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Question: Discuss the plight of the indigenous communities in Malaysia in terms of their education, health and right to land.

Introduction: In order to answer this question, there are two main aspects that need to be given a focal point. The first one would be the indigenous communities referred to. As far as had been assigned, the scope for indigenous in this assignment merely goes under Malaysias scope. So, here, the definition, and the data regarding the indigenous people in our country would be elaborate further in the following paragraph. The second essential part is, the plight upon their rights to education, health and also rights to land. To ensure that a best explanation can be derived on, the definition of the word, plight would be given. After that, the rights upon education, health and also rights upon land would be discussed on before the plight on these aspects being laid down.

Background:

Indigenous word was originated from Latin word, indigenus. Collins, dictionary defined the words indigenous as people or a group of people who originating or occurring naturally in a country or area. Now, as the concern scope of indigenous peoples or communities here referred within Malaysia, thus the data or facts about them are totally relevant to be discussing on. Now, generally in Malaysia, the indigenous communities here were collectively called as Orang Asal. This term was used up to call the indigenous communities in general view; no matter they were in Peninsular Malaysia, Sabah or Sarawak. The indigenous communities represent about 12% of 28.6 millions citizen of Malaysia.

As according to the Report of Jabatan Hal Ehwal Orang Asli 201, the indigenous communities in Peninsular Malaysia which were generally known as Orang Asli. They represent about 0.6% or approximately up to 150000 of the peninsulars resident. Orang Asli in specific reference were consists of Negrito (Semang), Senoi and also Aborigin Malay. While in Sabah, in which the indigenous communities there were called collectively as the Anak Negeri consists of more than 39 ethnics. Here, the percentage represent by this group of indigenous was shockingly reduces, from 60% to 47.4% in current report. In Sarawak whereby the indigenous communities there were generally called as Orang Ulu, or Dayak was generally represent about 50% out of 2.5% millions of Sarawakian. This indigenous communities were consists of Iban, Bidayuh, Kenyah, Kayan, Kedayan, Mu-rut, Punan, Bisayah, Kelabit, Berawan and Penan.

CONTENTS:

As the first part of this research had been discuss on, now we move to the second part of the essay whereby the plight of the indigenous rights upon the education, health and lands system would be focus on. Now, before any further explanation or elaboration were made on this part, lets the general rights laid down by the United Nation Declaration Rights of Indigenous Peoples (hereinafter was refer to UNDRIP), and also International Labor Organizations Convention be discuss first, and proceed with the discussion on the term plight, on how it being defined and it contents upon the rights of education, health and also lands for the indigenous peoples. Although the focal point was given in term of the plight, it is relevant to cited all the rights that had been served by the world in general and by the Malaysia (here referred to the government and also non-governmental bodies) upon them. Now lets first discuss the rights of the indigenous peoples in which had been prepared by the worlds organization such as UNDRIP and also International Labor Organizations Convention.

As the research team was not assigned to discuss on their rights in detail, the summary version will provided for this part. First of all, it is relevant to cited the right served by UNDRIP as Malaysia is one of the signatory upon this declaration. But it also must be noted down that, whatever article that had been preserved in this declaration is not binding to the signatory countries as it is merely acts a persuasive legal standard in which was set up in order to give the overview to the countries concerns on how to drafted or determine the rights upon the indigenous peoples. Now, Article 8 of UNDRIP is concerns on the matter regarding the general concept of protection upon the indigenous peoples.

While in Article 10, the protection on indigenous peoples were focus on the part in which to make sure that the indigenous peoples are protected from being force to give their lands to others party. This also was familiarly known under the concept of FREE-PRIOR-INFORM-CONSENT, (hereinafter was known as FPIC). The concept of FPIC was goes under the key-concept of the transfer of the lands/properties was done out of duress, force or coercion, and the negotiation must be done before the decision had been made, all the information regarding the discussion upon the concerned land are available and can be understand by the indigenous peoples, and also it must be undergone with the concept of consent, or totally agree.

While in Article 26 of the UNDRIP, it is prescribed that the protection on the indigenous lands must be legally protected. In the Article of 27 of the UNDRIP had given focus on the matter

pertaining to the decision upon the indigenous lands must be made fairly and in line with the indigenous tradition. Last but not least is Article 28 of the UNDRIP which concerns the matter of getting into a fair compensation or restitution towards the taken lands. While in International Labor Organization Convention in No.169, are concerns about Indigenous & Tribal Peoples in Independent Countries.

