Native Title in Malaysia: A ‘Complementary’ Sui Generis Proprietary Right under the Federal Constitution
On 17 June 2005 the Sarawak Tribune carried the caption ‘Land Unsurveyed or Without Title Belongs to the Government’.1 The Sarawak State2 Second Minister of Resource Planning and Management said ‘the State Government will only recognise a right or claim to government land if it was created in line with the relevant written laws of the State Government, including the Royal Orders brought into effect before January 1 1958’. The report drew a public outcry and caused alarm among the Indigenous community in Sarawak. The reported statement was made in response to an assemblyman who pointed out that ‘to the people [natives] in the villages, all land occupied by them belongs to them but to the Government all such land are state land’. He asked: ‘How do we reconcile this statement so that both parties will understand each other in terms of the legal implications?’
The Minister was referring to restricted Native Customary Rights (‘NCRs’) as regulated by the Land Code 1957 (Sarawak) (‘Sarawak Land Code’) rather than the broader native conception of native customary tenure under native law and customs. Under the Sarawak Land Code NCRs are only recognised if they are created through methods specified under section 5 and subject to the cut off date of 1 January 1958.3 However, a permit can also be obtained from the Minister for the further creation of rights;4 rights may also be available under the reserve system mandated by section 6 of the Sarawak Land Code.5 In contrast, under native law and custom each native community has an exclusive right to occupation, use and exploitation in a general territory and a member has a customary right by virtue of his or her membership of that community with an entitlement that is subject to the customary laws of that particular community. A person who clears virgin jungle has exclusive rights to cultivate and re-cultivate cleared land; that right is passed to his heirs and descendants. Cultivated land may be left fallow as secondary growth6 to restore itself to its original fertility. Once it reverts to forest fallow, it is available to the community for fishing, hunting or gathering of forest produce; nevertheless, the pioneer household retains the pre-emptive right over the land for re-cultivation.
The above discourse demonstrates the common view that there is a collision between the Indigenous notion of land ownership, which is essentially communal ownership based on occupation, and the State’s view, which is often based on registration of title. There is a tendency on the part of the State towards only recognising rights that exist under positive law. This paper examines the co-existence of these sources and suggests that they need not be seen as inherently in conflict with one another.
In 1997 the Malaysian High Court established the application of a native title doctrine in Adong bin Kuwau v Kerajaan Negeri Johor.7 Adong was the first case in which an Indigenous community, the Orang Asli, had successfully challenged the State’s deprivation of their lands. It was significant because it established that Orang Asli had a common law right to their ancestral lands. The Court also acknowledged their statutory rights under the provisions of the Aboriginal Peoples Act 1954 (Malaysia) (‘Aboriginal Peoples Act’) and a constitutional right under the Federal Constitution. The Court held that those rights were ‘complementary’ rights and should be looked at ‘conjunctively‘. Adong was followed by Nor Anak Nyawai & Ors v Borneo Pulp Plantations & Ors,8 a case dealing with the NCRs of native Iban whose lands were affected by a tree plantation in Sarawak. In Sagong Tasi & Ors v Kerajaan Negeri Selangor9 the Court considered the NCRs of Orang Asli to lands that were affected by the construction of a highway to Kuala Lumpur International Airport. These cases dealt with different statutory regimes governing the Indigenous peoples of Malaysia: the natives in Sarawak under the Sarawak Land Code in Nor Nyawai; the Orang Asli under the Aboriginal Peoples Act in Adong and Sagong Tasi. Each of these cases dealt with the interaction of common law, statutory provisions, the customary practices of the Indigenous communities involved, and the recognition of those rights under the Federal Constitution.
It is suggested that the term ‘complementary’ describes not only the specific right and its source, but is in fact indicative of an expansive ‘technique’ that bridges not only statutory and common law rights, but encompasses the Indigenous concept of land ownership. In the result, these rights do not take their meaning wholly from the philosophies that underlie the ‘western’ canon of law, which in Malaysia often has an Austinian, positivist bent. The existence of native title rights may be recognised and facilitated by the common law and regulated by statutes; their source, however, is fundamentally customary law, which goes beyond the statutory provisions to take into account native peoples’ historical presence, occupation and connection to the land, and the rights which arise out of traditional laws and customs (adat). These are sui generis rights that are protected under the Federal Constitution.
