(2013) 17(1) AILR 103 AFFIRMATIVE ACTION AND THE LEGAL RECOGNITION OF CUSTOMARY LAND RIGHTS IN PENINSULAR MALAYSIA: THE ORANG ASLI EXPERIENCE Yogeswaran Subramaniam* I Introduction In Malaysia, constitutional protection for its Indigenous minority, Orang Asli (in the English version of the Federal Constitution (Malaysia), ‘Aborigines’) 1 principally takes the form of airmative action provisions for their ‘protection, well-being or advancement’. However, this constitutional protection has not resulted in the efective legislative or executive recognition and protection of Orang Asli customary land rights. This state of afairs persists, notwithstanding the common law recognition of Orang Asli customary land rights by the Malaysian courts and Malaysia’s unequivocal votes for the 2007 United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’). Instead, the federal and state governments use their extensive legal powers over Orang Asli peoples and Orang Asli lands to determine state priorities for land and resource ownership, management and use. The exercise of these powers adversely afects Orang Asli land rights. In August 2013, the Human Rights Commission of Malaysia (‘SUHAKAM’) released a report on its 18 month National Inquiry into the Land Rights of Indigenous Peoples (‘the SUHAKAM Report’). 2 The SUHAKAM Report contains 18 recommendations for the recognition and protection of Indigenous (including Orang Asli) land rights as well as policy and administrative reform. In response, the federal government formed a task force whose terms of reference include an assessment of the indings and recommendations of the SUHAKAM Report with a view to implement the recommendations contained in the Report. 3 While a comprehensive law and policy document on the practicability of the SUHAKAM Report recommendations within the conines of this article may be too ambitious, this recent development provides an opportunity to examine the main constitutional, legal, political, policy and administrative challenges in any law or policy reform initiative towards the recognition and protection of Orang Asli customary land rights. This article begins with an introduction to Orang Asli vis- à-vis Malaysian society, before the laws governing Orang Asli customary land rights and the practical problems faced by Orang Asli in securing the protection of their customary land rights are examined. The main political, policy and administrative challenges in securing efective recognition and protection of Orang Asli land rights are then analysed before the article concludes with guarded optimism on government initiatives toward the possible recognition of Orang Asli customary land rights. II Orang Asli within the Malaysian Context The Federation of Malaysia comprises of the peninsular land that separates the Straits of Malacca from the South China Sea and most of the northern quarter of the island of Borneo. Peninsular Malaysia consists of 11 states and two federal territories. The Borneo territories are made up of the States of Sabah and Sarawak and a federal territory. In April 2012, the population of Malaysia stood at 28.72 million, 4 divided into ethnic Malays (50.1 per cent), Chinese (22.5 per cent), other Indigenous groups (11.7 per cent), Indians (6.7 per cent) and other races (8.9 per cent). 5 Malays, explicitly deined in the Malaysian Constitution, 6 are the numerically and politically dominant ethnic group in Peninsular Malaysia whose ancestors had formed kingdoms within the Malay Peninsula at the time of the irst recorded European contact. Orang Asli, the Indigenous minority