Friday, April 07, 2017
Apa pendirian kerajaan Kelantan mengenai isu Orang Asli, Pembalakan Haram, Korupsi? Resolusi Badan Peguam..
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  2 MLJ 158, Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors  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)  2 MLJ 677, and Ketua Pengarah Jabatan Hal Ehwal Orang Asli & Anor v Mohamad bin Nohing (Batin Kampung Bukit Rok) & Ors and another appeal  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  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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