II Customary Laws as Personal Laws: the Relationship to Native Title
The definition of law under Article 160 of the Federal Constitution includes ‘customs and usages having the force of law’. This makes customary law an integral part of the legal system in Malaysia. Customs are established through long usage, so that by common consent they have become the accepted norm or the law of the place to the exclusion of ordinary law.10 A custom would be upheld if it is of great antiquity, and is immemorial. This means that in the absence of sufficient evidence rebutting its existence, custom will be found to exist if ‘there is proof of the existence of the custom as far back as living witnesses can remember’.11 It has been suggested that what ascribes legal consequences to a custom is the law of tradition. If, according to tradition, a pattern or custom has become a tradition which the tribe clearly wishes to maintain, and tribal elders would use whatever coercive powers they may possess to do so, one may ascribe the force of customary law to such custom. 12
Customary law encompasses regular patterns of social behaviour accepted by a given society as binding upon itself for the purpose of generating harmonious inter-personal relations and to facilitate conflict resolution and the maintenance of a cohesive society.13 Norms related to what is perceived as correct social behaviour, prescribed rules for ceremonies including marriage and religious rites, agricultural systems, and the means for settling disputes are all part of customary law.14 In some jurisdictions this system of law is also referred to as ‘traditional law’ or ‘tribal law’. In Malaysia, the term ‘customary law’ is used interchangeably with adat or ‘native law and custom’. The customary laws that have evolved within the legal system form part of the laws that govern and protect native rights in Malaysia. This can only be properly understood within the context of Malaysia’s history and demography.
The Federation of Malaysia is made up of 13 states, 11 of which are in the Malay Peninsula. Two states, Sabah and Sarawak, are part of the island of Borneo.15 Sarawak is the largest state with an area almost equal to the area of all the states in the Peninsula. Under the Ninth Schedule of the Federal Constitution, the executive and legislative powers of the Federation are divided between the central and state governments. The states exercise exclusive powers over Islamic law; Malay and native customs; land, forestry, and agriculture; local government; and, the machinery of the state governments. Sabah and Sarawak are especially concerned with the preservation of native law and customs, particularly in relation to the safeguarding of the special interests of Indigenous peoples.16
About 65 percent of Malaysia’s multiethnic, multicultural, multi-religious population of nearly 24 million is comprised of the Indigenous population, of which Malays form the majority. In the immigrant population the Chinese comprise 26 percent and Indians 7.7 percent. In Peninsula Malaysia the Indigenous Orang Asli (literally, ‘original peoples’) or Aboriginal people form about 0.5 percent of the population, numbering a little more than 100,000 individuals.17 In Sarawak the predominant ethnic group in the 2000 census were the Iban, who accounted for 30.1 percent of the State’s population; this was followed by the Chinese at 26.7 percent and the Malays at 23 percent. Minority Indigenous groups comprise another 5 percent of the State’s population. In Sabah, the predominant ethnic group are the Indigenous Kadazan Dusun and the Bajau, who make up about 35.7 percent of the population; Malays comprise about 15.3 percent. The Indigenous groups in Sabah and Sarawak, officially called ‘natives’, traditionally occupy the interior areas of these states where their communities continue to be governed by customary laws. Befitting the multicultural ethnicity of the nation, the Malaysian legal system is a pluralist system integrating common law, syariah law and customary law.
Before the arrival of the British, Malaysian law comprised Malay adat and the customary laws of Indigenous and foreign communities. These included Aboriginal or Orang Asli customary laws, Chinese and Hindu customary laws, and native customary laws of the non-Malay Indigenous communities of Sabah and Sarawak. These customary traditions constituted ‘personal laws’ of the communities. This meant that they were recognised as being applicable to members of any racial, religious or other community because they were members of the community. The system ‘of personal laws’ was initially allowed as an exception to the general principle that English law was the law of general application.18 Principles of English common law and equity applied, subject to such qualifications as the religions, manners and customs of the local inhabitants permitted.19 This express recognition of customary laws applied to various communities. Of these customary laws, the Aboriginal and native customary laws and, to some extent, Malay customary laws have continued to be of significance in matters of family law and customary land tenure.20
A Definition of ‘Indigenous’ in Malaysia: ‘Malay’, ‘Aborigine’ and ‘Native’
The Malays, Aborigines and Natives are the Indigenous peoples of Malaysia. The application of customary laws as a ‘system of personal laws’ means that the question of Indigenous or native identity is crucial to determining entitlement to rights based on customary laws, native laws, and custom.
Article 160 (2) of the Federal Constitution defines a Malay as:
(a) one who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay customs; and
(b) was, before Merdeka (Independence ) Day, born in the Federation or in Singapore or born of parents one of whom was born in the Federation or in Singapore, or was on Merdeka day domiciled in the Federation or in Singapore;21 or
(c) is the issue of such a person.
