It intervenes in matters of health, housing, education, agricultural services, and forest policy ; the ultimate aim is to integrate the Orang Asli and encourage them to settle while in theory respecting their desire to maintain their own cultural traditions.
This department is part of the Ministry of Home Affairs and was created in 1954 (under British mandate) ; its powers and functions were defined by the Aboriginal Peoples Ordinance of 1954, published in 1961.
Most of the document is about agricultural and forest policies. Hunting and gathering are only taken into consideration in so much as their practice does not clash with forest policies. Swidden cultivation is discussed in terms of permanent agriculture (gardens, rubber).
The main articles regarding land are :
* "The aborigines shall be allowed to retain their own customs,
political system, laws and institutions when they are not incompatible with
the national legal system."
* This allows for crime repression by state authority.
* Rights of land use : "Every effort will be made to encourage the more
developed groups to adopt a settled way of life and thus to bring them
economically into line with other communities in this country. Aborigines will
not be moved from their traditional areas without their full consent."
* In short, this law suggests a policy of gradual change for the majority of Orang Asli. 'Natural integration' is a euphemism as since it also implies converting to Islam.
Development is defined as 'growth plus change' and implies economic improvement through the development of land and commercial networks, plus the availability of social services at standards similar to those provided at a national level.
But the Orang Asli are not a homogeneous group (semi-nomads, swidden cultivators, coastal and island populations). For groups living in the more remote areas, only minimum services (health, education) are provided. For those living in more easily accessible areas, a 'comprehensive approach' is being followed.
For swidden cultivators, the policy is to alter rather than reject their agricultural system by introducing new food and cash crops together with new techniques. The pattern for the three states of Pahang, Perak, and Kelantan is of 10 acres for cash crops and 2 acres for subsistence crops per family, but it is not applied systematically.
Integration soon becomes assimilation, and more specifically assimilation of Malayo-Muslim values. In this perspective, it is difficult to see how the Orang Asli could possibly represent a precious and unique part of Malay culture requiring encouragement and respect in present policies and within the administrative system.
But nowadays the recent loss of forested land has forced many Orang Asli communities to have permanent economic relationships with local Malays and Chinese. The JHEOA does very little to protect them.
Strong criticism has been vented against the JHEOA because all the money seems to go towards paying the salaries of Malay administrators and not towards helping the Orang Asli. The role of the JHEOA is seriously questioned today.
The Orang Asli are classed as Bumiputera, 'sons of the land', with the Malays, but are defined as aborigines : their community, ethnic group (within the state and not the federal government), location, language, racial group (one of the three Negritos, Senoi and Proto-Malay), and the reserves, are all defined as aboriginal.
The second reference (art. 160) specifies that 'aborigine' refers to an aborigine of Peninsular Malaysia.
This same article defines 'Malay' as any person who professes Islam, speaks Malay, lives according to Malay traditions, is born within the Federation before Merdeka Day, and has at least one parent who was born in the Federation.
* One can only conclude that 'Orang Asli' is not equivalent to 'Malay'.
Unlike the indigenous populations of Sarawak (but not of Sabah) who are referred to by their tribal names in the Constitution.
* This implies that, in the Constitution, the Orang Asli of Peninsular Malaysia have no special privileges or protection, no clause enabling them to take their future into their own hands.
In the Malay Constitution, amended in july 1985, the Orang Asli are referred to twice (art. 8) : equality of all before the law.
* Despite this general clause, the article does not have a specific clause for the protection, well-being, or progress of the aboriginal populations of Peninsular Malaysia (including their access to land) or requiring that a reasonable proportion of public service jobs be reserved for aborigines.
From 1986 onwards, the Orang Asli status was linked to language as much as to way of life : one remains Orang Asli after converting to Islam if one continues to speak an Orang Asli language (instead of Malay).
Official texts assume that each group has a spokesman or headman.
* This is far from being the case in these highly egalitarian societies.
* To conclude, their position before the law is very unsatisfactory
even if their status has changed.
These populations are colonized, in the sense that they are at a disadvantage and discriminated against : for the Malays, they are wild creatures closer to jungle beasts than human beings, and this justified hunting them down and reducing them to slavery. Today these groups are only just beginning to develop an awareness of the concept of community.
The Orang Asli are hardly mentioned in political debates. Under British rule, they were protected, but since the JHEOA has been in the hands of the Malay, they are under a lot of pressure to adapt to and adopt the life-style of the dominant Malay population. Attempts to islamize them have lead them to convert to Christianity, hence the brutal destruction of churches despite constitutional freedom of religion.
Land rights are ruled by the National Land Code (ndeg.56/1965). This Code establishes a uniform system of tenure within which the right of land is dependent on gazetting.
* According to the Constitution, land issues are under State authority
though the Federation has the power to legislate so as to implement common
policies and administration.
* National land policy is formulated by the National Land
Council (art. 91 - Federal Constitution) and its policies bind the various
state governments, but the relationship between state and federal authorities
regarding land is a complicated one in constitutional terms.
