MALAY RESERVATION

: A MALAY

DILEMMA

BY

HALIZA AINI OTHMAN

Submitted in partial fulfillment of the requirements for the Diploma In Law at the Mara Institute of Te chnology

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TABLE OF CONTENT

PREFACE ABSTRACT TABLE OF CASES TABLE OF STATUTES TABLE OF CONTENT

( -

I.

Introduction. A. B. C. Purpose For the Reservation of Land Development Before the Formation A Historical Background to The Enactment

II.

Defination Of A Malay

A.

The Malays

A Historical

Background

The Origin and Language

B. C.

The Malays As Defined By the Malay According To The Malay Enactment

Constitution Reservation

III.

Prohibition Against Private Dealings Malay Holdings

Regarding

A.

General

Prohibition

1X

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Land Held by Non-Malays (i) Existing Holdings of Non-Malays Which later come To be Included Enactment

Within A Malay Reservation

(ii)

Holding Acquired by Non-Malays In Respect of Land Already in a Malay Reservation Included

pe of Prohibition

Charges Transfers Other Restrictions Prohibitions

Exceptions To The

endant Problems And

Recommendations

Amendment To the Present Law Restrictions To Renovation Uniformity of the Enactment Role of Government (i) (ii) Agencies Land

On Agricultural

In the Cities and Towns

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VI

Conclusion . A. B. The Future The Future A Dilemma A Reality

SUPPLEMENTARIES Appendixes Bibliography

XI

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Preface

The aim of the thesis is to the extent to which the legal system and the Malay Reservation Enactments

investigate generally in parti-

cular operate in West Malaysia as a constraint on the free flow of development. To see how far and

one could generalize from these experiences to make such proposals appropriate. for reform as seemed

To achieve those aims, it has been formal

necessary to proceed far beyond a study of laws alone and to investigate also

government

policies and the needs and interest of the Malay Communi ty.

It gives me great pleasure

to express

my indebtedness to my friend, Chok Chin Y o u , 3rd year, Law faculty, University of Malaya who has given me great help in collecting materials. the to my

I am also extremely grateful

supervisor, Mrs Shamsiah Subhan and the Penolong Pengarah Kanan, Bahagian Pentadbiran dan Perundangan, Kementerian Kemajuan Tanah dan Wilayah, Encik Afandi Ismail for their kind assistance.

H I

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The thesis could not have been

completed

without the love and devotion of my family who is my constant source of encouragement support. and

It remains only to state that the opinions expressed in this thesis are mine. be taken to represent They must not or

the views of individuals Also, all

organisations who have assisted me. remaining errors are entirely mine.

IV

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Abs tract

The basic aim of the Malay

Reservation

Enactment was the perpetuation of the ownership of lands under Malay settlement and cultivation

in the hands of the Malays and hence the preservation of the social, economic and physical intergrity of the Malay peasantry.

However the role of the Malay

Reservations

in the overall protection of Malay interest in rural and urban land ownership is questionable.

The prohibition of dealings

in Malay created a from

Reservation by non-Malays effectively category of agricultural

land different

non-Reservation holdings in terms of the commercial value of the holdings. The insulation of and

Malay Reservation from non-Malay influence dealings debarred the Malay owners from

mortgaging their land to non-Malay moneylenders. Since Malay moneylenders are rare due to the Moslem the

fact that the Islamic religion prohibits

from accepting interest on loans, therefore

Malay Reservation land owners are deprived of

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this source of credit which hampers

the

proper development of Malay Reservation.

Although Malaysia has adopted a free economy and a property owning society, leaving the distribution of wealth to market forces, free The

she has also realized that a completely

economy will lead to undesirable results. clear inequality of wealth among the ethnic

groups and between the haves and the have nots must be narrowed if not abolished altogether.

To set the Malay peasant on the road to economic progress requires changes in his habits of thoughts and attitude as much as alterations the land codes and Enactments and economic policies. in

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Table

of

Cases

Can K h o r v Soan bin Idris bin H a j i

Pelita

(193S)E.M.S.L.R.39 v Ng Ah Sip.u

Mohammad

Amin

Sakinah Ho Ciok Tnn H o n g

v Kua T e o n g Chav Chit v Nik

How

( 1 9 4 6 ) F . M . S . T, . R . 246 (19 61) 27 M . T . J . 49 . F.M.S.L.R.246 (1970)

Aishah

v Lim K i n W a n v Chong

(1946) Kee

ghik b i n A b d u l H a m i d 2 M . L . J . 210 Hanisah v Tnan Mat

Seng

(1970)

1 M.L.J

213

(F.C)

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Table of Statutes

Land Enactment

1897

Johor Malay Reservation Enactment No. 1/1936 Kedah Malay Reservation Enactment No. 63 Kelantan Malay Reservation Enactment No. 18/1930 Federated Malay States Malay Enactment Cap 142 Federated Malay States Malay Enactment 1913 Reservation Reservation

Perlis Malay Reservation Enactment N o . 7/1353 Trengganu Malay Reservation Enactment N o . 17/1360 Federal Constitution

National Land Code Act 56 of 1965 Customary Tenure Enactment Cap 215 (Settlement of Malacca) Malacca Land Tenure Rights Ordinance) (Straits Settlement

Land Aquisition Act, 34/1960 Land Aquisition Amendment (1984)

Akta Perancangan Bandar Dan Desa 1976.

