I. Introduction The right to effective participation in decision making is essential for the development of a truly inclusive and just society. While the responsibility for safeguarding indigenous and tribal peoples’ rights lies with governments, their participation in decisions that affect them is fundamental to the realisation of their rights of self determination so that they can “freely determine their political status and to freely pursue their economic, social, and cultural development.”1 As in many indigenous communities the world over, Malaysian indigenous peoples struggle to maintain their identity and control over their lands and resources in the face of growing encroachment on their territories. Their aspirations to retain control over their institutions, ways of life and to maintain their identities, languages and religion,2 may only be realised when they have the opportunity to participate in decision making on these matters.
The right of participation cannot be realized without adequate information. It is meaningless unless there is ability and the resources to exercise it. Effective participation in decision making entails involvement in the legislative and political arena, and representation at national and local levels, in power sharing and participation in government and public bodies. It is also crucial that indigenous peoples are involved in consultative mechanisms on issues that affect them, to enable them to develop their own initiatives. Since many indigenous groups are governed by traditional laws, respect for traditional governance and maintenance of their traditional structure is vital.
This paper outlines some of the issues with regard to participation of indigenous peoples in decision making in Malaysia. It gives a brief background of Malaysia’s indigenous peoples and looks at the framework for participation.
II. Malaysian indigenous peoples and socio-political participation
Malaysia is a federation of thirteen states and three federal territories.3 Eleven states are in the Malay Peninsula,4and two states, Sabah and Sarawak are part of the island of Borneo. The federation has a strong central government, with a division of legislative and executive powers between the federal and state governments. The states’ exclusive powers of any significance are Islamic law, Malay and native customs, forestry, land, agriculture, local government and the constitution and procedure of native courts. Reflecting its multiethnic and multiculturalism, Malaysia’s plural legal system is an integration of the common law, syariah law and customary law tradition. The latter continues to be of significance in matters of family laws, inheritance, customary land rights, and in the case of one state, succession of rulers.5
Malaysia’s population of nearly 24 million6 comprise an indigenous population of about 65 per cent of which Malays are the majority. The immigrant population, the Chinese comprise 26 per cent and Indians 7.7 per cent. In Peninsular Malaysia, the aboriginal people (Orang Asli) form about 0.5 per cent of the population7 whereas the indigenous groups in Sarawak comprise about 69.1 percent, and in Sabah, about 60.7 percent of the respective states’ population.8
Malaysia’s indigenous peoples, the Malays, Natives and Aborigines or Orang Asli, are classified as “bumiputera” meaning “princes or sons of the soil”, a classification that has been used as a basis for affirmative action and policies in their favour, including the reservation of places for them in the civil service. A Malay is one who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay customs.9 The Constitution defines an ‘aborigine’ or Orang Asli only as ‘an aborigine of the Malay Peninsula10 but the Aboriginal Peoples Act 1954 s 3 (2) states that an aborigine is a person whose parents are both aborigines or one parent, male or female, is or was, a member of an aboriginal ethnic group, speaks an aboriginal language and habitually follows an aboriginal way of life, customs and beliefs.11 “Native” in Sarawak is an indigenous person who is born of parents who are both natives,12whereas in Sabah, a native is a citizen, the child or grand child of a person of a race indigenous to Sabah, was born either in Sabah or to a father domiciled in Sabah at the time of the birth.13 However, under state laws it is possible for a person who is not born a native to be deemed a native by applying to the native court and native status may be attained by virtue of residence, assimilation into the culture of a native community, good conduct and language.14
Except for the Orang Asli, indigenous peoples in Malaysia have generally had a fair representation in the political process of the nation. Malaysia practices a parliamentary democracy with elections every five years. Political parties are established along ethnic and racial lines, giving indigenous peoples the capacity to participate in government. In Peninsular Malaysia, the major political parties are UMNO (United Malay National Organisation), MCA (Malaysian Chinese Association) and MIC (Malaysian Indian Congress).15 In Sabah, the first indigenous political party was United National Kadazan Organisation. It later became UPKO (United Pasokmomogun Kadazan Dusun and Murut Organisation). Another Kadazandusun (indigenous) led party was the PBS (Sabah United Party). In Sarawak, there has been an active participation of indigenous peoples (Dayaks) in government since the early days of independence through political parties like PBB (Party Pesaka Bumiputra), SNAP (Sarawak National Party) and PBDS (Parti Bansa Dayak Sarawak).16Just like UPKO and PBS, these parties are part of the Coalition Front (Barisan National) which is led by UMNO, which is Malay. It is really the policies of UMNO that determines the nation’s direction and general policies. With Malays as the majority, the other indigenous groups are now referred as indigenous minority.
