Adat and land rights neglected in Sarawak – Part Two

By John Riwang and Apang

Land is Life: Rights vs Adat

Colonial and statutory Native Customary Rights or NCR have been divided into land, marriage, death, usage, acquiring of rights, with a fixed time-frame (such as “before 1958”). These “rights” are alien concepts and an alien value system, including 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 constitutional or common law rights

In logging cases, licences are issued to allow the loggers to move in and establish camps, which completely ignore any indigenous people’s rights. This leads to the destruction of life and its resources – forests, water, animals, medicine, and food sources.

The rights of the local 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.

Among these “rights” are the “right” to rape and sexually abuse minors and women, following which perpetrators merely use the payment of monthly maintenance following legal or statutory institutional rights requirements;
Therefore, the whole idea of universal human rights with all their instruments, charters, and declarations do not affect the state’s and corporate “rights”.

Symptoms of deprivation of Adat
- Logging;
- Plantations;
- Loss of land;
- Alienation of communities;
- Rape;
- Arrests and imprisonment;
- Breakdown of value systems;
- Eviction and uprooting of communities; 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; they are certainly not the only two. In fact, cases reported previously in SUARAM’s Annual Human Rights Reports on abuses of the Sarawak indigenous communities continue to cause suffering.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 purportedly 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 an 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 in the country, and has provided the people their livelihood for centuries.

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 way, the company disregarded the fruit trees and other crops cultivated 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 themselves to challenge the outsiders’ activities, their farm trees had already been cut down, their lands cleared, and new buildings and other physical structures had already 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. Despite these actions, the company workers continued to bulldoze the area.

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.

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 into resettlement 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, 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 have 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, farmhouses, dwellings, and on the condition that the people could move further up, above 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.

This shameful eviction is yet another example of communities being forced, one way and another, out of their adat lands in the name of “development”.

2. 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 in the Miri Division, in 1993.

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 abuse 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 to mention the logging companies’ close connection with the local Sarawak police establishment.

Not surprisingly, several reports lodged with the local police by the Penan against logging companies on land rights encroachment had never yielded any action.

It was obvious 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 rape 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 from the State, 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 many native village settlements. The logging companies also employ retired senior police officers as “security officers”. It is also reported 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 dependent on mostly logging vehicles plying these logging roads for their access to anywhere outside their own 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. No one was charged.

The matter was even completely forgotten by the Human Rights Commission of Malaysia (SUHAKAM) which received an official complaint regarding rape of Penan girls and women 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 “outsiders” had been to their settlement. This was known to mean NGOs and media personnel.

Logging camp workers were also reported to be frequenting villages more often, in an effort to intimidate and silence the villagers.

Sarawak-based media published numerous front-page reports that attempted to whitewash the rapes and sexual abuses. Instead, a perpetrator was portrayed as a “concerned father” even though it was known locally that he had other wives: polygamy is a criminal offence in Malaysia for this Chinese man.

To date, he is still free and is reported by villagers to be enforcing more control over villagers. Together with the logging company he works for, he tries to control 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, was released nearly a year late. 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 resorted to its usual propaganda and rhetoric about development and about funds which had been allocated to the Penan.

This 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, in marginalised 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 lives, 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 face this threat in the same vulnerable situation every single day.

Can we sit by idly and watch?

11 Ibid. (p. 27).
12 See for instance SUARAM (2008) Malaysia Human Rights Report 2007: Civil and Political Rights,
Petaling Jaya: SUARAM

End