Native Title in Malaysia: a ‘Complementary’ Sui Generis Proprietary Right under the Federal Constitution

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VII Native Title as a Proprietary and Constitutional Right

It is clear from the above discussions that the Malaysian courts have recognised the customary title of the Orang Asli and the customary land rights of native populations not only as a common law right, but also as a statutory right protected by the Federal Constitution. It is not merely a personal usufructuary right but an interest that amounts to a full beneficial ownership. Despite the use of the term ‘license’ in both contexts, the rights have economic value and fall under Article 13 of the Federal Constitution, which states:

1) No person shall be deprived of property save in accordance with law.

2) No law shall provide for the compulsory acquisition or use of property without adequate compensation.

A Meaning of property

‘Property’ in Article 13 is not used in a special sense. It means ‘what people can own and buy and sell, give security for debts, use, wear out, improve, give away, destroy, settle on trust, leave by will or succeed to on intestacy’.144 It refers to something having a value which, when compulsorily acquired or used, can be assessed in economic terms.145 For an interpretation of ‘property’ the Court in Adong relied on the Indian case of Rabindra Kumar v Forest Officer.146 That case dealt with the meaning of ‘property’ under Article 19(1) of the Indian Constitution, which is similar to Article 13 of the Federal Constitution. The term `property’ is explained thus:

[I]n the strict legal sense, the word property signifies valuable rights or interests protected by law and this is the primary appropriate and broader signification of the term. In modern legal system, property includes practically all valuable can be enjoyed as property and recognized as equitable interests as well as legal interests and extending to every species of valuable rights or interests in either real or personal property or easements, franchises and incorporeal hereditaments. The term comprises also all rights which are incidental to the use, enjoyment and disposition of intangible things, the bare possession, with colour or right of anything of value, the right to be protected in one’s possession of a thing or in one’s privilege belonging to him as a member for the Commonwealth including the right to contest judicially any invasion of that which one possesses or owns. The property may reasonably be construed to include obligation rights and other intangible and physical things and thus the word ‘property’ means not only the thing but also the rights in the physical and corporeal thing which are created and sanctioned by law.147

In Selangor Pilot Association v Government of Malaysia148 Mokhtar Sidin JCA relied on Rabindra Kumar in giving a wide interpretation to proprietary rights. It was held that Aboriginal rights under common law and statutory law are proprietary rights protected by Article 13 of the Federal Constitution. The view of the High Court was fully endorsed by the Court of Appeal.

The question of customary title as a proprietary right was again dealt with in Sagong Tasi. Justice Mohd Noor Ahmad referred to the decision of Brennan J in Mabo (No 2), where his Honour said:

Whether or not land is owned by the individual members of a community, a community which asserts and asserts effectively that none of its members has any right to occupy and use the land has an interest in the land that must be proprietary in nature: there is no other proprietor. It would be wrong, in my opinion, to point to the inalienability of land by the community and, by importing definitions of ‘property’ which require an alienability under the municipal laws of our society, to deny that the indigenous people owned their land. The ownership of land within a territory in the exclusive occupation of a people must be vested in the people: land is susceptible of ownership, and there are no other owners.149

Justice Brennan went on to explain that although Aboriginal title was a communal title, individuals within the community could, by its laws and customs, possess proprietary individual rights over their respective parcels of land. His Honour said:

Indeed it is not possible to admit traditional usufructuary rights without admitting a traditional proprietary community title. There may be difficulties of proof of boundaries or of membership of the community or of the representatives of the community which was in exclusive possession, but those difficulties afford no reason for denying the existence of a proprietary community title capable of recognition by the common law. That being so, there is no impediment to the recognition of individual non proprietary rights that are derived from the community’s laws and customs ,and are dependent on the community title. A fortiori, there can be no impediment to the recognition of individual proprietary rights.150

Justice Mohd Nor Ahmad said that ‘in keeping with worldwide recognition now being given to Aboriginal rights’ the right of Orang Asli to land is a proprietary right ‘in their customary and ancestral lands’. Having established that the right is a proprietary right, the next important issue is its protection under the Constitution.

