ETONG ARMAND BRICE, CONSTITUTIONAL LAW AND NATIVES OF SABAH AND SARAWAK.pdf

Sovereign governments and states do have obligations, rights and responsibilities1 under international and national or municipal laws to protect and promote human rights, principles of equality, non-discrimination, fair and equal treatment before the law regardless of your race, belief, political status, including ethnic, and cultural as well as linguistic minority groups. Under Article 160A (6) of the Federal Constitution of Malaysia the term “native” means— 135 (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 and under Article 160, the concept “Malay” means 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. Moreover, under Article160 (2) the term “Aborigine” means an aborigine of the Malay Peninsula” so, the ethnic label Orang Asli2 meaning “natural people” in Malay replaced the term “ aborigines” used by the British Colonial Administration. Orang Asli refers to the native peoples3 of peninsular Malaysia who are not Malay Muslims, Malaysia’s main ethnic group and conventionally are divided into eighteen ethno-linguistic subgroups4 . They appear to be the most vulnerable and disempowered groups of people since they have been either socially and politically excluded or marginalized historically5 speaking and as a result of that they do need a significant protection and contribution and support from the Government with regard to the recognition, protection and management of their native customary lands6 or rights as well as proprietary interests. Firstly, this paper will critically explore through a qualitative analysis some constitutional rights7 of aboriginal people of Malaysia as basis of their claims, rights and duties. Secondly, it will examine how some judicial decisions or case laws played a key role in shaping and changing the way native customary rights are perceived and understood today with respect to the right to land, property etc. Finally, it will highlight some challenges faced by the Orang Asli despite some improvements.