Redefining Identity: The Orang Asli's Struggle for Land and Recognition in Modern Malaysia.

The social transformations that have accompanied the processes of nation-building and globalisation are among the most fundamental of the post-colonial period. The dynamic and far-reaching nature of these processes has forced societies throughout the world to present compelling arguments for the continued existence of their traditional ways of life and to redefine their identities in the modern context. This challenge has been by far the greatest for traditional and minority communities, such as Indigenous peoples. Ironically, the very national and international contexts that are prompting Indigenous groups to validate and redefine their identity have provided the frameworks they have adopted in recent years that have allowed them to do so.

In Malaysia, the nation-building and modernisation policies of the state, underpinned by the impetus of global capitalism, have caused the social and economic dispossession of the Indigenous Orang Asli. In recent years, there has been a “political conscientisation” (Ibrahim 1996, 102) of various Orang Asli groups and the subsequent self-definition of their Indigenous identity within the modern Malaysian nation-state. Crucially, the shape that the “articulation” (Li 2000) of this Indigenous identity has taken is unlike those that have been externally constructed in the past by the British colonial authorities and the independent Malaysian Government. The external impetus of control has been replaced by an internal necessity to “control the terms of their dispossession” (Rata in Li 2010, 406), producing a “multiple positioning” that emphasises both cultural distinctiveness and inclusion through citizenship (Idrus 2010, 104).

After discussing these broader framing conditions, this article will examine the landmark 2002 land rights case of Sagong bin Tasi and Ors. v. State of Selangor and Ors. (“Sagong Tasi”) which witnessed the Malaysian High Court declaration of the existence of land title and right to compensation of the Orang Asli community of the Bukit Tampoi village. This case was significant for the recognition by the courts of land title in common law and, crucially, the national and international rights-based argument put forward by the Orang Asli plaintiffs. The Bukit Tampoi villagers, prompted by “changing historical and material conditions” (Ibrahim 1996, 101) and the subsequent “contest for resources” (Nicholas 2002), utilised the existing local and international framing conditions to resituate their identity in the modern context.

An Introduction to the Orang Asli

The Orang Asli, meaning ‘original people’ or ‘natural people’, are a non-homogenous people comprising 19 ethnically distinct groups and numbering approximately 140,000 (only 0.6 per cent of the national population of Malaysia). Whilst the number of Orang Asli living in urban areas is increasing, most continue to live in remote settlements practising a combination of subsistence and cash crop farming (Aiken and Leigh 2011, 475). They are considered to be among the most impoverished and politically marginalised communities in Malaysia, making up 50 per cent of the Malaysian population living below the poverty line. As a group, the Orang Asli experience higher infant mortality rates, lower education levels and life expectancy, and higher levels of preventable diseases than the national average (Dennison 2011, 79).

Colonialism and Emergence of ‘Aboriginal’ identity

Malaysia’s Orang Asli derive much of their identity and culture from a deep attachment to particular lands, landscapes and places (Aiken and Leigh 2011, 477). Traditionally living in remote settlements as distinct groups, this has meant that the Orang Asli have always identified themselves as culturally distinct from one another.  It was not until the British colonial period that the generic and derogatory terms ‘aborigines’ and ‘sakai’ were used to refer to the Orang Asli as a common group of people.

Before 1948, the Orang Asli were of little interest to British colonial authorities, save for attention given to them by missionaries and anthropologists. The onset of the Communist insurrection following World War II, known as the Malayan Emergency, prompted a new interest in the remote tribes as they came to be seen as crucial to winning the conflict against the guerrillas taking cover in the forested interior (Nicholas 2003, 316). Motivated by the romantic notion of the ‘noble savage’, the British colonial authorities viewed the Orang Asli as ‘simple primitives’ open to exploitation by other groups and the ‘negative effects of cultural contact’ (Idrus 2010, 95).

The Malayan Emergency thus became a struggle for control of the Orang Asli (Endicott 1998, 914) and prompted the British Government to adopt a paternalistic policy characterised by close bureaucratic supervision (Dennison 2007, 80). Subsequently, the Department for the Welfare of the Aborigines was established in 1950 (later changed to the Department of Orang Asli Affairs, known by its Bahasa acronym, JHEOA), followed by the Aboriginal Peoples Act (“the Act”) in 1954.

