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March 30, 2010

Adat and Human Rights in Sarawak

Adat and Human Rights in Sarawak

Prior to the Brooke rule and subsequent colonial administration, the indigenouscommunities, particularly the Dayak groups of Sarawak, were governed by their own respective adat. Over time, this adat has been forcibly changed into a homogenous statebased institution, thereby eliminating its uniqueness to the particular indigenous community. Among other functions, the adat is used by Sarawak’s indigenous communities to claim rights over land, forest resources and their livelihood. The failure to understand the importance of adat to pre-colonial Dayak indigenous communities of Sarawak would render the discourse on human rights futile

Clifford Sather said that adat:

“[…] covers all of the various customary norms, jural rules, ritual interdictions and injunctions that guide an individual’s conduct,and the sanctions and forms of redress by which these norms and rules are upheld…these rules apply to virtually all spheres of human life, social, economic, religious and political.”3

In this sense, adat is an all-encompassing institution that presides over activities such as marriages, religious festivals, death and mourning, childbirth, dance and music,construction of new longhouses, and even traditional past-times such as music and weaving. 

It is also important to note that unlike the Malay notion of adat, the concept of adapt among many Dayak communities of Sarawak is not distinct from religious rituals and practices. It is one and the same thing. According to Ter Haar (1948), the adat is not restricted to what we commonly regard as “customary law”.4 The concept of adapt mentioned in this report is not restricted to the notion of adat as law or rules. Because the adat resembles the generic concept of ‘customs’, it includes all the activities people customarily practise in their society. It also covers the individual’s behavior and personal habits, whether he/she is practising good or bad adat.

Generally, the function of the adat is to ensure harmonious relationship among members within the community and also maintain the general state of wellbeing with the spirit world. Breaching this adat would risk a breakdown in social relationship which is punishable in both the secular and spiritual senses.

The adat and state formation

Before Sarawak came under colonial rule, the indigenous communities did not define their social identities based on ‘ethnicity’ as we understand it today (e.g. Iban, Bidayuh, Kayan). Their social identities were defined by their geographical space, such as people belonging a particular river tributary, hill/mountain or watershed areas. Their social loyalty was based on these geographical spaces and its own kinship system. As such,each community living within a specific geographical space would be governed by its own unique adat

However, with the formation of the state that began with the Brooke administration, the adat – as a concept and its traditional functions – was changed to fit the requirements of the state constitution. The evolution of the adat from its unique traditional form to its constitutional profile today is primarily caused by the adoption of the values of thecolonial and post-colonial governments.

When the Brooke administration began to strengthen its grip on Sarawak in the mid-19th century, the structure of the adat was altered and it was constituted as ‘customary law’.For instance, during the Brooke administration the Iban tunggu (fines) according to the adat were systematised and assigned monetary values. Also, they introduced courts to replace the Iban bechara (hearing) that was usually carried out in a longhouse ruai (verandah) and witnessed by the longhouse inhabitants.These new colonial practices, in replacing the traditional adat, eventually spread to all the indigenous communities in Sarawak.

The adat then became an institution sanctioned by the state. The adat at the local level is administered by the Penghulu or chiefs who receive a salary from the state. Clifford Sather said that due to this ruling and the replacement of traditional adat by the state, the Brookes began to eliminate some aspects of the adat that seemed negative or morally bad by their standards. These included the death penalty for incest, forcible seizure of property, slavery and headhunting. What is left of the adat now is akin to the precious antique collections stored in a government-run institution at the Majlis Adat Istiadat, under the umbrella of the Sarawak Chief Minister’s Office.

Alteration of the adat inevitably affected land use system as well. The Land Order in Sarawak was first introduced in 1863, changed in 1920, and amended to what we know today as the Sarawak Land Code 1958. This has far-reaching implications for the indigenous communities in Sarawak. For example, in the cases affecting the Orang Ulu and Penan in particular, jungle clearing is not an option to acquire land rights. The various Orders, Ordinance and the Land Code sought to, and effectively restrict the acquisition of land rights through the practice of local adat by the various indigenous communities and, ironically, a prior permit in writing from a Superintendent of the Land and Survey Department is required for any attempt to create customary rights upon land after 1958.

