Report of the National Inquiry into the Land Rights of Indigenous Peoples 61 4.109 It is quite probable that the attitude of the State at the time was one that saw the Orang Asli as being “so low down in the scale of civilisation” that they were not regarded as having any rights at all. Thus only Malay customary tenure and adat perpateh were mentioned. Despite this misconception, it does not negate the fact Orang Asli have pre-existing customary rights that could be recognised under the general provision of section 4(2) on “customary tenure” and also under “custom and usages” under the Federal Constitution. The fact is that Orang Asli have pre-existing rights to the lands that they have traditionally occupied, and that right is held and regulated by the aboriginal customs of the different Orang Asli communities. 4.110 The Malaysian courts have called this right a customary title or customary community title. As Gopal Sri Ram JCA (as he then was) rightly noted in the case of Sagong Tasi v Kerajaan Negeri Selangor, Orang Asli have a form of customary tenure that is recognized under common law and “[T]here is nothing in the Code, which is the principal statute that regulates titles and dealings in lands and interests in land that strikes at the recognition of land held under customary title”.176 This just means that the National Land Code does not abrogate the existence of an Orang Asli customary tenure. The Aboriginal Peoples Act 1954 (Revised 1974) (“APA”) 4.111 The principal Act that governs Orang Asli administration including some reference to their occupation of land is the Aboriginal Peoples Act 1954. The purpose of the APA is found in its preamble. It is an Act to provide for the protection, well-being and advancement of the aboriginal peoples of Peninsular Malaysia. It is interesting that at the introduction of the Bill, Dato’ Onn Jaffar said in his speech in the Federal Legislature:177 (a) Now I bring this bill for the protection and welfare of a community – a comparatively large community – who are peoples of this country,   (b) The aborigines are human beings with human reactions and the idea of this bill is to provide for their protection as human beings and not as museum pieces or exhibits. 4.112 The latter statement is ironical, which seemed to address or to counter a general, adverse public sentiment. The Act defines the Orang Asli identity, and provides for creation of areas that are reserved for Orang Asli that will “protect” them from “undesirable” persons whose presence in those areas might be detrimental to them. The word “protect” partly explains the background of the legislation where during the Communist Insurgency and the period of the Emergency, it was deemed needful to protect the Orang Asli from subversion. It is questionable if such a provision is still relevant when the state of emergency is no longer in existence. It does however reveal the kind of approach that the State has often taken towards Orang Asli, treating them as wards of the State. This suggests the tacit acceptance of a fiduciary relationship to the Orang Asli.178 4.113 Under the APA, all matters pertaining to land, including the gazetting and de-gazetting of aboriginal reserves come under the purview of the State, who may by notification in the gazette, declare any area exclusively inhabited by aborigines to be 176 Kerajaan Negeri Selangor Sagong bin Tasi [2005] 6 MLJ, 289 177 As reported in the Malay Mail Newspaper published on 28 November 1953, cited in Sagong Tasi v Kerajaan Negeri Selangor [2005] 6 MLJ 289, 302-303 178 This was discussed in Ramy Bulan with Amy Locklear, Legal Perspectives on Native Customary Rights in Sarawak (SUHAKAM, Kuala Lumpur 2008) 155. See also Rusaslina Idrus, “From Wards to Citizens: Indigenous Rights and Citizenship in Malaysia”, (2010) 33 (1) Political and Legal Anthropology Review 89. chapter 4_a4.indd 61 7/5/13 6:46 PM