The Orang Asli have yet to form their own political party to represent them in government although they have a senator appointed to the Senate. While the presence of indigenous individuals in government may for the most part, have given voice to some indigenous peoples aspirations, native and Orang Asli communities remain among the most vulnerable and marginalized groups. Their rights to traditional lands and resources is one the most contested issues that deserves attention.
Each of the indigenous groups, including the Orang Asli have formed national or state level non-political indigenous associations to advance their social, cultural and educational interests. They include the KDCA (Kadazan Dusun Cultural Association) in Sabah, POASM ( the Orang Asli Association of Peninsula Malaysia), Dayak Cultural Association in Sarawak.17These associations have slowly expanded their roles to become representatives of their communities in government and non governmental stakeholder consultations on issue affecting their communities. This has also become necessary as the traditional leadership often do not have the capacity to deal with the complex commercial and sometimes international issues that their communities have to deal with.
III. The Legal Framework For Indigenous Participation: Incorporation and Implementation of International Human rights
With increasing recognition of the rights of indigenous peoples, the principle of free, prior and informed consent is emerging as an international standard in protecting indigenous peoples’ rights. The ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169) places special emphasis on the principles of consultation and participation but Malaysia is not a signatory,18 neither has she ratified the ICCPR. Malaysia is a signatory to the UNDRIPs which requires states to consult and cooperate in good faith with indigenous peoples through their own representative institutions in order to obtain their free prior and informed consent (FPIC) before adopting and implementing legislative or administrative measures that may affect them.19They are to have the right to determine their own priorities as to development, health and other economic and social programs.20 This principle of has yet to be expressly incorporated in any national legislation.
In 1994, Malaysia ratified the Convention on Biological Diversity (CBD) of which article 8(j) requires states to “respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity”. Malaysia introduced its national policy on biological diversity in 1998 and is drafting its own law on access to biological resources. Malaysia is also an active participant in interntional negotiations as well as the formulation of an ASEAN Framework Agreement on Access to Biological Resources. However, under the national law, while indigenous representatives may come in under provisions for experts and they might be involved in the stakeholders’ consultations, there is no mention of indigenous participation in the decision making body.21 IV. Traditional Leadership Hierarchy and Decision Making, Native Courts and Local government
The definition of law in Malaysia includes “customs and usage having the force of law”22giving a clear constitutional recognition for customary laws. Despite the federal /legislative division of legislative powers, the federal government might make laws on any matter in an emergency. However, it may not touch on Malay customs and the customs of the natives of Sabah and Sarawak.23 Since the traditional indigenous decision making process is imbedded in their native customary practices, these constitutional provisions protect those mechanisms.
Traditionally, indigenous peoples have generally made their decisions through consensus and settled their disputes through a participatory process of consultation, negotiation and mediation.24 This process worked well in a cohesive community where the customary practices are alive, the traditional leadership are well versed with the adat or customs and respect for the leadership is deeply ingrained. Administratively, this traditional process has been integrated with formal system of courts as a supporting and complementary process.25 In Sarawak and Sabah, the Native Courts were set up primarily to deal with breaches of native law and customs. The personnel at the lower courts preserved the traditional dispute resolution structure administered by the traditional leadership consisting (a) in Sarawak, the headman, the Penghulu, Pemancha and Temenggong (Sarawak) and (b) in Sabah, the headman and Orang Kaya-Kaya. The adjudicators in higher (appellate) courts are drawn from the government administrators, the District Officer, the Resident (Sarawak) and a High Court judge may sit in the Native Court of Appeal.26 These courts apply the native laws and customs.
