MALAY RESERVATION LAND

➔ Land gazetted as Malay reservation + can only be dealt by Malays

➔ Also referred to as ‘Red-Ink Grants’ = A special category of land within the boundary of a
state + can only be owned and dealt by Malays, as being the natives of the state + can
only be transferred or leased to Malays
➔ Objective? = To protect and preserve the Malay race by prohibiting all kinds of dealing
on Malay reservation land with the non-Malays

➔ RELEVANT STATE MALAY RESERVATION ENACTMENTS;

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◆ Federated Malay Reservation Enactment 1933 (applicable to the States of

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Selangor, Perak, Negeri Sembilan, Pahang and the Federal Territory of Kuala
Lumpur)
◆ Perlis Malay Reservation Enactment 1353

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◆ Malay Reservation Enactment of Kedah 1931
◆ Johor Malay Reservation Enactment 1936
◆ Malay Reservation Enactment of Terengganu 1941
◆ Kelantan Malay Reservation Enactment 1930

➔ DEFINITION OF ‘MALAY’
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➔ Article 60 of FC - A person that can be declared as a Malay must;
◆ Must be a Muslim
◆ Speaks Bahasa Malaysia
◆ Complies with the Malay customs
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◆ Domiciled in Malaysia or Singapore

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➔ For the purpose of Malay Reservation, pursuant to Article 89(6) of FC, the definition of
Malay is left to the discretion of each State.
◆ S2 of FMS Malay Reservation Enactment
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● The person must belong to a Malayan race

● The person must habitually speaks the Malay language or any Malayan
language
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● The person must be a Muslim

◆ S2 of Kedah Malay Reservation Enactment

● Whose parents, with at least one of them being a person of Malayan race
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or Arab descent
● Sime Bank v Projek Kota Langkawi Sdn Bhd
○ The definition of Section 2 only applies to natural person (a
person) and not to artificial legal persons (company)

◆ S2 of Kelantan Malay Reservation Enactment

● Adopted the same definition of Malay from provisions of FMS MRE.
● ‘Malay’ include Majlis Ugama Islam and the Official Administrator.
 ● S9 = Restricting the alienation of Malay reservation lands ONLY TO THE
NATIVE MALAYS OF THE KELANTAN (including Orang Asli of Kelantan)
● Hanisah v Tuan Mat
○ The issue on whether the appellant was Malay and a native of
Kelantan or not were left undecided
○ The Federal Court declined the claim
○ Declination were made on S13 of Kelantan MRE = “It is up to
His Highness the Sultan in Council to decide whether the
appellant is a Malay or not, and the decision shall not be
questioned or revised by any court”

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◆ S2 of Perlis Malay Reservation Enactment
● A person belonging to any Malayan race or person of ‘Arab descent’
● A person who habitually speaks the Malay language or any Malayan

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language
● A person who professes the Muslim religion
● S7(1) = Siamese agriculturist who permanently residing in the State of
Perlis are allowed to own and occupy Malay reservation land

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◆ S2 of Terengganu Malay Reservations Enactment
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● A person of a Malayan race
● Habitually speaks the Malay language or any Malayan language
● Muslim
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◆ S2 of Johor Malay Reservation Enactment

● A person who belong to the Malay or any Malayan race
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● Habitually speaks the Malay language

● Professes the Muslim religion
● Zaleha Bte Sahri v Pendaftar Hakmilik Johor
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○ Fact:
- Zaleha, a Malaysian Malay owning a piece of Malay reserve land
in Johor Bahru. She married a Singaporean Malay and
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subsequently became a Singaporean Malay.

- Later, the Johore Government issued a circular under Section 22
of the Johor MRE ▶ Restrict the definition of Malay for purposes of
the MRE as not only to a Malay as defined under S2 of Johor
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MRE but also Malay having Malay citizenship.

- Technically, she was no longer a Malay having Malay citizenship
under the said Enactment, thus she cannot own a Malay reserve
land.
- Zaleha applied to the HC to revoke the status of a Malay
reservation land.

○ Held:
 - The court allowed the revocation of Zaleha’s status and allowed
the husband and children to inherit the property.
- Apply maxim of equity; “justice must not only be done but must
seen to be done”
- It was unjust and unnecessary for the State Authority to make
Zaleha the scapegoat for its inconsiderate ruling + the ruling was
CLEARLY ABSURD AND IRONICAL
- The court strongly believes that Malays under the definition of the
said MRE should include all those Malays from the Malay
Archipelago.

