PMH0012 –

MALAYSIAN
LEGAL
HISTORY
CHAPTER 1:
HISTORICAL
OUTLINE
(Continuation – part b)
By Rathivaani Sathiaseelan
Quick recap:
Definition of Aboriginal People & Native
- Aboriginal Peoples Act 1954 (Act 134)
- Federal Constitution

So the 18 ethnic subgroups in Peninsula is

classified into?
Contents of today’s lecture

 Aborigines in P.Malaysia
 Legal Aspect
 Issues
 Malacca Empire – if we have time
NEGRITO SENOI MELAYU-PROTO

Kensiu Temiar Temuan

Kintak Semai Semelai

Lanoh Semoq Beri Jakun

Jahai Che Wong Orang Kanaq

Mendriq Jah Hut Orang Kuala

NEGRITOES

Kensiu
Mendriq
Kintak
Lanoh
Bateq
Jahai
NEGRITOES
 NEGRITOES
Least Lived in Perak, Kedah Headed by
organized tribal & Kelantan CHIEF
nomadic
societies
usually the chief
They are settled in the areas around uphold justice
Titiwangsa Mountains and are eldest member medicine man
centralized mostly on the northern side of of community
the Peninsular

Punishment: theft Tribal disputes: Hunters – No agricultural

& murder: fine; assembled and depend too much Belief: animism
activities
cheating another : try to settle depend on forest
fine products
 They have only very simple methods of
constructing their shelters which come
in the form of huts that are open on the sides,
with thick leaves for roofing.
 • The site must be on slightly sloping terrain and
Although they are not within a hollow where rainwater could gather.
nomadic and do not • The site must be near a source of fresh flowing water (standing
need to establish water; which they call "dead water"; would not be acceptable and
is regarded as unhealthy).
permanent housing for • The site must be shaded by trees that are big enough to provide
themselves, they still cool air and shelter but not so big that they endanger themselves
must choose a suitable and their huts during a storm.
• There should have been no human death at the chosen place -
location for their and no haunting by evil spirits. They believe that evil spirits are
temporary village. For the cause of sickness and to ensure that a place is free of such
influences they require:- that the place under consideration does
an appropriate choice, not cause the hair to rise in fright (i.e. that the area not be
procedures in "spooky"), but instead that it gives a feeling of cosiness and
freedom; that the place under consideration shows plentiful
accordance with their secondary growth of young trees. If the area has sparse or no
ancient traditions and secondary growth, living people should stay away - an evil spirit
beliefs are carried out must be there that is capable of causing illness. "When even young
trees cannot grow there, how could a human?"
before a decision is • There must be abundant food resources in the area under
taken: consideration and it must be not too far from an area where
bamboo grows.
 SENOIS
More settled and organized

Perak, Negri Sembilan, Pahang & Selangor

Headed by Penghulu:
• ensure the smooth running of the customs and laws among the tribes;
• medicine man (pawang);
• position – inherited on his death by his eldest son or anyone who was eligible;
and
• had full power in civil & criminal offences except murder cases.
 PUNISHMENT
Murder : left over to the family of the victim on what type of punishment:
money/in kind.
Disputes concerning women: fine.

Debtor who was unable to pay : fine – by working for the creditor and
during such period, the debtor and his family were supplied with foods.

AGRICULTURAL ACTIVITIES
Practised contract in supplying food – in consideration of cloth.
Rent: paid in the form of food supply for a specific period.
The tribes do not recognise individual property among them – belief: lands and products were
communally possessed and cultivated by tribe – product : shared among all
Inheritance: descendants (child & below)
ascendants (father & above) collateral branches.
• if there was no heir : house and clearing land would be abandoned –
under Penghulu – would determined the boundaries which a member
might occupy.
Belief: All objects had great spirit.
Sun: bad spirit, moon: good object.
Believed a house of a deceased should be burned or
left empty to avoid bad spirit from disturbing the
children.

