ETHNICITY, INDIGENEITY AND INDIGENOUS RIGHTS: THE ‘ORANG ASLI’ EXPERIENCE

Orang Asli, the heterogeneous Indigenous minority peoples of Peninsular Malaysia, continue to face formidable challenges in realising their rights as distinct Indigenous peoples despite being ascribed a measure of constitutional and statutory protection and recognition. With reference to the 2007 United Nations Declaration on the Rights of Indigenous People and international definitions of ‘Indigenous peoples’, this paper examines the influence of the externally constructed ethnic term ‘Orang Asli’ and its concomitant legal implications on the Orang Asli quest for indigeneity and the recognition of their rights as distinct Indigenous Peoples.

'Orang Asli' and the manner in which this exonym has gained acceptance by the persons categorised as such. Domestic legal definitions of the term 'Orang Asli' and their interplay with the implications that accompany the term are then analysed with a view to appraise the term's potential resilience as a common name to describe a distinct group of Indigenous peoples fighting to maintain and develop its identity, ethnicity and well-being on its own terms. The article concludes with observations on the need to clarify the term 'Orang Asli' in a manner that sustains and respects the Orang Asli community as distinct Indigenous peoples.

II
ORANG ASLI AS AN 'INDIGENOUS' GROUP As a preliminary point, 'Indigenous rights' for the purposes of this article refer to international standards for Indigenous rights with a particular emphasis on international definitions of 'Indigenous peoples' and rights as encapsulated in the UNDRIP. In this article, the definitions of 'Indigenous peoples' in international fora are not treated as legally binding on Malaysia. As for UNDRIP 'rights', Malaysia has supported the UNDRIP both at the Human Rights Council and General Assembly levels of the United Nations. While the legal enforceability of the UNDRIP in Malaysia is debatable, the UNDRIP creates a genuine expectation and moral obligation on the state to work towards achieving the aspirations of the UNDRIP in the 'spirit of partnership and mutual respect'. 4 Accordingly, both international standards relating to the definitions of 'Indigenous peoples' and relevant UNDRIP provisions are utilised in this article as comparative guides rather than legally binding documents.
The These differences are elaborated in Part III(A) below. 6 See, eg, definition of 'Malay' (Federal Constitution (Malaysia), art 160 (2)). For definition, see below n 36. 7 For an account of the history of these early Malay kingdoms, see Barbara Watson Andaya and Leonard Y Andaya, A History of Malaysia (Palgrave MacMillan, 2 nd ed, 2001) chs 1-2. mainstream society. 8 Malays account for slightly more than 50 per cent of the Malaysian population while Orang Asli account for close to 0.7 per cent. The remainder of the population is mainly accounted for by ethnic Chinese (24 per cent) and Indians (7 per cent) and the natives of Sabah and Sarawak (11 per cent). The Orang Asli are also arguably the most impoverished and marginalised community in Malaysia. In 2009, 50 per cent of Orang Asli lived below the poverty level compared to the national average of 3.8 per cent. 9 Orang Asli, who largely reside in rural areas, have a much higher poverty rate than the national rural poverty rate of 11.9 per cent. 10 The distinction between Malays and Orang Asli and the concomitant implications for Orang Asli assertions of indigeneity are important aspects of this analysis which will be re-examined from various perspectives throughout this article.