Practically, for the purpose of the Constitution, a person may not strictly be of Malay ethnic origin. An Indian might be a Malay if he professes the Muslim religion, habitually speaks Malay, and conforms to Malay customs. Conversely, a Malay by birth who does not profess the Muslim religion does not satisfy the conditions in Article 160(2). The requirement of connection to the Federation and Singapore means that an Indonesian who satisfies the first limb would not satisfy the test unless he or she was born in the Federation or Singapore before independence or was domiciled there on Independence Day.22
While each state has its own definition of a Malay, all state definitions emphasise the Malayan origins of the person, the habitual speaking of the Malay language, and the profession of the Muslim religion. For the former Federated Malay States (Negeri Sembilan, Pahang, Perak and Selangor) a Malay must belong to ‘any Malayan race’ and speak ‘Malay or any Malayan language’.23 The Kedah24 and Perlis25 Enactments include Arabs as Malays as long as they are Muslim and speak Malay. Each Enactment provides that if there is any doubt as to whether a person is a Malay (or Siamese, in the case of Kedah and Perils)26 the question is to be referred to the relevant State Ruler in Council, whose decision on the matter is final. It appears that the definition of a Malay only applies to a natural person and not to an artificial person or a company because only a natural person can be ‘subjects of a Ruler’.27 The definition of Malay is crucial in determining a person’s entitlement to customary lands, Malay reserved lands and other Malay privileges. Since Malay reserved lands are registered titles and are protected and regulated by a different statutory regime, it merits a discussion on its own and is therefore not considered in this paper.28
The term ‘Aboriginal’ comes from the Latin aborigine, meaning from the beginning. It is an equivalent nomenclature to ‘Indigenous’. ‘Aboriginal’ is commonly used in many parts of the world to refer to ‘first nations’ or ‘first peoples’, for example, in the settler states of the USA, Canada, and Australia.29 In Malaysia, Article 160 of the Constitution states that an ‘aborigine’ means ‘an aborigine of the Malay Peninsula’ or a people commonly known as Orang Asli. ‘Orang Asli’ is a collective term used by anthropologists and administrators for 18 ethnic sub-groups who each have their own language and culture. These include the Temuan, Jakun, Semai, Semelai, Cewong and the M’Betsi.30 Section 3 of the Aboriginal Peoples Act defines an Orang Asli as:
(a) any person whose male parent is or was, a member of an aboriginal ethnic group, who speaks an aboriginal language and habitually follows an aboriginal way of life and aboriginal customs and beliefs, and includes a descendent through the males of such groups;
(b) any person of any race adopted when an infant by aborigines who has been brought up as an aborigine, habitually speaks an aboriginal language, habitually follows an aboriginal way of life and aboriginal customs and beliefs and is a member of an aboriginal community; or
(c) the child of any union between an aboriginal female and male of another race provided that the child habitually speaks an aboriginal language, habitually follows an aboriginal way of life and aboriginal customs and beliefs and remains a member of an aboriginal community.
In Sagong Tasi31 a serious challenge was made to the status of the plaintiffs as Orang Asli as defined by the statute. The contention of the defendants was that although the plaintiffs were members of the Temuan group, they did not continue to practice Temuan culture and therefore no longer met the definition of Aboriginal people. The Court looked at the requirements of section 3 of the Aboriginal Peoples Act and noted that the community continued to be governed by a traditional council, the Lembaga Adat, under which marriages are conducted, communal activities are organised, social conduct is supervised and disputes resolved. The Court concluded that it was manifestly evident that the Temuan people of Kampung Bukit Tampoi live in an organised society with a system of adjudicating disputes; that they are governed by their own laws and customs; and, that they still adhere to a specific political system in accordance with their culture. Temuan cultural practices relating to land tenure, burial practices, religion, place names, inheritance and language were held to still constitute an integral part of the Orang Asli existence unaffected by modernisation. It was held not to undermine traditional governance that the Temuan no longer forage for a living in the tradition of their hunter-gatherer ancestors; that they cultivate cash crops alongside traditional crops that they speak other languages apart from Temuan; and, that some members of the community have embraced other religions or have married out of the community. Nor did it deny the existence of traditional systems of governance or that the Temuan have a Jawatan Kuasa Keselamatan dan Kemajuan dan Kampong (JKKK) (Village Committee for Security and Development), which is a local village committee and part of the Federal Government’s local administration.