Other than the National Land Code, the following legislations are important :
a) Land (Group Settlement Areas, Act of 1960)
Its aim is to enable the state to declare 'virgin land' to be a group settlement area in which 8 to 10 acres of land are given to landless sedentary people so that they may develop it under FELDA control. Repayment covers a period of fifteen years, at the end of which title deeds are issued to the settler.
b) The National Land Rehabilitation and Consolidation Authority Act (FELDA act, 1960)
It rehabilitates and develops abandoned land, but does not have the power to group together fragmented lots.
c) The Land Acquisition Act (ndeg.34/1960)
It gives power to the state government to acquire private land for public purposes, including agricultural development.
* In other words, the government can acquire private land by force and declare it an Orang Asli reserve or aboriginal territory, but the federal department's agency can go against this decision.
In fact, no Orang Asli as such has any title to land. The closest to it is permission to occupy an area or reserve land, and even when the Orang Asli get payed compensation money for the disturbance due to the occupation of the land by the settlers, it is under JHEOA control.
Land intended for colonization is generally 'owned' by the state governments or acquired by them.The state is the landowner while the agency (FELDA, RISDA, FELCRA) is the manager, taking on the development of the land (building roads, clearing, laying out the plots, starting cash crops such as hevea and oil palm trees, setting up housing). The settler undertakes to reimburse the cost of clearing, planting and housing within 15 years (usually).
These settlers are really only agricultural labourers. They are in a very precarious situation, especially as far as their rights over the land are concerned.
In fact, it is the state authorities and not the federal state that can create aborigine reserves.
The Aboriginal Peoples Ordinance (1954, published in 1961) defines the areas and the resources.
There are several types of areas :
- aboriginal areas (SS 6) : exclusively or mainly inhabited by aborigines, these are not reserves ; they are divided into aboriginal cantons, but are considered to be occupied only temporarily.
They cannot be declared Malay reservations, wild bird or animal reserves, they cannot be given to anyone but another aborigine without consulting the Commissioner. Only resident aborigines may collect forest produce without permission from the Commissioner.
- aboriginal reserves (SS 7) can be within aboriginal areas and are a permanent occupation of the land.
The same restrictions apply as in SS 6, with one major difference : on no account can the land be occupied temporarily.
* In other words, aboriginal area can be occupied but by whom is not specified, whereas reserve land cannot be occupied. As far as the Orang Asli are concerned, not only is land tenure precarious, but even the Aboriginal Peoples Act does not provide a guarantee for their occupation of the land.
- malay reservations, in the 1985 Constitution (art. 89). The government, or any state, may legally acquire land to settle Malays or other communities.
* In this Article, 'Malay reservations' implies 'land reserved for alienation to Malays or to natives of the state in which it lies'. And 'Malay' means a person who, according to local state legislation, is treated as a Malay in matters of land reservation. Therefore, if intending to reserve land, an Orang Asli can be 'Malay' and there are examples of this in the states of Kelantan, Perlis, and on the Kedah Malay reserve.
- land transaction (SS 9) : aborigines have no rights allowing them to engage in land transactions without permission from the Commissioner.
* Texts on alienation define land-holding in terms that do not mention concepts of land occupation and use by the Orang Asli.
- residence (SS 10) of aboriginal communities on Malay reservations, or on forest or game reserves is ruled by state legislation ; the state government can request that they leave giving them compensation.
* An important fact is that laws on Malay reservations can be altered and apply to an Orang Asli community, and that Orang Asli people may continue to reside on the land under specific conditions dictated by the state authorities.
- rights of aboriginal communities over fruit or rubber trees (SS 11) on alienated, granted or leased land are recognized by state authorities and compensation may be payed if their claim is valid.
(Alienation means the disposal of state land in perpetuity or for a term of 10 years' (HOOKER, 1990))
The best type of area for settled Orang Asli is that defined by the rights given them under the 1960 Land (Group Settlement Areas) Act, i.e. a system controlled by the FELDA and other state agencies. Some Orang Asli are already involved, but it is essential that all participants in the scheme should understand that after 15 years they will receive a freehold title, and their land then falls under the National Land Code which includes these alienation rules.
Section 16 in this code is important : it forbids distribution of the land between the heirs when the landowner dies so as to avoid fragmentation, and it assigns the land to a single holder who must then pay compensation to the other beneficiaries.
* It is often difficult for a single holder to raise that much money. Joint alienation is prohibited and problems arise when someone dies. Present legislation has no particular clause dealing with the devolution of land held under the Land Act. As far as the Orang Asli are concerned, existing plantation schemes bear similar characteristics and problems, but the advantage here is that they will not have to repay the costs of development.
This brings us to a crucial issue : land that has been cultivated and alienated takes on commercial value. In accordance with the National Land Code, land may be sold, contracted, or bequeathed. The problem is to retain the land in Orang Asli hands for several generations.
A new alternative was put forward by the FELDA and examined by the National Land Council (1990).
At present, resettlement schemes produce individual holdings. FELDA suggests instead setting up a system whereby land would be allocated with shares in proportion to the land area involved in the scheme (15 years), once the costs originally covered by FELDA have been reimbursed. The Orang Asli would receive a title though for the plot on which their house stands, but arable land would be part of the holding gazetted under the name of the settlers' cooperative of which FELDA would be manager.
The idea is to introduce modern state management. This alternative appears to be worthwhile for the Orang Asli.