Occupying ancestral land proof enough of Orang Asli rights, says ex-judge

Retired judge Gopal Sri Ram says the Orang Asli must be adequately compensated if the state acquires their land. (Bernama pic)

PETALING JAYA: A retired judge says the Orang Asli community in the peninsula need not produce a title to prove their right to their ancestral land, in the wake of a landmark move by the federal government to sue Kelantan over encroachments on native land rights.

Gopal Sri Ram said the Orang Asli would have acquired a customary title to the land merely by cultivating, hunting and living in the areas.

“Occupying the land for generations is a strong and almost irrefutable presumption that they hold the title,” he told FMT.

In the suit filed at the Kota Bharu High Court last weekend, the federal government named the Kelantan government, the state director of land and mines, the state director of the forestry department, a cooperative and four private entities.

Attorney-General Tommy Thomas said the government was instituting legal proceedings on behalf of the Temiar Orang Asli in Pos Simpor, near Gua Musang, as the state had breached its legal and constitutional duty to protect them.

However, Kelantan Deputy Menteri Besar Mohd Amar Abdullah said the Orang Asli in the state only owned land that had been alienated by the state government.

“The Orang Asli do not own any land except for the land awarded by the state government,” he said in an immediate reaction to the suit.

But Sri Ram, who returned to practice after retiring as a judge, said the state had misunderstood the law by believing that it owned all the land under the National Land Code 1965.

“In my respectful view, the state has unlawfully deprived the Orang Asli of their ancestral land, and it is time for this right to be restored,” he said.

Sri Ram had been on the two three-member Court of Appeal panels which decided on the land rights of the Orang Asli in the landmark cases of 1997 and 2005.

He said the Federal Constitution, National Land Code, Land Acquisition Act 1960 and Aboriginal Peoples Act 1954 were also in favour of the Orang Asli.

He acknowledged that the authorities could acquire their land, but stressed that they must receive adequate compensation.

“Otherwise, this would be a violation of their right to their property under Article 13 (2),” he said.

In the 2005 case of Selangor v Sagong Tasi and others, Sri Ram, who delivered the judgment, said the Temuan tribe had native title rights over their customary lands.

He said although the radical title to land was vested in the state authorities, this did not bar the Orang Asli from acquiring a customary community title of a permanent nature.

“The precise nature of such a customary title depends on the practice and usage of land by each individual community, to be decided by the trial judge,” he said.

He added that the Aboriginal Peoples Act, a human rights statute, was enacted to protect and uplift the indigenous people in the country.

“It acquires a quasi-constitutional status, giving it pre-eminence over ordinary legislation,” he said. “It must therefore receive a broad and liberal interpretation.”

Meanwhile, lawyer Syed Iskandar Syed Jaafar Al Mahdzar said the legal battle between Putrajaya and the Kelantan government could end up in the Federal Court as the parties would ask the judges to interpret the constitution and all related federal laws.

“Such an outcome would help demarcate clearly the rights and liabilities of state governments towards the aborigines,” he said. - FMT