Engaged Social Anthropology and Indigenous Land Claims in Malaysia

ABSTRACT

The use of litigation has become an important strategy for customary land claims for the Orang Asli, the aboriginal people of Peninsular Malaysia. Increasing displacement from their customary territories, and having exhausted other official avenues, the Orang Asli are resorting to legal measures to protect their rights. Several landmark cases in the Malaysian courts favouring Orang Asli rights have given the Indigenous People hope in the legal system. However, lawsuits are risky, require an enormous amount of time and resources, and take a toll on the communities and others involved in the process. Relying on the court process risks reifying state power, reinscribing unequal power dynamics, and reinforcing essentialised notions of indigenous ‘culture’ and ‘tradition’. In this article, I draw upon my long-term research on Orang Asli activism and my experience serving as an expert witness in several Orang Asli customary land claims to discuss the limits and possibilities of social anthropological knowledge in the legal arena. Focusing on the Malaysian context, I reflect upon the challenges of speaking across different fields, translating social anthropological research into a form legible to the legal process, and the dilemma of being complicit in reifying hierarchies of knowledge. I consider how social anthropologists in their cultural expertise role might use the legal space to centre Indigenous knowledge, and challenge the more static understanding of indigenous culture and tradition.

KEYWORDS:

• Expert witness
• cultural expertise
• cultural translation
• customary land claims
• customary territory

Acknowledgements

I extend my sincere thanks to Dr. James Rose, Dr. Miriam Shakow, Dr. Yogeswaran Subramaniam, Mr. Hon Kai Ping and Mr. Saha Deva A. Arunasalam for their expertise and valuable comments. I am grateful to the anonymous reviewers and the journal editors for their insightful feedback, which significantly improved this article. My appreciation also goes to the legal counsels, judicial authorities, and the Bar Council Committee on Orang Asli Rights. I am indebted to the Orang Asli villagers who generously shared their time, space, and insights, and to whom I am grateful for their kind hospitality throughout my inquiries. Thank you to the Gender Studies Programme and the Faculty of Arts and Social Sciences at Universiti Malaya for their institutional support that made this work possible.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Notes

1 Sagong bin Tasi & Ors v. Kerajaan Negeri Selangor & Ors [2002] 2 MLJ 591.

2 The 2018 election saw a change in government for the first time since Malaysia’s independence in 1957.

3 Some examples, Ketua Pengarah Jabatan Hal Ehwal Ehwal Orang Asli & Anor v Mohamad Bin Nohing (Batin Kampung Bukit Rok) & Ors and another appeal [2015] 6 MLJ 527 (Court of Appeal, Malaysia), Yebet bt Saman & Ors v Foong Kwai Long & Ors [2015] 2 MLJ 498 (Court of Appeal, Malaysia), Eddy Salim & Ors v Iskandar Regional Development Authority & Ors [2017] 1 LNS 122 (High Court, Johor Bahru, Malaysia).

4 Dr. Kamal Solhami is another fellow social anthropologist who has taken the role of expert witness for Orang Asli court cases in recent years.

5 The earlier expert reports for Orang Asli customary land cases were produced by Indigenous rights advocate, Dr. Colin Nicholas. He is coordinator of the Centre for Orang Asli Concerns (COAC), an NGO focussing on Orang Asli rights. His expertise played a vital role in substantiating several Orang Asli land claim cases.

6 Gajah Batu is a pseudonym.