V 111

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CHAPTER ONE

INTRODUCTION

A.

Purpose For Reservation of Land. There are many reasons for the need of

a law securing land held by the Malays into the hand of the Malays. With the beginning of the

industrial revolution in the west, many European countries including Britain expanded their colonies in the east. They exploited these

territories for their economic gains without considering any conditions or restrictions on capital, land or labour. In the 1890s their

economic policies were heavily critisized because of the negative effect it had on Britain as well as the colonials.

New tin mines and rubber estates were exploited. Labourers from T n l i a and China c

flocked to the country to overcome the labour shortage. These labourers were provided land As a result, the Malays had to

by the British.

compete with the British as well as

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foreign labourers for land.

Due to this reason,

the Government felt that there was a need to protecL the Malays from being deprived land . of their

In Pahang, the rulers divided

large areas

of land especially in Ulu Lipis to the Chinese in Kelantan, a syndicate called the Duff Corporation

was given hundreds of acres of land rubber industries.

for their

In 1910, 1416 lots of land in Selangor were sold to foreigners . Large areas of land chettiars due to

has also passed to the non-Malay non-payment of debts.

Shortage of food occurred where more land passed on to non-Malays through

paid

jual-janji

transactions as the Malays were the main padi growers - the staple food supplier. Thus the which

formation of the Malay Reservation Enactment reserved land 2 for the Malays in 1913.

Great Britain Colonial Office : An Annotated Bibliography On Land Tenure in the British And British Protected Territories in South East Asia; p. 17 Mostly large areas of padi fields.

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B.

Development Before the Formation Of the Malay Reservation Enactment.

In October 1908, problems

concerning

Malay land was included in the agenda of the Residents of the Federated Malay States Conference 3 for that year. Brockman suggested that a condition that non-Malay leasors be prohibited

from buying rubber plantations belonging to Malay leasees be imposed. However, the suggestion to be not

was set aside as it was considered 4 practlcable .

Later in July 1910, the question

arose

again when the Federal Secretariat brought up the matter in a circular sent to the 4 residents.

District Officer of Ulu Langat, R.C. Clayton in his memorandum peasant , categorised Malay

land into 3 classes : (i) ( i i) Isolated holdings

plantation land

(iii) village

3. 4. 5#

fesident

of Perak.

Lim Teck Gheet ; P-107. Memorandum on : "The Absorption By Large Landowners And Estates of Native (Malay) tinldings" by Acting D.O. Ulu Langat; ^8th July 1910 SS7 3170/10.

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Clayton suggested that village land

should

remain in the hands of the Malays as that is where their homes and plantations are. The formation these

of a Malay Reservation would ensure that land remains in the hands of the Malays.

In Perak similar suggestions were made by J.W.W. Birch. H e , on the other hand categorised

Malay holdings into 2 classes : (i) agricultured purpo ses (ii) Malay owned land on which were land for speculation

situated their homes and plantations including padi fields and fruit trees .

Birch suggested that land of the second category should remain in the hands of the Malays by imposing a condition on transfers and charges.

Perak and Selangor each formed a committee

Q

at state level to investigate on that matter .

Minutes by British Resident to Perak to Acting Resident General, 7th September 1910 SS7 3170/10. 8. Perak SCM, 2nd September p. 893. 1910, F.M.S. G.G 1910

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1,584 lots of land totalling 1,567 were reported to have been passed

acres

from the Malays

to the non-malays between 1909 till 1910 in Selangor 9 . The members of the committee comprised

of 2 district officers, E.L. Burnside and Clayton. The other two members were Encik Abdul Razak and Tuan Haji Ibrahim.

The committee suggested the problems (i) (ii) :-

3 ways to overcome

the formation of a Malay an ancestral

reservation;

condition imposed to to non-

ensure that any transfers

Malays must be made with the written approval of the Collector of Land Revenue; (iii) Malays owning land outside a Malay Reserve should Reservation. change it into a Malay Lower leasing rates or

estate duty should be imposed as an incentive.

9.

Selangor SCM, 14th September 1910; p. 159 9.