B The Term 'Orang Asli' and its Adoption
In reality, 'Orang Asli' is a term used to collectively describe the 18 official and distinct ethnic aboriginal sub-groups in Peninsular Malaysia, classified into three broad categories of Negrito, Senoi and Aboriginal Malay. 11 Literally translated, the term means 'natural people' and is now also taken to mean 'original' or 'first' people. 12 Similar to other Indigenous communities worldwide, many Orang Asli struggle to maintain their distinctive culture and identity which are inextricably linked with their close physical, economic, social, cultural, territorial and spiritual relationship with the environment. 13 The Malaysian label 'Orang Asli' was intended as an etymologically responsible translation for the existing term 'aborigine ' 16 The federal government's adoption of the unused albeit less accurate variant 'Orang Asli' instead of 'Orang Asal' was nonetheless perceived as a genuine initiative to acknowledge the existence of 'first people' in the newly-formed Federation of Malaya. However, the use of a politically correct term to officially describe the Orang Asli did not negate the fact that Orang Asli homogeneity was more 'a creation of non-Orang Asli perceptions and ideological impositions' 17 rather than selfdetermined, suggesting an inherent patronising attitude towards the Orang Asli, the implications of which will be revisited in Part IV(B) below.
Notwithstanding its external origin, 'Orang Asli' has since gained acceptance as an autonym by the aboriginal community as a result of official and popular use of the term. Internally, Orang Asli acknowledgment and claims as an ethnic grouping were brought about by: (1) a combination of increased incidences of social stress and greater intra-community communication; 18 and (2) shared experiences. 19 Difficulties faced by the Orang Asli in their resistance to ethnic assimilation, fight for customary land rights, general lack of economic resources and minimal political clout have necessitated Orang Asli leaders having to speak about themselves through singular voices while being aware of their own plurality, internal fractures and unresolved differences. 20 The resultant need for Orang Asli to distinguish themselves as a group, which coincided with the domestic environment in Malaysia where race or ethnicity plays a significant role in politics and indeed everyday life, 21 created an inherently political concept of Orang Asli identity aimed at intranational and more recently, 22 international relations. Improvements and access to digital technology have enabled Orang Asli activists to articulate and share ideas and collaborate with the natives of Sabah and Sarawak to form common rights-advocacy platforms, such as the Jaringan Orang Asal SeMalaysia. 23 Digital technology accessibility also aids Orang Asli activists to enlist in transnational networks and more broadly, the global Indigenous rights movement. In sum, the official use of the term 'Orang Asli' provides a recognisable face to this heterogeneous aboriginal community in their external communications. 24 To their credit, the Orang Asli have enjoyed relative success in using the label foisted upon them to assert and advocate their rights as Indigenous peoples. Some of the more obvious accomplishments include the following: 'effective governments'. 34 The combined impact of the vulnerability of the current legal definition of 'Orang Asli' and these definitional issues are examined in Parts III and IV below.

III THE LEGAL DEFINITION OF 'ORANG ASLI'
This Part analyses the constitutional and statutory provisions that are relevant to the domestic identification of Orang Asli as a distinct ethnic group. A

Constitutional Provisions
This section compares specific constitutional provisions concerning the recognition and protection of Orang Asli rights and the constitutional provisions relating to Malay and Sabah and Sarawak native rights respectively. The comparison does not suggest that Malays and the heterogeneous native groups of Sabah and Sarawak are not marginalised in their own particular way but contends that Orang Asli have relatively less explicit constitutional 'rights' if compared to Malays natives of Sabah and Sarawak.
The word 'Indigenous' is not contained in the Malaysian Constitution. Constitutionally, Orang Asli ('aborigines' in the English version of the Malaysian Constitution), 35 ethnic Malays, 36 natives of Sabah, 37 and natives of Sarawak 38 are afforded varying degrees of rights and privileges by virtue of their ethnicity. 'Ethnicity' here is defined by the differing socio-religious practices, cultural practices, racial and ancestral criteria used to identify these four groups as set out in the written laws of Malaysia. While reconciling the traditional distinction between 'ethnicity' (culturallyfocused) and 'race' (biologically-focused) in these criteria may be problematic, it must be accepted that conflating race and ethnicity is not an uncommon practice in Malaysia. 39 Whether or not this conflation is theoretically correct, race and ethnicity should not be regarded as separate 34  Constitution specifically empowers the federal government to legislate for the welfare of Orang Asli. 48

