RESULTADOS Y DISCUSIÓN

Briefly, several aspects of justice are highlighted in the philosophical discourse of justice relevant to the allocation of resources involving indigenous peoples:

(a) Both substantive and procedural aspects of justice emphasize the acknowledgement of and respect for persons as equals with their rights and interests treated equally. This includes respect for freedom and natural rights of people including the autonomy of a community and specific interests that people have in the allocation of resources. A distribution of resources that does not take into account property rights legitimately acquired is a violation of rights and unjust.172

In relation to the allocation of resources in the forests, the principle of justice requires that the liberties, self-respect, rights and interests of the forest stakeholders such as the Orang Asli be given central place. They are entitled to equal concern and respect173 _{as citizens free and equal.}174 _{The value of rights} and freedoms must be assessed from actual opportunities that people have to advance their functional capabilities to exercise the freedoms.175 _{As suggested} by Walzer, respect for diversity of communities including their shared concepts

169 _{Rehman, above n 167. See also the 1981 Universal Islamic Declaration of Human Rights. It}

acknowledges with regret that human rights are being violated by many states including the Muslim countries. It emphasizes ‘that human rights in Islam are an integral part of the overall Islamic order and it is obligatory on all Muslim government and organs of society to implement them in letter and in spirit within the framework of that order’. (Universal Islamic Declaration of Human Rights, Islamic Councils in Paris (19 September 1981)).

170 _{Baderin, above n 168, 594; Ronald Inglehart and Pippa Norris, 'The True Clash of Civilizations'}

(2003) Foreign Policy 62: suggested that the only dispute between the two blocs lies in social and cultural issues (such as gender equality, homosexuality and abortion) rather than in political and ideological attitudes. See also, Rehman, above n 167.

171 _{See also, eg, Institute of Defence and Strategic Studies (IDSS), 'Report on a Conference:}

Progressive Islam and the State in Contemporary Muslim Societies' (2006) <http://www.rsis.edu.sg/publications/conference_reports/ProgressIslamConference06.pdf>.

172 _{Nozick, above n 61.}

173 _{Dworkin, above n 4; Walzer, above n 1.} 174 _{Rawls, above n 9.}

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of social goods is also an essential part of equality. The idea of seeing people and constructing national identity based on one dominant identity to the exclusion of others176 _{amounts to domination. Domination is a failure to respect people as} equal and is inherently unjust.177

(b) Affirmative action in addressing inequality is to be designed to contribute to the general well-being of society according to the needs and relative poverty.178 (c) Justice demands reconsideration of laws and practices that allow the extensive

power of states in the distribution of resources when they discount the legitimate rights of citizens.179 _{This is specifically where one sphere, such as political or} financial power, dominates the distribution process.180

(d) Collective rights are significant, particularly for indigenous peoples, who continue to value their community as a distinct identity. For indigenous minority groups, group rights protect members from the economic and political power of the other dominant groups. The principles of freedom and equality require group differentiated rights including land rights to be recognized. Denial of group rights is an unjust imposition of the values of the dominant others.181

(e) Restorative justice seeks reparation with an emphasis on the principles and aims of human dignity. A range of approaches to achieve restorative justice is discussed in section 4.II.A.

(f) Environmental justice is also related to general issues of justice as it seeks to avoid a disproportionate burden shared by the disadvantaged in society. Environmental injustice enlarges inequality in society which harms the well-being of society as a whole.

(g) There are three aspects to achieving procedural justice as a mechanism. First, decision making including formulation of law and policies that affect the rights of people requires participation of the people. Second, as a prerequisite, Rawls calls for the establishment of a basic political and social institution which assigns basic rights and duties to all citizens equally. Third, the mechanism to address the claims must be fair. Procedural justice is particularly important in the context of indigenous peoples’ disputes due to, among other reasons, its potential for reconciliation, and its increased potential to achieve substantive justice and to 176 _Ibid. 177 _{Walzer, above n 1.} 178 _{Rawls, above n 9.} 179 _{Nozick, above n 61.} 180 _{Walzer, above n 1.}

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allow parties to reach outcomes agreeable to both parties. The concept provides evaluative perspectives to consider the present and prospective mechanisms to address the issue.

(h) As the research also seeks to compare approaches across different jurisdictions dealing with the same issues, the discourse of 'justice in translation' spells out the need to respect differences and consider their relevance.

The discussion informs the study by providing the necessary normative principles to be used in the analysis of laws and suggestions for reform. It provides a standard by which existing laws and proposed laws, as they affect the Orang Asli as minority and indigenous peoples, should be judged. In particular, this theoretical framework supports the discussion and analysis in the thesis. Under this framework the chapters are divided into 3 parts.

Part 3 of the thesis consist of Chapter 5 and Chapter 6. Chapter 5 examines the rights of the Orang Asli under their customary laws and practices. In Chapter 6, the position of the rights of the Orang Asli to forest resources in the laws and policies in Malaysia is compared with the rights and interests of the Orang Asli as identified in Chapter 5. The framework of justice discussed in the current chapter is used to evaluate the criteria of the laws.

In Part 4, Chapters 7 and 8 respectively consider the approach adopted in international law and other jurisdictions in relation to the access to natural resources by indigenous peoples. The analysis of the law in these jurisdictions is also based on this framework of justice. Further in Chapter 9 the prospect of legal reform in Malaysia relating to the rights of the Orang Asli is assessed should the principles and approaches be transferred to Malaysia. The changes to laws in Malaysia through the impact of both the common law and international law on the Malaysian policy is considered by using concepts from comparative law including legal transplants and a model of law as an autopoietic system. Part 5 summarises and concludes the discussion under the theoretical framework established in this chapter.

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PART 3: ORANG ASLI CUSTOMARY RIGHTS AND THE POSITION UNDER