Peninsular Malaysia has no equivalent aboriginal court system for the Orang Asli. Nonetheless a traditional system exists where the batin (headman) and the Balai Adat resolve issues in the community according to their own customs. The challenge today is to ensure that the younger leaders know their customs or adat. With the encroachment of modernisation in the communities, the preservation of the customs are dependent on their actual practice.
At the local government, a village committee has been instituted in all rural communities called the JKKK (Jawatan Kuasa Kemajaun dan Keselamatan) (Committee for Development and Security) with the intended role of an intermediary between the community and the local government, to decide on policies for the villages27 and as a conduit for government funding for development. The headman is an ex-officio in the JKKK. Ironically, one of the greatest challenges for the working of this system is the traditional approach of consensus based decision making coupled with general non confrontational approaches taken by most indigenous communities in problem solving. It is a slow process, compounded by the fact that the Village heads and the community leaders are political appointees who would not go against their political masters. The process is thus open to political manipulation, making it a “top down” administrative (and political) set up. It has been lamented that the line of authority from the government, to the grass root community is fuzzy and therefore lacks the necessary accountability, for instance, between the Ministry tasked with Rural Development and the grass roots there is a long hierarchical process28
One of the saving factors of this process is that it is imperative that a certain number of the office bearers must be women who are tasked with looking after women affairs. This is a positive step in view of the fact that leadership in most indigenous groups has generally been male dominate.
V. Participatory and consultative mechanisms and decision-making processes affecting indigenous peoples
For a long time, besides government officials, the representatives to international consultations on indigenous issues have been social NGOs working among indigenous peoples who may or may not be indigenous peoples themselves.29 PACOS Trust and COAC (Centre for Orang Asli Concerns) and SAM (Sahabat Alam Malaysia) have for many years been the voice of the minority indigenous peoples at many international forums and they done tremendous work in creating awareness of the plight of Malaysia’s indigenous peoples. In the recent years, in response to international developments, there has been an increase in multi stakeholders consultations linked to both government and non- governmental institutions involving issues affecting indigenous peoples. This has opened an avenue for indigenous community leaders, through their cultural associations to come to the consultations as representatives of their own communities. The real respect and contribution for indigenous voices in policy implementations remain to be seen. A case in point is the FLEGT- VPA (Forest Law Enforcement Governance and Trade - Voluntary Partnership Agreement) that is being negotiated between EU and Malaysia.
The FLEGT-VPA consultations gave a forum for discussion of longstanding issues on indigenous land rights and created a greater awareness on the relevant laws relating to the land and resource rights with regard to the definition of illegal timber. The indigenous groups and representatives were disappointed that despite lengthy consultations, their views on the interpretation of the laws and their stand on certain criteria were not taken into account in the final Timber Legality Assurance System (TLAS) document. The government’s restricted interpretation of customary laws as only “codified customary laws” resulted in the exclusion of rights based in customary laws and exclusion of the provisions of the Land Code, basing native rights purely on narrow provisions of the forestry laws.30This concern has been raised by indigenous groups. They have also objected to the fact that there is no nongovernmental representation at the technical working group to explain their concerns.
In one of the earliest cases on multi stakeholders’ consultations on Forest certification, Lasimbang reported problems of the lack of continuing and wider consultations with full and effective participation of indigenous peoples in the formulation of the national timber certification guidelines when it was first formulated in the mid 1999.31 It is with this backdrop that The Malaysian Timber Certification Council (MTCC) has formed Standard Review Committee for the Malaysian Timber Certification Standards (MTCS) in 2009 where indigenous representatives and NGOs are invited to the discussion table.