B Deprivation, Compulsory Acquisition and Compensation

Under Article 13(1) of the Federal Constitution, deprivation of land is only possible ‘in accordance with the law’. Article 13(2) provides that no law shall provide for ‘compulsory acquisition’ without adequate compensation. It is important to note briefly the impact of these two clauses. The term ‘deprivation’ includes any loss of property as a result of statutory law, or by an executive act. This might, but does not necessarily, involve the acquisition of property. Viscount Dilhorne, delivering the majority opinion in Selangor Pilot Association, said:

A person may be deprived of his property by another acquiring it or using it but those are not the only ways by which he can be deprived. As a matter of drafting, it would be wrong to use the word ‘deprived’ in art 13(1) if it meant and only meant acquisition or use when those words are used in art 13(2).151

Article 13(1) renders unconstitutional a statute or executive act which deprives a person of property and which is contrary to natural justice or due process of law. Article 13(2) renders unconstitutional a statute which provides for compulsory acquisition or use of property but which does not also make adequate compensation. This is a check on the legislature, not the executive.152 In other words, clause (1) gives a right to natural justice or due process in the case of deprivation, but clause (2) gives a right to adequate compensation in the case of compulsory acquisition or use. Deprivation may involve acquisition or use, in which case both rights come into play.153

A right to compensation must be implied into any deprivation, and any deprivation of land under any legislation must be read subject to the Federal Constitution. In Adong the issue was dealt with thus:

The Federal Constitution art 13 supersedes both statutory law and common law and mandates that all acquisition of proprietary rights shall be compensated and that any law made for the compulsory acquisition or use of property without compensation shall be rendered void in accordance with art 4 of the Federal Constitution. I assume that the alienation of the Linggui Valley lands in four titles was done under the National Land Code 1965 but the National Land Code does not provide for the compensation of land acquired. However the National Land Code must be read as being subservient to art 13 of the Federal Constitution and where there is no provision for compensation under statutory law, art 13(2) should be read into that statute.154

The Court of Appeal affirmed that decision, saying that ‘where state action has the effect of unfairly depriving a citizen of his livelihood, adequate compensation is one method of remedying the harm occasioned by such action pursuant to art 13 of the Federal Constitution’.155

I suggest that deprivation might encompass elements of dispossession, withdrawal, extinguishment or termination of property. Compulsory acquisition, on the other hand, should be interpreted broadly to include effective acquisition even when there is no actual transfer of title, but there is more than mere deprivation.156 Where the conditions of Article 13 are not satisfied, any deprivation or compulsory acquisition will be unconstitutional. Harding puts it in this way:

[T]he statute must make provision for the assessment and payment of adequate compensation, in that it must either fix the compensation, or provide principles for the assessment of the compensation, at a figure which bears a reasonable relation to the current market value of the property. Thus the claimant will have no argument based on the Constitution merely on the grounds that the compensation awarded is less than the market value of the property; he will be able to base his argument on art 13(2) only if the statute makes no or inadequate provision for adequate compensation.

The issue of unconstitutionality was raised in Sagong Tasi, where the defendants purported to summarily evict the plaintiffs and to compensate them only for what is provided for by section 11 of the Aboriginal Peoples Act; that is, only for the rubber trees planted on the land. Since the Orang Asli interest is not only an interest in ‘things on the land’ but to the land itself, the compensation granted under sections 11 and 12 of the Aboriginal Peoples Act is inadequate and therefore unconstitutional under Article 13(2). Similarly, under the Land Acquisition Act the Court held that Orang Asli land ‘occupied under customary right’ must also be adequately compensated where rights have been removed.

C Native Title Legislation as ‘Human Rights Statutes’ with quasi-Constitutional Status

The full potential and impact of ‘complementary’, sui generis rights depends on how far the judiciary is willing to be creative in moulding remedies or in finding new grounds for their decisions in principles of justice, equality and human rights. The development of human rights in relation to native title varies from one jurisdiction to another but an underlying rationale may perhaps be gleaned Brennan J’s statement in Mabo (No 2). His Honour referred to the existence of universal human rights and said that:

[a] common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demand reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.157

Significantly, in Mabo v Queensland (No 1)158 it was held that traditional interests in land were entitled to the same degree of protection as interests of other communities. The singling out of the Torres Strait Islanders through the confiscation of rights and interests, coupled with the denial of compensation and the absence of procedures to assess their claims denied their basic human rights to own and inherit property. That case was of course decided in relation to non-compliance with section 10 of the Racial Discrimination Act 1975 (Cth) (‘RDA’), which gives the holders of traditional native title the same immunity as provided for other people in the community.159

There is no equivalent legislation to the RDA in Malaysia. However, Article 153 of the Federal Constitution provides that it is the responsibility of the Yang di Pertuan Negara (the King) and the Yang di Pertuan Negeri (the State Governor) to safeguard the position of the Malays and natives in Sabah and Sarawak, respectively. There is also provision for the preferential treatment of the natives of Sabah and Sarawak with regards to land alienation of land in Article 161A(5). Orang Asli are not included in Article 153 but Article 8(5) provides that ‘this article shall not invalidate or prohibit any provision for the protection, well being, or advancement of the Aboriginal peoples of the Malay Peninsula (including the reservation of land)’. These provisions reflect the implicit intention of the Federal Constitution that the Government should act for the benefit of Orang Asli. The provisions also empower the Government to discriminate positively and to legislate for their protection.