B
The APA The APA is the principal statute governing the administration and rights of Orang Asli. The preamble describes the APA as an act for the protection, well-being and advancement of the Orang Asli. However, the APA also serves to secure and perpetuate control over Orang Asli and their lands and resources. As will be observed, the APA's paternalistic orientation denies Orang Asli 48 self-determination over their identity, institutions, lands and lives, all important aspects of the UNDRIP. 56 Promulgated when: (1) Indigenous or tribal communities were generally viewed as populations in need of protection pending their advancement and integration into mainstream society, and (2) during the Malayan Emergency where many Orang Asli were seen as communist sympathisers, the APA confers extensive powers on the federal and state executive arms of government. Some of the more questionable powers include the powers to: of the Temuan. The inordinate power that the state has over the headman may also compromise Orang Asli interests. 63 Unsurprisingly, the scope of who falls within the definition of 'Orang Asli' under the APA also manifests such paternalistic and discriminatory tendencies. Section 3(1) of APA defines an aborigine (Orang Asli) to mean: (a) any person whose male parent is or was, a member of an aboriginal ethnic group, who speaks an aboriginal language and habitually follows an aboriginal way of life and aboriginal customs and beliefs, and includes a descendant through males of such persons; (b) any person of any race adopted when an infant by aborigines who has been brought up as an aborigine, habitually speaks an aboriginal language, habitually follows an aboriginal way of life and aboriginal customs and beliefs and is a member of an aboriginal community; or (c) the child of any union between an aboriginal female and a male of another race, provided that the child habitually speaks an aboriginal language, habitually follows an aboriginal way of life and aboriginal customs and beliefs and remains a member of an aboriginal community. Section 3(3) empowers the Minister having charge of aboriginal affairs to determine whether any person is an Orang Asli. Under s 2, an 'Aboriginal ethnic group' means a distinct tribal division of aborigines as characterised by culture, language or social organisation and includes any group that the State Authority may, by order, declare to be an aboriginal ethnic group. 64 The main issue with the definition of an 'aborigine' or an 'aboriginal ethnic group' is that it is inconsistent with the right of Indigenous peoples to determine ther own identity or membership. 65 Rather than the Orang Asli community itself, the federal minister having charge of Orang Asli Affairs, namely the Minister for Rural and Regional Development, possesses the power to determine if a person fulfils the criteria for being an Orang Asli laid down in s 3(1). The Minister has never been an Orang Asli. Such extensive ministerial power does not apply to Malays or natives of Sabah and Sarawak. The power to 'create' an aboriginal ethnic group is vested in the State Authority instead of the Orang Asli. Compounding matters, legislative action by way of a simple majority of both houses of Parliament can change who constitutes an 'aborigine' or an 'Aboriginal ethnic group'. 66 Orang Asli are particularly vulnerable to such amendments given that they constitute less than 1 per cent of the Malaysian population. Perhaps understandable during the communist insurgency when there were concerns over the infiltration of communist insurgents and ideologies into remote Orang Asli communities, 67  governments still need such extensive legal control over the composition of the Orang Asli community.

Gomes suggests that s 3(1) is fraught with ambiguites and false assumptions because:
(1) the terms 'aboriginal' and 'aborigines' make an a priori assumption of the existence of people deemed to be aboriginal without clarifying the criteria for such aboriginal status; (2) there is a presumption of patrilateral affiliation which is clearly an aspect of Islamic Malay culture but not common to many of the Orang Asli communities; (3) the terms 'way of life' and 'race' are problematic as the former is too open-ended while the latter has been rejected in conventional social science as a valid way of defining humans. 68 Although there have been judicial pronouncements which have: (1) demonstrated a liberal approach in determining whether Orang Asli customary land rights claimants fulfilled the definitions of an 'aborigine' and 'aboriginal ethnic group' as contained in ss 3(1) and 2 respectively; 69 and (2) advocated a liberal approach in interpreting the provisions of the APA, 70 there is no guarantee that the federal executive or for that matter, the courts will interprete this provision liberally in the future. that Orang Asli face in finding their rightful place as distinct 'Indigenous peoples' in a Malaydominated multicultural society in pursuit of economic wealth. These challenges are examined under the following broad and related categories, namely:  Contested perspectives of indigeneity in Peninsular Malaysia;  Historical discrimination against Orang Asli; and  Indigenous rights as a hindrance to economic prosperity. A

Contested Perspectives of Indigeneity in Peninsular Malaysia
Although written law has regarded the Orang Asli and Malays as legally distinct ethnic groups throughout the Malay Peninsula from at least 1948, 73 Orang Asli indigeneity vis-a-vis Malays is a much more complex proposition domestically.
compelling argument used by Malay elites when they negotiated special rights and privileges for themselves, a position that other "immigrant" elites -Chinese and Indian political representatives -accepted '. 76 This historical foundation has become invariably become linked to Malay sovereignty and the rationalisation and defence of Malay special privileges and affirmative action policies vis-a-vis not only the Orang Asli, but broader Malaysian society. As contended by Alice M Nah, the political, social, legal and economic position and power of the Malays 'has been determined through articulations of indigeneity, which continue to be reinforced and legitimized'. 77  Notwithstanding some official recognition that Orang Asli are 'Indigenous Peoples', there remains some ambivalence and possibly, confusion about the position of the Orang Asli vis-a-vis the Malays, the latter of which have been afforded constitutional special privileges based on their historically constructed 'Indigenousness'. Accordingly, the vulnerability of the legal term 'Orang Asli' to adverse interpretation and more importantly, state manipulation against the politically, socially, economically and numerically weak Orang Asli community poses a serious risk to the recognition of Orang Asli a distinct Indigenous ethnic group within Malaysian society.