Plights:

Plight as had been defined by Collins Dictionary, was known as a condition, state or situation, especially an unfavorable or unfortunate to on, or in other simple way, or can be considered as the problems existed on these said rights.

Education:

As education acts as one of the important or said part here, it is relevant in first place to see the rights served by the worlds organization and Malaysia upon the indigenous peoples in term of their education. First, as referred to the Article 12 of the UNDRIP, it is stated that Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including...in the areas of education, employment What would this mean is that, as had been explain on the above paragraph, the UNDRIP which acts as the mechanism to set up a legal standard on the drafting of rights on education by others countries was also seem to be totally aware and consent by the fact that they, refer to indigenous peoples, must be given right to be to improve themselves in terms of education.

While in Malaysia, the Article 12 of the Federal Constitution, stated that there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth, in terms of rights upon education, in which will impliedly tell us that no one including the indigenous peoples should be discriminate in their ways to getting the education. This also can be interpreted in other way around to be said as they must be equally given the right to be educated or getting the education. This would cover on many aspects, including the access to school, types of school and whatsoever. In addition, the Section 17 of the Orang Asli Act 1954 (Act 134), stated that no one shall be on whatever ground be prohibited from entering into any schools, which impliedly mean the same thing. In others statute such as Convention on the Rights of the Child 1989, is concerns on the right of the education upon the children, here including the indigenous children.

As the rights upon education were generally being discuss on, it is relevant right now to proceed with the plights upon this aspects. Although there are a lot of plight that could be discuss on, here, in this research paper, three main issues was given concerns on. The first one goes to the fact that there are clear-cut data on the decreasing number of indigenous peoples student which attends the primary and secondary school. This was actually one of the shocking facts to be concern on because, as had been informed above, despite the fact that the rights upon education for the indigenous peoples was increasingly served by the world and also local bodies, but still the fact that the number of indigenous students who came to school was decrease by the ongoing period of time. The number of indigenous students who attend primary school was reduces from 16,715 in 2007, and 16,370 in 2009. This was out of the reasonable assumption as the peoples tend to think that as the world became develop by day to day, the education system for them must be totally received and being accepted in full spirit, but the number above had show the opposite side of the said assumption.

In addition to that fact, the Education & PR officer, Hasmah Abd Manaf of .. (hereinafter was refer as SUHAKAM), was informing that there were about 7000 the Orang Asli in the Peninsular Malaysia, aged around 6 to 12 years old never attended school.

As the above problem had been discuss, this lead to the second issue on why actually they choose not to attend the school. As they might be hundreds reason for them to do so, here two of them will be discuss deeply. Poor access & transportation is actually one of the main reason on why the student from Orang Asli choose not to go to school. The rather take the informal lesson from the parents and elder folks rather than go to school which need them to walk more than an hour to reach the school. One of the prove is that at, orang asli students in PERKAMPUNGAN ORANG ASLI HUTAN PERCA, IN MELAKA, take about an hour to reach the nearest school, because there are no public transport provided there. Here what the best suggestion that can be provided which based on the facts that, if Malays, Chinese and India can be put an access of schooling system on their living area, then the same thing cannot be cater to the Orang Asli. Instead of forcing them to come to school that have distance like tenth kilometres, why just not put up a school for them, provided with teacher. If we can do that in an estate, than why not for the orang asli village? This some idea that for surely that can be put some thought on it. Besides, in term of school availability, the are actually limited number of school available for this group, for instance, in Seletar Village, Johore, only primary school was available for the indigenous peoples, and there is no attempt being given to serve them with the secondary school.

The third issue is that concerns on the fact that their mother tongue language are not being taught. This is another main reason make the students of orang asli not to go to school. As all of us know, in the Article 30 of Convention on the Rights of the Child, children from minority & indigenous communities had the right to practice their own culture, language & religion. Now think of that fact, if Malaysia in general view could serve Malays with school which used Bahasa Melayu, Chinese with school of using Chinese language and indian with theirs, why the same thing cannot be done to Orang Asli. Is this constitute to discrimination? This another fact to be ponder on. The result depend on how we interpret the right to education in terms of races.