When it comes to land rights issues, it is often assumed that the adat merely plays an aesthetic role and the Land Code 1958 is used as the authority over the people’s claim to rights over land. The fact that the local indigenous communities have lost their customary rights to land through the alteration of the adat at the advent of the Brooke administration shows how the concept of ‘rights’ as we know it today cannot be effective in dealing with the issues affecting Sarawak’s indigenous people. From the cases presented in this report, we argue that dispossession of indigenous communities’ land resources, rape, murder and other existing social problems correlates with the alteration of the traditional adat, which is the essence of indigenous communities’ rights.

 Adat and human rights

 The issues dealing with human rights abuse in Malaysia had begun to pick up pace 20 years ago. Unlike their counterparts in the Peninsula, most of Sarawak’s human rights issues relate directly with dispossession of customary rights land of the indigenous peoples. This paved the way for logging companies and large-scale oil palm plantations to enter the indigenous people’s land under the guise of ‘development’. Despite the availability of human rights instruments, the problems associated with the elimination of indigenous peoples’ customary rights to land and thus, neglecting their adat, have not been addressed effectively.

 In fact, the available human rights instruments have curtailed the essence of rights at the local level, starting with the alteration and the subsequent elimination of the indigenous people’s adat. We also argue that the abuse of human rights cannot be restricted to statutory rights. This is because although common law rights such as the customary rights to land may be recognised, clear statutory provision can take them away.

The case of Sarawak with regard to human rights issues is no different from the abuse of indigenous peoples’ rights in the US in the 19th century. In the 19th century, US “[Chief Justice] Marshall viewed tribal societies as not qualifying as nations or states and therefore without rights to ancestral lands”.5 Without being recognised as a nation-state,the indigenous peoples cannot enjoy their rights. Anaya (2004) further argues that indigenous peoples must be recognised as a nation-state in order to benefit from these rights.6 The only problem with this example in the context of Sarawak is that once her indigenous peoples become a “nation-state”, they are regarded as ‘citizens’ and no longer ‘indigenous people’ with traditional rights and adat that existed before formation of a nation-state.

Even with the establishment of various international organisations to protect human rights, the state still systematically abuses human rights through its institutions and these cases of abuse continued to be ignored at the local, national and international levels. For instance, the United Nations (UN) General Assembly adopted three treaties that are concerned with human rights issues, namely the International Convention on the Elimination of All Forms of Racial Discrimination (ICEFRD 1965), International Covenant on Civil and Political Rights (ICCPR 1966) and International Covenant on Economic, Social and Cultural Rights (ICESCR 1966). These treaties do not only cover the rights of minority groups but also address problems faced by indigenous peoples.7

Yet, these international human rights establishments do not have any power to protect the rights of indigenous peoples in Sarawak; nor are they effective in doing so. For instance, ICCPR concentrates on the rights of all individuals to humane and equal treatment by the state under the law as stated in its Article 1 “…the right to self-determination (defined as the right to ‘freely determine their political status and freely pursue their economic, social and cultural development’)”.

However, according to Yogeswaran Subramaniam (2007) this right to “selfdetermination” has been interpreted cautiously by the UN and international community.8The argument says that indigenous peoples cannot be regarded as ‘peoples’ for the purpose of self-determination under Article 1 because this right is equated with the decolonisation process and the right to form an independent state. In other words, the traditional rights or adat of indigenous peoples have been annulled with the formation of the state following independence from its colonial masters. Hence, those who were once ‘indigenous peoples’ under colonisation have been reduced to ‘citizenship’ following decolonisation and political independence.