1910, F.M.S.G.G

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In July 1911, the 2nd suggestion was accepted and ancestral conditions were imposed and

in several districts in Ulu Langat, Kelang

TT1

1 0

Ulu Selangor In Perak, unlike in Selangor, the committee suggested legal protection administrative restrictions. in lieu of

Birch laid out the committee's

draft to 1910

the state legislative council in December

No active steps were taken in Pahang and Negeri Sembilan concerning Malay land at this stage. The existence of the Customary Tenure Enactment

which protects Malay landowners may be the reason in Negeri Sembilan. The Customary Tenure Enactthe transfers

ment was enacted in 1909 to restrict of Malay owned land to non-Malays 12

The economic development in Pahang was very slow and the administrators were more with trying to overcome outstanding debts. concerned Thereland

fore, the problems of the extinction of Malay

A

1 3

was not considered

seriously

10. 11. 12.

13.

S.S.F 3170/10 Perak S.C.K, 1st December 1910, F.M.S.G.G. 1910 p. 1597. Memorandum to accompany a draft of Customary Tenure Enactment 1909 by D.G. Campbell- 3rd June 1909, H.C.O.F. 826/09. Lim Teck Ghee; ibid . ; p. 110

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In November 1911, the Federal

Legal restric-

Advisor was asked to draft an enactment

ting Ancestral Malay Land from being sold to nonMalays. Thus was the outcome of the Federated

Malay States Residents' Conference which was held in 1911 14 . The first draft was completed . in

April, 1912 down below :

The preamble of the draft is laid

" For some time past the Rulers of the Federated Malay states and their anxiety

Advisors have been caused grave and apprehension by fact that

their

Malay subjects deluded by visions of present but transitory wealth have been divesting themselves of their homestead

and family lands to any one willing to pay in cash for them. Blinded by the offered,

radiance of the inducement

entranced by the visions of let mean pleasures conjured up, they fail to realise that for those illusory they are surrendering and pleasures

sacrificing Thus a race

the happiness of a lifetime.

of yeoman peasantry aforetime happy and prosperous incapable from the very nature

of their country and germs of

supporting find too

themselves in any other country

14.

Conference of Residents, November 1919. H.C.O.F. 58 3/11. F.M.S. G G 1913, p. 651 - 654.

15.

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late they have become homeless in their own land. conclusively

wanderers advisors

The Rulers of the

Federated Malay States and their

feel that unless a better

judgement is exercised on their behalf the result will be extinction of the

I

C.

Malay Yeoman - peasantry "

When the bill was laid out for the Federal council's approval, the Sultans of the four states gave encouraging support to the Federal Legal Advisor and the Chief Secretary.

There was a slight opposition commercial sector. who represented

from the

En Tong Sang, a Chinese merchant,

the Chinese merchants gave the However, the Federal Council

strongest opposition.

passed the bill after a majority vote.

C.

A Historical Background of the Enactment. The Malay Reservation Enactment was passed

by the Federal Council on the 25th of November It was later gazetted on the 30th of December and took effect on the 1st of January 1914.

1913 1913

i6. 17.

D.O.F. Kuantan 673/15

(misplaced

file).

F.C.P. 25th November 1913, Chapter 5 5 .

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The preamble of the Federated Malay Enactment cited thus : " An enactment to provide for

States

securing
1 Q

to Malays their interest in land"

Section 3 gave the Residents power to declare an area to be a Malay Reservation. 7 stated that a Malay Reservation Section sold,

shall not be

leased or transfered to non-Malays. and 10 imposed prohibitions

Section 8, 9 on

and restrictions

Malay Reservation landowners from passing it on to a non-Malay in whatever form. Section 13 made any to be

form of transactions on Malay Reservation null and void.

Therefore, the above enactment the Malays in 2 ways. (i) It :

protected

prohibited the state from

disposing

Malay Reservation to non-Malays and ; (ii) prohibited any form of private dealings on Malay Reservation to non Malays. The declaration of an area to be a Malay Reservation varied from state to state as the

18.

No. 15 of 1913.

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10

resident of each state was given the to make such declaration.

discretion

On the 5th of June 1914, Larut became the first province to be gazetted as a Malay Reservation area. 13 areas totalling 140,000 followed

acres were made a Malay Reservation,

by Krian, Kuala Kangsar, Ulu Perak, Hilir Perak and Batang Padang 19

Kuala Pilah and Tampin were the first two areas in Negeri Sembilan to be gazetted as a Malay Reservation. In 1918, more than as a Malay 400,000 Reservation

acres of land were gazetted

Meanwhile in Selangor, by 1917, more 35 areas were gazetted to be a Malay

than

Reservation (i) .

totalling more than 36,542 acres.

