Prof: Respect indigenous land rights
Published on: Wednesday, February 27, 2019
By: David Thien
KOTA KINABALU: Director of the Centre for Malaysian Indigenous Studies Dr Ramy Bulan (pic) called on the Federal and State governments to respect, recognise and honour indigenous land rights.
A member of Sarawak’s Kelabit community, she was born in Bario and is now a Professor of Law at the University of Malaya.
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“Indigenous land rights are sourced in natural law, indigenous legal traditions, common law as well as written law.
“The definition of law in the Malaysian Constitution envisages plural sources of law and legal system that is potentially a perfect crucible for the elaboration, expansion and contextual enlargement of native rights,” she said.
“And in tandem with the emergence of international jurisprudence on indigenous rights, a resurgence of customary laws couched in international human rights law, the Malaysian courts have been the vanguard of recognition of native rights.
“However, recent Federal Court rulings in Sarawak underscores the degree of unpredictability in judicial conceptualisation and protection of native rights through the civil courts,” Dr Ramy said.
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She regretted that in a few significant cases, the Sarawak Government responded by amending legislation to counter the effects of judicial decisions, and in the process, further limiting the content and entitlement to customary lands.
“Recent rulings have also highlighted the weaknesses in legal and procedural safeguards for certain models of development of native lands, revealing the absurd consequence and injustice that arises from total dependence on written law as the sole and ultimate source of native land rights.”
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Dr Ramy was Regional Coordinator of the National Working Group for the Forest Stewardship Council.
With a PhD on traditional land rights in Sarawak, she continues to research and advocate for Indigenous land rights both nationally and internationally such as under the UN Declaration on the Rights of Indigenous Peoples.
She presented a paper entitled: ‘The Law of the Land: Securing Indigenous Land Rights through Multi-Juridicalism’ at the recent Borneo Rainforest Law Conference 2019.
Dr Ramy evaluated at length the effect of legislative amendments, and the exactitude of recent Federal Court’s contextualisation of indigenous legal traditions with regards to indigenous collective, territorial conception of land and argued that a multi-juridical approach is not only a moral but equitable approach which guarantees fairness and justice under the Constitution.
However, Malaysia’s reluctance to ratify the UN treaty against racial discrimination or the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) amid intense pressure from Malays, who claim it would jeopardise controversial race-based affirmative action policies that benefit them, only shows the government’s priority for the Malay Agenda over other indigenous minorities.
Unlike, say, Canada a Commonwealth country, where there is increasing acknowledgment that Canada is a multi-juridical country as various tribal judges have called for practical and respectful ways to engage with indigenous legal traditions in an ongoing way with indigenous people for reasoning through legal problems and the issues that indigenous communities are struggling with.
Like other laws, indigenous laws are about citizenship, governance, managing conflict and providing tools for challenging power imbalances, and interacting with other peoples beyond one’s own society.
A robust engagement with indigenous laws includes making these laws more accessible, understandable and applicable today, considering law’s legitimacy and authority, how law changes over time, and the ways in which law is about relationships.
This work can and should reinvigorate deliberative traditions and respectful debate between and within indigenous communities.
Afterall, indigenous peoples were and are reasoning people with reasonable social and legal orders. Last September, the Prime Minister had told the UN General Assembly that Malaysia would ratify all outstanding human rights conventions.
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Opposition leader Datuk Seri Zahid Hamidi warned the Malay community would “run amok” if the treaty was ratified, echoing earlier remarks by the leader of the Malaysian Islamic Party, Abdul Hadi Awang, who warned of millions of people taking to the streets.
Malaysia has only ratified three of nine core UN rights conventions: The Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Convention on the Rights of Persons with Disabilities.