B
Historical Discrimination Against the Orang Asli Although the Orang Asli may have traditionally seen themselves as free people, Nicholas Dodge contends that the Malays have historically regarded the Orang Asli as subordinate and inferior people. 86 There is also evidence in Malay socio-history to suggest that Malays used the word Sakai, previously used as an official term to describe many Orang Asli, to refer to a group of people who were: (1) in a relation of personal dependence vis-a-vis a sovereign dependent chief known as a Batin (the current name assigned by the state to an Orang Asli headman); and (2) subjected to corvee labour. 87 Further, Geoffrey Benjamin suggests that in the traditional Malay world, those Malays who remade themselves culturally including those claiming exogenous origin were seen as culturally superior compared to those people who were 'fully indigenous'. 88 He argues that the former group were considered fit to rule over the latter group, who were born to be ruled and effectively need not be consulted in respect of any decisions affecting them. 89 As observed throughout this article, these prejudices continue to manifest themselves in the context of the Orang Asli albeit in varied and restricted forms.
Malay worldviews aside, the reality of historical Orang Asli-Malay relations differs substantially. Notwithstanding spatial, political and ethnic interaction and to an extent, economic symbiosis between certain sections of Malay and Orang Asli society, there were many Orang Asli communities who remained relatively independent of the Malay kingdoms. 90 British intervention into the Malay states in the 19 th century exacerbated Malay preconceptions towards the Orang Asli. Prevailing Eurocentric prejudice against societies possessing social structures regarded as unfamiliar or primitive compared to European standards worked against Orang Asli interests. 91 Such prejudice found its way into the manner in which Malay and Orang Asli societies were constructed by colonial historians. Richard Winstedt, for example, described the 'hunter-gatherer' Negrito as having 'no tribal organisation' while Malays were regarded as 86  'civilised'. 92 The dominant, numerically superior and geographically accessible Malay society who lived a 'settled' way of life and possessed 'familiar' social structures and hierarchies suited British colonial ambitions. Consequently, the British dealt with the Malay sultans when facilitating their colonial expansion, 'assuming that the Malay rulers were Indigenous and that the Orang Asli were their dependants'. 93 As observed in Part IV(A) above, these colonial constructions have militated against Orang Asli assertions of indigeneity.
For the most part, initial European ethnography placed Orang Asli at an early stage of Malay development in a 'slow march towards a settled' and 'civilised existence' through 'absorption' into the larger Malay community. 94 The coincidence of thinking between the Malay intelligentsia and the British colonisers on Orang Asli culture and the Malay 'agency' element in accessing Orang Asli mutually reinforced their respective ethnocentric views of Orang Asli. 95 At times, the federal government still positions Orang Asli as 'poorer cousins' of the Malays who need to follow the Malay development path in order to be successful. 96 In this environment, it would not be difficult for some to envision achieving 'Malayness' as an accomplishment for Orang Asli which can be attained through the acceptance of Islam and an acceptance of an established social hierarchy. 97 In contrast, Orang Asli, who are said to see the world through Malay culture, 98 prefer modernisation without 'Malayisation', even when they convert to Islam. 99 Unfortunately The 1961 Policy, often regarded as the most progressive in respect of the 'protection' of Orang Asli rights, pales in comparison to current international standards on Indigenous rights as contained in the UNDRIP. 102 Noticeably missing are Indigenous rights to free, prior and informed consent, 103 effective consultation, 104  JAKOA or its predecessors including the Department of Orang Asli Affairs, a multi-functional federal agency which devises strategies and programs towards implementing Orang Asli policies, has always been headed by a non-Orang Asli and staffed by a majority of non-Orang Asli employees. 108 SUHAKAM has observed that many JAKOA officers are still not well-versed with Orang Asli customs, culture and issues and are dependent on the advice of long-serving JAKOA staff, who still take an assimilationist stance rather than understanding the evolving needs of Orang Asli. 109 In the 1980s, the integrationist approach was arguably pushed to that of assimilation through the introduction of the dakwah (Islamic missionary activity) or the process of islamising Orang Asli.
While not necessarily objectionable, it must be appreciated that conversion to Islam theoretically facilitates Orang Asli 'becoming' Malays as defined under the art 160(2) of the Malaysian Constitution. 110 The broad constitutional definition of a 'Malay', namely, a person who (1)  Historical prejudices against Orang Asli as an inferior and subordinate group of people who are unable to manage their own affairs and develop independently continue to surface in current Orang Asli administration. In this regard, extensive state control over the scope of an 'aborigine' and an 'aboriginal ethnic group' can potentially serve to fulfil the prophecy that Orang Asli are on 'a slow march towards a settled and civilised existence through absorption into the larger Malay community' 114 rather than developing their own identity as distinct Indigenous peoples. C