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➔ FEDERAL CONSTITUTION (FC) PROTECTION FOR MALAY RESERVATION LAND
(HAFAL JE SEMUA NI UTK TAHU MCM MANA NK HANDLE RESERVED LAND)
◆ Article 89 of FC

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89. (1) Any land in a State which immediately before Merdeka Day was a Malay
reservation in accordance with the existing law may continue as a Malay
reservation in accordance with that law until otherwise provided by an Enactment
of the Legislature of that State, being an Enactment—

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(a) passed by a majority of the total number of members of the Legislative
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Assembly and by the votes of not less than two–thirds of the members
present and voting; and
(b) approved by resolution of each House of Parliament passed by a
majority of the total number of members of that House and by the votes of
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not less than two-thirds of the members voting.

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(1A) Any law made under Clause (1) providing for the forfeiture or reversal to the
State Authority, or for the deprivation, of the ownership of any Malay reservation,
or of any right or interest therein, on account of any person, or any corporation,
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company or other body (whether corporate or unincorporate) holding the same

ceasing to be qualified or competent under the relevant law relating to Malay
reservations to hold the same, shall not be invalid on the ground of inconsistency
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with Article 13.

(2) Any land in a State which is not for the time being a Malay reservation in
accordance with the existing law and has not been developed or cultivated may
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be declared as a Malay reservation in accordance with that law:

Provided that—
(a) where any land in a State is declared a Malay reservation under this
Clause, an equal area of land in that State which has not been developed
or cultivated shall be made available for general alienation; and

(b) the total area of land in a State for the time being declared as a Malay
reservation under this Clause shall not at any time exceed the total area
 of land in that State which has been made available for general alienation
in pursuance of paragraph (a).

(3) Subject to Clause (4), that Government of any State may, in accordance with
the existing law, declare as a Malay reservation—
(a) any land acquired by that Government by agreement for that purpose;
(b) on the application of the proprietor, and with the consent of every
person having a right or interest therein, any other land, and shall, in
accordance with the existing law, immediately declare as a Malay
reservation, in a case where any land ceases to be a Malay reservation,

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must replace with any other land of a similar character and of an area not

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exceeding the area of that land.

(4) Nothing in this Article shall authorise the declaration as a Malay reservation of

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any land which at the time of the declaration is owned or occupied by a person
who is not a Malay or in or over which such a person has then any right or
Interest.

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(5) Without prejudice to Clause (3), the Government of any State may, in
accordance with law, acquire land for the settlement of Malays or other
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communities, and establish trusts for that purpose.

(6) In this Article “Malay reservation” means land reserved for alienation to
Malays or to natives of the State in which it lies; and “Malay” includes any person
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who, under the law of the State in which he is resident, is treated as a Malay for
the purposes of the reservation of land.
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(7) Subject to Article 161A, this Article shall have effect notwithstanding any other
provision of this Constitution; but (without prejudice to any such other provision)
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no land shall be retained or declared as a Malay reservation except as

provided by this Article and Article 90.
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(8) The provisions of this Article shall apply to the Federal Territories of Kuala
Lumpur and Putrajaya in the like manner that they apply to a State, save that
Clause (1) in its application to the Federal Territories of Kuala Lumpur and
Putrajaya shall be modified to read that any land in the Federal Territory of Kuala
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lumpur or the Federal Territory of Putrajaya which immediately before Merdeka

Day was a Malay reservation in accordance with the existing law may continue
as a Malay reservation in accordance with that law until otherwise provided by an
Act of Parliament passed by a majority of the total number of members of each
House of Parliament and by the votes of not less than two-thirds of the members
present and voting in each House.
 ◆ Article 90 of FC
Special provisions relating to customary land in Negeri Sembilan and
Malacca, and Malay Holdings in Terengganu

90. (1) Nothing in this Constitution shall affect the validity of any restrictions
imposed by law on the transfer or lease of customary land in the State of Negeri
Sembilan or the State of Malacca, or of any interest in such land.

(1A) For the purpose of Clause (I)—

(a) “transfer” includes any charge, transmission or vesting, or creation of

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any lien or trust, or entry of any caveat, or any other form of dealing or

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disposal of whatever description or nature; and
(b)“lease” includes any tenancy of whatever form or duration.

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(2) Notwithstanding anything in this Constitution, the existing law in the State of
Terengganu with respect to Malay holdings shall continue in force until otherwise
provided by an Enactment of the Legislature of that State passed and approved
as described in Clause (1) of Article 89.