The Act, possibly the most significant legislative instrument that continues to regulate the lives of the Orang Asli, begins with a stated goal of the “protection, wellbeing and advancement of the indigenous peoples of Peninsula Malaysia”. The Act allocates authority to the Department of Orang Asli Affairs to oversee almost all aspects of Orang Asli life, from education and employment to the adoption of Orang Asli children and consent over customary authority (Aboriginal Peoples Act 1954). The Act provides the Department of Orang Asli Affairs with the authority to control contact by any ‘undesirable’ persons with the Orang Asli as well as the authority to determine who is and is not an ‘aborigine’ (Nordin and Witbrodt 2012, 206).

Notably, the Act includes a provision that allows, but does not compel, the Department to set aside land as ‘aboriginal reserves’. Individual land title, however, is not within the stated rights of the nation’s Indigenous peoples, nor is security of tenancy on reserved land, as the Act allows the Department to rescind reservation without consultation (Aiken and Leigh 2011, 478). Indeed, a feature of the Act that remains a central issue in contemporary resource negotiations is the stipulation that Orang Asli occupants are not to be conferred with “any better title than that of tenant at will” (Aboriginal Peoples Act 1954).

Orang Asli identity in the British era was thus characterised by a protectionist relationship that effectively made them “wards of the state” (Idrus 2010, 95).

Modernisation, Development and the Nation-State: the Orang Asli in Independent Malaysia

This paternalistic state-Orang Asli relationship continued into the post-colonial period. The new imperative of nation-building and ‘development’, however, caused the focus to extend from the protection of the Orang Asli to their assimilation into mainstream Malaysian society.

In 1961, the Government of independent Malaysia released a ‘Statement of Policy Regarding the Administration of the Orang Asli of Peninsula Malaysia’, which recommended “suitable measures designed for their protection and advancement with a view to their ultimate integration with the Malay section of the community’ (Dennison 2011, 80). Since independence, policies of the Malaysian state have continued in this vein, including more controversial aspects such as ‘regroupment’, or resettlement, schemes and ‘Islamisation’, whereby incentives are offered to Orang Asli who convert to Islam (Nicholas 2002).

The adoption of a policy of assimilation towards the Orang Asli can be traced to two broad and interconnected factors at play in post-colonial Malaysia. The first relates to the nation-building imperative and the ‘identity formation and contestation’ inherent in this process (Shamsul 1996, 9). The second factor relates to the rapid development and modernisation that is being pursued as a national priority and how this is causing the Orang Asli to literally and figuratively ‘get in the way’ in a ‘contest for resources’ (Nicholas 2004).

The nation-building effort following independence from the British in 1957 witnessed the political coinage of the notion of ‘bumiputera’ (meaning ‘sons of the soil’), which asserted the position of ethnic Malays as the indigenous people of Malaysia. Although there was no formal ‘bumiputera’ policy, the notion formed the state-defined basis of national identity that afforded a “special position” to ethnic Malays and Sarawak and Sabah under Article 153 of the Federal Malaysian Constitution, and instigated policies of affirmative action relating to political positions, public education and business (Mason and Omar 2003, 2).

In this context, Malaysia’s model of national citizenship is explained as “asymmetrical differentiated citizenship...where the group rights accorded to Malays, Chinese, Indians and other ethnic monitories are distributed in unambiguously asymmetrical fashion” (Idrus 2010, 93).

The assertion of Indigenous identity by the ethnic Malays contrasts with the more commonly accepted definition under international law, which focuses on the non-dominance of the community (Idrus 2010, 94). This is coupled with anthropological and archaeological evidence, which indicates that the Orang Asli are “descendants of the earliest known inhabitants who occupied the Malaysian Peninsula before the establishment of the Malay kingdoms” (Dennison 2001, 81). Despite this, the Orang Asli are not covered under Article 153 of the Constitution. Instead, they are represented under Article 8, which provides for the “protection, wellbeing and advancement of the aboriginal people” (Mason and Omar 2003, 2).

The assimilation policy towards the Orang Asli can thus be explained as an attempt to “augment Malay political strength and to bolster the official ideology that Malays are the indigenes of the Malay Peninsula” (Endicott 1998, 914). It follows from this that the dominant Malay sections of society may maintain a ‘legitimate’ right to the nation’s resources. In doing so, the Orang Asli have been denied their Indigeneity (Ibrahim 1996, 104).

