PRESS STATEMENT DATED 5TH JUNE 2021 BY SENATOR YB SENATOR P. WAYTHA MOORTHY, PRESIDENT, MALAYSIAN ADVANCEMENT PARTY
The Attorney General ought to appeal the decision of the Court of Appeal which ruled the Federal government does not have legal standing to initiate action to protect the rights of the Orang Asli community in Kelantan. The decision of the court is certainly baffling as one wonders if the Court of Appeal was right to prevent the Federal Government from protecting its most vulnerable community on mere technicality and narrow interpretation of the law. The fact that the Aboriginal Peoples Act was enacted in 1954 before independence clearly proves the Federal Government has always acted as a guardian of the native community (Orang Asli).
The judiciary has to be part of an evolutionary process to move beyond literal or technical interpretation and look deeper into the intention of the original framers and founding fathers of the Constitution.
The elected Federal government is the trustee of the people and it has an implied and expressed duty in any instances to step in as the trustee when there is trampling of rights of its citizens such as in this case, the Orang Asli.
It is common knowledge that Orang Asli did not have political representation nor were their rights and interests presented before the Reid Constitutional Commission. Hence the decision by the previous Attorney General Tommy Thomas who took an unprecedented and bold step to send a clear signal that the Federal Government would not condone the irresponsible acts of state governments is commendable and has strong legal standing.
Generally our courts over the last two decades have held that the federal and state governments owe Orang Asli a fiduciary duty as a trustee by virtue of:
(1) constitutional provisions for the protection, well-being and advancement of Orang Asli as per article 8(5) (c) and item 16 of the ninth schedule of the Malaysian Constitution, as well as the Aboriginal Peoples Act (APA)1954, which is legislation for the protection, well-being and advancement of the Orang Asli left behind by the British (who acted as their trustee) to elected federal government post-independence;
(2) the establishment of the Department of Orang Asli Affairs (‘JAKOA’) for the welfare of Orang Asli; and
(3) a 1961 Orang Asli Policy. Specifically, paragraph (d) of this policy states that:
(i)) the special position of Aborigines in respect of land usage and land rights shall be recognised and;
(ii Aborigines will not be moved from their traditional areas without their full consent.
legal pronouncements on the common law as applied by the Malaysian superior courts pursuant to the Civil Law Act 1956 are binding in Malaysia, including upon any Federal or State government.
Article 160 of the Federal Constitution defines “law” to include the “common law” as applicable in the Federation. Consequently, all states in the Malay peninsula including Kelantan are bound by superior court pronouncements, including those on the Peninsular Malaysia Orang Asli.
For the past two decades, the Malaysian courts have repeatedly recognised the legal continuity of pre-existing Peninsula Malaysia Orang Asli customary rights relating to their ancestral lands (see eg. Madeli bin Salleh [2008] 2 MLJ 677 (FC); Mohamad bin Nohing [2015] 6 MLJ 527 (CA); Yebet binti Saman [2015] 2 MLJ 498 (CA); Sagong bin Tasi [2005] 6 MLJ 289 (CA); Adong bin Kuwau [1998] 2 MLJ 158 (CA)).
The locus standi of the Federal government is further enhanced in the Federal Constitution to establish these land reserves for Orang Asli, specifically, the acquisition of land for the creation of reserves for Orang Asli comes within the meaning of the definition of “Federal purposes” contained in Article 160(2).
Article 83 of the Federal Constitution, on the other hand, provides for the acquisition of land for Federal purposes. Article 83(1) states “Provided that the Federal Government shall not require the grant of any land reserved for a State purpose unless it is satisfied that it is in the national interest so to do”. Isn’t the Orang Asli rights of national interest?
The powers of acquisition as detailed in Article 83 of the Federal Constitution are moreover not fettered.
That is, the land may be acquired in perpetuity and without restrictions as to the use of the land. Hence, not only is the Federal Government empowered to obtain land for Orang Asli reserves, it may also acquire for the Orang Asli exclusive rights over particular tracts of land for specific purposes such as fishing, hunting, gathering, logging, mining, settlement, and such. These are powers vested to the Federal government in the Federal Constitution to act in the interest of Orang Asli.
In addition to the relevant constitutional provision that authorises the Federal government to act as the trustee for the Orang Asli, we even have Section 9 of the Government Proceeding Act 1956 which gives the Federal government the locus standi to step in as a trustee for the interest of the Orang Asli.