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(3) Any such Enactment of the Legislature of the State of Terengganu may make
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provision for Malay reservations corresponding with the existing law in force in
any other State of a Ruler; and in that event the said Article 89 shall have effect
in relation to Terengganu subject to the following modifications, that is to say:
(a) in Clause (1), for the reference to land which immediately before
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Merdeka Day was a Malay reservation in accordance with the existing

law, there shall be substituted a reference to land which, immediately
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before the passing of the said Enactment, was a Malay holding; and
(b) subject as aforesaid, any reference to the existing law shall be
construed as a reference to the said Enactment.
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➔ RIGHT TO COMPENSATION
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◆ FC = Article 89(1A) (READ!)

◆ NLC = Section 93-134 = the State Authority could forfeit or deprive a person of
the said property if that person has failed to comply with the restrictions in
interest or conditions, whether express or implied (READ THE SAID SECTION!)
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◆ S21A of Terengganu MRE = If a Malay holding company ceased to be Malay

under S2 of the Enactment, the State Authority (SA) is empowered to forfeit the
land.
◆ S108A of NLC (Penang and Malacca Titles) Act = If a Malacca Customary
Land Company ceases to be a Malay or if there is transfer of share to
non-Malays or the object is no longer to deal with customary land, then the land
is liable to be forfeited by the SA.
➔ If a person ceases to be a Malay under the respective MRE ▶ he is disqualified to hold
the Malay reservation land.
➔ COMPANY = If a company is no longer a Malay holding company / The Ruler has
cancelled the status of the company to manage a Malay reservation land ▶ They are no
longer competent to hold the said land.

➔ Article 13 of FC ▶ Provides compensation in cases of compulsory acquisition ▶ as no

one could be deprived of his property save in accordance with the law;
◆ 13. Rights to property
(1) No person shall be deprived of property save in accordance with law.

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(2) No law shall provide for the compulsory acquisition or use of property without

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adequate compensation

➔ No compensation is granted if the person/company is disqualified to own the MRL -

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pursuant to Article 89 or any provision of MRE - SA can forfeit without compensation.
➔ Only can be granted to the person/company who had acquired the pre-Merdeka Malay
reservation land ▶ land declared to be MRL before Merdeka Day + only applicable to the
State that has enacted MRE.

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➔ DECLARATION OF NEW AREAS AS MALAY RESERVATION
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➔ Not applicable to the State that has not enacted MRE = ie; Penang, Malacca, Sabah &
Sarawak
➔ Article 89(2) of FC
➔ FMS/Johor/Terengganu MRE = Any state land, reserved forest, land reserved for public
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purposes and alienated land may be included in Malay reservation.

➔ STATE LAND = S5 of NLC = All land in the State including so much of the bed of any
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river, and of the foreshore and bed of the sea, as is within the territories of the State or
the limits of territorial waters - other than alienated land, reserved land, mining land and
reserved land.
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➔ Kelantan MRE = S4(1) & (v) = His Highness the Sultan in Council may declare any land
to be Malay reservation irrespective whether it is a state land, mining, reserve forest,
developed or undeveloped, cultivated or vice versa.
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➔ Perlis MRE = S3(1) = allows the State Council by proclamation or public announcement
to declare any land in the state to be MR.
➔ Kedah MRE = S5 = Only alienated land and State Land which is not under the control of
Sanitary board or town board are allowed to be declared as Malay Reservation.
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➔ Land That Cannot Be Declared as MRL

◆ Land where the non-malays have registered title or interest;
◆ Alienated land without the proprietor’s consent;
◆ Land under the Aboriginal Peoples Act 1954 (S6(2)(i),7(2)(i) the Aboriginal
Peoples Act 1954)
◆ Land that is under the mining leases or certificate
➔ PROPRIETOR’S INITIATIVE
➔ Article 89(3)
◆ Deals with alienated land
◆ The registered proprietor may at his own initiative make an application to the SA
to declare his land as Malay reservation.
◆ However, if the land is charged, leased or there is a caveat on the land or it is
undivided share, then the proprietor shall seek consent from the relevant parties
before making an application to convert his land into MR.

➔ The SA may acquire land by agreement and declare it as a Malay reservation

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◆ SA is free to enter into agreement with any registered purchasers whether Malay

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or non-Malay to acquire the land and declare it as MR.

➔ Johor Malay Reservation Enactment = Section 6(i) = allows the Malay proprietor to

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declare his holding as Malay reservation.
◆ He shall fully consent to it and understands the nature and consequences of his
application
◆ No third party can make an application on his behalf

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➔ Kedah Malay Reservation Enactment = Section 4 = allows any person to apply to the
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Ruler-in-Council to declare his or her land as Malay Reservation

➔ Kelantan Malay Reservation Enactment = Section 4(v) = any land whether under
permanent or temporary turtle may be included in MR.
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➔ NO SIMILAR PROVISIONS FOUND IN THE FMS, TERENGGANU & PERLIS

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➔ REVOCATION AND REPLACEMENT OF MRL

➔ Article 89(3) FC = if any Malay reservation land is revoked, then the State Authority has
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to replace it with any other state land.

