Orang Asli and freedom of religion

Gregory Das

Modified 6 Jul 2019, 1:14 am

LETTER | Recently, on June 21, the Kelantan Islamic Religious and Malay Customs Council (Maik) was said to have published a report that disclosed its aim to convert all the Orang Asli in the state to Islam by 2049.

The report was met with criticism from various quarters that cited the apparent violation of the rights to freedom of religion of the Orang Asli that would result from the proposed plans of Maik.

Subsequently, the Maik deputy president clarified the matter by stating, amongst others, that it has never forced anyone to embrace Islam and that “the missionary work conducted by Maik for the Orang Asli community was merely to expose them to Islam."

It is worth noting, against the backdrop of this issue, that the Orang Asli hold a “special position” in our constitutional framework which provides for the enactment of special laws for their protection. 

By Article 8(5)(c) of the Federal Constitution, such an enactment which singles out the Orang Asli for special treatment would still be considered a valid law, although discriminating in favour of one community. 

In consequence, the courts have interpreted Article 8(5)(c) to expressly require the state to “protect the welfare of the aborigines…and not to act in a manner inconsistent with those rights…” (Sagong Tasi v Selangor government [2002] 2 MLJ 591)

Among the rights of the Orang Asli that warrant protection is the right of choice and freedom of religion. This right is safeguarded by Article 11(1) of the Federal Constitution, which provides for one’s “right to profess and practise his religion and, subject to Clause (4), to propagate it”.

In a case in 2014, emanating from Kelantan itself, the Court of Appeal recognised the rights of the Orang Asli to freely choose and practice a religion of their choice in the following terms:

“The further finding… that building a church is not within the rights and culture of Orang Asli because to follow the Christian religion is a new practice and not within that of their ancestors warrants much caution. 

"Because the ancestors were also not of any religion, would it seriously be intended that an Orang Asli would lose his status as an orang asli if he joins any religion at all, not just Christianity? 

"That would condemn the orang asli to be cultural specimens petrified or frozen into the times of their ancestors. That would be contrary to the efforts to help the Orang Asli evolve and improve their conditions ( Selangor government & others v Sagong Tasi & others).

The court correctly invoked Section 3(d) of the Aboriginal Peoples Act 1954 which specifically provides:

“Any aborigine who by reason of conversion to any religion or for any other reason ceases to adhere to aboriginal beliefs but who continues to follow an aboriginal way of life and aboriginal customs or speaks an aboriginal language shall not be deemed to have ceased to be an aborigine by reason only of practising that religion.”

In concluding, the Court of Appeal reiterated as if by way of a reminder that:

“It must be borne in mind that rights, once recognised, cannot be taken away. To our minds, Orang Asli are as entitled as any other citizen to the protection of their rights under the Federal Constitution. 

"On the question of rights, the law must tread softly so that the pursuit of one party's rights does not end up stepping upon another party's rights, for the parties are each equally entitled to their rights...” (Gua Musang District Council governor v Pedik Busu [2014] 3 CLJ 847)

In respect of aboriginal peoples everywhere, it has been repeatedly recognised by the common law courts that the state owes a fiduciary duty towards the protection of their culture and rights.

Accordingly, it behoves the state to ensure that the rights of the Orang Asli to freely practice and profess a religion of their choosing are not interfered with. 

Maik's subsequent clarification that it has not compelled the Orang Asli in Kelantan to embrace Islam would accord with their constitutional obligation to recognise the freedom of choice of religion of the Orang Asli. 

Anything less or inconsistent with the constitutional mandate under Article 8(5)(c) and Article 11 would be violative of the Federal Constitution.

GREGORY DAS is an advocate and solicitor of the High Court of Malaya.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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