Note 1 Introduction To Land Law Dr. Nora 210213

LAND ADMINISTRATION (RMK 357 )LAND ADMINISTRATION (RMK 357 )SEMESTER 2, ACADEMIC SESSION 2012/2013

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Topic:Introduction To Land Law

Dr.Norazmawati Md.Sani @ Abd.Rahim (Dr.Nora)E08/102B

[email protected]

http://drnorazmawati.blogspot.com21 Februari 2013

Weeks Topic Lecturer

121.02.201

3Introduction to Malaysian Land Law. Dr. Norazmawati

228.02.201

3Principles & characteristics of National Land Code. Dr. Norazmawati

3 7.03.2013 Power of State Government in land. Dr. Norazmawati

414.03.201

3Type of ownerships. Mr.Mohd Yahaya

521.03.201

3Rights of land owners. Mr.Mohd Yahaya

628.03.201

3Categories of land. Mr.Mohd Yahaya

704.04.201

3Rights of land owners. Mr.Mohd Yahaya

86-

14.04.2013

Semester Break

918.04.201

3Conversion, subdivision & amalgamation. AP Dr. Nor’Aini

1025.04.201

3Land dealings. AP Dr. Nor’Aini

1102.05.201

3Land dealings. AP Dr. Nor’Aini

1209.05.201

3Registration of Land Dealings. AP Dr. Nor’Aini

1316.05.201

3Compulsory Purchase and Compensation. Dr. Shardy

1423.05.201

3Land Taxations. Dr. Shardy

1530.05.201

3Strata Title Act. Dr. Shardy

161-

09.06.2013

Revision Week

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SYLLABUSLecturers:Mr.Mohd Yahaya Mohd Daud Associate Prof.Dr.Nor’Aini YusofDr.Norazmawati Md.Sani @ Abd.Rahim

Dr.Shardy Abdullah

CONTENT1. History & Background of Land Law2. Legislation Structure in Malaysia3. Land Administrations in Malaysia4. Relations Between The Federation & The

State5. Dispute Settlement6. Sources of Law7. How to enforce the law?8. The Judiciary System in Malaysia9. Independence of Judiciary10. Assignment11. Conclusions

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HISTORY & BACKGROUND OF LAND LAW

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Malaysia Land Law -Based on Torrens System-Introduced by British colonist-Implement through National Land Code 1965

National Land Code are enforced at all country (exc: Sabah & Sarawak)

Before British colonization -Malay states have their own System of Law -Based on Islamic & Custom Law

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Islamic Law & Custom Law

British Law

2 phase In HISTORY of Malaysia Land Law

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ISLAMIC LAW

ISLAMIC LAW

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Implementation of Islamic Law -In Land Law -We can see through statement of Maxwell HB in case Sharip

vsMitchell (1870): ‘Based on Old Malay Law @ Malacca Custom Law, King is an owner of all land states. Everybody have rights of working & stay at forest land & dead land subject to condition hand over 1/10 of the land revenue to the king’.

Above concept; -Exactly with principal of Islamic Land Law. -About;

1. Law of not absolute ownership. 2. Law of make a dead land lively (ihya’ al-mawat).3. Law of 1/10 land tax (‘usyur).

ISLAMIC LAW…CONTINUED The implementation of Islamic Law,

Ended, when British colonist Introduce imported law.

In Malacca, Custom Land Law abolished with implementation of English Deed System (1861).

At Associated Malay States Custom Land Law, ended Through Residen System & enforcement of General Land

Rules early year 1882.

At Unassociated Malay States Islamic & Custom Law, ended With enforcement of Land Enactment (1909) at Kedah.

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CUSTOM LAW

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Before colonist attendance, -Malay States practice Custom Law 1. Temenggung Custom; others states 2. Perpatih Custom; Negeri 9 & districts at Malacca

When Malay Land accept Islamic (15th century)-Islamic Land Law; accepted at Malay States.

Characteristic of Custom Land Law;1. Power of the king to take back unused land.2. Concept of ‘Harta sepencarian’ & mortgage concept

(accurate Islamic lesson).

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These states have different;1. Socio-Politic System .2. Changes in land law.

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STRAIT STATE

STRAIT STATE

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Implementation of English Common Law & Equity Start through 1st Fair Charter (Penang 1807) 2nd Fair Charter (Malacca & Singapore 1826). These Fair Charters;

Caused Strait State Using Land Law based on English Deed System Abolished through National Land Code (Penang &

Malacca ownership) 1963. Change with Torrens System through enforcement of

National Land Code 1965.

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ASSOCIATED MALAY STATES

ASSOCIATED MALAY STATES

British Law are enforced through Residen System. Start at Perak through Pangkor Agreement (1873).

