UNIVERSITI TEKNOLOGI MARA

FACULTY OF ARCHITECTURE, PLANNING AND SURVEYING

DEPARTMENT OF SURVEYING SCIENCE AND GEOMATIC

LAND LAWS AND REGULATIONS (GLS6)

TUTORIAL 1

MALAY CUSTOMARY LAND TENURE

PREPARED BY:

AMAR HAIKAL BIN AZMAN

2017800236

RAP2208C

SUBMIT TO:

DR RUSNADEWI ABDUL RASHID

16 MARCH 2020
TABLE OF CONTENT

1.0 Introduction................................................................................................................................1
1.1 Historical Background of Malay Customary Land Tenure..........................................................2
1.2 Characteristic of Malay Customary Land Tenure........................................................................4
REFERENCE..............................................................................................................................................6

i
1.0 Introduction

Since the independence in 1957, land tenure system in the Peninsular Malaysia
(PM) has changed. The land law and regulations have been frequently amended so that
the provisions and rationale of the laws can be properly understood and continuously
evaluated to suit the current requirements. Even though the modern system of land tenure
and land law has been widely observed and has governed land dealings in the country,
customary land tenure system are still much influenced and practiced especially among
the rural Malay society.

The Malay customary law consists of customs and traditions of Malay, which in
course of time acquired the character of law and can be only, enforced by chief or elders.
Malay customary law or Malay adat varies from one region to another and between one
racial or ethnic group. It is 1st known being practiced in Malacca which ruled by Muslim
Sultan and a mixture of Islamic principles and Malay adat.

The Malay customary law as a body of rules, applies only to a particular racial or
religious group in which in this context refers to the Malays and the religion of Islam. For
example, Islamic law applies to Muslims irrespective of their ethnic affiliation, and native
customary law to those identified as natives.

Since the independence in

1957, land tenure system
in the Peninsular Malaysia
(PM) has changed. The

1
land law and regulations
have been frequently
amended so that the
provisions and rationale of
the laws
can be properly
understood and
continuously evaluated to
suit the current
requirements. This paper
review the Malay
customary land tenure and
the development of
colonial land system,
which has be
examined through its
historical evident with the
aid of law cases. Even
2
though the modern
system of
land tenure and land law
has been widely observed
and has governed land
dealings in the country,
customary land tenure
system are still much
influenced and practiced
especially among the rural
Malay
society. The Malay
customary law consists of
customs and traditions of
the Malay, which in the
course
of time acquired the
character of laws and can
3
be only, enforced by the
chief or elders.
Since the independence in
1957, land tenure system
in the Peninsular Malaysia
(PM) has changed. The
land law and regulations
have been frequently
amended so that the
provisions and rationale of
the laws
can be properly
understood and
continuously evaluated to
suit the current
requirements. This paper
review the Malay
customary land tenure and
4
the development of
colonial land system,
which has be
examined through its
historical evident with the
aid of law cases. Even
though the modern
system of
land tenure and land law
has been widely observed
and has governed land
dealings in the country,
customary land tenure
system are still much
influenced and practiced
especially among the rural
Malay

5
society. The Malay
customary law consists of
customs and traditions of
the Malay, which in the
course
of time acquired the
character of laws and can
be only, enforced by the
chief or elders.

6
1.1 Historical Background of Malay Customary Land Tenure

The Malaysian Land Law originated from the laws governing the Straits
Settlements, Federated Malay States and the Unfederated Malay States.

Penang was the first state subjected to the rule of the British when the Sultan of
Kedah agreed to give the British rule of Penang in exchange for military assistance. It
was discovered that Penang had no law of the land at the time, as seen in the case of Ong
Cheng Neo v Yap Cheng Neo. Therefore, the British introduced the Royal Charter of
Justice in 1807 to remedy the problem.

The Royal Charter of Justice 1807 introduced the Deeds System, which was an
old English system of landholdings. Its function was to record land transactions in the
forms of deeds and indentures. However, since there was no proper registration of title of
land and discrepancies in management of land, the Deeds System was phased out and
replaced by the Torrens System.

The British reinvaded Malacca in 1824, due to the Anglo Dutch Treaty of
swapping Bengkahulu for Malacca to end the stalemate between the Dutch and the
British. However, unlike Penang, Malacca already land laws governing the state. Among
the laws existing were the Dutch Land Law, Islamic Land Law and Malay Customary
Land Tenure.