In 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), to which Malaysia became one of its signatories, i.e. agreed to abide by the provisions constituted in the declaration. Malaysia has no qualms accepting UNDRIP because the notion of protecting indigenous people’s rights can be blurred. For instance, Article 26(1) in the UNDRIP secures the right of indigenous peoples to the lands and resources they have traditionally owned, occupied, used, or acquired.9 But in the context of Sarawak, the whole idea of ‘indigenous peoples’ may be subsumed under the concept of Bumiputra, whose land and resources have already been provided and protected by the state (e.g. the notion of Bumiputra privileges but in actual fact, these rights have been transferred to the elite Bumiputra).

 

The “Lawful” Violation of Native Customary Rights

Furthermore, in Sarawak, the 1958 Statutory Sarawak Land Code defines Native Customary Land as, “land in which native customary rights, whether communal or otherwise, have lawfully been created prior to the 1st day of January 1958, and still subsist as such.”10

 The keyword “lawfully” is further defined under Section 5, specifying methods in which Native Customary Rights may be created as:11

  • · The felling of virgin jungle and the occupation of the land thereby cleared;
  • · The planting of land with fruit trees;
  • · The occupation or cultivation of land;
  • · The use of land for burial ground or shrine; or
  • · The use of land of any class for rights of way.

 In 2000, wide-ranging amendments were introduced and passed by the Sarawak State Legislative Assembly, among which, an existing mode for the creation and acquisition of native customary land rights by “any other lawful method” was deleted. This particular amendment has yet to be gazetted, but it remains only one administrative act away to remove the enabling sub-provision most directly associated with the use of adat to create and acquire native customary rights over land.

 The Malaysian Courts have ruled and expressly affirmed that the native customary land rights of the indigenous peoples in Sarawak have survived all the Land Orders,Ordinances and Land Code, but the Sarawak State Government has chosen and continues to ignore this judicial enunciation.

Therefore, no matter how the Malaysian government claims to protect the rights of the indigenous peoples, it would still be regarded as ineffective as long as the traditional adapt of the indigenous peoples are ignored. Consequently, the absence of such adat leaves the indigenous peoples vulnerable to all kinds of criminal, social and economic problems,such as unemployment, poor formal education, sexual abuse, landlessness and alienation.Unless this problem is addressed, the whole struggle to safeguard human rights among the indigenous communities of Sarawak (Sabah and Peninsular Malaysia, for that matter) remains elusive because of the government’s disregard for the key rights as practiced in the Adat.

The following are cases of such abuses:

Land is Life & Rights vs Adat

– Colonial and statutory NCR divided into land, marriage, death, usage, acquiring of rights, with time-frame (such as “before 1958”) etc;

– Alien concepts and value system, such as calls for land titles and the monetary value put on lands in compensation negotiations

– The state and corporations override, and refuse to recognize, adat

Beyond Rights (Constitutional/Legal/Common) 

– In logging cases, licences are issued to allow the loggers to move in and establish camps, which, among others, completely ignore any indigenous people’s rights

– Destruction of life and its resources – forests, water, animals, medicine, food Source

– Rights of the people to adat disappear, but ‘rights’ are exerted by loggers and governments.Thus, these ‘rights’, which include workers’ rights, benefit the loggers and the state

 – Right to rape and sexually abuse minors and women, following which perpetrators merely use the payment of monthly maintenance as per legal/statutory institutional rights requirements

 – Therefore, the whole idea of universal human rights with all their instruments, charters, declarations etc do not affect the state’s and corporate “rights”.

Symptoms of Deprivation of Adat (among others) 

– Logging

– Plantations

– Loss of land

– Alienation of communities

– Rape

– Arrests and imprisonment

– Value system breakdown

– Communities being evicted and uprooted and

– Compensation based on supposed market value, grounded in the law that legalizes State acquisition of lands as long as there is compensation.

Two recent cases

 The following are two recent cases to illustrate the arguments put forward above; they are certainly not the only two. In fact, cases reported previously in SUARAM’s Annual Human Rights Reports on abuses suffered by the Sarawak indigenous communities continue.12 Some incidents have even involved the forceful evictions of indigenous communities from their NCR lands along the Bakun road.