Land Law based on Torrens System Start execute by British at Selangor (1882) through General

Land Rules; 1. Similar General Land Rules, enforced at Selangor (1882),

Negeri 9 (1887), Pahang (1888) & Perak (1897).

2. Similar Ownership Registration Rules, enforced at Selangor (1891), Perak & Pahang (1897) & Negeri 9 (1898).

3. Associated Malay States Enactment 1911 & Enactment Ownership Registration of Associated Malay States 1911, enforced & abolished all State Law separately.

4. National Land Code 1928 abolished 2 Enactment Enforced at all Associated Malay States Abolished through enforcement of National Land Code

1965.

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UNASSOCIATED MALAY STATES

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British domination through Adviser appoint at Kedah, Kelantan & Terengganu on 1909 by agreement between British & Siam.

Inggeris Land Law-Based on Torrens System-Introduced separately at states such as;

1. Land Enactment 1910 at Johor.2. Land Enactment 1906 (amended 1912) & Konsesi Enactment 1909 at Kedah. 3. Land Enactment 1926 at Kelantan.4. Land Enactment 1929 at Terengganu. 5. Land Enactment 1938 at Perlis.

The enactment are enforced at all above states until it was abolished through enforcement of National Land Code 1965.

STATES AT BORNEO (SABAH & SARAWAK)

Inggeris also introduced Land Law through enforcement of ordinance.

Until now, both of this state practice separately Land Law with other state in Malaysia.

eg; Sarawak Land Code (Cap 81) = based on Torrens System. Sabah Land Ordinance (Cap 68) = not based on Torrens

System.

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LAND LAW

• There are 3 types of Land Law at Malaysia which is different based on theirs history background such as;

• National Land Code 1965 - Peninsula Malaysia

• Sarawak Land Code (Cap 81) - Sarawak • Sabah Land Ordinance (Cap 68) – Sabah

LAND LAW

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To harmonize the implementation of National Land Code with Land Law

which is based on English Deed System at Penang & Malacca, Parliament have approved one consistent of law called as National Land Code Act (Penang & Malacca Ownership) 1963. These acts

are enforced only at this involved state.

LAND LAW

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All state used Torrens System except Sabah.

LEGISLATION STRUCTURE IN MALAYSIA

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• Federal Constitution Sec.74 & items 2 (State List) in Figure no. 9 mention that land matter is under jurisdiction of State Authority legislation & administration.

• Although, Sec.76(4)FC specifically give a power to Federal through parliament to make a rules pertaining land for consistent & equal purpose of law.


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Federation Introduce Land Law


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However, there are state land laws to be enforced under jurisdiction of State Authority especially enactments which related with Malay Reserved

Land.

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LAND ADMINISTRATIONS IN MALAYSIA


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• Legislative power related to land = Federation• Executive power related to land = State Authority


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Section 40 NLC clearly mention that State Authority has the entire property in all State Land within the

territories of the State. State Authority have authority to disposal a land by law such as NLC, Mining

Enactment (Cap 147) & Country's Forestry Act 1984.


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Who is State Authority? • referring to Ruler/Governor of the State.• must acting based on advice of State

Meeting Council in discharge of duties & power by Land Code.

POWER OF PARLIAMENT TO LEGISLATE FOR STATES IN CERTAIN CASES (SECTION 76(4)FC)

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Make laws with respect;

RELATIONS BETWEEN THE FEDERATION & THE STATE

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LEGISLATIVE POWER

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Sec. 73FC Extent of Federal & State lawsIn exercising the legislative powers conferred on it by

this Constitution;(a)Parliament may make laws for the whole/any part of

the Federation & laws having effect outside as well as within the Federation;

(b)The Legislature of a State may make laws for the whole/any part of that State.

LEGISLATIVE POWER

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Distribution power between Federation & State Authority was explained in List 1 & II Table 9 Federal

Constitution.

LIST I Federal List

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LIST I Federal List

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LIST I Federal List

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LIST I Federal List

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LIST II State List

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LIST II State List

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LIST II State List

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All power that does not mentioned in List 1 & II called as legislative extra

powers & depends on

The Legislature of a State.

LIST II State List

LEGISLATIVE POWER…CONTINUED

Sec. 75FC Inconsistencies between Federal & State laws

If any State Laws is inconsistent with a federal law, the federal law shall prevail & the State law shall, to

the extent of the inconsistency, be void.

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EXECUTIVE POWER

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Sec. 80FC Distribution of executive power(1) Subject to the following provisions of this Article the

executive authority of the Federation extends to all matters with respect to which Parliament may make laws, & the executive authority of a State to all matters with respect to which the Legislature of that State may make laws.