The context of Malaysia’s drive towards development and modernisation is linked to this narrative of nation-building.

For mainstream Malaysian society, the Orang Asli are problematic because they represent a physical impediment to the resource extraction and infrastructure development pursued by the Malaysian mainstream. The Vision 2020 policy introduced by former Prime Minister Mahathir bin Mohamad in 1991 put Malaysia on a path towards industrial self-sufficiency. The inevitable resource extraction and development of infrastructure have caused Orang Asli land to become coveted by powerful interests and caused the loss of significant areas of forest traditionally inhabited by the Orang Asli (Gomes 2004).

In contrast to the growth in resource extraction, the emergence of a Malay middle class after Malaysia’s economic success has prompted the demand to create conservation parks and forest protection (Gomes 2004). Thus, in addition to the demarcation of forests for infrastructure projects and timber-tree plantations, extensive tracts considered by the Orang Asli to be ancestral land have been set aside as forest reserves or protected areas (Aiken and Leigh 2011, 479). Though the Aboriginal Peoples Act (1974) permits the hunting and gathering of minor forest products, access to, use and sale of resources is regulated by the Forestry Act of 1935, which requires traders to acquire licences to purchase or sell forest products. This subsequently situates the Orang Asli in the broader international conservation debate that questions whether Indigenous peoples and conservation areas can coexist (Hames 2007, 185-6). Taken to the extreme, Marcus Colchester notes that advocates of people-free parks have cast Indigenous peoples as “environmental villains” (Colchester 2000, 1365).

In addition to their physical interference to Malaysia’s development, the Orang Asli are still viewed as “culturally inferior and undeveloped” (Cheah 2004, 1), and seen as “lacking a sense of time, place or history” (Gomes 2004). Viewed as “development failures”, the poor social and economic indicators that characterise the Orang Asli as a demographic are emphasised by government officials to be the result of their “own failure to better themselves” (Idrus 2010, 96). Rather than addressing institutional failures, the state views the main factor keeping the Orang Asli living in poverty as a “problem of changing attitudes and inability to accept change” (Cheah 2004, 1).

Subsequently, the Government aims to modernise the Orang Asli way of life to conform to efficient market economies by encouraging participation in modern agriculture, mainly rubber and oil palm plantations. This ”civilising of the margins” (Aiken and Leigh 2011, 473) aims to bring the Orang Asli into the mainstream so that they can fully share in “the rights and advantages enjoyed by other sections of the population” (Dennison 2011, 80).

Dispossession and Politicisation

Thus, since independence, the Orang Asli have been characterised as impediments to Malaysia’s march towards modernisation, dispossessed and marginalised. Having experienced “alien subjugation, domination and exploitation” (Nordin and Witbrodt 2012, 210), they have lost the legitimacy and assurance of any land rights. Forced to resettle without adequate compensation at the will of a state to which they are “denied belonging”, the Orang Asli have become “fugitives in their own country”. The dispossession of the Orang Asli from the modern Malaysian nation-state is both economic and socio-cultural (Ibrahim 1996, 102).

Li argues that “a group’s articulation as tribal or indigenous is not natural or inevitable... [but] is, rather, a positioning which ... emerges through particular patterns of engagement and struggle” (Li 2000, 151, emphasis in original).

Ibrahim likewise notes that “changing historical and material conditions in society” often prompt the “subjugated themselves to move to formulate, articulate and even politically assert their own “truth” and “interpretation”... to offer an alternative to the dominant discourse of the day” (Ibrahim 1996, 101). Nicholas, too, notes that Indigeneity is “a self-reflexive notion, which means that people have to look at themselves from the outside, identify the problems that face them, and understand why an assertion of their identity is a prerequisite for their survival. Ethnic self-affirmation is always related in one way or another to the defence of social or economic interests” (Nicholas 2002).