Most of the them until now
still believe in the power of
spirits who are said to be
their source of help in time of
need.
Traditional medicine-men or witch-
doctors act as a medium to communicate
with the invisible powers. This
communication process is carried out
during rituals on special days such as:-
• 'Genggulang' for the Mahmeri,
• 'Sewang' for the Semai and ‘Temiar’
and
• 'Berjerom' for the Jahut/Jah Hut
 PROTO MALAYS
Headed by
Batin:-
LARGEST Orang 1. ensure peace,
Asli group in POSITION :
INHERITED BY security & justice
Peninsular 2. middle man in
Malaya. THE ELDEST
SON any tribal
disputes

3. medicine man
4. leader on
special occasion
Selangor, Negri
Sembilan,
Melaka, Perak & 5. be regarded as
Johor. mediator between
the subjects and
God
PUNISHMENT
• - most offences : fine
• - theft & adultery :
impaling, drowning or Inheritance
exposure to the sun (property) : 2:1 ECONOMIC
(Islamic influence) ACTIVITIES
• Agricultural and solely
relied on forest products ;-
Semelai tribe
Legal Aspects

Other
Federal
Constitution 01 02 Legislations

International
Conventions 03
 Art 160 (2) - “Aborigine” means an aborigine of the Malay

Federal
Peninsula. Federal Government : legislative authority
Ninth Schedule; List 1, No. 16:
Art 161( A) – meaning of native welfare of aborigines

Constitution Art 8 (5) (c) - it legitimizes discriminatory legislation in favour of

Orang Asli by way of provisions in the law of their protection, well-

01
being and advancement (including the reservation of land) or the
reservation to aborigines of a reasonable proportion of suitable
positions in the public service.

Art 45 (2) – Senate: to safeguard the special position of the Malays

and natives of any of the States of Sabah and Sarawak and the
legitimate interests of other communities in accordance with the
provisions of this Article.

Art 153 - Reservation of quotas in respect of services, permits,

etc., for Malays and natives of any of the States of Sabah and
Sarawak

Art 89 (6) – land reserved for alienation to Malays or to natives of

the State
 Other Legislations
• Section 20 of the Native Courts
Ordinance 1992:
A person who is not a native by birth may be
deemed a native through an application to the
Native Court for a declaration of native status.

• Section 52 of the Protection of Wild Life

Act 1972 (Repealed by the Wildlife
Conservation Act 2010 [Act 716]) Act 76:
May shoot, kill or take the wild animals and the
wild birds described in Schedules Two and Four
as deer, mouse deer, game birds and monkeys for
02
the purpose of providing food for himself or his
family.
 03

International
Conventions
 The International Covenant
on Civil and Political Rights
1966 ('ICCPR') & the
International Covenant on
The International Economic, Social and
Convention on the Cultural Rights 1966
Elimination of All ('ICESCR'):
... to develop friendly
The Vienna
Forms of Racial Declaration and
relations among nations
Discrimination based on respect for the Programme of
1966: principle of equal rights Action 1993
to 'recognise and protect rights of indigenous peoples and self-determination of
to own, develop, control and use their communal peoples, and to take other ('VDPOA')
lands, territories and resources and, where they have appropriate measures to provides that all rights are
been deprived of their lands and territories
strengthen universal peace. indivisible and interrelated.
traditionally owned or otherwise inhabited or used
without their free and informed consent, to take steps
to return those lands and territories'
  International Covenant on Civil and Political
Rights (ICCPR)

Article 27 of the ICCPR prohibits State parties from denying

persons belonging to minority groups on their rights.

 International Covenant on Economic, Social

and Cultural Rights (ICESCR)

Article 11(1) of ICESCR talks about the right to adequate housing

to include forced evictions from their lands.

 Convention on the Right of the Child (CRC)

Article 30 of the CRC provides for indigenous children to learn and

practise their own culture.
United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP)
• Article 2: Indigenous peoples are equal to others and have the
right to be free from discrimination in the exercise of their
human rights.