Indigenous Rights as a Hindrance to Economic Prosperity
The Malaysian government's long term goal is to make Malaysia a fully industrialised country with the standard of living of a developed country by the year 2020. This goal is known as Wawasan 2020 (translated, Vision 2020). The current national agenda for progress contained in the New Economic Model launched in 2010 carries both external and internal implications for Orang Asli and their customary lands, either of which do not sit well with the recognition of Orang Asli rights as Indigenous peoples. 115 Externally, broader land development and concomitant resource exploitation in realising Malaysia's vision for material wealth adversely affect Orang Asli customary lands, an integral aspect of Orang Asli identity, culture and well-being. Setting aside large tracts of lands and resources for a relatively small number of Orang Asli may be seen as a hindrance to Malaysia's charge towards the attainment of Vision 2020. Internally, Orang Asli land policies which are aligned with the overall national vision, place little emphasis on the recognition of Orang Asli customary lands. 116 Current development programs are yet to envisage, let alone integrate the recognition of Orang Asli customary lands.
Not unlike many other emerging economies, the popular ideology in Malaysia is that private land is a finite and valuable resource that should be put to productive economic use. As Nicholas summarises: the ideology that is imposed on the Orang Asli assumes that it is the duty of the people to maximize exploitation of resources bestowed upon them by nature. Failure to do this necessarily implies 'backwardness'. It is argued that a people ill-disposed to exploiting nature's resources have no right to stand in the way of other (external) peoples representing 'higher levels' of civilization. 117 By Malay conception, 'modernity', which entails 'keeping pace with the rest of the world', 118 has been said to lead to 'many negative judgments about attitudes derived from the past'. 119 As Benjamin observes, Melayu (including Malay) cultural rhetoric which takes pride in what has been historically discarded in the quest for cultural self-improvement also contributes to a fear of reassimilation into 'tribality' common within the Malay community. 120 Such perspectives, if indeed prevalent in Malaysian society, leave little room for 'traditional practices and social forms', the basis of Orang Asli customary lands. Following this scenario, 'development' can also rationalise the appropriation of Orang Asli customary lands for economically productive use by others.
While deprioritising the recognition of Orang Asli customary lands in favour of the interests of the broader society (including Orang Asli) may well find popular appeal, many Orang Asli peoples view these policies as a violation of their rights to determine their own priorities for development as citizens and Indigenous peoples. 121 Article 3 of the UNDRIP states that by virtue of their right to self-determination, Indigenous people can freely pursue their economic, social and cultural development. Article 23 of the UNDRIP provides for the right of Indigenous peoples to determine and develop priorities and strategies for exercising their right to development while art 32.1states that Indigenous peoples have the right to determine and develop priorities and strategies for the development and use of their lands or territories.
Partly in response to Orang Asli poverty and marginalisation but focusing more on broader rural development, the Ministry of Rural and Regional Development unveiled the Rural Development Masterplan in October 2010. 122 The Masterplan provides for the transformation of all rural areas, focusing on poverty eradication through economic and industrial activity, improvement of basic infrastructure, education and rural management. The transformation initiative includes Orang Asli resettlement and development of Orang Asli lands mainly through cash crop agriculture. 123 The JAKOA Plan identifies one of its main challenges as the encouragement of individual property ownership among Orang Asli, which is to be achieved through discussions, planned economic activities and orderly resettlement. 124 In line with the national agenda for development, customary lands and community-based systems characteristic of many Orang Asli villages, do not appear to be a priority. The standards employed in engaging with Orang Asli on the introduction and implementation of such policies are also notably absent from the JAKOA Plan.
Geared towards propelling Orang Asli into enjoying the benefits of the mainstream market economy, the 2009 proposed Orang Asli land titles policy ('the Proposed Policy') advocates individual property ownership to the Orang Asli. 125 While not necessarily abhorrent in principle, SUHAKAM estimates that Orang Asli stand to lose more than 80 per cent of lands claimed by Orang Asli as customary lands if the Proposed Policy is fully implemented. 126 In 2010, the Orang Asli protested against the Proposed Policy arguing that it would destroy the communal lifestyle practised by Orang Asli, was in violation of the UNDRIP and the fundamental liberties of Orang Asli under the Malaysian Constitution, and was formulated and passed without prior consultation with the Orang Asli community. 127 If insensitive to Orang Asli needs, these policies for orderly resettlement and planned economic activities, in addition to being inconsistent with Orang Asli rights to determine their own priorities for development and to the recognition of lands, territories and resources occupied, used or acquired, 128 will function to sever the inextricable material and spiritual link that Orang Asli have with their lands, which form the basis of their identity, culture and well-being.
It is evident that the rights contained in the UNDRIP have not been sufficiently incorporated into the law and policies affecting Orang Asli and their lands and resources. Priorities for national development, particularly those affecting Orang Asli, continue to be introduced and implemented without effective cooperation and consultation with the Orang Asli in an effort to push Orang Asli into the mainstream economy. The lack of nuanced and equitable economic development programs adversely affect the indigeneity and identity of rural-based Indigenous minority communities like the Orang Asli. As observed by Tan: The nature of economic development, especially laissez-faire capitalist development, has serious consequences for economic weaker groups especially rural-based minorities. More and more, they have to align and realign themselves into larger groups and link their minority status to mobilization for a fairer share of the nation's economy. 129 Economic development and 'mainstreaming' Orang Asli should not come at the price of jeopardising of the Orang Asli 'way of life' as determined by them. However, the legal and executive stranglehold that the state holds over Orang Asli ethnicity, identity and customary lands potentially facilitates state-imposed 'realignment' of the Orang Asli community towards economic integration but in a manner that is devastating to their lands, culture, identity, and overall wellbeing.

