Apakah pendirian kerajaan pembangkang di Kelantan, Selangor dan Pulau Pinang berkenaan isu orang Orang Asli? Atau adakah mereka tidak prihatin mengenai isu ini, kerana bilangan Orang Asli di Semenanjung tak ramai - justeru undi mereka tak begitu penting...
Resolusi Badan Peguam ini adalah relevan bukan sahaja kepada kerajaan pusat di bawah UMNO-BN tetapi juga kerajaan Negeri termasuk yang di bawah parti-parti pembangkang?
Apakah pendirian mereka mengenai Siti Noor Aishah dan undang-undang membenarkan tahanan tanpa bicara - adakah semua Akta sedemikian akan dimansuhkan dalam masa 100 hari selepas parti pembangkang berjaya menang PRU akan datang? Adakah semua yang kini ditahan atau dinafikan hak mereka akan segera dibebaskan? Adakah SOSMA akan dimansuhkan? Siti Noor Aishah - POCA,POTA..dimansuhkan - Resolusi Badan Peguam
Apakah pendirian mengenai isu penderaan dan pembunuhan dalam tahanan? Resolusi Peguam 'Dakwa Polis melakukan jenayah', dan singkirkan 'polis kotor' - kes Syed Mohd Azlan?
Apa yang parti pembangkang akan buat? Apakah pendirian mereka - selain daripada hasrat mereka menang PRU akan datang?
Resolution Regarding Kelantan Orang Asli Land and Resource Claims, and Indigenous Peoples’ Rights
WHEREAS the Malaysian Bar:
(1) Recalling
the Malaysian Bar resolution on indigenous peoples’ rights adopted at
the 63 rd Annual General Meeting of the Malaysian Bar held on 14 March
2009 that, inter alia, called upon the Federal and State Governments,
the Department of Orang Asli Affairs, all public and private
enterprises, and individuals, to respect the rights of indigenous
peoples as enshrined in the United Nations Declaration on the Rights of
Indigenous Peoples and, in particular, called upon the Federal and State
Governments to effectively recognise and protect the rights of the
Orang Asli to their ancestral lands and resources (“2009 AGM
Resolution”);
(2) Affirming
that all Orang Asli are entitled to the full spectrum of fundamental
liberties available to Malaysian citizens, and indeed enjoy a special
position in respect of their “protection, well-being or advancement”
under Article 8(5)(c) of the Federal Constitution;
(3) Affirming that in the cases of Kerajaan Negeri Johor & Anor v Adong bin Kuwau & Ors [1998] 2 MLJ 158, Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2005] 6 MLJ 289, Superintendent
of Land & Surveys Miri Division & Anor v Madeli bin Salleh
(suing as Administrator of the Estate of the Deceased, Salleh bin
Kilong) [2008] 2 MLJ 677, and Ketua Pengarah Jabatan Hal Ehwal
Orang Asli & Anor v Mohamad bin Nohing (Batin Kampung Bukit Rok)
& Ors and another appeal [2015] 6 MLJ 527, the Malaysian
superior courts have consistently affirmed the continued enforceability
of Orang Asli customary land and resource rights without the need for
formal recognition by the legislature and executive through written
laws;
(4) Reaffirming
that the Federal and State Governments owe a fiduciary duty to protect
Orang Asli customary land rights and not act in a manner inconsistent
with such rights, as decided by the Court of Appeal in the case of Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2005] 6 MLJ 289;
(5) Affirming that such pronouncements form part of the substantive laws or the common law of Malaysia;
(6) Taking note that Malaysia is obliged to uphold the underlying values of international human rights laws and norms set out in, inter alia,
the Universal Declaration of Human Rights, and has voted, at both the
United Nations Human Rights Council and the United Nations General
Assembly, in favour of adopting the United Nations Declaration on the
Rights of Indigenous Peoples that, inter alia, reiterates the right of indigenous peoples to self-determination;
(7) Noting
that the Federal Government had made a decision in June 2015 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;
(8) Noting
with regret that there has been no effective Federal and/or State
legislative or executive action to recognise and protect Orang Asli
customary land and resource rights since the 2009 AGM Resolution;
(9) Deeply concerned
with recent developments in Gua Musang, Kelantan, where the Orang Asli
have been subjected to numerous and recurring incidents of arrests and
detentions, damage to property and harassment by or through the
acquiescence of State enforcement agencies, for merely asserting their