Health: Now the second subtopic for the second part in this research paper will be discuss on, that is regarding the matter pertaining on how the plight upon the rights upon the health system. As what had been done in the right to education, lets the rights upon the health system be laid down first. As stated generally in the UNDRIP, in their Article 21, which highlighted that the rights upon social conditions, including health system must be available towards the indigenous peoples. While in the Article 24(1) of the same declarations, its said that the indigenous people by all mean shall have rights upon the traditional medicine and to main the traditional medical practices, while in the same Article but second clause, (2), it is stated that they also shall obtain the same rights to get highest standard of physical and mental health. While in Article 29(3) of the UNDRIP, it is said that State was given the liability to take measures to monitor, restore and maintain the health of the indigenous peoples. Last but not least is the Article 31 of UNDRIP, in which the indigenous peoples have the rights to maintain, protect, control and develop their cultural heritage inculding in terms of medicine used. The same things are going to be done on seeing the plight of the rights for indigenous peoples in terms of health system, as they might be a lot of plight exist, only three of the main and essential issue would be discuss on. For the first issue, one of the remarkable event would be discussed on as it seem to be an essential to be given focus on. On 11 March 2010, Malaysian was reported with unfavorable news. With the title doctor spills beans on Orang Asli hospital, the news had make a few bad assumption to be aroused upon the health service system served by local government. In summarize version, the news reported that, in a claims, the a doctor from the orang asli affairs department (JHEOA) hospital, gombak has made starting claims of rampant malpractice, misappropriation of resources and other wrongdoings by its staff. She asked the authority to investigate on this matter carefully. She added that ; "For instance, a tin of infant milk is divided into six small packets with 15 to 20 packets distributed to a village of between 250 to 500 people."It is disheartening to see mothers clamouring for milk powder," she said. Dr. Salvaa Vathany also alleged that JHEOA Hospital's funds for 'food baskets' to curb malnourishment among Orang Asli children had been misappropriated. So here, not only the goods provided were believed to be misused, but also the funds for orang asli too.

She notes that the programme was in view that Orang Asli children were 15 times more likely to die from malnourishment compared to other children. "Essentials given out are limited to one to two bottles of cooking oil, six to eight tins of canned food, two packets of 400gram Milo, 15 to 20

small packets of milk powder, 10 to 20 diapers, two bottles of detergent and 10 to 20 pairs of slippers, per visit. "These are distributed at random and stored in a black bin bag. If the villagers are lucky, distribution could be as frequent as once in every two to three months," she said. She said hospital administrators incapable of following health ministry protocols and standards were made hospital administrators and were from the rural and regional development ministry without medical training. selvaa vathany alleged that complaints have been made to the prime minister's department, rural and regional development ministry, health ministry, chief secretary, public service department and malaysian anti-corruption commission (macc) to no avail. however, a team sent investigate the allegations comprised of the rural and regional development ministry, who tried to cover up the matter.

"They questioned the complaint and remarks made by the orang asli in an unprofessional manner. the complainants were also intimidated and threatened. "Despite all efforts taken, investigations are delayed and medical staffs are persecuted severely and threatened for trying to do so," she said, and the most interesting part is that there is still no action after shocking allegation by doctor. The end result is that the staff accused was transferred to Kedah on the excuses that Kedah need additional staff, and the Orang Asli, that who are Gek Bachik, Bah Lan Bah Din and Meli Mat Riffin who had lodged police reports for mistreatment did not exist in their records and never had treatment at the hospital.

It however acknowledged a police report lodged by Gek, who in March last year lost his 11year-old daughter Zaslie Gek one month after she allegedly failed to receive proper treatment for dengue at the hospital. It said the matter is now out of their hands. Bar Council immediate pastpresident Datuk Ambiga Sreenivasen has pledged support for the orang aslis cause and promised to help them forward the Feb 24 petition to Suhakam. "It is time we stop treating the orang asli like children who cant think for themselves," she said. Here, its sufficed for us to said that, the honest in conducting job to protect the indigenous people rights in health system can be in a serious doubtness.

Besides, for the second issue, the problems such as the availibility from indigenous peoples side to go to hospital is very limited. As far as concern, hospital or healthcares centre ussually set up in a city side, which also make the indigenous peoples to feel it is some sort of a burden to go and get treatment there, as the transportation served or owned by them is very poor, which lead to the increases on the rates of seperation of disease in the indigenous communities.

While for the third issues, a view on the Penan womens rape case, seem to be relevant, whereby in this case, the the problem constitute to the sexual exploitation problem. Recently, its had been reported that seven women from Penan ethnic had been raped by some of the timbers construction workers. These women had make a lodge reports, but what is more dispointing is that, their case had been closed by the local authorities just like that without a very clear and valid reason. Is this one of the form in discrimination upon the indigenous peoples? Something to be thought on.