In the context of these provisions, Gopal Sri Ram JCA in Kerajaan160 took a new approach in dealing with native and Aboriginal rights. His Honour described the Aboriginal Peoples Act as ‘fundamentally a human rights statute’ because the aim of the legislation is to protect the interests of the first peoples in Peninsula Malaysia. It ‘acquires a quasi constitutional status giving it pre-eminence over ordinary legislation. It must therefore receive a broad and liberal interpretation’.161 Justice Gopal Sri Ram referred to Canadian authorities establishing these propositions, among them Insurance Corporation of British Columbia v Heerspink, in which Lamer CJ held:

When the subject matter of the law is said to be the comprehensive statement of ‘human rights’ of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others.162

Justice Gopal Sri Ram also referred to Canadian National Railway Co v Canada (Canadian Human Rights Commission),163 where Dickson CJ said:

Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognise that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimise those rights and to enfeeble their proper impact. 164

In Dickason v University of Alberta165 L’Heureux-Dube J stated:

In order to further the goal of achieving as fair and tolerant a society as possible, this Court has long recognised that human rights legislation should be interpreted both broadly and purposively. Once in place, laws which seek to protect individuals from discrimination acquire a quasi-constitutional status, which gives them pre-eminence over ordinary legislation.166

The above principles are in accordance with well-established principles of constitutional interpretation in Malaysia. In Ong Ah Chuan v PP167 the Federal Court said:

The way to interpret a Constitution on the Westminster model is to treat it not as if it were an Act of Parliament but as ‘sui generis’ calling for principles of interpretation of its own, suitable to its character… without necessary acceptance of all the presumptions that are relevant to legislation of private law. 168

Two points must be borne in mind. According to Raja Azlan Shah LP, ‘first, judicial precedent plays lesser part than is normal in matters of statutory interpretation; and secondly, a constitution, being a living piece of legislation, its provision must be construed broadly and not in a pedantic [manner]’.169 It requires ‘less rigidity than other Acts’.170 This, however, ‘does not mean that a court is at liberty to stretch or pervert the language of the constitution in the interest of any legal or constitutional theory or even for the purpose of supplying omissions or correcting supposed errors’.171 In applying constitutional law ‘the court must look behind the label to the substance’.172 These principles are all the more important when fundamental rights are involved, since ‘the power and duty of the courts is to enforce those rights and to annul any attempt to subvert any of these guarantees by legislative or administrative action or otherwise’.173

With these principles in mind, Gopal Sri Ram JCA in Kerajaan held that the Aboriginal Peoples Act requires a liberal construction in favour of enhancing, rather than curtailing Aboriginal rights. His Honour called for an interpretation of the Aboriginal Peoples Act that fulfils the purpose of the statute:

In my judgement, what s 6 does it to prohibit the alienation or dealing by the state of land in aboriginal area to a non-aborigine. It merely reflects the permanent nature of the title vested in the plaintiffs.

And all that s 8 does is to enable the government to create merely occupational rights not being higher than a tenancy at will…

The crucial question that is overlooked…is: what title vests in the aborigines if the alienation permitted by s 6 never takes place?...If in the absence of specific alienation to him, an aborigine is to receive no interest in the land that he and generations of his forefathers have lived and worked upon, then the 1954 Act was a wasted piece of legislative action. Remember that the purpose of the 1954 Act was to provide socio-economic upliftment to the aborigines. Land being a very valuable socio-economic commodity, it was the undoubted intention of the legislature not to deprive those in the class to whom the plaintiffs belong of the customary title existing at common law.…I would add for good measure there is also nothing in the Code, which is the principal statute that regulates titles and dealings in land and interests in land which strikes at the recognition of lands held under customary title.174

When legislation is given a quasi-constitutional status it allows the courts to control governments’ exercises of power in relation to those rights. This is a most important safeguard for the ordinary citizen. Former Chief Justice Azlan Shah CJ has noted that ‘the courts are the only defence of liberty of the subjects against department aggression’ particularly ‘in these days when government departments and public authorities have such great powers and influence’. In light of these considerations, Gopal Sri Ram JCA in Kerajaan rightly favoured a liberal construction of the legislation providing for Orang Asli, such that their rights were enhanced rather than curtailed.

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