Press statement by Kua Kia Soong SUARAM Adviser 26 October 2019

Prime Minister Tun Dr Mahathir Mohamad has been quoted as saying: “It hurts me to think in their own country, the indigenous people are not supposed to have their own gatherings without being accused of being racist,” he said. He further said that the “indigenous people in Malaysia”, referring to the Malays, had “shown tolerance” when people of different ethnic groups held such gatherings, and they had been accepted as normal. He was of course referring to the recent Malay Dignity Conference at which he delivered a keynote address.

Malaysians are (unfortunately) used to such unabashed racialist gatherings by Malay supremacists by now. But what is new is Dr. Mahathir’s reference to the Malays as the “indigenous people of Malaysia”. This is a new interpretation and another attempt at misreading the Federal Constitution. It has been pointed out often enough that our Constitution makes no reference to the so-called “social contract” nor the terms “Bumiputera” or “special rights”.  

In marked contrast to these assertions, Article 153 (1) merely refers to “…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.”

Who is a Malay?

Does the Federal Constitution define the Malays as the “indigenous people of Malaysia”? It most certainly does not. A Malay is defined in Article 160 (2) as:

“…a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and –

(a)    Was before Merdeka Day born in the Federation or in Singapore or born of parents one of whom was born in the Federation or in Singapore, or is on that day domiciled in the Federation or in Singapore; or

(b)    Is the issue of such a person.”

Elsewhere in the same Article of the Constitution, the indigenous people of the Malay Peninsula, the Orang Asli are defined as:

“Aborigine means an aborigine of the Malay Peninsula.”

Who is a Native of Sabah and Sarawak?

Under Article 161A (6), “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 who is a citizen, is the child or grandchild 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.

Indigenous Peoples defined by the UN

The UN Department of Economic and Social Affairs for Indigenous Peoples defines indigenous peoples thus:

“Indigenous peoples are inheritors and practitioners of unique cultures and ways of relating to people and the environment. They have retained social, cultural, economic and political characteristics that are distinct from those of the dominant societies in which they live. Despite their cultural differences, indigenous peoples from around the world share common problems related to the protection of their rights as distinct peoples…Indigenous peoples have sought recognition of their identities, way of life and their right to traditional lands, territories and natural resources for years, yet throughout history, their rights have always been violated. Indigenous peoples today, are arguably among the most disadvantaged and vulnerable groups of people in the world. The international community now recognizes that special measures are required to protect their rights and maintain their distinct cultures and way of life…”

The Orang Asli are the indigenous peoples of the Peninsula  

From the definition by the UN, it is clear that the Orang Asli are the indigenous peoples of the peninsula but nowhere in our Federal Constitution is their “special position” recognised. Today, they are the most marginalised and malnourished community in the country struggling to exist without the recognition of the native customary land rights they deserve. Indigenous peoples’ Native Customary Rights (NCR) lands are constantly violated by the government and private companies through land-grabbing or illegal encroachment. These barbaric actions continue to displace the rightful indigenous stewards of the land from their access to traditional hunting and cultivation areas and too often from their ancestral burial grounds as in the Bakun Dam and Sungai Selangor dam projects. This was corroborated by National Human Rights Commission SUHAKAM in 2017 in a statement which criticised:

“…the slow progress in the undertaking of actions by the Cabinet Committee [set up by the government in 2015, for the Land Rights of Indigenous Peoples] which has resulted in continuous human rights violations of the Indigenous Peoples, especially the encroachment into their native land by developers.”

Thus, the Prime Minister should be more sanguine and careful in his reference to the peoples he governs in this country. Referring to the Malays as the indigenous people of the peninsula is grossly erroneous and factually incorrect. 

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