haliza_aini_bt._othman_86_24
TRANSCRIPT
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. Purpose For the Reservation of Land
B. Development Before the Formation
C. A Historical Background to The Enactment
II. Defination Of A Malay
A. The Malays : A Historical Background
The Origin and Language
B. The Malays As Defined By the Constitution
C. Malay According To The Malay Reservation
Enactment
III. Prohibition Against Private Dealings Regarding
Malay Holdings
A. General Prohibition
1 X
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Land Held by Non-Malays
(i) Existing Holdings of Non-Malays
Which later come To be Included
Within A Malay Reservation Enactment
(ii) Holding Acquired by Non-Malays
In Respect of Land Already Included
in a Malay Reservation
pe of Prohibition
Charges
Transfers
Other Restrictions
Exceptions To The Prohibitions
endant Problems And Recommendations
Amendment To the Present Law
Restrictions To Renovation
Uniformity of the Enactment
Role of Government Agencies
(i) On Agricultural Land
(ii) In the Cities and Towns
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VI Conclusion .
A. The Future - A Dilemma
B. The Future - A Reality
SUPPLEMENTARIES
Appendixes
Bibliography
XI
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Preface
The aim of the thesis is to investigate
the extent to which the legal system generally
and the Malay Reservation Enactments in parti
cular operate in West Malaysia as a constraint
on the free flow of development. To see how far
one could generalize from these experiences and
to make such proposals for reform as seemed
appropriate. To achieve those aims, it has been
necessary to proceed far beyond a study of formal
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 You,
3rd year, Law faculty, University of Malaya who
has given me great help in collecting the
materials. I am also extremely grateful to my
supervisor, Mrs Shamsiah Subhan and the Penolong
Pengarah Kanan, Bahagian Pentadbiran dan Perun-
dangan, 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 and
support.
It remains only to state that the opinions
expressed in this thesis are mine. They must not
be taken to represent the views of individuals or
organisations who have assisted me. Also, all
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 preser
vation 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
Reservation by non-Malays effectively created a
category of agricultural land different from
non-Reservation holdings in terms of the commer
cial value of the holdings. The insulation of
Malay Reservation from non-Malay influence and
dealings debarred the Malay owners from
mortgaging their land to non-Malay moneylenders.
Since Malay moneylenders are rare due to the
fact that the Islamic religion prohibits Moslem
from accepting interest on loans, therefore the
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,
she has also realized that a completely free
economy will lead to undesirable results. The
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 in
the land codes and Enactments and economic
policies.
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Table of Cases
Can Khor v Soan bin Pelita (193S)E.M.S.L.R.39
Idris bin Haji Mohammad Amin v Ng Ah Sip.u
Sakinah v Kua Teong How ( 1 9 4 6 ) F . M . S . T, . R . 246
Ho Ciok Chav v Nik Aishah (19 61) 27 M . T. . J . 49
Tnn Hong Chit v Lim Kin Wan (1946) F.M.S.L.R.246
ghik bin Abdul Hamid v Chong Kee Seng (1970) 2 M.L.J. 210
Hanisah v Tnan Mat (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 Reservation
Enactment Cap 142
Federated Malay States Malay Reservation
Enactment 1913
Perlis Malay Reservation Enactment No. 7/1353
Trengganu Malay Reservation Enactment No. 17/1360
Federal Constitution
National Land Code Act 56 of 1965
Customary Tenure Enactment Cap 215
(Settlement of Malacca)
Malacca Land Tenure Rights (Straits Settlement Ordinance)
Land Aquisition Act, 34/1960
Land Aquisition Amendment (1984)
Akta Perancangan Bandar Dan Desa 1976.
V 1 1 1
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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 ncl i a and China
flocked to the country to overcome the labour
shortage. These labourers were provided land
by the British. As a result, the Malays had to
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 of their
land .
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 for their
rubber industries.
In 1910, 1416 lots of land in Selangor
were sold to foreigners . Large areas of land
has also passed to the non-Malay chettiars due to
non-payment of debts.
Shortage of food occurred where more paid
land passed on to non-Malays through jual-janji
transactions as the Malays were the main padi
growers - the staple food supplier. Thus the
formation of the Malay Reservation Enactment which
2 reserved land 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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3
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
was set aside as it was considered to be not
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 , categorised Malay
peasant land into 3 classes :
(i) Isolated holdings
( i i) plantation
(iii) village land
3. fesident of Perak.