A recent SUHAKAM (Malaysian Commission on Human Rights) report on the impact of the Murum Hydroectric Dam (Murum)32 has clearly shown yet again how important the FPIC principle is in dealing with indigenous peoples. The Commission found that no proper consultation was carried out by the states with the affected Penan communities in relation to resettlement of the affected communities. Displacement, dispossession and disruption of peoples’ fundamental rights to life and livelihood have occurred. As the Commission recommended, the government should ensure that the consultations initiated are not merely a mechanism for the government to “inform the affected communities” on approved projects. They must ensure affected communities are heard prior to implementation, and that of projects and in respect of resettlements, and that the affected people be part of the planning of resettlement areas.
VI. Challenges and Measures to Ensure Indigenous Participation The Malaysian Federal Constitution has a unique provision for preferential treatment and positive discrimination in favour of Malays, natives and Orang Asli, 33a policy based on the premise that they are historically disadvantaged, with the aim of correcting the social and economic imbalance. This should enable states to put more minority indigenous peoples into positions in the civil service or organisations dedicated to look after their interests.34
There is a tremendous challenge for governments to hear and to really listen to indigenous voices, to take their perspectives into account in formulating policies and in entering into any binding agreements which might adversely affect indigenous rights to avoid further marginalization of the poor.
Ensuring access to information is another crucial duty on the government. There must be continuing and wider dissemination of information and adequate period given to ensure that informed decisions are made. Unfortunately, what happens in almost all cases of development is that little information is given to the public. In the Murum Report for instance, 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.
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. Be it commercial land development, forestry and forest certification issues, negotiation with timber companies and logging concessionaires, or dealings with plantation magnates, or issues of health and education, these constitute new challenges. To give them the ability to engage meaningfully with these issues, education and capacity building of the indigenous communities is of utmost importance. The idom that “ the people perish for lack of knowledge” aptly applies here.
1*Discussion paper prepared for International Expert Seminar on Indigenous Peoples and The Right to Participate in Decision Making, Chiang Mai, Thailand, 20-22 January 2010.
United Nations Declaration on the Rights of Indigenous Peoples
2 ILO Convention 169, article 3
3 Two federal territories, namely Kuala Lumpur and Putrajaya are in the peninsula while the third, Labuan is in north-west Borneo.
4 Namely, Johor, Kedah, Kelantan, Melaka, Negeri Sembilan, Pahang, Perak, Perlis, Selangor, and Terengganu.
5 Much of the Malay customary laws relating to family law has been merged into Syariah laws and are administered by the Syariah courts. Malay customary laws apply mainly in Negeri Sembilan with regard to election of traditional rulers.
6 Population Distribution and Basic Demographic Characteristics Report: Population and Housing Census 2000. htpp://www.statistics.gov.my/English/census/pressdemo.htm
7 Colin Nicholas puts the figure at 147,412 individuals in 2003. See Colin Nicholas. Centre For Orang Asli Concerns, http://www.coac.org.my. Cited 2 November 2009
10 Orang Asli is a collective term used for eighteen sub-ethnic groups. The eighteen sub-ethnic groups generally classified for official purposes under Semai, Negrito, Senoi and Aboriginal-Malays. Each group has its own language and culture
11 In Sagong Tasi & Ors v Kerajaan Negeri Selangor (Sagong 1)  2 MLJ 591. it was established that Temuan Orang Asli community, lived in a organised society and follow an aboriginal way of life. They have their own system of adjudicating disputes, maintain their own language, and culture relating to marriages, inheritance, burial practices, religion and practised their own system of land tenure, and fulfilled thereby, the requirements of s 3 APA.