• Article 5: indigenous peoples have the right to maintain and

strengthen their distinct political, legal, economic, social and
cultural institutions.

• Article 10: Prohibits the forced removal of indigenous peoples

from their lands.

• Article 11: Right to practice and revitalize cultural traditions

and customs.

• Article 12: Right of indigenous peoples to practice their

traditions and customs.
● Article 20(1) protects the right to maintain and develop indigenous political,
economic, and social institutions.

● Article 21 protects the right of indigenous people to improved economic and social
conditions and requires States to take measures to ensure such improvement.

● Article 34 protects the right to promote, develop and maintain distinctive customs
and traditions in accordance with human rights standards.  

● Article 18 guarantees the right of indigenous peoples to participate in decisions that

may affect their rights.

● Article 19 requires States to consult and cooperate with indigenous peoples before
adopting legislation that may affect their interests.
 
● Article 25 notes the right of indigenous peoples ‘to maintain and strengthen their
distinctive spiritual relationship with their traditionally owned or otherwise
occupied and used lands’.
Quick Break!

Scan your
attendance
Issues – Relating to
Please watch:

aborigines
https://www.youtube.com/watch?
v=5W6XBkJDbfc
 LAND MATTERS
• Conflict between formal sets of codified laws
and informal sets based on custom.

Sagong’s case: In 2005, the COA

Adong bin Kuwau: native rights to land should be
decided according to local tradition, Adong only
affirmed the rights of the Orang Asli
eligible for compensation for loss of life and non- to their traditional lands,
value land.

In Sabah, Rungus indigenous

Nor Anak Nyawai: COA (S’wak) re- The indigenous people
are only considered as a
affirmed the concept of native
“tenant at will” on the
customary rights on temuda
land inherited and there
(cultivated land), pulau (communal is no title given to them
reserve) and pemakai menoa by the Aboriginal
(community's territorial domain). Peoples Act 1954 (Act
134)
communities succeeded in getting
their land removed from land vested
with the Sabah Forestry
Development Authority (SAFODA) in
Kanibongan for the planting of
Acacia Mangium in 1983. The
Rungus indigenous communities
were given verbal assurances that the
land would be returned to the people
after the trees had been harvested.
However, the agreement was never
fulfilled.
Land rights

• Example on usage of traditional

land:

○ The Temiar, have their own

categories of land-use such as
their homesteads, swiddens and
smallholdings. Apart from
these, the Temiar have
particular cultural areas with
accompanying rules and taboos,
and with differing tenurial
rights accorded to the villagers.
Land rights
• The salient features of the aboriginal title were summarized in Sagong bin Tasi &
Ors v. Kerajaan Negeri Selangor & Ors [2002] 2 CLJ 543:

1. It is a right acquired in law and is not based on any document of title;

2. It does not require any conduct by any person to complete it, nor does it depend
upon any legislative, executive or judicial declaration;
3. It is a right enforceable by the courts;
4. The aboriginal title and interest in aboriginal land is not lost by colonization.
Instead, the radical title held by the sovereign becomes encumbered with native
rights in respect of aboriginal land;
5. The aboriginal title can be extinguished by clear and plain legislative intent or by
an executive act authorised by such legislation, but compensation should be paid;
and
6. The aboriginal people do not become trespassers on their own land by the
establishment of a colony or sovereignty.
Oil Palm Plantation

• In 2004, it was estimated that land

use for oil palm plantations was
increasing at 7% per year and today
Malaysia's oil palm plantations
cover 40% of its cultivated land.
• The introduction of modern
development to Malaysia, which
mainly benefits the big corporations
and local elites, has had grave
negative impacts, particularly in the
indigenous communities.
Dams

• Various pros and cons.

