Position of Aborigines for Conventions -myassignmenthelp.com

Question: Discuss the position of aborigines and natives under the Malaysian Laws and the International Conventions. Answer: Abstract: In the present research paper an attempt has been made to discuss the position of the aborigines under the Malaysian law and also under the International Conventions that are relevant in this regard. In the present era of globalization and modernization, the indigenous people have to suffer a lot throughout the globe as they are being pushed out of their ancestral lands to make way for development activities. In case of Malaysia also, the Orang Asli or the aboriginal people are politically marginalized and they're not in a position adequately protect their legal rights. The result was that these people were considered as tenants on their own ancestral land. The legal recognition of the rights of the aboriginal people took place in the form of Aboriginal Peoples Act, 1954. But these provisions need to be considered in their historical context. They were introduced when the British colonial government was dealing with communist insurgency. Apart from the legislative movements, there ha ve been certain decisions given by the court that have taken a step forward in the direction of recognizing the legal rights of the aboriginal people of Malaysia. While giving these decisions, the courts also considered the position in other jurisdictions like Australia and Canada. There are international conventions like the UN Declaration on the Rights of Indigenous People that those who work for ensuring the legal rights of the aboriginal people. Introduction: The rights of the aboriginal people are inadequately protected in all the states of the world, if at all by the formal legal systems of these countries. While tremendous development is made in the field of modernization and globalization, increasingly the indigenous people are being pushed out of their ancestral lands as the states continue to acquire indigenous land for the purpose of development activities. In case of Malaysia, the term 'Orang Asli' is used to refer the diverse variety of indigenous people were living in peninsular Malaysia. The cultures and societies of these people are closely associated with their ancestral lands. But they have become the victims of a large number of development projects initiated by the government of Malaysia, which encroach on their ancestral lands (Crawford, 2001). Under these circumstances, an attempt has been made in the present research work to evaluate the position of aboriginals and the native people in Malaysia under domes tic law and also the international conventions to which Malaysia is a party. The Orang Asli: It has been claimed that under the modern Malaysian state, the Orang Asli have been politically marginalized, and it could not adequately protect the legal rights of these people. However, the groundbreaking decision given in Sagong Tasi and Ors v Kerajaan Negeri Selangor and Ors (2002), the rights of these people were recognized by the High Court and it was also mentioned that the government of Malaysia had certain obligations and duties towards these people. Before this decision, the government of Malaysia considered the Orang Asli only as the tenants on their ancestral land, who did not have any title to the land and which formerly belonged to the government of Malaysia. Under such circumstances, the rights of Orang Asli were susceptible to revocation by government at any time. In fact, this position was advanced in the court by the State government of Selangor in the above-mentioned case also (Bernama News Agency, 2003). However, this argument of the State governm ent was dismissed by the court and be recognized that the Orang Asli had a native title under the common law. The Orang Asli is less than 0.5% of the multi-cultural and multi-ethnic society of Malaysia. The term Orang Asli had been used for the first time by the colonial British government in Malaysia. The meaning of this term is the 'original people' in Bahasa Malaysia, the native tongue of the Malays. It is also worth mentioning that the land rights of Orang Asli have not been formally codified by the law in Malaysia. On the other hand, these rights have either been ignored or eroded by the federal laws. For example, the National Land Code, 1965 completely denies the presence of the land rights of Orang Asli under the former legal system. This code has been derived from the Torrens land registration system of Australia and provides that all the land is owned by the Malaysian state. The individuals have private land interests only after they are registered in the land registry. On the other hand, the land belonging to Orang Asli had been passed down traditionally from generation to generati on. Therefore it follows beyond the land registration system of Malaysia and hence it technically belongs to the Malaysian State (Kingsbury, 2001 p89). At the same time, the land acquisition act also provides that the government of Malaysia may acquire land. At any time, which includes the land that is occupied under customary right for the objectives mentioned in the Act. Article 3, Land Acquisition Act has been widely interpreted by the courts in Malaysia. The government is not required to specify the exact purpose for which the acquired land is going to be used. The declaration made by the government that the land is going to be acquired for a public purpose can be challenged only due to the reason that the government as either active mala fide or gone beyond its statutory authority and it is worth mentioning that both these grounds are difficult to prove (Nicholas, 2000). Aboriginal People's Act: The recognition of the statutory legal rights of the Orang Asli have been mentioned in the Aboriginal People's Act, 1954. However, these provisions have to be understood in their historical context. This legislation had been enacted by the Colonial Government when it had to deal with the communist insurgency during the pre-independence Malaya. The government was aware of the fact that Orang Asli communities with providing food, intelligence and other support to the Communist insurgents (Yap, 2002)). Some persons from these communities had