12 Native is defined in the Constitution, Art 161A, as well as the Interpretation Ordinances of each state of Sabah and Sarawak. In Sarawak, a native is a person listed in clause 7 or a child born of native parents “exclusively” from the races specified under Art 161A clause (7). Under state law however, it is possible for a person who was not born a native to apply to the Native Courts to be “deemed” a native and be subject to its personal law under. For an indepth discussion on “who is a native”, see R Bulan, “Native Status and the Law” in Wu Min Aun, Contemporary Public Law in Malaysia, Longmans, 1999.
13 Art 161A clause 7 Federal Constitution, and Interpretation (Definition of a Native) Ordinance 1953. There are about 38 known major groups in Sabah.
14 Section 20 of the Sarawak Native Courts Ordinance 1992. See for example Law Tanggie v Untng ak Gantang (1993) where a claimant whose father was Chinese and mother indigenous Iban obtained a statutory declaration that he was deemed an Iban and was entitled to hold native customary land.
15 Other parties like Gerakan, DAP (Democratic Action Party) aim to be multiracial but are Chinese dominated whereas PAS (Parti Agama Seislam Malaysia) is mainly Malay and Islamic based.
16 Joseph Tawie, The Broken Shield, The Birth of Dayakism, 2007.
17 There are many other cultural associations based on ethnic groups.
18 Article 7.1.
19 Article 19 UNDRIP
20 Article 23.
21 Jannie Lasimbang, “Research Findings, Malaysia”, Indigenous Knowledge and Biodiversity in Asia, IAPP, 2004, at 153.
22 Federal Constitution, art 160 (2)
23 Federal Constitution Article 150(6)
24 See for instance, R Bulan, “Resolution of Conflict and Disputes under Kelabit Customary laws in Sarawak” , in Zawawi Ibrahim, Representation, identity and Multiculturalism in Sarawak, 2008, at 155
25 See Peter R Phelan, The Traditional Legal System of Sabah, Pusat Kajian Borneo, Yayasan Sabah, 2003. See also Wan Arfah Hamzah and Ramy Bulan, Introduction to the Malaysian Legal System, Oxford Fajar, 2002.
26 The Sarawak Native Court Ordinance 1992 and Rules, and the Sabah Native Court Enactment 1992 and Native Court Rules 1993.
27 These policies range from security issue, to social, educational, welfare and women’s affairs.
28 “Experiences From Malaysia”, Indigenous Peoples and Local Government, Cordillera Peoples Alliances and Pacos Trust, IWGIA, Document No.13-Copenhagen 2005. at 87.
29 PACOS and COAC and SAM have for many years been the voice of the indigenous peoples at many international forums.
30 See brief discussion in Ramy Bulan, “Malaysis-EU FLEGT-VPA Stakeholder Consultations and Native Customary Land Rights in Malaysia”, presentation at Illegal Logging Update and Stakeholder Consultation Number 13 at Chatham House, 19-20 January 2009 available at http://www.illegal_logging.info/item_single.php?it_id, See also Marcus Colchester, “Reflections on the Social Dimensions of Verifications in FLEGT Processes: issues Risks and Challenges,” Thinkpiece for Verifor Experts Meetings, 27-28 April 2006, Palm de Marllorca, http://www.forestpeoples.org/documents/pry sector/illegal log/verifor flegt apro6.eng.shtml cited on 5 January 2009. See also article by Dato’ Dr Freezailah Che Yom (Adviser to the MPIC on Malaysia –EY FLEGT VPA) , “Some Perspectives of The EU-Malaysia Negotiations to Conclude A Voluntary Partnership Agreement (VPA)” at http://www.mtc.com.my
31 Janie Lasimbang, n 21 at 150.
32 Suhakam’s Report on the Murum Hydroelectric Project And Its Impact Towards the Economics, Social and Cultural Rights of the Affected Indigenous Peoples in Sarawak (2009), available at http://www.suhakam.org.my/213
33 Articles 153, 8 (5)
34 For instance, in the JHEOA, Department for the Welfare of Aboriginal People, the high level administrative officers who determine the policies are mainly Malays. The few Orang Asli personnel are only in the lower rung of the administrative ladder.