Sunday, December 04, 2016
The creation of a forest reserve (ie the Balah forest reserve) over areas claimed by the Temiar as native customary land, and a restriction of the activities that can be carried out in such a reserve, constitute an outright denial of the Temiar’s right to livelihood, which is an integral aspect of the right to life guaranteed by Article 5 of the Federal Constitution.
Repressive State Action Against Marginalised Communities Must Stop
The Malaysian Bar calls on the Federal Government as well as the Kelantan State Government to immediately desist in their actions to dispossess the Temiar in Gua Musang of their ancestral land, and to halt the unwarranted arrests of these Orang Asli who are protecting their land from encroachment.
It has been reported that during enforcement operations conducted on 29 November 2016, the Forestry Department — supported by the police and other agencies — dismantled and destroyed the blockades erected by the Orang Asli in peaceful protest against encroachment. In this regard, 47 Orang Asli were arrested and detained.
The arrest and detention of the Orang Asli — who have lived and practised their way of life on the land well before the creation of the forest reserve, and who were assembled peacefully at the blockades to assert their rights — were heavy-handed and unnecessary. The use of strong-arm measures by the authorities to deal with the dispute must not be countenanced.
The Kelantan State Government has reportedly sanctioned these actions. It has also been reported that the State Forestry Department had on 6 November 2016 issued a notice to the Orang Asli to vacate the blockade area or face potential action. This draconian decision appears to have been made without meaningful consultation with the affected Orang Asli and in complete disregard of their claims of customary land rights, which have been recognised by the Malaysian courts.
It is also a violation of fundamental principles of dignity and respect of the Temiar people, which are encapsulated in the United Nations Declaration on the Rights of Indigenous Peoples that was adopted in 2007 by the United Nations General Assembly, of which the Government of Malaysia is a member.
The indiscriminate granting of logging licences to commercial companies to cut down trees within the forest reserve totally ignores the grave threat it poses to the sustainability of the Temiar way of life , and is a despicable destruction of their habitat. The use of forest reserve regulations to then deprive or restrict the ability of outsiders to enter into the Temiar villages to buy and sell goods and services is oppressive, and further exacerbates the social and economic displacement and marginalisation of the Temiar people.
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.
The Temiar have had no choice but to erect blockades as a means to defend their native customary lands from the ever-widening encroachment, and from environmental degradation. For the authorities to then arrest and detain the Temiar for allegedly breaking the law is a perverse reversal of fiduciary obligations. By shielding companies that are violating the native customary rights of the Temiar to their land, the authorities appear to be pursuing the narrow interest of securing State revenues. State activities that place undisguised commercial gain over the rights and interest of the people deserve unqualified condemnation.
The Malaysian Bar calls upon the Kelantan State Government to forthwith impose a moratorium on all enforcement and logging activities carried out in the Balah forest reserve and other affected Orang Asli areas, pending the resolution of the affected Orang Asli community’s customary land claims. We further 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.
The Malaysian Bar urges 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.
In contrast, the Malaysian Bar welcomes the recent diplomatic intervention by the Government of Malaysia, through its statement in support of the Rohingya people currently being persecuted in Myanmar.
It is deplorable that the Rohingya are being driven from their homes and displaced from their communities through allegedly official state action. The Government of Malaysia is correct in raising this issue, as it is of great concern to all right-thinking and peace-loving people in Malaysia, which is home now to a significant and growing Rohingya refugee community.
The Malaysian Bar also supports the actions of the Government of Malaysia to convey the concerns pertaining to the loss of lives and displacement of the Rohingya to the relevant authorities in Myanmar. The Malaysian Bar further fully supports the call for the Government of Myanmar to take all necessary steps to address the alleged ethnic cleansing in the northern Rakhine state. The Malaysian Bar urges the Government of Myanmar to respect and protect the rights of the Rohingya and to allow international monitors immediate access to monitor the situation in Rakhine state.
In this regard, it is heartening that the Government of Malaysia has decided, in response to the atrocities perpetrated against the Rohingya, to cast aside the principle of non-interference in the domestic affairs of a member state of the Association of Southeast Asian Nations (“ASEAN”), which has increasingly become an anomaly, and indefensible in a world without borders. This is even more so as member states of ASEAN bring about an ASEAN Community. We cannot afford to brush aside egregious violations of human rights within the borders of our close neighbours in this ASEAN Community.
The continued mistreatment and cruel displacement of the Rohingya from Myanmar give rise to the enforced movement of people into other ASEAN countries, such as Malaysia. This not only jeopardises peace and security in Malaysia, but affects all of ASEAN in its integrity as a regional organisation based on the rule of law. Tolerance of such vile practices within a member state of ASEAN does not augur well for a regional organisation that seeks to be a zone of peace and freedom.
But the Government of Malaysia must do more. It is unacceptable for the Government of Malaysia not to recognise the status of “refugee”, which would apply to the Rohingya, and also to the Syrians to whom Malaysia has offered resettlement and who have now arrived on our shores. Malaysian law does not accord such marginalised groups any protection based on the principle of refugee protection, which is incomprehensible given that these groups of people are in fact refugees. It is a lacuna in the law that the Malaysian Bar calls on the Government of Malaysia to immediately rectify.
The Malaysian Bar stands with and by the Temiar of Gua Musang and the Rohingya of Myanmar (and indeed, all similarly affected communities) in their efforts to seek respect for, and protection of, their fundamental human right to livelihood and life. The Malaysian Bar will continue to work and advocate for a peaceful and just resolution of these conflicts.
2 December 2016
 “Orang Asli march to court in solidarity with 47 arrested activists”,
Malaysiakini, 30 November 2016.
 “Gua Musang police, Forestry get ready to break orang asli blockade”, The Star Online, 29 November 2016.
 Adong bin Kuwau & Ors v Kerajaan Negeri Johor  2 MLJ 158 (Court of Appeal).
 Adong bin Kuwau & Ors v Kerajaan Negeri Johor  2 MLJ 158 (Court of Appeal).
 Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors  6 MLJ 289 (Court of Appeal).
 Accessible at https://drive.google.com/file/
 Press release by the Ministry of Foreign Affairs entitled “Situation in the Northern Rakhine State”, dated 25 November 2016.