imagination to see that this is an unjust compensation for indigenous peoples who lay claim to much larger traditional areas. Even FELDA settlers, who are landless individuals in the first place, get to own at least 8 acres of agricultural land. It is therefore ironical that native land-owners should be compensated with far much less land than landless Felda applicants. To rub salt into the wound, the natives in the Bakun resettlement are required to pay RM52,000.00 for their family units in the new settlement’s longhouses. 

I find it odd also that Suhakam should report that it was briefed by the Sarawak Attorney-General on native customary laws and native rights over land in Sarawak (p. 32). I would have instead considered it the Commission’s role and duty to inform and instruct the Attorney-General that the native peoples have rights to their customary lands and that these rights should be respected. 

Customary land is not just any land 

It is also not very encouraging to read recommendations such as having “three or more villagers of people within the same ethnic group … be combined to form a new settlement” (p. 33, ii) or that “there should be clear demarcation or delineation of these settlements between the different ethnic communities to avoid possible disputes over boundaries” (p. 33, iii). For such recommendations clearly show that the Commission does not recognise or appreciate the significance of a particular ecological niche as the customary land of a specific indigenous community. 

The indigenous communities do not claim customary rights to just any piece of land. They do so over a specific geographical and ecological space, whose boundaries are clearly known to them and are accepted by neighbouring communities. It is the customary land that provides assurances for their continued survival and is the resting-place of their ancestors. It is this specific customary land, more than anything else, which gives life and meaning to the indigenous community; for it is in this land that their history and identity are contained. It is also this specific land that ensures their viability as an independent people, and provides for their social and cultural development. 

As such, resettling and relocating indigenous peoples is an option you would undertake only if you want to destroy the very fabric of their society. 

In any case, requiring that several communities be grouped or resettled into a larger settlement (just so development infrastructure and benefits can be brought to them) is a favourite excuse used by planners and politicians to justify the acquisition of their traditional lands. I have personally seen non-indigenous areas get such development benefits even though these areas are far more isolated, further in the interior, than the indigenous communities that are supposedly too far inland for development to reach them. The case of the Kelabit community of Bario in Sarawak’s interior highlands clearly defy the developmental logic subscribed by Suhakam. If you don’t choose to fly to Bario, you need to travel 4 days to reach the community from the nearest big town, Marudi. Yet, the Kelabits have the highest success rate in literacy and education in the state and have produced many of Sarawak’s professional and skilled workforce. On the other hand, many of the resettlement projects for the Orang Asli, for example, are still without the promised development benefits despite being some schemes being on stream for years, even decades! 

Hiding behind the courts 

It is good to note that Suhakam is willing to be a mediator between the natives and the Sarawak state government (p. 33) to resolve the many outstanding issues. The Commission is also supposed to be finalizing its report on the Native Customary Rights (NCR) land issue. 

But we need more than a mediator to assert indigenous rights in the case of their customary lands. Suhakam should assert what has been established in law, and what is morally right: that the natives of Sabah and Sarawak and the Orang Asli of Semenanjung Malaysia have customary rights to their lands. 

The Commission should not justify its non-action or non-involvement with such excuses as “the case is before the courts”. Unfortunately, it did so in response to the Ibans’ plea for Suhakam to assist in the appeal against the imprisonment of the 73-year-old Jalin ak Aton. Jalin and 17 others were remanded for more than 18 months (and not for a day as stated in the Suhakam report, p. 32) after they surrendered themselves to the police over the killing of 4 Chinese henchmen of the oil palm company that had encroached on their lands. Bail was denied to them despite pleas that they were the breadwinners of their families and assurances that they would not abscond. Except for Jalin, the charges against the others were eventually dropped – but they had already been forced to serve their long ‘sentences’. 

Compare this case with the businessman who killed a young man outside a pub in Seremban with his own gun. He was allowed bail, at least initially. Or the 80-year-old lawyer who killed a cyclist in Bungsar recently. He was also allowed bail. Or policeman who allegedly caused the death of a motor-cyclist by swinging a stick at him. He is also out on bail. But why was not bail allowed for the 18 Ibans? Suhakam was specifically approached by representatives of the community to intervene and help get bail for the detainees. Unfortunately, it preferred to hide behind the now increasingly frequently-used reason: that the case is before the courts and thus could be construed as sub-judice. I would have thought that justice should weigh more in Suhakam’s court than some assumption that a trial judge could be easily influenced by comments made by others outside his court. 

Suhakam cannot afford to be seen to closing its eyes to glaring inconsistencies in the justice system. The Commission cannot condone, even indirectly by its non-action, any instance of double-standards or of outright discrimination. 

Indigenous rights and demands 

I have thus far concentrated on the situation of the native peoples of Sarawak. This is mainly because the 2001Suhakam Annual Report largely dwells on this group of people. This again is because Suhakam had received several reports from the Penan and Dayak communities there. But the Commission should not take it to mean that there are no problems among the other indigenous groups in Sabah and Semenanjung. Apart from a complain by the Semai of Pos Dipang, regarding the non-receipt of aid money meant for them following the mudslide tragedy that killed 39 Orang Asli in 1996, I understand there were no formal complains to Suhakam. 

But there are several recommendations put forward by the Orang Asal during Suhakam’s first public forum on the Rights of the Disadvantaged (pp. 35-37). These involve various rights that the Orang Asal are asking to be recognised and respected. They include the right to development and education, the right to practise their own religion and culture, and the right to their traditional lands. The non-realization of these rights explain why the Orang Asal are among the poorest communities today, and one who is disproportionately likely to be victims of the nation’s progress and of individual greed. 

Thus, Suhakam cannot now turn around and explain its inaction in indigenous issues by saying that there had been no complaint or memorandum from this sector for the Commission to act upon. In fact, I think Suhakam should be more pro-active and not just wait for complains to land on its table. There is enough scope, and a need, for a comprehensive review of the rights (or the absence of such rights) of indigenous peoples in Malaysia. 

It is also time for Suhakam to move away from its ‘recommendative’ role and be more assertive, more pro-active and therefore more relevant.