The previously maintained sentiment among Orang Asli groups of their relative cultural distinctiveness, which had persisted long after the generic label of ‘aboriginal’ had been applied, was recognised. The grievances experienced by the Orang Asli as a result of the external forces at play in the rapidly developing Malaysia acted as a mobilising force for the non-homogenous Orang Asli to forge a common, self-utilised, Indigenous identity that the state had previously applied as a means of control. An attitude among Orang Asli groups of cultural distinctiveness from one another persisted long after a common label of ‘aboriginal’ was externally applied by the state. It was only when their common grievances experienced due to the rapidly modernising Malaysian nation-state became clear that a common Indigenous identity was forged.

Indeed, the changing conditions in the post-colonial Malaysian context and subsequent resource competition between the Orang Asli and Malaysian state prompted a political consciousness of the Orang Asli in which Indigeneity became a unifying factor. From the late 1970s, many Orang Asli organisations and institutions emerged, each claiming to represent their client base and provide a voice for Orang Asli social and economic grievances (Nicholas 2002). At the forefront of these organisations was the Association of Orang Asli of Peninsula Malaysia (POASM). Responses initially involved forms of passive resistance and symbolic opposition from communities and organisations; however, as rapid development continued and private sector and government actions raised the stakes, resistance from the Orang Asli began to enter the legal arena. It is within this context that the Sagong Tasi case took place.

The Sagong Tasi case

In February 1996, the Orang Asli villagers of Bukit Tampoi, in the state of Selangor, were given written notice by the District Land Administrator that ordered them to vacate their land within 14 days to make way for a new highway to Kuala Lumpur International Airport. The villagers were compensated for the loss of fruit trees, crops and building structures but not for the land itself (Idrus 2010, 98).

The area was notably an established 60-year-old Orang Asli village that had already been gazetted as an Orang Asli Reserve Area (Ibrahim 1996, 123). Feeling that the compensation offered was inadequate, the villagers failed to vacate the land. However, following much protest, they were ultimately forcibly evicted in March 1996 (Dennison 2011, 85).

Following their eviction, village leaders made a formal complaint to the Department and the District Land Office. However, they were advised that nothing could be done and that they should accept the compensation offered. Indeed, the Department advised the villagers that they were lucky to receive any compensation and reminded them that they did not have legal ownership of the land and were effectively ‘squatters’ on government land (Idrus 2010, 98).

Having exhausted these channels, the village leaders, with the official representation of the Orang Asli Association of Peninsula Malaysia (POASM) sued the Federal Government, the Selangor State Government, the Malaysian Highway Authority and the highway construction contractor for the forced eviction. The plaintiffs sought affirmation of their customary land ownership and title and a reassertion of their usufructuary land rights. They claimed damages for trespass, illegal eviction and infringement of fiduciary duty, drawing on the common law, statutory law, and the Malaysian Constitution to support their claims (Dennison 2011, 85).

The claimants first supported their assertion of native title based on common law with cases outside of Malaysia, including Australia and Canada, as little precedent existed within Malaysia for native title decisions. Second, the plaintiffs cited the fiduciary duty to protect their welfare, owed to them by the Selangor State Government and the Federal Government according to the Aboriginal Peoples Act and the Constitution, to further demonstrate an infringement of their rights. Third, the claimants cited Article 13 under the Constitution, which declares that compulsory acquisition of land must not be made without adequate compensation (Idrus 2010, 100 – 101). These last demands were crucial, as Article 13 proved inconsistent with the Aboriginal Peoples Act, which does not require the State to compensate for acquired land (Cheah 2004, 12). The claims were thus based on the ‘supremacy’ of the Constitution over the Aboriginal Peoples Act and, correspondingly, on the Orang Asli as Malaysian citizens compared to ‘aboriginal’. The plaintiffs crucially utilised international precedents and frameworks, existing national statutory law, and the Malaysian Constitution (Idrus 2010, 101). The Aboriginal Peoples Act, previously used by the state as a means of control, was utilised by the Orang Asli as a ”human rights statute”, which had the purpose to ”protect and uplift the First Peoples of this country” (Dennison 2011, 82).

In April 2002, in a hearing that lasted three months, the Malaysian High Court, observed that the Orang Asli had been in “continuous and unbroken occupation of their traditional lands” (Dennison 2011, 87) and declared the eviction illegal based on the existence of Native Title at common law. The court also acknowledged a breach of fiduciary duty under the Aboriginal Peoples and Act and the Constitution, and ordered the defendants to pay compensation under statutory law (Cheah 2004, 12).