1. Bengoh Dam – Quarry and Upper Bengoh Communities 

The Quarry

Bengoh Dam is a water reservoir dam being constructed supposedly to provide enough water to the state capital Kuching until 2030. Studies to justify the dam are known only to the government. The project was contracted without tender to Naim Cendera, a company in which the Sarawak Chief Minister’s first cousin is one of the main shareholders.This federally funded project had been awarded at RM310.65 million. However, Naim Cendera later subcontracted it out to the mainland China dam builder, Sinohydro, for RM145 million.

Kampong Bengoh is about one hour’s drive away from Kuching. A Bidayuh settlement, it has a history that dates back way before the proclamation of the Land Code. The Bengoh mountain range displays some of the most beautiful limestone mountains and has provided the people their source of livelihood.

Naim Cendera, armed with a quarry permit from the Sarawak Government, cleared a path through the Bengoh villagers’ lands right up to the foot of the Derod Mawah (or Mawah Mountain). Trees once covered the mountains but the mainland Chinese and local workers have logged them while constructing the path for the quarry operation.

In the process of clearing, the company disregarded the fruit trees and other crops cultivation on the people’s farms. The company’s workers bulldozed their way through claiming that they were clearing “state” land.

By the time the local villagers had organised to challenge the outsiders’ activities, their farm trees had already been cut down, their lands cleared, and new buildings and other physical structures had been erected on the people’s NCR lands.

Police reports were lodged and protests brought to the local Member of Parliament and State Legislative Assembly representative of the area. Despite these actions, the company workers continued to bulldoze the area and carried on with the work.Faced with no other alternatives, the people took out a court injunction to stop the work. They managed to stop the destruction for about six months before the Kuching High Court judge lifted the injunction. An appeal is pending.

Meanwhile, the company workers have continued to work, disregarding the people’s land rights.

The Dam

At the dam site itself, work continues on the river that is still feeding water to Kuching.Four Bidayuh villages within the Bengoh mountain range have been forced to be resettled to other NCR land downstream. Resettlement details are minimal, except the official rhetoric of providing “a better life for the people”. Once resettled, the people from these four settlements will experience the same fate as that of their fellow Orang Asal in the infamous Bakun dam project, i.e. the Sungai Asap Resettlement Scheme. 

While Kg. Rejoi, Kg. Bojong and Kg. Sait will be submerged by the reservoir, Kg. Semban, located at a higher altitude and actually not affected by the flood, will also be relocated.Kg. Semban houses have been compensated while those villagers whose lands will be submerged have also been paid. Nineteen families from Rejoi and ten from Bojong had turned down any form of compensation, protesting that more land had been left out of the perimeter survey. Many were only compensated for their crops but not for their land.The value of land that is determined by the government is also questionable.

The people had agreed to their land being submerged provided a fair compensation was paid through an open and transparent process to determine the value of land areas, crops,farm houses, houses, etc, and on the condition that the people could move further up the water level to their own NCR lands. After all, the people’s elected representatives from the federal and state governments had promised the villagers that they would be able to do just that.

Two primary schools serving the four villages had informed parents that the schools would be closed by mid-2009, even though no concrete resettlement plans are in place. It is yet another example of communities being forced, one way and another, out of their adat lands in the name of development.

Rape of Penan minors and women

The Penan and other indigenous peoples of Sarawak have been struggling publicly for land rights for more than two decades now. Without these rights being respected and protected, communities have either lost or continue to lose their lands to timber companies, mono-crop plantations and other supposed development projects.

Along with such “development” come workers from outside, who suddenly impinge on the lives of the indigenous communities. With mainly male workers around, it wasn’t long before rape and sexual abuses occurred.

The first known case was documented by an NGO Fact-Finding mission in 1995, with a follow-up mission in 1996. The final report, published in 2000, documented the rape of a minor, a Penan girl in Long Mobui in Upper Baram River in the Miri Division. Two police reports were subsequently lodged. The case was noted as NFA (No Further Action) for lack of direct evidence.