V CONCLUSION
Although the Orang Asli have utilised their externally imposed ethnicity and identity to advocate their rights as Indigenous peoples with some success, the extensive and protectionist statutory powers possessed by the federal and individual state executives to determine the composition and criteria of the Orang Asli community is incompatible with international norms on Indigenous rights and can further function as a tool to deny Orang Asli their attendant rights as Indigenous peoples. Admittedly, it would be tenuous and arguably embarrassing for the state to refute Orang Asli indigeneity at this point given the recognition it has given to the Orang Asli community both domestically and internationally. However, substantial challenges remain in metamorphosing this ambivalent recognition of Orang Asli indigeneity into Indigenous rights as envisioned by the Orang Asli. The vulnerable legal construction of Orang Asli ethnicity serves to fortify these challenges.
A possible starting point for the reconciliation of these matters may be for the government to clarify the legal status of Orang Asli as distinct Indigenous peoples who possess contextualised rights which do not affect the special privileges already possessed by Malays under the Malaysian Constitution. The corresponding criteria to determine who falls within the scope of the term 'Orang Asli' should be framed in consultation with the Orang Asli community and should incorporate principles of self-identification but with necessary safeguards. Beyond legal definitions and criteria, it is equally important that these initiatives are accompanied with a comprehensive program that disseminates information on Orang Asli indigeneity in a manner that is neither divisive nor threatening to other sections of Malaysian society. These suggestions may not be the panacea to all Orang Asli rights issues but would go some way towards increasing confidence in government efforts to treat the Orang Asli people with the respect they deserve as the 'first people' of Peninsular Malaysia and more generally, to portray Malaysia as a moderate and tolerant multicultural society.