Sagong Tasi as Self-Definition of Indigenous Identity

The Sagong Tasi case provides a crucial example in the Malaysian context as to how the Orang Asli are utilising discourses and framing conditions, both local and international, to define their identity on their own terms. In her analysis of Indigenous peoples in Indonesia, Li argues that, in their articulation of Indigenous identity, Indigenous groups “situate themselves in relation to the images, discourses, and agendas that others produce for or about them” and “must be ready and able to articulate their identity in terms of a set of characteristics recognized by their allies” (Li 2000, 157). The ideology of Indigeneity, as espoused by the international Indigenous rights movement, helped the Orang Asli involved in Sagong Tasi to “make sense of their situation” and improve it (Li 2000, 163). In Sagong Tasi, the Orang Asli also utilised the same national legal framework that had long limited their rights to redefine their identity and rights as Indigenous peoples and as citizens of the modern Malaysian nation-state (Idrus 2010, 104).  

The reason that the Sagong Tasi case was a success for Orang Asli rights, therefore, was because the plaintiffs effectively validated their claims to Indigenousness by reconfiguring the circumstances that necessitated them in the first place.

Indeed, the utilisation of the legal arena is in and of itself indicative of this. The Bukit Tampoi villagers chose the legal route “because they felt that it was the only way for their voices to be heard ... [and] the only really effective means of engaging with the state” (Idrus 2010, 93). As Idrus states: “This move to law... should not be read just as a moment of resistance against the state, but also a powerful effort to engage the state and articulate a vision of citizenship inclusion and rights” (2010, 93). The framing conditions of the nation-state, that is, impacted not only the shape that Orang Asli self-identification took, but also the means by which they achieved this.

Self-Identification: The issue of choice and representation

This, however, leads to a broader philosophical debate of the existence of ‘real choice’ in the context of Indigenous self-determination (Pearson 2007). The question exists whether Indigenous peoples are truly empowered when they utilise state structures to validate their Indigenous identity or if they are merely participating in the existing relationship of disempowerment whereby they are effectively given a limited range of options or capabilities by their existing social situation (Wootten 2002, 81).  In utilising the legal arena, that is, Indigenous people are overtly affirming state power over “who can claim customary rights and resources”. Indeed, it is for this reason that many Indigenous advocates advise against using state institutions to claim self-determination and rights (Idrus 2010, 92).

Thus, although Sagong Tasi illustrates a case where the Orang Asli demonstrably utilised local and global framing conditions to carve out an identity on their own terms, it is important not to overstate the element of empowerment involved, nor ignore the fact that the means and ultimate shape that their claims took were significantly affected by external factors produced by the state itself.

Whilst the politicisation of the Orang Asli, prompted by their dispossession, continues to encourage resistance to acquisition of their resources by the external actors, the fact remains that the “political, legal and administrative systems of Malaysia have weakened and dissolved the Orang Asli’s traditional political organisation” (Nordin and Witbrodt 2012, 199). The Orang Asli “are too few in number and too politically disorganised to be a significant political force” (Weiss in Aiken and Leigh 2011, 477). Moreover, the JHEOA’s recent 10 point Development Strategy omits the considerations regarding land rights, which suggests that there is little chance that Orang Asli land rights will be recognised under statute in the near future” (Dennison 2011, 80).

Conclusion

The Sagong Tasi case was crucial in two respects. First, it represented a landmark in affirming and validating Orang Asli Indigenous rights in relation to land under Malaysian statutory law and internationally accepted norms. Secondly, it provided a unique opportunity for a group previously allocated an Indigenous identity from external actors to redefine that Indigenous identity on their own terms.

Prior to the case, the identity of the Orang Asli as Indigenous had been constructed and applied externally, beginning with British colonial administration and their policy of protection, and carried forward by the independent Malaysian Government through its policy of assimilation and modernisation. The Orang Asli did not fit comfortably with the national identity formulated by the Government of newly independent Malaysia and further presented a physical impediment to development as conceived by the Government. This led to their alienation and marginalisation from the Malaysian state, prompting a gradual political consciousness amongst the Orang Asli.

Sagong Tasi witnessed a community of Orang Asli harness this political consciousness to take possession of their identity, and to do so within the structure laid out by the successive rulers of Malaysia.

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