The latest cases that have come to light were when the Switzerland-based NGO, the Bruno Manser Fund (BMF), broke the news in early October 2008. When the mainstream Malaysian media published the story with details after a visit to several Middle Baram Penan communities, the nation was finally aware of the rape and sexual abuse of vulnerable Penan girls.

And from Ulu Baram, rape and sexual abuses of Penan girls have now extended to Middle Baram.Two young Penan mothers lodged police reports at the Police Headquarters in Kuala Lumpur. The Penan have valid reasons not to trust the local Sarawak police when senior retired police personnel are employed by the logging companies concerned, not tomention the logging companies’ close connection with the local Sarawak police establishment. Not surprisingly, several police reports lodged by the Penan against logging companies on land rights encroachment had never yielded any action.Furthermore, it was a fact that local support groups such as NGOs would not be able to protect the victims after they had arranged to make police reports.

Not all victims could lodge reports in Kuala Lumpur as most victims or their children do not have identification papers, which prevents them from travelling to Kuala Lumpur. This lack of official identity cards further erodes the people’s rights.

The collusion between the government and logging companies result in the blatant disregard of the people’s adat and it is the root cause of the human rights abuses we are addressing.

The Penan thrive and survive on the jungle. And yet logging companies, armed with licences can enter and clear the forests in the name of development.

The police have the unenviable duty of taking care of a huge countryside area with so many native village settlements. The logging companies also employ retired senior police officers as “security officers”. It is also commonly known by the Penan that thugs are used by these companies to handle local opposition.

With the inland rivers and streams cut off to make way for logging roads, the Penan are dependant on mostly logging vehicles plying these logging roads for their access to any place outside their settlements. The native people living in the realm of the logging companies are forced to accept the small concessions by the companies in the supply of materials to build their houses and occasional festive gifts in return for giving up tracts of their jungles for logging.

It is therefore not surprising that the logging company workers have taken advantage of the circumstances to perpetrate sexual abuses on Penan women.

The gravity of the problem of sexual abuses is reflected in that first reported instance of rape in Long Mobui in 1993, as mentioned above. No one was charged, whereupon the matter was completely forgotten by the Human Rights Commission of Malaysia (SUHAKAM) (which received an official complaint on 4 November 2000 and publicly claimed that it had not received such complaint before).

Amidst the public outcry after the publication of the rape cases, community feedback revealed heavy police presence in Penan settlements in the Middle Baram. Members of the community were asked if any “outsider” had been to their settlement.This was known to mean NGOs and media personnel. Logging camp workers were also reported to be frequenting villages, in their efforts to silence the villagers.

Sarawak-based media published numerous front-page reports that attempted to whitewash the rapes and sexual abuses. Instead, a perpetrator was reported as a “concerned” father even though it was known locally that he had other wives, a criminal offence in Malaysia. To date, he is still free and is reported by villagers to be enforcing more control over villagers and, together with the logging companies he is employed under, controlling movement in and out of the area.

The federal government, through the Ministry of Women, Family and Community Development, carried out a mission to look into the rape cases but its report, submitted to the cabinet since January 2009, is still not released to date. No specific action has come from the federal government.

The Sarawak Government has responded with rhetoric at best and outright dismissal at worst. It has played up its propaganda rhetoric about development and about how much funds had been allocated to the Penan. In the process, it has only exposed the government’s failure to protect one of the most vulnerable communities in the country.

SUHAKAM responded by announcing a mission to the area but it remains an announcement with no known further action.

A proposed NGO-Police mission is yet to take place. The mistrust of the police is a problem that has not been addressed by the police who insist on the victims going to police stations rather than the police visiting the victims’ settlements. Such mistrust will continue as long as the police remain insensitive to rape victims – in this case,marginalized rural indigenous communities. In the meantime, several more sexually abused victims who cannot go to Kuala Lumpur to make police reports due to lack of identity cards are waiting for the government to bring justice to their abused conditions,while other women and minors have little choice but to hope that they will not be victims.

To date,rapists are still roaming the NCR lands of the Penan, while victims and their families remain fearful of authorities and the loggers. The Penan and other indigenous minors in the same vulnerable situation face this threat every single day.

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