PETALING JAYA: A retired judge says the Orang Asli in the peninsula do not enjoy equal rights and protection under the law compared with the Malays and natives of Sabah and Sarawak.
Mohd Hishamudin Mohd Yunus said Parliament should amend the Federal Constitution to accord protection to the Orang Asli.
“The Malays and the natives are given preferential treatment under the constitution but not the Orang Asli,” he told a forum titled “Protection of Marginalised Minorities under the Federal Constitution” at Universiti Malaya tonight.
The retired Court of Appeal judge said Article 153 provided safeguards for the special position of the Malays and natives of Sabah and Sarawak.
He said Article 152 states that the national language is Malay while Article 3 (1) has declared Islam as the religion of the federation.
Hishamudin said Article 150 (6A) further states that in case of a proclamation of an emergency, Parliament could not pass laws that touched on any matter of Islamic law or customs of the Malays or native law or customs in Sabah and Sarawak.
He said Article 8 (5) (c) of the constitution allowed Parliament to legislate and protect the wellbeing of the Orang Asli.
He said the Aborigines People’s Act 1954 was the principal statute for the Orang Asli and had been described as the human rights legislation of the community.
“Judges must interpret the law liberally and broadly to give effect to their rights,” he said.
Hishamudin said the recent incident of the Temiar tribe in Gua Musang, who set up road blockades, was a result of logging activities in their settlement.
“The forest is their home, pharmacy and food factory for their survival,” he said.
Hishamudin said such encroachment had also repeatedly occurred in native settlements and forest reserves in East Malaysian states.
He said over the years the courts had made rulings that rendered the right to livelihood and property of Orang Asli and natives illusory, like the Bakun dam case.
However, the former judge also praised some of the judgments that recognised and protected the rights of Orang Asli and natives of Sabah and Sarawak, like the cases of Adong Kuwau, Sagong Tasi, Nor Anak Nyawai and Madli bin Salleh.
Hishamudin said the Federal Court majority ruling last December which refused to recognise “pemakai menoa” (territorial domains) and “pulau galau” (communal forest reserves) as native customary rights land in Sarawak was a setback.
“The minority ruling by Zainun Ali displayed judicial activism. It also showed the erroneous finding of the majority judgment,” he said.
Justice Raus Sharif, who delivered the main judgment, said there was no legislation in Sarawak that gave the force of law to a group of Dayaks to claim customary rights over virgin forests around their longhouses.
He said the Sarawak Land Code, Tusun Tunggu (Codified Customary Laws), Iban Adat 1993 and a number of Rajah Orders recognised only cultivated land called “temuda” as NCR land.
“Temuda” refers to land left fallow, on which there is secondary growth.
The judges ruled that the customs of pemakai menoa and pulau galau did not fall within the definition of law under Article 160 (2) of the Federal Constitution.