That is exactly the situation with the Malay Reserve land issue as practiced by the government. We are yet to secure a ‘Malaysian' government because a truly genuine Malaysian government would aspire for equality (Article 8, federal constitution) for all Malaysians. That has not happened yet, and may remain a cliché unless post-GE13 ushers in a tsunami of change.
Section 7(2) of the Aboriginal Peoples Act 1954 (Act 134) of Malaysia states, unequivocally, that "within an aboriginal reserve, no land shall be declared a Malay reservation under any written law relating to Malay Reservations."
The whole of the Malay archipelago is an aboriginal reserve which rightfully, legally, lawfully and legitimately, belongs to the 18 Orang Asli tribes with the sufficiency of a literal reading of this subsection. I wonder if the Orang Asli realise the import of these words.
They have a legitimate claim to the entire archipelago if they take it to the Indigenous Peoples Forum of the United Nations' World Court. I will be more than willing to prosecute the case with my Native American credentials if they choose to redeem their land by petitioning the World Court.
My only prayer is that the Delphic oracle of the de facto law minister does not get any ideas to amend or repeal Act 134. Maybe the wise editors of Malaysiakini will choose to strike out this paragraph.
To lay some historical foundation, the Malays were also arrivals from the general area of Melanesia about the time Admiral Zheng Ho was sailing and exploring the South China Sea, the Indian Ocean, and the vicinity of the Cape of Good Hope circa 1400 AD.
The detail-oriented admiral's findings, reports, opinions and observations are available in the Beijing Archives, Peoples Republic of China, for study, reflection, and analysis. I have never believed in history books. I have invariably, and always, gone to the source.
The Malays hail from Celebes, or Sulawesi, the ancestral homeland of our second prime minister; the Rhio islands where the Johor sultanate germinated and originated; and the Majapahit Empire of Indonesia whose Parameswara set up the first of its kind sultanate in Malacca. There was also a strong Sulu influence.
The land they set foot upon has always been the ancestral soil and land of the Orang Asli regardless of the alien who came, staked a claim, acquired permanent guest status, and then justified the legislatively endorsed taking of land belonging to another with the intention of permanently depriving the other of it..
The Malay archipelago was then known as the Golden Chersonese, according to the ancient Chinese annals. Fate played a hand, and upon Marco Polo's return to Europe, he produced a significant amount of intelligence reports about the vast Far East. Today, he would be charged with economic espionage.
And then came Columbus, Vasco da Gama, Drake, Vespucci, Diaz, Magellan and Cook, who diligently studied Marco Polo's maps, charts and notes. By the time the Portuguese and Dutch decided to leave the Golden Chersonese, the British found a stronghold in Penang and Temasek (Singapore).
The Malay chieftains had by this time assumed the title of sultans with their usual coterie and entourage of palace hands, hangers on, and other support staff. The sultans' lineage came from warriors who dared to make a difference by sheer might - potestas gladii.
The land obviously became theirs to own, occupy and keep because the Orang Asli were seen to be primitive, uncouth, unkempt, unholy, unreliable, and simply deemed savages. What the Orang Asli thought about these sultans and their people is evidenced in entertaining dinner stories when recited by their tribal elders to the young.
Oral history has played a great part in their "primitive" annals. This is true with native Americans as well, often mistaken as "American Indians." Columbus thought he had arrived in India. Could be a transplant from Melanesia for having misread his charts.
Article 8(5)(c) of the federal constitution provides a constitutional mooring to the inalienable rights of the Orang Asli which the Reid Commission decided not to mess with as this would bring the wrath of the world body (United Nations). Indigenous Peoples rights were made sacrosanct with the Universal Declaration of Human Rights of 1948.
The Reid Commission was very well aware of the manner in which land rights were slowly, subtly, surely, and surreptitiously expropriated from the Orang Asli. The key phrase in Article 8(5)(c) is "including the reservation of land."
Malay Reserve is a late addition and an addendum to the intent, content, extent, scope, scale and effect of the ancient doctrine of usucapio, a Latin maxim of law meaning ownership due to lengthened possession.
Lengthened possession is aboriginal right to customary native title which none of our courts even bothered to explain in the Sagong Tasi v Kerajaan Negeri Selangor, or the Nor Nyawai v Borneo Plantations Sdn Bhd & Ors cases.
English law entrenched the Latin doctrine usucapio constituta est ut aliquis litium finis - usucapion was instituted that there might be an end of lawsuits. In light of this aphorism, it is time the 18 Orang Asli tribes of Malaysia reclaim and redeem all their land without recourse to litigation.
The seminal decision in the 1982 Mabo case in Australia was decided on the basis of ancient aboriginal occupancy, but usucapio was not mentioned for obvious reasons. Lawyers for the Northern Territories and Torres Straits defendants advanced the ‘terra nullius' argument, meaning no man's land. Ah, but, the aboriginals were already there when the first convicts arrived. Game over.
The government ought to begin by paying the Orang Asli rent (usufructus) for every highway, byway, freeway, golf course, hospital, house, istana, school, club, padang, ladang, soccer field, cemetery, factory, airport, hotel, motel, mine, quarry, and other amenities and facilities built on their land.
The British government has to take responsibility for entrenching the Orang Asli rights in the applicable Malaysian laws since they drafted, crafted, and authored them.
Original landowners sidelined
In the Sabah and Sarawak scenario, the 18-Points and 20-Points garbage dished out to Malaysians by the Cobbold Commission is nothing but a whitewashing - no pun intended - exercise aimed at distorting the truth as to whether the people of North Borneo and Sarawak were contacted or consulted.
Those were just talking points used for discussions between the Cobbold commissioners, some selected politicians, and ketua kampongs who were cursorily consulted. Westminster was swift and sure with its Letters Patent and the Orders in Council.
Mustapha Harun, a Sulu prince and faithful lapdog to Tunku Abdul Rahman was the self-appointed voice of the people of British North Borneo when he served as governor, and later as chief minister of Sabah. The rest is history.
Sarawak's remaining vestiges of the Brooke family saw to it that the genuine voice of the Sarawakians regarding Malaysia was swiftly subdued by a pro-Malaysia pro-British stance.
The Bruneians could not be shaken or stirred because the British eyed their oil and gas reserves for future security of their coffers. Singapore waited it out and extracted itself out of the Federation 1965 by the clever and cunning tactician and contractarian Lee Kuan Yew.
The Malaysian government has sidelined and marginalised the original landowners as well as others who contributed to its economic miracles. Is justice available for them, or will they be relegated to an ineffective and seldom invoked and evoked law to safeguard their lasting rights?
Post-GE13 may furnish the answers and solutions. Maybe it is time we had a constitutional court in the new Malaysia. Maybe its time our judiciary had its own police force outside the control of the executive. Maybe the Agong has to invoke and evoke his Article 39 rights under the federal constitution. Maybe we need to re-think all these measures.
JUDGE NAVIN-CHANDRA NAIDU is a lawyer based in Utah, United States.