To protect the Orang Aslis, the Malaysian Government sued... itself?

Note: This article was originally written in July 2019, and updated in June 2021.

As Malaysians, most of us love durian but did you know that your love for durians may be depriving the Orang Asli of their customary land (Tanah adat)? In case you haven’t heard about the thorny dispute between a durian plantation company and the Temiar Orang Asli tribe, here’s a brief background.

The tribe has been fighting against commercialised logging and land encroachment for 7 years involving the durian plantation company. Until this year, when the Federal Government decided to step in to sue the Kelantan State Government due to the loopholes in their laws that don't protect the Orang Asli communities in Kelantan. 

The requirement for State Governments to protect their indigenous peoples actually came from an earlier lawsuit that happened in 2002, where the Selangor government lost a suit against the Temuan tribe for trespassing their customary land. This became a landmark case that is still referenced till today within Malaysian courts. We’ll briefly cover the details at the end of this article, but let’s start with the case of the Temiar tribe and the durian company...

It started when the durian company sued the Temiars

For many years, the Temiar community in Kelantan has had their way of life interrupted by loggers, who often encroach on their land. After putting up with these practices for a while, the straw that broke the camel’s back was a project by a company called M7 Plantation Berhad, a company setting up a “Durian Valley” project in Gua Musang, Kelantan. 

The Temiar tribe in Pos Belatim, Kelantan started setting up blockades to stop logging companies from encroaching their land, even at the cost of preventing their own villagers from getting access to clean water or urgent medical care. This blockade got quite a lot of media coverage, and that coverage only increased when M7 Plantation Berhad started tearing it down.

Not just that, the company also sued the Chairman of the Jaringan Kampung Orang Asli Kelantan for illegally putting up the blockade. According to M7 Plantation, they had a permit from the Land Use Permit granted to them from the Kelantan government in 2008.

However, their suit was thrown out by the High Court of Kota Bharu based on technicalities. M7 Plantation Berhad failed to bring forth proof that the Kelantan Government or its agents gave them permit to conduct any kind of commercial activity, including logging or planting durian trees. With that judgment, the Temiar Orang Asli had won the case and they’re now legally allowed to put up the barricade to stop loggers from coming in.

But this wasn’t the only result from the lawsuit. The attention given to this case highlighted a loophole in the Kelantan State Laws that didn’t recognize customary land rights for the Orang Asli of Kelantan. The Federal Government took notice and….

The Federal Government decided to sue the Kelantan government

The durian lawsuit brought to light that Kelantan does not have any customary rights for their natives. This makes it hard for the Orang Asli living there to establish any legal rights over their customary land as there aren't any to begin with. 

“In Kelantan customary land for Orang Asli does not exist. It is not found in the state land laws and it has never been gazetted as such” said by PAS Secretary- General, Takiyuddin Hassan to Free Malaysia Today.

Earlier this year, the Federal government has decided to file a suit against the Kelantan government for failing to recognise customary land rights for the Temiar tribe and other aborigines within their state.

So as a brief explaination, there are actually two governments in Malaysia:

• State Government (Dewan Undangan Negeri) – Creates and enforces laws within a particular state
• Federal Government – Creates and enforces laws for the entire country

The Federal Government has the power to make and govern laws made under the Parliament whereas the State has power over laws made during Legislative Assemblies. The Federal Government’s powers or decision can most definitely affect the State government if there are many discrepancies found in any State laws because the Federal government has bigger law making powers as compared to the State Government.  

So when the Federal Government took the Kelantan Government to court, it was, in a way, suing itself. But why can’t the Federal Government just force the Kelantan government to change their laws instead of suing them?

Well, they can technically ask the State Government to come up with a law that protected the Orang Asli, but it would take some time – meaning that the Temiar community could face another trespassing issue in the near future. According to Attorney-General Tommy Thomas (who filed the lawsuit), the purpose of the lawsuit was to give legal recognition of the Temiar’s land rights. and to provide an injunction (a legal order to stop something) to prevent other parties from trespassing on their land in the future…until Kelantan fixes the loophole. 

The Kelantan State government is looking to strike out the suit and the hearing would be held on the 21^st of July 2019.  

Update on 3 June 2021: The Court of Appeal has ruled that the Federal Government has no legal standing to sue on behalf of the Temiar Orang Asli. The judge stated there are no provisions in the Federal Constitution that allowed the Federal Government to do so. However, there is nothing stopping the Temiar tribe from suing the Kelantan government.

But before this case happened, there was another influential case where the Temuan tribe sued the Selangor government.

In 2002, The Temuan tribe went up against the Selangor government 

Just to prevent any confusion, our earlier points were about the Temiar tribe in Kelantan. This point is about the Temuan tribe in Selangor.

It all started when the Selangor State government encroached onto the Temuan tribe land to build the Nilai-KLIA highway that links to the Kuala Lumpur International Airport. They were told to vacate within 14 days and any retaliation would result in them being forcibly removed. Many of the tribesmen’s crops and dwellings were destroyed and they were paid compensation for the destruction.

But here’s the thing, while they were paid for their destroyed crops and homes, they weren’t actually paid for the land itself.

The Selangor authorities insisted that the Temuan has no legal right over the land even though they’ve been living there for over a century. The Temuan disagreed and, with the help of the Centre for Orang Asli Concerns and the Bar Council, got a team of lawyers to represent them on a pro-bono basis and sued the Selangor State Government.

Without going into every detail of the case, the main point of contention came down to two laws – The Land Acquisition Act 1960 and the Federal Constitution. 

Essentially, the problem faced by the Temuan was that they weren’t able to actually prove that the land belonged to them; since it was just passed down over the generations according to their customs. This is commonly referred to as ‘customary land’. However, the Land Acquisition Act actually included customary land in their definition for ‘land’. 

Section 2 of the Land Acquisition Act 1960 (in part) 

2 (1) In this Act, unless the context otherwise requires- 

Additionally, Article 13 of the Federal Constitution states that no person should ever be deprived of their own property and any deprivation of land should be compensated.

Article 13 of the Federal Constitution (right to property) 

So to cut a long story short, both these laws ‘proved’ that the land taken by the Selangor Government was actually Temuan land, and that they should be compensated for it. TL;DR…. they won.

This was the first case in which the Orang Asli sued the (state) government over the encroachment of their land, and became a landmark case used as a reference for future customary land encroachment cases… like the Temiar in Kelantan.