60 Chapter 4 | LEGAL FRAMEWORK OF INDIGENOUS PEOPLES’ RIGHTS TO LAND in the Civil Law Act 1956,172 which specially recognises local laws. Section 3(2) of the Civil Law Act provides that the law applicable to Peninsular Malaysia is that of common law and equity as is in force on 7 April 1956 in England, provided that the said common law, rules of equity and statutes of general application shall be applied “so far as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary.” 4.105 Sihombing states further: “[W]here the incidents of tenure protected refer to the rights of citizens, the rights protected are not those of Malay customary tenure alone but refers to special statutory rights relating to land provided for in the Constitution and other enactments.”173 (emphasis added). 4.106 This statement reflects the intent of the National Land Code that is supposed to deal with all aspects of land matters in Peninsular Malaysia. It is to be noted that the term “customary tenure” has often been used to refer to Malay customary tenure under the National Land (Penang & Malacca) Titles Act, as well as to adat perpateh or tribal adat in Negeri Sembilan. Thus Sihombing is of the view that since Malay customary tenure is now mostly dealt with by the enrolment in the Mukim Register,174 customary tenure, which is given paramountcy by section 4(2) refers to tribal adat. The main effect of the reservation in section 4(2) is that unlike dealings in other mukim lands which are solely regulated by the National Land Code, dealings in customary land must also conform to the customary rules. Sihombing makes a further significant observation, and that is, the fact that a close reading of this provision would mean that when there is any conflict, customary law prevails.175 This is a very vital observation. This leads us to the question: What is the relevance of the National Land Code to Orang Asli? 4.107 It is contended that the lack of reference to Orang Asli may be a clear indication of how the Orang Asli appeared to have been treated as an invisible population in Peninsular Malaysia. As the principal legislation on land in Peninsular Malaysia, there is no reference in the Code pertaining to their presence on the land. Was it because they were regarded as having no legal system that could be given force to? If the stand taken by Tun Mahathir in his book the Malay Dilemma is reflective of the then prevailing attitude, it is not surprising that the National Land Code has no reference to Orang Asli. This attitude and his assertion that the definitive people of the Malay Peninsula are the Malays and not the Orang Asli came as a slight, and a great disappointment to the community. 4.108 Such an outlook towards certain tribal groups was reflected in decisions of the colonial courts as expressed by Lord Sumner in Re Southern Rhodesia, where he said “[S]ome tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institution or the legal ideas of civilised society.” Be that as it may, Lord Sumner in the same case did recognise that some groups had legal systems which were recognised. His Lordship said: On the other hand, there are indigenous peoples whose legal conceptions, though differently developed are hardly less precise than our own. When once they have been studied and understood, they are no less enforceable than rights arising under English law. 172 Act No.67 173 Judith Sihombing, National Land Code: A Commentary, 2nd Edition, at p 81. 174 E.g. The Land (Group) Settlement Areas 175 Judith Sihombing, National Land Code: A Commentary, 2nd Edition, at p 81. chapter 4_a4.indd 60 7/5/13 6:46 PM