◆ 3 Conditions that need to be followed for the replacement:
1. It has to be similar in character;
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a. The economic value should be the same (if the land is planted with
coconut, the replacement cannot be paddy land as the economic value is
not similar)
b. The location of the land should be the same
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c. The potential development of the land should be the same

d. The soil type should be the same

2. An area not exceeding the area revoked; and,

3. It should be done immediately = allowing a reasonable time for doing it

◆ Additional:
● The category of land should be replaced by the same category of land
➔ FMS Malay Reservation Enactment: the Menteri Besar with the approval of the
State-in-Council may at any time revoke the status of Malay Reservation land.
➔ Johor = the Commissioner with the approval of His Highness the Sultan in Council to
revoke any Malay reservation land.
➔ Terengganu, Perlis, Kelantan & Kedah = it is the Sultan in Council who has the
prerogative to revoke the status of MR land.

➔ NON-MALAY RIGHTS OVER MRL

➔ Article 89(4) of FC = SA cannot declare any land occupied/owned by a non-Malay as

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Malay Reservation.

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◆ To protect the legitimate interest of Non-Malays under Article 8 and 153(7)
◆ Article 8 = No discrimination against citizens on the ground only of religion, race,
descent, place of birth or gender in any law or in the appointment to any office or

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employment under a public authority or in the administration of any law relating to
the acquisition, holding or disposition of property.
◆ Article 153(7) = Nothing in this Article shall operate to deprive or authorise the
deprivation of any person of any right, privilege, permit or licence accrued to or

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enjoyed or held by him or to authorise a refusal to renew to any person any such
permit or licence or a refusal to grant to the heirs, successors or assigns of a
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person any permit or licence when the renewal or grant might reasonably be
expected in the ordinary course of events.

➔ Johor MRE = allows non-Malays to occupy or own MRL and to deal with the said land
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with other non-Malays

◆ Conditions = MUST OCCUPY THE SAID LAND PRIOR TO THE DECLARATION
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OF THE MALAY RESERVATION = CANNOT AFTER MERDEKA DAY

➔ Kedah & Perlis MRE = allow State Authority to dispose of Malay reservation land to
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Siamese.

➔ Kedah MRE= all non-Malays who hold MR land under the Surat Akuan before declaring
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the said land as MR land are free to deal with the said land with other non-Malays.

➔ FMS Malay Reservation Enactment = prohibits a non-Malay to occupy MR land but a

non-Malay would be able to acquire an interest in MR land if he would apply through a
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company specified in the Third Schedule.

◆ The Ruler-in-Council is given wide discretion to declare any company as a Malay
company, irrespective of its members, whether they are Malays or non-Malays.

➔ Kelantan MRE= allows MR land to be disposed of on TOL to non-Malays for a period of

not exceeding 1 year (section 6 of the Kelantan MR Enactment).
◆ Allows MR land to be disposed of through alienation to those persons approved
by the Ruler-in-Council to hold interest or right over the land.
➔ Tan Hong Chit v Lim Kin Wan
◆ There are 2 ways where non-Malays can acquire MRL
1. Through the approval of Ruler-in-Council
a. When the Malay wishes to deal with the land with a non-Malay, he has to
get an approval from the Ruler-In-Council.

2. When the non-malay has occupied the land prior to its declaration as MR land by
the State Government
a. The land belongs to a non-Malay, so he is free to deal with the land with
other non-Malays without the approval of Ruler-in-Council ▶ as the

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provisions of MR land is not applicable to him

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➔ Syarikat Macey Bhd. Nightingale Allied Services
◆ If the MRL is registered in the name of a non-Malay, prior to the declaration as a

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MR ▶ Then he as the registered proprietor is FREE TO DEAL WITH HIS LAND in
any manner + without complying to the provisions of the MRE.