The Federated Malay States which consisted of Selangor, Pahang, Perak, and
Negeri Sembilan, are independent states ruled under sovereign Muslim rulers. There were
already pre-existing laws in the Federated Malay States such as the Perak Laws, Malay
Digest, Kanun Laws and Rules for Disposal of Lands in Selangor.

The Unfederated Malay States were made out of the five states which are Johor,
Terengganu, Kelantan, Kedah and Perlis. They were mostly influenced by the Siamese
King, so the British influence came later than the rest of Peninsular Malaysia. They
collectively accepted the Torrens System late in the 19th Century. An example of the law
is the Kedah Enactment 1934.

7
 The Land Code 1928 was later introduced to all states in Peninsular Malaysia. Its
aim was to introduce a uniform system of Land Law and proper registration of title of
land. It later developed into the National Land Code 1965. Both Land Code 1928 and
National Land Code 1965 are only applicable to all states of Peninsular Malaysia, as seen
in the case of Sime Bank v Mohd Hassan B. Sulaiman.

8
1.2 Characteristic of Malay Customary Land Tenure

Malay Customary Land Tenure was the land law existed in Malacca during the
establishment of Malacca Sultanate and Islamic Religion during the 15th century. Based
on the Islamic principles “All land belong to the Ruler” and “One who fells the trees
owns the land”. The characteristics of Malay Customary Land Tenure were stated in the
case of Sahrip v Mitchell & Anor, in which according to Maxwel C.J it is well known
that by the old Malay Law or custom of Malacca, while the sovereign was the owner
of the soil, every man had nevertheless the right to clear and occupy all forest and
subjected to the payment to the sovereign of one-tenth of the produce of land so taken.
Which means the land belongs to the Rulers and Sultan had the rights to grant land to
some royal favourites of local chiefs or based on Sistem Kerah where there was a duty of
peasants to render services to the Sultan.

This was later supported by the Mazwell‟s Theory where the traditional Malay
ruler “owned” the land while the citizens were left only with a usufructuary right of
enjoyment. So what are the characteristics of Malay Customary Land Tenure? So,
according to the case given above (1) there is no absolute ownership but of a lesser extent
“proprietary rights” –  rights of ownership not to the soil but to the usufruct/ rights to the
enjoyment and utilize the land. (2) The method of acquisition of land is by opening up
and cultivating virgin jungle or waste land (tanah mati into tanah hidup). (3) Maintaining
the land under continuous cultivation. (4) Obligation to pay 1/10 to the Rulers as tax. (5)
Do not abundant or neglected the land for a period of time such as 2 to 3 years as it will
be forfeited back to the Rulers. (6) If there are wishes to sell the land, the price is based
on “pulang belanja” and lastly, whoever wanted to borrow money on the security of land,
it must be based on “jual janji” and if fails to settle the loan within the time given, it will
be “jual putus”.

Moreover, there were 2 types of land under Malay Customary Land Tenure,
Tanah Hidup such as tanah kampong, tanah bendang and tanah huma, plus Tanah Mati in
which a land that was being abandoned after a period of time.

9
 In the case of Yaacob bin Lebai Jusoh, plaintiff and defendant were on a land
transaction agreement so; in 1945 they entered into an agreement where
Plaintiff promised to pay the loan that he had borrowed from Defendant in exchanged
of the land that he had transferred to Defendant in 1944 within 3 years. However, he
failed to re- purchase the land and the agreement became null and void thus, the court
held that due to the wording held in the transfer was made in a security only therefore, the
transaction was a jual janji.

There were 3 types of dealing under the Malay Customary Land Tenure. Firstly,
Jual Janji in which occupier borrow money from lender in exchanged of the occupier‟s
land and the lender promise to re-transferred the land once the occupier pay back the
money within a stipulated time. Secondly, Jual Putus in which the occupier fail to repay
or repurchase the land within the time given and lastly, Pulang Belanja where the
occupier wants to sell the land, the price of the land is calculated from the building, the
expenses incurred in opening, clearing, cultivation and developing of the land.

In a conclusion, these are the characteristics of Malay Customary Land Tenure

accordance to the case of Sahrip v Mitchell & Anor before it was abolished in the end of
the 19th Century.

10
REFERENCE

“Malay customary tenure and conflict on implementation of colonial land law in

Peninsular Malaysia”.

11