Press Release
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.[1]
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.[2] 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.[3]
[4]
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.
[5]
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,
[6]
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.
[7]
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.
Steven Thiru
President
Malaysian Bar
2 December 2016
------------------------------
[1] “Orang Asli march to court in solidarity with 47 arrested activists”,
Malaysiakini, 30 November 2016.
[2] “Gua Musang police, Forestry get ready to break orang asli blockade”, The Star Online, 29 November 2016.
[3] Adong bin Kuwau & Ors v Kerajaan Negeri Johor [1998] 2 MLJ 158 (Court of Appeal).
[4] Adong bin Kuwau & Ors v Kerajaan Negeri Johor [1998] 2 MLJ 158 (Court of Appeal).
[5] Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2005] 6 MLJ 289 (Court of Appeal).
[6] Accessible at https://drive.google.com/file/
[7] Press release by the Ministry of Foreign Affairs entitled “Situation in the Northern Rakhine State”, dated 25 November 2016.
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