➔ ESTABLISHMENT OF A MALAY COMPANY

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➔ Provisions only provided in FMS MRE & Terengganu MRE
➔ Requirements;
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◆ Registered under Companies Act 1965
◆ All members are Malays
◆ The transfer of shares is restricted by Articles of Association to Malays only
◆ One of the objectives of the Company is to deal in Malay holding land.
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➔ CHARACTERISTICS OF MALAY RESERVED LAND

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➔ ‘MALAY HOLDING’
◆ FMS MRE =
● S2(a)
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○ Either the proprietor or co-proprietor shall be a Malay

○ It shall be alienated land
○ The alienated land has been declared and published in gazette as
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MR.
○ Inclusion of the said land under the official Malay Reservation list.
● S6(vi)
○ If proprietor is not Malay or none of co proprietors are Malay the
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registering body is not empowered to make any memorial under

MRE or inclusion of said land under Malay reservations list
○ Syarikat Macey Berhad v. Nightingale Allied Services (Sued
As A Firm) & 2 Ors.
◆ In a Malay Holding, there must be a Malay proprietor or
co-proprietor. If all are non-Malays, land cannot be
declared as Malay Holding.
 ◆ However, if one proprietor is Malay and others are
non-Malays, then land can be declared as Malay Holding.

➔ FMS MRE & Johor MRE = All alienated land that have been declared as MR under
MRE shall be deemed as Malay Holding.
➔ Terengganu MRE = Any alienated or occupied lands in the town or village shall be
included as Malay Holding.

➔ FMS MRE = S6(iv) = IDT must be stamped with the words “MALAY
RESERVATION”/”TANAH RIZAB MELAYU” ▶ The registered proprietor shall be required

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to submit to the proper registering body the IDT to be inscribed with the words “Malay

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Reservation”

➔ No Malay holding can take effect until and unless registered against RDT.

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➔ However, despite land published in gazette as Malay reservation, State Authority cannot
proceed to endorse it as Malay Holding if the proprietor or a co-proprietor is not a Malay
◆ Syarikat Macey Berhad v. Nightingale Allied Services (Sued As A Firm) & 2
Ors

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● Held: since, the land has never been registered in the name of a Malay
proprietor or co-proprietor, the memorial so entered on the affected titles
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is therefore erroneous.’

➔ The duty of Registrar is mandatory as he shall endorse or cause to endorse on every

RDT and IDT pertaining to a Malay holding the words ‘Malay holding’
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➔ REFERENCE TO THE RULER-IN-COUNCIL

➔ In the event of MRE having doubtful cases - it shall be referred to the Ruler-In-Council
➔ Examples of ‘doubtful case’
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◆ Definition of Malay
◆ The mode of operation of the MR Enactment.
◆ The manner in which the provisions thereof to be constructed or carried into
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effect.
➔ Refer back case Hanisah v Tuan Mat

➔ FMS MRE = S20 = in cases of doubt the matter shall be referred through the Menteri
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Besar to the Ruler of the State Council

➔ Johor MRE = the matter is referred through the State Secretary to His Highness the
Sultan In Council

➔ Kelantan MRE =
◆ S18 = the matter may be referred to His Highness the Sultan in Council without
referring to the MB first.
 ◆ S9 and 13A(i) = The Ruler-in-Council may alienate, transfer, transmit or charge
MR land to any person not being a Malay.
● Foo Say Lee v Ooi Heng Wai
○ Held: The purported agreement to transfer the MRL, subject to the
consent of the RIC was not contrary to the Kelantan MRE
○ The reason being a MRL may be transferred to a non-Malay
subject to the approval of RIC.
◆ Not empowered to declare any person as a Malay = merely allows the person to
acquire a right or interest over the land.
◆ S13A(iii)= If the registered proprietor of MRL has always been a non-Malay, he

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has absolute rights to transfer or transmit such rights to another non-Malay

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without the prior consent from High Highness the Ruler.

➔ Kedah MRE = S19= the Ruler in Council to declare ‘any person of any race or

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nationality be deemed to be included in the term ‘Malay’.

➔ Terengganu MRE = Cannot declare these bodies (non-malay) as Malays = It only gives
a right to them to hold the Malay Reservation Land with the consent of the Sultan in
Council.

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➔ S20 of FMS MRE/ S17 of Kedah MRE/ S18 of Perlis MRE/ S22 of Johor MRE/ S22 of
Terengganu MRE = The decisions of the Rulers are final and shall not be questioned or
revised by any court.
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➔ Zaleha bte Sahri v Pendaftar Hak Milik Tanah Johor

◆ The court proceeded to grant a declaratory order to revoke the status of MRL by
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virtue of her no longer being a Malay without referring the matter to the RIC
◆ Even though the Johor MRE provides that it is mandatory to refer to RIC in cases
on the definition of Malay and the manner in which the provisions thereof were
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construed or carried into effect.

◆ The court in this case has avoided to discuss the relevant provisions and
proceeded to make a declaration
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◆ Held: the declaration made is declared to be null and void and of no effect as it
had not complied with the mandatory provisions of the Johor MRE.
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