4. Lim Teck Gheet ; P-107.
5# 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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A
Clayton suggested that village land should
remain in the hands of the Malays as that is where
their homes and plantations are. The formation
of a Malay Reservation would ensure that these
land remains in the hands of the Malays.
In Perak similar suggestions were made by
J.W.W. Birch. He, on the other hand categorised
Malay holdings into 2 classes :
(i) agricultured land for speculation
purpo ses
(ii) Malay owned land on which were
situated their homes and planta
tions 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 .
8.
Minutes by British Resident to Perak to Acting Resident General, 7th September 1910 SS7 3170/10.
Perak SCM, 2nd September 1910, F.M.S. G.G 1910
p. 893.
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1,584 lots of land totalling 1,567 acres
were reported to have been passed from the Malays
to the non-malays between 1909 till 1910 in
9 Selangor . 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 3 ways to overcome
the problems :-
(i) the formation of a Malay reservation;
(ii) an ancestral condition imposed to
ensure that any transfers to non-
Malays must be made with the written
approval of the Collector of Land
Revenue;
(iii) Malays owning land outside a Malay
Reserve should change it into a Malay
Reservation. Lower leasing rates or
estate duty should be imposed as an
incentive.
9. Selangor SCM, 14th September 1910, F.M.S.G.G 1910; p. 159 9.
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In July 1911, the 2nd suggestion was
accepted and ancestral conditions were imposed
in several districts in Ulu Langat, Kelang and
TT1 C 1 1 0
Ulu Selangor
In Perak, unlike in Selangor, the commi
ttee suggested legal protection in lieu of
administrative restrictions.
Birch laid out the committee's draft to
the state legislative council in December 1910
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 Enact
ment was enacted in 1909 to restrict the transfers
12 of Malay owned land to non-Malays
The economic development in Pahang was
very slow and the administrators were more concerned
with trying to overcome outstanding debts. There
fore, the problems of the extinction of Malay land
•A i 1 3
was not considered seriously
10. S.S.F 3170/10 11. Perak S.C.K, 1st December 1910, F.M.S.G.G. 1910
p. 1597. 12. Memorandum to accompany a draft of Customary
Tenure Enactment 1909 by D.G. Campbell- 3rd June 1909, H.C.O.F. 826/09.
13. Lim Teck Ghee; ibid . ; p. 110
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In November 1911, the Federal Legal
Advisor was asked to draft an enactment restric
ting Ancestral Malay Land from being sold to non-
Malays. Thus was the outcome of the Federated
Malay States Residents' Conference which was held
14 in 1911 . The first draft was completed in
April, 1912 . The preamble of the draft is laid
down below :
" For some time past the Rulers of the
Federated Malay states and their
Advisors have been caused grave anxiety
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
radiance of the inducement offered,
entranced by the visions of let mean
pleasures conjured up, they fail to
realise that for those illusory pleasures
they are surrendering and sacrificing
the happiness of a lifetime. Thus a race
of yeoman peasantry aforetime happy and
prosperous incapable from the very nature
of their country and germs of supporting
themselves in any other country find too
14. Conference of Residents, November 1919. H.C.O.F. 58 3/11.
15. F.M.S. G G 1913, p. 651 - 654.
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late they have become homeless wanderers
in their own land. The Rulers of the
Federated Malay States and their advisors
conclusively 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 from the
commercial sector. En Tong Sang, a Chinese merchant,
who represented the Chinese merchants gave the
strongest opposition. However, the Federal Council
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 1913
It was later gazetted on the 30th of December 1913
and took effect on the 1st of January 1914.
i6. D.O.F. Kuantan 673/15 (misplaced file).
17. F.C.P. 25th November 1913, Chapter 55.
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The preamble of the Federated Malay States
Enactment cited thus :
" An enactment to provide for securing 1 Q
to Malays their interest in land"
Section 3 gave the Residents power to
declare an area to be a Malay Reservation. Section
7 stated that a Malay Reservation shall not be sold,
leased or transfered to non-Malays. Section 8, 9
and 10 imposed prohibitions and restrictions on
Malay Reservation landowners from passing it on to
a non-Malay in whatever form. Section 13 made any
form of transactions on Malay Reservation to be
null and void.
Therefore, the above enactment protected
the Malays in 2 ways. It :
(i) 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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resident of each state was given the discretion
to make such declaration.