even joined the Communists and taken up arms against the British. Therefore, with a view to win over the support of Orang Asli, the Department of Aborigines was established by the government (Williams-Hunt, 1995). Similarly, it also established 'jungle forts' with a view to providing health education and welfare to Orang Asli. The Aboriginal People's Act provides the power to the Minister to declare some parts of land has be en protecting the aboriginal reserves. But it is worth mentioning at this point that under the Aboriginal People's Act, Orang Asli are not treated as the legal owners of these reserved areas (Anaya, 1987). Similarly, they does not provide for the payment of compensation by the government of Malaysia in case these reserves are acquired. Hence, while Section 10 of this legislation provides that the government of Malaysia shall and must provide compensation in case of acquiring the crops of Orang Asli, it has only been mentioned in section 11 that compensation 'may' be provided by the authorities for acquiring reserves or areas of the aboriginals (Wiessner, 1999 p58). Therefore, a degree of discretion has been provided to the authorities in this regard. Recent Decisions: The recent decisions given by the Malaysian courts have also tried to provide a formal legal recognition to the rights enjoyed by the Orang Asli within the legal system in which these rides were excluded till now. For example, it was stated by the Johore High Court in Adong Bin Kuwau and Ors v Kerajaan Negeri Johor and Anor (1997) that the native land rights of Orang Asli can be recognized under the common law. For arriving at this conclusion, the court had considered the decisions coming from several other common law countries like Australia and Canada where a formal registration system for land law is followed as is the case with Malaysia. The court further stated that the rights of Orang Asli, have to be decided, keeping in view the traditions of the indigenous people. For this purpose, the court cited the landmark decision given in Mabo. Another groundbreaking decision was given by the Selangor High Court in Sagong Tasi and Ors v Kerajaan Negeri Selangor and Ors (2002). It was held that the native title of Orang Asli to the ancestral lands existed under the common law. International Conventions: Malaysia had voted for the United Nations Declaration on the Rights of Indigenous People (UNDRIP) and it is also endorsed the outcome document from the World Conference on Indigenous People. However, it has not ratified the ILO Convention 169. The ILO Convention 169 requires the nations to recognize the specific cultural and economic rights of indigenous people. Similarly, also requires them to undertake special measures to deal with marginalized and vulnerable groups. However, only 22 nations have ratified this convention, although there are much more constitutions across the world, which provides a special status to the aboriginal people of different extents and with different implications. In this regard, there are three major international instruments focusing on the rights of aboriginals (Stavenhagen, 2002). These are the UN Declaration on the Rights of Indigenous People (UNDRIP) and the two ILO Conventions Nos 160 and 107. It is worth mentioning that the provisions mentioned in UNDRIP and the ILO Convention 169 are compatible with each other and mutually reinforcing. UNDRIP has resulted in bringing a remarkable universal change in the protection that is provided to the aboriginal people throughout the world. The UN General Assembly adopted this declaration in 2007. It was passed by 143 states that have voted in favor of the declaration. Conclusion: Malaysia was one of these states that have voted in favor of UNDRIP. Although in the form of a declaration, it is not legally binding per se, but a declaration can be treated as binding to the level that it becomes a part of customary international law, through confirming safe practice and also opinion juris. Customary law can be demonstrated by providing evidence regarding the presence of a general practice that is accepted as law (Ellickson, 1993). In the end, it can be said that still most of the Orang Asli are not aware of their legal rights that have been mentioned in the context of law. Similarly, most of them are not familiar with the process of seeking justice in the present legal system. Therefore they rely on the interpreters of law - lawyers, judges, JHEOA officials and symbols like the actors who need to help them with their everyday struggles. References Anaya, J. (1987) The Capacity of International Law to Advance Ethnic or Minority Claims, Iowa Law Review 75, pp 843 Bernama News Agency (2003) Suhakam Report on Orang Asli Basic Rights Ready Next Week, 15 December 2003 Crawford, J. (2001) The Right to Self-determination in International Law, in Alston, Phillip (eds) Peoples Rights (Oxford: Oxford University Press). Ellickson, R. C (1993) Property in Land, Yale Law Journal 102, p 1315 Kingsbury , B. (2001) Reconciling Five Competing Conceptual Structures of Indigenous Peoples Claims in International and Comparative Law, New York University Journal of International Law and Politics 34, p 89 Nicholas, C. (2000) The Orang Asli and the Contest for Resources: Indigenous Politics, Development and Identity in Peninsula Malaysia, Copenhagen: International Work Group for Indigenous Affairs. Stavenhagen, R. (2002) Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, E/CN.4/2002/97, 4 February 2002, pp 12 Wiessner, S. (1999) Rights and Status of Indigenous Peoples: A Global Comparative and International Analysis, Harvard Human Rights Journal 17, pp 58 126 Yap M. C. (2002) For a Voice the Orang Asli can call their own, Malaysiakini, 312 August 2002. Available at:https://www.malaysiakini.com Williams-Hunt, A. 1995 Land conflicts; Orang Asli ancestral laws and state policies, in: R. Razha (ed.), Indigenous minorities of Peninsular Malaysia; Selected issues and ethnographies, pp. 36-47. Kuala Lumpur: INAS Adong Bin Kuwau and Ors v Kerajaan Negeri Johor and Anor [1997] 1 MLJ 418 Sagong Tasi and Ors v Kerajaan Negeri Selangor and Ors [2002] 2 CLJ 543 Mabo v. Queensland (1992) 175 CLR 1 Kerajaan Negeri Johor Anor v. Adong Kuwau Ors, 2 MLJ 158 (1998