Historical Background of land law in Malaysia

1.The Straits Settlements• Penang & Malacca

2.The Federated Malay States• Perak, Selangor, Negeri Sembilan, Pahang

3.The Unfederated Malay States• Kedah, Johor, Perlis, Kelantan, Terengganu

Straits Settlements: Penang• Ong Cheng Neo v. Yeap Cheah Neoh (1872) 1 Ky. 255,

Privy Council:…the island was wholly uninhabited when the English arrived. It was really immaterial to consider whether the island should be regarded as a ceded or newly settled territory for there is no trace of any laws having been established there before it was acquired by the East India Company.

• English land law was introduced into Penang by the First Charter of Justice 1807.• Wholly subjected to English land law as there was no

form of local tenure.• Malay customary land tenure of the Kedah should have

been regarded as the lex loci of the island.

Straits Settlements: Malacca• British acquired Malacca in 1824 by virtue of the Anglo-Dutch Treaty• At the time, Malacca has its own land tenure system, consisting of

Islamic law and Malay Custom.• Sahrip v. Mitchell & Anor

It is well-known 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 waste land subject to the payment to the Sovereign of one-tenth of the produce of the land so taken.

• Then the land law that prevailed was the Malay customary tenure with the system of Dutch Grants implemented in the urban areas.

• At the turn of the 19th century, the English Deeds System was introduced.

• The Malay Customary Tenure was abolished.• In 1891, a law was passed by the English administrators - all land

shall be deemed to be “vested in the Crown” – following the English Law of property.

Characteristics of Malay customary land tenure• Proprietary rights: Nature of ownership is not one of absolute

ownership but is based on ‘proprietory rights’, where the right of ownership extends not to the soil but to the usufruct or the right to utilise the soil.

• Method of acquiring land: by opening up and cultivating virgin jungle land or waste land.

• Rights of the Ruler:The Sultan had the discretion to grant the right of possession (not ownership) of the land to his subjects. Such rights of possession included the right to succession and the right to deal in the land either by way of sale, transfer, pledge, etc. To receive one-tenth of the proceeds of the land as tax.To forfeit the land if the land was neglected or abandoned for any substantial period of time without any reasonable cause. The owner would lose all his rights therein.

• Pulang Belanja (Return of expenses): If the owner wishes to sell his land, the price which he could expect from the purchaser would be the sum total of his labour and expenses incurred in cultivating and developing the land.• Jual Janji: (land is held as security for a loan). Involves

the sale of a land with the condition that the buyer shall retransfer the land to the borrower upon the latter paying back an identical price before a stipulated date. If the buyer fails to do so, the sale agreement becomes absolute (jual putus).

Federated Malay States• Perak, Selangor, Negeri Sembilan, Pahang.• Independent states under sovereign Muslim rulers.

• The Pahang Consolidated Company Ltd v The State of Pahang (1933) MLJ 247

• The Privy Could held that the Sultan of Pahang is an absolute ruler in whom resides all legislative and executive power, subject only to the limitations, which the Sultan has from time to time imposed upon himself in the circumstances

• In the FMS, there are no Charters of Justice and the British Common Law was not introduced until the passing of the Civil Law Enactment No.3 of 1937.

• In Duff Development Company v. Kelantan Government, a letter received from the Under Secretary of State for the Colonies with copies of the relevant treaties stated that Kelantan was an independent state.

• Shaik Abdul Latif & Ors v Shaik Elias Bux [1915] 1 FMSLR 204, 221

• The court had to consider what law to apply in relation to a will drawn up by a Muslim who lived and died in Selangor.

On each occasion when the introduction of British influence upon the administration of the States has been formally recognised by their Rulers the only law which existed and was accepted by the Malays and other Mohammedans as applicable to questions of inheritance and testamentary dispositions was that of Mohammad modified in a few districts by local custom.