On the 5th of June 1914, Larut became
the first province to be gazetted as a Malay
Reservation area. 13 areas totalling 140,000
acres were made a Malay Reservation, followed
by Krian, Kuala Kangsar, Ulu Perak, Hilir Perak
19 and Batang Padang
Kuala Pilah and Tampin were the first two
areas in Negeri Sembilan to be gazetted as a
Malay Reservation. In 1918, more than 400,000
acres of land were gazetted as a Malay Reservation
Meanwhile in Selangor, by 1917, more than
35 areas were gazetted to be a Malay Reservation
totalling more than 36,542 acres. See table (i) .
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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TABLE (i)
SELANGOR : MALAY RESERVATION AREA 1917
Daerah
Kuala Lumpur
Kl ang
Ulu Langat
Ulu Selangor
Kuala Selangor
Kuala Langat
I
Kelulus an (ekar)
213,511
140,800
486,400
512,000
576,000
299,076
Bil Kawasan Rizab Melayu
5
4
13
6
3
4
Kelulusan Rizab Melayu (ekar)
6,0S5 | f
7,642 i
10,000
4 ,055
Tidak diketahui
8,760
Source : List of Malay Reservation in Selangor, SSF 2876/17
Prohibitions imposed by the 1913 Enactment
against private dealings appeared to be indiscrimi-
native of their nature and purposes. However these
prohibition soon revealed a serious drawback.
Prohibition against security transaction in land
which was aimed at protecting Malay cultivators
isolated them from credit facilities which they
actually needed. As a result, charges and other
security transactions continued to be commonly
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carried out in Malay Reservation in favour of
20 non-Malay money-lenders
In 1933, the 1913 Enactment was repealed
and replaced by a New Enactment - The Malay
21 Reservations Enactment Cap 142 . One of the
most important changes made by the new enactment
was to forbid all kinds of dealings including
security transaction, at the same time purporting
to meet the problems regarding the financial needs
of the Malay cultivators. The Enactment expressly
allowed any Malay owners to charge his land to the
"resident" or any cooperative societies approved
22 for such purposes
After the 1933 replacement, several amend
ments were made in 1934 2 3, 1936 2 4, 1938 2 5, 1948 2 6,
2 7 2 8
1954 and in 1959 . One of the most important
amendments made was section 7 of the present
Federated Malay States Enactment Cap 142 which
provides :
20. David, S . Y . Wong, Tenure And Land Deal in;-, s in the Malay States; p. 5 10
21. Enactment No. 3o of 1933 22. S.17 No. 30 of 1933, F.MS Malay Reservation
Enactment. 23. Enactment No. 28, 1934 24. Enactment No. 28, 1936 and Enactment No. 51, 1936 25. Enactment No. 3, 1938. 26. Enactment No. 1, 1948 27. Ordinance No. 25, 1954 28. L .N . No. 233, 1959.
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" 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 Ruler-
in- Council may alienate state land
within a Malay Reservation to any body
corporate or company specified in the
3rd schedule which the Ruler-In-Council
may, by order published in the Gazette,
add to, delete from or amend from time
to time :
And provided further that any state land
thus alienated shall be deemed to be a
a Malay holding".
The original 1913 Federated Malay States
Enactment absolutely prohibited any disposition by
the state otherwise than to Malays of any state
29 land included in a Malay Reservation . Thus the
original general prohibition had now become qualified
to permit alienation of such state land in favour of
• r- J v A • 3 0 certain specified bodies
Meanwhile, between 1961 to 1963, each of the
former Federated Malay States Separately introduced
a further amendment to the Enactment to make available
29. S. 7 thereof. 3Q . See S. 7 Third Schedule thereof.
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. . 31 more credit facilities , with safeguards against
abuses and oppression. The list has been considerably
increased to include many more banking, financial
32 and development bodies
The 1933 Enactment was effective in the
Federated Malay states only. 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
1935 35
Johor adopted the Federated Malay States
Enactment, Cap 142 in 1936 and Trengganu also
substantially followed the model of the Federated
Malay States Enactment in 1941 ,-.37
However Malacca has its own legislation
(i) Malacca Land Tenure Rights (Straits O Q
Settlement Ordinance)
31. See Supplementary B. 32. S. 7 Second Schedule. 33. Kelantan Malay Reservations Enactment No. 18
of 1930. 34. Kedah Malay Reservations Enactment No. 63 of 1948 35. Perlis Malay Reservations Enactment No. 7 of 1353 36. Johor Malay Reservation Enactment No. 1 of 1936. 37. Trengganu Malay Reservations Enactment No. 17
of 1360 38. Chapter 125.
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