• Batang Ai Dam (S’wak, 1985) ~ 3k people from 33 longhouses were
relocated and the communities lost large areas of customary lands. Food
production was severely affected, land ownership, and the resettled
people also ended up in debt.
● The Bakun Dam (1999, S’wak) – 10k indigenous Kenyah and Kayan
people were forcibly relocated from their ancestral homes to make way
for the dam.
Poorer Health
• Chronic diseases such as diabetes and heart
disease are on the increase. There are
definite links between income, social
factors and health.
• Life expectancy at birth for the Orang Asli
was estimated to be 52 years for females
and 54 years for males as compared with 72
and 68 years for females and males
respectively for the general population.
Orang Asli females experienced lower life
expectancy due to their higher maternal
death rates.
Conflict with Development of Land

• Land development undertaken by the government in the area of

Aboriginal land has caused conflict between the developer and the local
community .
• This situation has resulted in Aboriginal involved were left homeless and
the search for forest resources for their livelihood.
• National Land Code 1965 only give importance to the land registered in
the Land Registry, and the ancestral lands inherited from generation to
generation is not included in the registration system under the land laws
of Malaysia.
• State government authorities can take any land , including land occupied
by Orang Asli as provided by the Land Acquisition Act 1960.
Customary land conflict
● The protection of Aboriginal
reserve land can be easily undone
by the State Authority as state in
Aboriginal Act.

● Section 12 of the Act there is also

mention of compensation for
trees and crops cultivated by
indigenous peoples but again
words “may” not guarantee
payment of benefits because it is
determined ultimately by them.
Information Technology

● Ensuring access to information is another crucial duty on the government.

● There must be continuing and wider.
● SUHAKAM recommends that information be made public from the time
plans were mooted rather than making them available after they are
finalized to give affected people ample time to highlight their concerns.
Knowledge transfer

● Many of the issues that

indigenous communities need to
deal with are new to them and
they generally do not have the
technical expertise to address
them.

• To give them the ability to

engage meaningfully with these
issues, education and capacity
building of the indigenous
communities is of utmost
importance.
Educational Issues

● 66% of the Orang Asli are illiterate (The Star, 1997).

● Orang Asli children have been classified as a group of at-risk in the
context of modernisation and hence face serious problems.
● The current system is too “rigid”.
● The Education Ministry has taken over the responsibility of looking into
the schooling needs of indigenous communities from the JHEOA.
Poverty

● Poverty is a risk factor for chronic diseases and it is prevalent among

indigenous peoples worldwide (Damman, et al., 2008).
● The JHEOA has discovered that 80% of the Orang Asli live below the
poverty line .
● Peninsular Malaysia Orang Asli Association Selangor Branch: less than
5% of the Orang Asli population receive houses each year. (The Star,
1996).
CASE
Adong’s case
*first case in the country which recognises the rights of natives to their ancestral lands.

Brief facts:

The plaintiffs are heads of families representing a

group of aboriginal people (Jakun) living around
the Sungai Linggiu catchment area which also
includes the tributary Tebak (‘the Linggiu Valley’). Issue: Deprivation of vast areas
They claimed that the lands within the vicinity of of the aborigines’ traditional
Sungai Linggiu were their traditional and and ancestral land on which
ancestral lands and upon which they depended they did not stay, but depended
to forage for their livelihood in accordance with
their tradition. on to forage for their livelihood
The defendants had alienated the lands to the in accordance with their
state corporation for the purpose of constructing tradition
the Sungai Linggui Dam near Kota Tinggi, Johor.
 jUDGEMENT:

The High Court allowed their claims.

○ Failure to register the title of the land does not abolish the customary rights of the
native.

The Court of Appeal affirmed the said decision.

 BRIEF FACTS:

the aborigines of the Temuan tribe brought a

representative action for unlawful eviction from their areas
of settlement following the acquisition of 38,477 acres of
their land for the purposes of construction of the highway
Sagong bin Tasi to the Kuala Lumpur International Airport. The plaintiffs’
claim was for recognition of their proprietary right to the
land and compensation for breach of art 13 of the Federal
Constitution and for trespass.