• On appeal, it was further clarified:The British treaties with the Ruler of these States merely provided that the advice of the British administrators should be followed and in accordance with such advice, Courts have been established by Enactment, British Judges appointed, and a British administration established…

• With the coming of the British administrators in the Federated Malay States, Malay customary tenure soon gave way to the Torrens System.

• The first Torrens legislation in the Malay States was the Selangor Registration of Titles Regulations of 1891

Unfederated Malay States• Kedah, Johor, Perlis, Kelantan, Terengganu.• Came later in time.• Land tenure was also the Malay customary tenure influenced

in some instances by Thai law (particularly in Kedah & Perlis)• British gained possession of these states in 1909 pursuant to

the Anglo-Siamese Treaty.• Late 19th and early 20th century, the Torrens System was

introduced.

THE TORRENS SYSTEMIntroduced during the British colonial rule by WE

Maxwell after he came back from Australia to observe the land tenure there. It was observed that the Torrens System suited the Malaysian land tenure system.

The Torrens System was first introduced into the FMS. There was already a system of land law based on Malay custom and Islamic law then.

Tengku Jaafar & Anor v. The State of Pahang (1987) 2MLJ 74: the land law in Pahang before the introduction of the Torrens System was the Islamic law of the Shafii school.

How the Torrens System was introducedGeneral Land RegulationsPerak, 1879Selangor, 1882Negeri Sembilan, 1887Pahang, 1888

Perak, Selangor, Negeri Sembilan & Pahang Land Enactments 1897

Registration of Titles Regulations/EnactmentsSelangor, 1891Perak and Pahang, 1897Negeri Sembilan, 1998

FMS Enactments of 1911• All were repealed with the formation of a central legislature.• New uniformed law in 1911:• Federated Malay States Land Enactment 1911• Registration of Titles Enactment 1911

• Divided land into two categories:1. The Land Enactment dealt with the registration of country

lands less than 100 acres in area on a Mukim land2. The Registration of Titles Enactment dealt with registry lands

(town lands and country land exceeding 100 acres and estates)

• Incorporated basic Torrens principles:• All lands vest in the Ruler , who has the power to alienate land to his

subjects either in perpetuity of for a fixed term of up to 999 years;• All dealings in land must be in the prescribed form and must be duly

registered with the relevent authorities. Land title should not be conveyed by an instrument in writing executed by the landholder but by the registration of that instrument.

• Failure to do so so would render the dealings null and void – case Hj Abdul Rahman & anor. V. Mohamed Hassan.

• Owners of land are given indefeasibility of title;• The traditional method of acquisition of virgin land or waste land

was abolished – Sidek & 461 Ors v. Govt of Perak;• Forms of dealings were recognised;• Two forms of caveats were recognised;

• Continued in force until repealed by the Federated Malay States Land Code 1926 -amended in 1928.

• The 1928 Land Code was repealed and replaced by the National Land Code 1965.

1928 FMS Land Code A consolidation and improvement of the pre-existing laws).

Changes introduced:-a. The principle of indefeasibility of title was more clearly

defined,b. Adverse possession against individual owners of land is no

longer possiblec. Customary tenure under Adat perpatih is preserved;d. The strictness regarding compliance with statutory form and

registration as indicated in Hj Abdul Rahman’s case.e. Specific types of cultivation were enforced.

The situation then• One uniformed Land Code for FMS

The FMS has a uniformed land law with consistent land administration procedures.

• Five separate State legislation in each of the UFMS•Johor Land Enactment•Perlis Land Enactment•Kedah Land Enactment•Kelantan Land Enactment•Terengganu Land Enactment

• The English Deeds system still prevailing in the Straits Settlements of Penang and Malacca.

Towards a National Land Code• The Reid Constitutional Commission in its report suggested

that the 1928 FMS Land Code to be the model used by the legal draftsmen to work on a new National Land Code in order to achieve uniformity for all the nine Malay states and the two Strait Settlements.

• The new 1965 National Land Code came into force on 1st January 1966.