customary rights to their lands and resources through the erection of
blockades to prevent logging activities from being carried out on these
lands;
(10) Deeply disturbed
that the affected Orang Asli have faced obstacles in securing unimpeded
access to legal counsel and humanitarian aid during the course of this
conflict;
(11) Noting with concern
that environmental degradation, whether from logging activities,
deforestation or other depletion of biodiversity, could directly impact
upon the capacity of indigenous peoples to sustain their livelihoods and
maintain their cultures and intangible heritage;
(12) Noting with regret
that the Kelantan State Government has not taken any proactive steps,
or sufficient proactive steps, to resolve this impasse by demarcating
and protecting those areas inhabited by Orang Asli, as required by the
cumulative weight of Malaysian jurisprudence on this issue, but instead
have purported to legitimise its questionable decisions in respect of
the lands by conveniently interpreting the law so as to justify its
actions;
(13) Noting with regret
that the Department of Orang Asli Development has, with regard to the
Kelantan Orang Asli conflict, once again failed to perform a proactive
role, or has abdicated its functions, to secure the effective defence
and protection of the interests of the Orang Asli and their overall
well-being as indigenous peoples;
(14) Recognising
that this conflict is inextricably linked to the overall and continued
failure of the Federal and State Legislatures and Executives to
prioritise the effective legal recognition and protection of Orang
Asli-inhabited lands and resources; and
(15) Recognising
that the Orang Asli of Peninsular Malaysia and the natives of Sabah and
Sarawak continue to face numerous challenges in defending their
customary lands and resources despite their privileged position under
the Federal Constitution and international human rights norms and
documents;
THEREFORE, it is hereby resolved that the Malaysian Bar:
(1) Strongly calls
upon the Kelantan State Government to forthwith impose a moratorium on
the creation of any land and/or resource interests and the continuation
of resource extraction and enforcement activities within places claimed
to be Orang Asli or native customary areas, pending the resolution of
the customary land rights and resource claims of the affected Orang Asli
or native communities;
(2) Strongly calls
for the resolution of such rights and claims 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 and, more broadly, the Malaysian Government’s 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;
(3) Strongly calls
all enforcement agencies engaged with the Orang Asli to act with
honesty and integrity and to uphold the rule of law in carrying out
their various duties and responsibilities, at all times respecting and
having due and proper regard to the legal position of the Orang Asli and
their lands as determined by the Malaysian superior courts;
(4) Strongly calls
upon the Federal and State Governments to immediately implement the 18
recommendations contained in the 2013 SUHAKAM Report of the National
Inquiry into the Land Rights of Indigenous Peoples in Malaysia, in
respect of Orang Asli and the natives of Sabah and Sarawak and, as an interim
measure, to impose an immediate moratorium on the creation of any land
and/or resource interests and the continuation of resource extraction
and enforcement activities within places claimed to be Orang Asli or
native customary areas, pending the resolution of the customary land
rights and resource claims of the affected Orang Asli or native
communities;
(5) Strongly calls
upon the Federal and State Governments and the Department of Orang Asli
Development, in prior consultation and cooperation with indigenous
peoples, to take any and all appropriate measures, including legislative
measures, to achieve the full spirit and intent of the United Nations
Declaration on the Rights of Indigenous Peoples; and
(6) Mandates
the Bar Council to take, and continue to take, all appropriate action
that is deemed necessary to empower indigenous peoples and to safeguard,
promote and protect their rights under Malaysian law and under
international laws and norms.
The motion was proposed by Steven Thiru (Chairman, Bar Council), on behalf of the Bar Council.
Source: Malaysian Bar Website
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