Held: the plaintiffs were plainly entitled to a declaration that

they had customary title to the ungazetted area. Federal
Court has therefore established that the Malaysian
common law recognises Aboriginal customary title.
 Brief facts:

The High Court of Sibu on the 27th of May 2011 held that the
Respondents have NCR over the entire 5,639 hectares of land
which was leased by the State Government of Sarawak to
Rosebay Enterprise Sdn Bhd. The decision was made in virtue of
the respondents’ rights under their custom termed as pamakai

Tr sandah
menoa and the principles of common law.

The appellants then appealed to the Court of Appeal regarding a

tendered evidence of an aerial photograph of the disputed land
taken in 1951. The appellant contended that based on the
photograph, out of the 5,639 hectares of land, only 2,802 hectares
of cleared and cultivated land was rightfully NCR under the
custom of temuda (cultivated land that has been left to fallow)
whilst the rest of 2,712 hectares of land fell under the custom of
pulau galau and pemakai menoa, which should not be recognised
as NCR by the court, as they were uncultivated and virgin forests.

The subject matter before the court then was about the remaining
2,712 hectares of land that was considered as primary forest and
categorised by the respondents as pemakai menoa under the Iban
native custom of pulau galau (patches of virgin forest that have
been left uncultivated to provide the community with forest
resources for domestic use).
● The Court of Appeal, on the issue raised, reaffirmed the High Court of Sibu’s
decision. The appeal was dismissed on grounds that the definition of law in
article 160(2) of the Federal Constitution indicated that common law was to
be applied in the State of Sarawak, and the common law applicable in
Sarawak recognised the legal force of pemakai menoa and pulau galau.
These customs had been recognised since the 1800s and had not been
expressly repealed by subsequent legislation.

● In the appeal made at the Federal Court, the appellants contended that under
Sarawakian law, the appellants could not acquire NCR to the primary forest as
there was no statutory recognition of any native custom that enabled NCR to
be acquired over uncultivated areas or forests not felled for cultivation
nevertheless used by natives to forage for food and other jungle resources..
 Nor Anak Nyawai
Brief Facts:

The plaintiffs were residents of two longhouses located in Sekabai, Bintulu, Sarawak. They
claimed that the defendant timber company had trespassed and damaged their ancestral
land. The plaintiffs, however, did not hold documentary title to the land. The title to the
disputed land was held by the defendant, Borneo Pulp Plantation Sdn Bhd, which had hired
contractors to clear the land for commercial timber development. The plaintiffs' action
rested exclusively on their claim that under Iban custom they had acquired native
customary rights to the property. Under Iban custom, each longhouse community has a
territory over which it exercised control, the pemakai menoa. The pemakai menoa includes
not only the land surrounding the longhouse, but also the land devoted to the gardens and
farms (the temuda), and the rivers and jungle within a half day's walk used for hunting,
fishing and gathering forest produce, the pulau or pulau galau. The plaintiffs claimed that
the disputed land constituted part of the community's pulau.
 High Court:
As a starting point, the High Court recognised the pre-existing rights of indigenous people as set out in
Adong:

Resolving the factual issues of the case presented little apparent difficulty for the Court. With relative ease
the Court found the elements necessary to establish the plaintiffs' claim to native title over the disputed
land. Without serious dispute, it concluded that the plaintiffs were in fact Ibans and therefore natives
within the meaning of the doctrine. The Court also accepted the plaintiffs' evidence regarding the
Iban customs of pemakai menoa, temuda, and pulau galau. Lastly, it found that the plaintiffs and
their ancestors had exercised and continued to exercise these customary practices over the specific
land in dispute.
The Court, however, did not elaborate further upon the nature and extent of the rights encompassed by
native customary rights. Despite the Court's silence, it did recognise the plaintiffs' control over their
communal land in fashioning its remedy. The Court declared that the plaintiffs had the right "to exercise
native customary rights in the disputed area"[25] and then enjoined the defendants from entering the
disputed area. It also voided defendants' title to the area and ordered the defendants' title to be rectified to
exclude the disputed area.
 coa
● The Court of Appeal set aside the finding of the trial judge that the respondents had
acquired NCR over the claimed area. It was held that there was no evidence to show the
existence of the respondents’ longhouses and temuda in the claimed area. There was also
no evidence which indicated that there was pulau in the area or that the area was
considered as pulau by the respondents or their ancestors.
● "we are inclined to agree with the view of the learned trial Judge in Sagong Bin Tasi &
Ors [2002] 2 MLJ 591 that the claim should not be extended to areas where `they used
to roam to forage for their livelihood in accordance with their tradition'“
● The Court of Appeal is drawing a very clear line in limiting the application of native
title. It is equating occupation with that of settlement or cultivation and contrasting that
with land upon which native peoples "roam" or "forage". For the Court of Appeal, the
latter is beyond protection because "otherwise it may mean that vast areas of land could
be under native customary rights simply through assertions by some natives that they
and their ancestors had roamed or foraged the areas in search of food"
Cases
● Director of Forests, Sarawak & Anor v Racha ak Urud @ Peter Racha
Urud & Ors [2017] 4 MLJ 42