Land:

Now move to the last but not least point, which cover on the aspects of plight upon the rights to land. Jack Westoby, in his beautiful thought said that, Forestry is not about trees, it is about people. And it is about trees only insofar as trees can serve the needs of people. Before the plight been discussed on, let first cited out the relevant right upon the lands. The following paragraph will organized the rights laid down according to the division of Peninsular Malaysia, Sabah and Sarawak. In Peninsular Malaysia, National Land Code, specifically in Section 4, which govern about the Customary Tenure. While in the Aboriginal People Act 1954, the Section involved may included the Section 6,7,11 and 12. Section 6 said about the power of Government in gazetting and degazetting the native land. Besides, in Section 7, it is laid down that Government may in nature give their discretion upon the matter of the aboriginal reserve lands. In Section 11, touch the matter regarding the compensation on alienation of Stateland upon which fruit or rubber trees are growing. Last but not least is Section 12, which governs matter regarding the protection to give a fair compensation or restitution upon the taken land. Although there are others law that may been said as helping in administered the rights of land upon the Orang Asli, in Peninsular Malaysia, it is suffice here to only have two main key-point of them. While in Sabah, the law governs, Sabah Land Ordinance. The provision involved is Section 15, 65 and 66. In Section 15, is about the condition whereby the Native Customary Rights shall be held upon with. While in Section 65, it is ensure the matter regarding the customary tenure, and last but not least is the Section 66, which laid down the fact that governs the matters pertaining rights and obligation of customary tenure. In Sarawak, it is believe that the protection was solely came Sarawak Land Code for the indigenous peoples over there. The provisions that mainly used over there are Section 5, 8, 10, 15 and 44. Section 5 of the Sarawak land Code stated the there are a few elements need to be fulfilled in order the indigenous peoples over there to be consider as occupying the lands. The elements are based on the clearing of virgin jungle, planting fruit trees on land, occupying cultivated land, using land for burial grounds or shrines, and using lands for rights of way or any other lawful method. While in Section 8 of the same statute, it is clearly stated a few issues under the fact of illegal for non-native to acquire rightsor privilegesover land of a certain classes. In Section 10 of the Sarawak Land Code, the matter pertaining towards the occupation upon different classes of land is governed. While in Section 15, the fair and adequate compensation was highlighted. Last but not least, in the Section 44 of the Sarawak Land Code, the emphasize on the matter of no recognition will be given to

any transaction or dealings involving state land that was not carried out in accordance with the provisions of the Land Code is also stressed out. Now come to the other part, that is the plight upon this rights. The main plight is going under the issue of RECOGNITION of the customary native land. This is on the virtue of Section 6 of the Aboriginal Peoples Act in which had summarize two things, they are; States has the power to gazette or de-gazette the land to indigenous peoples and government may in their own discretion, bestow upon any person of the indigenous people, the rights to any land deem suitable, as been provided in the said act. This might not be a problem if the provision was taken lightly or taken merely on basis of provision, but it surely bring another impacts in the application in the real world. To illustrate this problem which have related to the Section 6 of the Sarawak Land Code, the Bukit Lanjuns issue may be raised up as a good example. Bukit Lanjun communities were very happy when their right upon the lands had been recognized by government. Later, when the government wanted to put up a project on the land, they had taken back the land with some compensation. Before we go to the issue compensation, here its had been proved that government do have and exercise the power on gazetting and degazeting the land. Now, the compensation that had been received by the orang asli is in form of bungalow, terrace and also flats. That might be nice to be heard, but, again the most shocking news is that, the Orang Asli who had received that compensation need to pay higher taxes upon their houses compare to the usual buyers. What is this constituted to? What actually the mean of compensation if they had to suffer upon the benefits that they received? All of this answer is depend on how you view the point of the action done by government. Here, the problem was actually believed to be originated from thepower of government in only gazetting but degazetting the land. Once the power is exercise, there are no limits to go further. As for that, in a nutshell, evidently, the rights conferred and the laws made for the sake of the IP, are, to some extent, beneficial to them in reasonable sense. As nothing is perfect, do the government also. Intrinsically, the laws are good, but the implementations are not up to the par. So, to boil them down, to rectify the problems, it is up to the government or the authority to update their machineries and to be more proactive to ensure that the IP and their rights are protected and safeguarded.

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