Oral histories of six Temuan orang asli can be accepted as evidence in their land dispute against the government although they are hearsay evidence, the Shah Alam High Court ruled today.

Justice Mohd Noor Ahmad ruled that oral histories of the aboriginal societies relating to their practices, customs and traditions and on their relationship with their land should be admitted as evidence.

However, he added, that this should only be done subject to the confines of the Evidence Act.

They can be only admitted if they are of public interest or of a general nature, said Mohd Noor.

"The statement must be made by a competent person and must be made before the controversy as to the rights and customs," he said.

He said a competent person was someone who would have been likely to be aware of the existence of the customs.

Highway construction

At dispute was whether six orang asli could adduce oral evidence on their land which was acquired by the government for the construction of a highway for the Kuala Lumpur International Airport in 1995.

The orang asli , from the Temuan village at Kampung Bukit Tampoi, near Dengkil, wanted to introduce oral histories relating to the status of their land and that they had acquired rights over the land by land use and occupation through customs and original possession derived from their forefathers.

Sagong Tasi and five others had claimed that their possession over the land continued until today, notwithstanding the laws pertaining to the land. One other plaintiff had died recently.

The defendants objected to the use of oral evidence. They claimed that the orang asli were no longer practising or observing their traditional way of life.

The defendants in this suit are the federal government, the Selangor state government, construction firm United Engineering Malaysia (UEM) and the Malaysian Highway Authority (LLM).

About 40 acres of land of the orang asli settlement were acquired for the highway project and they were compensated only for their trees and houses and not for the land.

Weight of evidence

In his judgment, Mohd Noor said he was allowing the admission of oral evidence as per provision by section 32 of the Evidence Act where "weight of the evidence will depend very much on the status of the maker in relation to the subject matter".

"The statement must be founded on the concurring opinions of many others of the community who are equally interested in the matter," he added.

He said that it was trite law in Malaysia to exclude hearsay evidence because it was not the best evidence and not delivered on oath.

However, by section 32, he added that a statement of a dead person on the existence of any public rights or customs can be submitted.

He also cautioned on the application of section 32 by stating that it only allows statements from the dead in the form of an opinion, adding that the method undertaken in Malaysia in admission of such oral histories of the orang asli must be limited to the scope of the Evidence Act.

Liberal approach

This, he said, was very much different from what was being practised in courts in Canada, US and Australia where a liberal approach had been adopted.

"There the trial courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims and must interpret that evidence in the same spirit," he said.

"In this respect, the courts here must interpret and apply the relevant laws as existing until they are amended," Mohd Noor added.

The judge, however, added that both the plaintiffs and the defendants are entitled to object to a particular piece of oral evidence given by any witness during the trial.

Mohd Noor also said that all orang asli communities were accorded the right to be protected and the right to well-being and advancement, in particular to land use, through Article 8 (5) (c) of the Federal Constitution and the 1954 Aboriginal Peoples Act.

The hearing of the suit continues on Jan 17.