Although the Malays and the Orang Asli could well be called ‘natives’, the drafters of the Federal Constitution chose to use ‘native’ to refer to the heterogeneous Indigenous people of the states of Sarawak and Sabah. Article 161A clause 6 states:
In this article, native means
a) in relation to Sarawak, a person who is a citizen and either belongs to one of the races specified in clause (7) as indigenous to the state or is of mixed blood deriving exclusively from those races; and
b) in relation to Sabah a person which is a citizen, is the child or grand child of a person of a race indigenous to Sabah, and was born (whether on or after Malaysia Day or not) either in Sabah or to a father domiciled in Sabah at the time of the birth.
Clause 7 states:
The races to be treated for the purposes of the definition of ‘natives’ in clause (6) as indigenous to Sarawak are the Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayans, Kalabit, Kayans, Kenyags (Including Sabups and Sipengs), Kajangs (including Sekapans,. Kejamans, Lahanans, Punans, Tanjongs dan Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits.32
It must be noted that Malays in Sabah and Sarawak fall within the classification of ‘natives’. The above list reflects an original enumeration in the schedule of the Sarawak Interpretation Ordinance which is not exhaustive since there are some groups that are, perhaps inadvertently, omitted.33 In a move to reflect the present day self-conception of the Iban, Bidayuh and Lun Bawang communities an amendment was made to the Sarawak Interpretation Ordinance in 2002 to substitute the terms Sea Dayak for ‘Iban,’ ‘Land Dayak’ with ‘Bidayuh’ and ‘Murut’ with ‘Lun Bawang’. That amendment is yet to be reflected in the Federal Constitution.
There is another possible interpretation of ‘native’ in 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.34 To determine whether such a person might be subject to a particular native system of personal law, a court may take into account a person’s conduct; the public opinion of the community of which the person has become so identified; the testimony of responsible members of the community; and, the opinion of assessors in a Native Court hearing or the opinion of the Tua Kampung (headman) who assists the District Native Court. This provision makes it possible for a person who is an issue of a mixed marriage, where one parent is a non-native, to claim native status. Be that as it may, a person who is not a Muslim cannot be declared to have become identified with, or be subject to, the personal law of a native Islamic community.
In Law Tanggie v Untung ak Gantang35 the plaintiff, who was born of a Chinese father and Iban mother, was able to claim native status. Law bought a piece of native customary land. It was registered in the name of his uncle, the defendant (who was an 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. The High Court took the statutory declaration and the decision of the Native Court as conclusive. To determine his native status, the Court found that 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.
In Sabah, there is no enumeration of the native groups in the Constitution, although there are at least 38 known groups. Under section 2(1) of the Interpretation (Definition of Native) Ordinance36 ‘native’ refers to persons Indigenous to the colony and ordinarily resident, one of whose parents was an Indigenous person from Brunei, Sarawak, the Straits Settlements, the Federated Malay states, Indonesia, or the Sulu islands. An amendment to the Interpretation (Definition of Native) Ordinance in 1958 provide that a declaration of native status be based on proof of good character; it also requires that the applicant has lived and been a member of the native community for at least three to five years; the applicant’s stay must also not be limited by the Immigration Ordinance. A native community is defined as any group or body of persons the majority of who are natives, and who live under the jurisdiction of the local authority37or under the jurisdiction of a native chief or headman.38
A number of cases have been decided by the Sabah Native Court on the question of native status. In Liew Siew Yin v District Officer, Jesselton39 the applicant was of Chinese and Dusun parentage. The applicant’s father failed to justify a claim of having lived as a member of the community because he was not resident in the community; he had married according to Chinese custom; his children bore Chinese names; and, he had never paid door tax in the village. By contrast, in Ong Seng Kee v District Officer, Inanam40an application for native status by a Sino-Kadazan was allowed because he lived in a predominantly native area and sometimes participated in communal festivities. The fact that he lived in a Chinese-style house, and that some of his children attended Chinese schools, did not disqualify him.
Another significant case is Datuk Syed bin Kecik v Government of Malaysia & Anor.41 The applicant, a Malay from Peninsula Malaysia, applied to the Native Court for a declaration as anak negeri or native of Sabah. He applied to be admitted and was duly declared as a native by the Native Court on the basis that: he was ordinarily resident in Sabah; he had lived as a member of the native community for a continuous period of five years immediately preceding his claim; he was of good character; and, he was not limited by the Immigration Act. On appeal for determination by the Federal Court, Suffian LP held that he was ‘rightly a member of, resident in and connected with the state of Sabah and “belongs” to Sabah. Who could belong to Sabah more than a native of Sabah?‘42
The above cases illustrate the intricacies involved in proof of identity and membership of an Indigenous group in Malaysia. Proof of membership is necessary to establish entitlement to native rights.