See table

In Pahang, the first step taken to make certain areas a Malay Reservation began in 1916 where 32,640 acres of land in Pulau Tioman, Pekan was gazetted as one.

19.

F.M.S.G. G 1914, p. 841. FOTOSTAT TIOAK OIBENARKAN

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11

TABLE

(i)

SELANGOR

: MALAY RESERVATION AREA

1917

Daerah

Kelulus an Bil Kawasan Kelulusan Rizab Rizab Melayu Melayu (ekar) (ekar) 213,511 140,800 486,400 512,000 5 4 13 6 3 4 6,0S5 7,642 10,000 4 ,055 Tidak diketahui |
f

Kuala Lumpur Kl ang Ulu Langat Ulu Selangor

Kuala Selangor 576,000 Kuala Langat I Source : 299,076

8,760

List of Malay Reservation SSF 2876/17

in Selangor,

Prohibitions imposed by the 1913 Enactment against private dealings appeared to be indiscrimiHowever drawback. in land these

native of their nature and purposes. prohibition soon revealed a serious Prohibition against security

transaction

which was aimed at protecting Malay

cultivators they

isolated them from credit facilities which actually needed.

As a result, charges and other commonly

security transactions continued to be

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12

carried out in Malay Reservation in favour of non-Malay money-lenders 20

In 1933, the 1913 Enactment was

repealed

and replaced by a New Enactment - The Malay Reservations Enactment Cap 142 21 . One of the

most important changes made by the new enactment was to forbid all kinds of dealings including purporting

security transaction, at the same time to meet the problems regarding of the Malay cultivators.

the financial needs expressly

The Enactment

allowed any Malay owners to charge his land to the "resident" or any cooperative societies for such purposes 22 approved

After the 1933 replacement, several ments were made in 1 9 3 4 2 3 , 1 9 3 6 2 4 , 1 9 3 8 2 5 , 27 1954 and in 1959 28 . One of the most

amend194826,

important

amendments made was section 7 of the present Federated Malay States Enactment provides : 20. 21. 22. 23. 24. 25. 26. 27. 28. David, S . Y . Wong, Tenure And Land the Malay States; p. 5 10 Deal in;-, s in Cap 142 which

Enactment No. 3o of 1933 S.17 No. 30 of 1933, F.MS Malay Reservation Enactment. Enactment N o . 2 8 , 1934 Enactment No. 2 8 , 1936 and Enactment N o . 5 1 , 1936 Enactment No. 3, 1938. Enactment No. 1, 1948 Ordinance No. 2 5 , 1954 COPYRIGHT UiTM L .N . No. 233, 1959.

13

" No state land included within a Malay Reservation shall be sold, leased or otherwise disposed of to any person not being a malay : Provided that the Rulerin- Council may alienate state land within a Malay Reservation to any body corporate or company specified 3rd schedule which the may, by order published to time : And provided further that any state land thus alienated shall be deemed to be a a Malay holding". in the Ruler-In-Council in the Gazette,

add to, delete from or amend from time

The original 1913 Federated Malay Enactment absolutely prohibited

States

any disposition by state Thus the

the state otherwise than to Malays of any land included in a Malay Reservation 29 .

original general prohibition had now become

qualified

to permit alienation of such state land in favour of

rv A certain specifiedJ bodies
3 0

Meanwhile, between 1961 to 1963, each of the former Federated Malay States Separately a further amendment to the Enactment introduced available

to make

29. 3Q .

S. 7 thereof. See S. 7 Third Schedule

thereof.

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14 . . 31 more credit facilities , with safeguards abuses and oppression. increased The list has been

against considerably

to include many more banking, 32

financial

and development bodies

The 1933 Enactment was effective Federated Malay states only.

in the

The other states would

be facing similar problems if there was no law to govern Malay land.

Therefore legislation modelled on the

1913

Federated Malay States Enactment was enacted in 33 34 Kelantan in 19J30 , m Kedah in 1931 and in Perlis 35 Johor adopted the Federated Malay States 1935 Enactment, Cap 142 in 1936 substantially and Trengganu also

followed the model of the Federated

,-.37 Malay States Enactment in 1941 However Malacca has its own (i) legislation (Straits

Malacca Land Tenure Rights

O Q

Settlement

Ordinance)

31. 32. 33. 34. 35. 36. 37. 38.

See Supplementary B. S. 7 Second Schedule. Kelantan Malay Reservations Enactment No. 18 of 1930. Kedah Malay Reservations Enactment No. 63 of 1948 Perlis Malay Reservations Enactment No. 7 of 1353 Johor Malay Reservation Enactment N o . 1 of 1936. Trengganu Malay Reservations Enactment No. 17 of 1360 Chapter 125.

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