○ The Respondents in the five appeals herein, acting on their own

behalf as well as on behalf of the Kelabit, Penan and Lun Bawang
natives of Sarawak, sued all the six appellants in the High Court for
various declaratory orders and damages on the ground their native
customary rights ('NCR') to certain lands had been encroached upon.

○ Held: allowing the appeals. The respondents had clearly lost their
rights to the claimed NCR land when the same was abandoned by
their resettlement to other areas away from the claimed areas.
Cases
● TH Pelita Sadong Sdn Bhd & Anor v TR Nyutan ak Jami & Ors [2018] 1
MLJ 77

○ The Respondents (Ibans) of Kampong Lebor, claiming that prior to 1

January 1958, they had acquired native customary rights ('NCR')
over areas of land provisionally leased to Lembaga Pembangunan
dan Lindungan Tanah and Nirwana Muhibbah Sdn Bhd by Lands
and Surveys Kota Samarahan Division.

○ Held: Native Customary Right NCR without title should not be put
on a better footing with differential treatment. The disputed land
were converted to registered entities even before the plaintiffs
succeeded in their NCR claim.
Cases ● Law Tanggie v Untung AK Gantang [1993] 2 MLJ 537

○ The plaintiff (Chinese father and Iban mother) bought a piece of

native customary land. It was registered in the name of his uncle, the
defendant (Iban) until he attained native status. On the same day
Law applied for declaration as a native by statutory declaration.
When he did finally attain native status he brought an action for
return of the land.

○ Held: While Law’s father was Chinese, he had assimilated into the
community. Law’s father had taken on a native name; he was
accepted as a member of the Iban community and lived as an Iban;
he paid door tax as an Iban and was buried in an Iban cemetery; and,
his children had carried on as Iban. As such, the Court found a
resulting trust in favour of Law Tanggie.
Other Cases

● TH Pelita Sadong Sdn Bhd & Anor v TR Nyutan ak Jami & Ors [2018] 1
MLJ 77 (Test of occupation)
● Sangka Chuka & Anor v Pentadbir Tanah Daerah Mersing, Johor & Ors
[2016] 4 CLJ 585 (Test of occupation)
● Ketua Pengarah Jabatan Hal Ehwal Orang Asli & Anor v Mohamad
Nohing (Batin Kampung Bukit Rok) & Ors [2015] 9 CLJ 309 (Test of
occupation)
● Bohari Jaya & Ors v Naim Land Sdn Bhd & Ors [2016] 4 CLJ 353 (Test
of occupation)
Conclusion
The existence of aboriginal people is recognized in Malaysia.
Although their rights are protected, it is not absolute and still
consists of loophole - page 172.

The most important question here is: How can we improve?

Preconditions for orang asli’s assured development-page 173.

For next class:
Malacca Empire - Please watch
these videos before class:

https://www.youtube.com/watch?v=IHCITtRLEQE

https://www.youtube.com/watch?v=dtrSqo0Giqg