(2) The executive authority of the Federation does not extend to any matter enumerated in the State List, except in so far as is provided in Articles 93 to 95;

93=Inquiries, surveys & statistics.94=Federal powers in respect of State subjects.95=Inspection of State activities.

EXECUTIVE POWER…CONTINUED

Sec. 81FC 0bligations of States towards Federations

The executive authority of every State shall be so exercised;a) As to ensure compliance with any federal law

applying to that State; &

b) As not to impede / prejudice the exercise of the executive authority of the Federation.

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Sec. 91(1)FC National Land CouncilThere shall be a National Land Council consisting

of a Minister as chairman, 1 representative from each of the States, who shall be appointed by

the Ruler/Yang di-Pertua Negeri, & such number of representatives of the Federal Government as

that Government may appoint but, subject to Clause (5) of Article 95E, the number of

representatives of the Federal Government shall not exceed 10.

EXECUTIVE POWER…continued

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Sec. 91FC National Land Council5)It shall be the duty of the National Land Council to

formulate from time to time in consultation with the Federal Government, the State Governments & the National Finance Council a national policy for the promotion & control of the utilisation of land throughout the Federation for mining, agriculture, forestry / any other purpose, & for the administration of any laws relating thereto; & the Federal & State Governments shall follow the policy so formulated.

6)Shall be the duty of the National Land Council to advise that Government on any such matters.

EXECUTIVE POWER…continued

DISPUTE SETTLEMENT

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Sec. 87 Determination of disputes as to land values

1) Where any dispute arises between the Federal Government & a State Government as to the making of any payment by/to the Federation under the foregoing Articles of this Chapter, /as to the amount of any such payment, the dispute shall be referred, at the instance either of the Federal Government/of the State Government, to the Lands Tribunal appointed in accordance with this Article.

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Sec. 87(2)FC The Land Tribunal shall consist of;

a) A chairman, who shall be appointed by the Chief Justice of the Federal Court & who shall be,/have been,/be qualified to be a judge of the Federal Court, the Court of Appeal/a High Court,/shall before Malaysia Day have been a judge of the Federal Court;

b) A member who shall be appointed by the Federal Government; &

c) A member who shall be appointed by the State Government.

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Sec. 87 (3)FCThe practice & procedure of the Lands

Tribunal shall be regulated by rules of court framed by the Rules Committee/other authority having power under written law to make rules/orders regulating the practice & procedure of the Federal Court.

Sec. 87 (4)FCAn appeal shall lie from the Lands Tribunal

to the Federal Court on any question of law.

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SOURCES OF LAW

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TYPES OF MALAYSIA

LAW

Written Laws

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TYPES OF MALAYSIA LAW

Unwritten Laws

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TYPES OF MALAYSIA LAW

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TYPES OF MALAYSIA LAWIslamic/Shariah

Laws

HOW TO ENFORCE THE LAW?

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• In a matter of civil private laws, damages person must bring their cases to a court.

• Court will take an action to settle dispute between 2 party/more.

• For enforcement cases, crime laws are different with civil laws.

• Enforcement of crime laws by certain organization set up by Country Laws. The organization are Police, Custom Department, Transportation Department, Immigration Department, Urban & Local Government Council, & others organization which is have a power.

• Procedure for every cases are different such as:• Summon case. • Catch Warrant. • Order by Deputy prosecutor.• Catch Case.

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The Judiciary System in Malaysia

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Federal Court

1.Superior Court Supreme Court The Court of Appeal Malaya High & Borneo

Court

2.Subordinate Court Sessions Court Juvenile Court Magistrate Court Small Claims Court Headman Hall/Court

3. Special Court Military Court Industrial Court Labour Court Right Mines Merinyu Court.

State Court

1.Shariah Court (All State) The Shariah Court of Appeal Islamic High Judge Court Islamic Judge Court

2.Custom Court / Native Court

(Under Sabah & Sarawak

responsibility) District Custom Court Officer Court / Custom

Leader Headman Court

COURT

INDEPENDENCE OF JUDICIARY

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There are two important feature in judiciary in Malaysia;(a) Impartial to anyone else. (b) Have their own freedom like allotted in Malaysia Federation Constitution.


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Apart from that, court not

controlled, although by legislative body/by

executive.


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Sec.125(1)FC a judge of Federal Court shall hold office until he attains the age of 66

years/such later time, not being later than 6 months after he attains that age, as the Yang

di-Pertuan Agong may approve.


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Sec.125(2)FC a judge of Federal Court may at any time resign his office by writing under his hand addressed to

the Yang di-Pertuan Agong but shall not be removed from office except in accordance with the following

provisions of this Article.

Sec.127FC Restriction on Parliamentary discussion of conduct of judge.

The conduct of a judge of the Federal Court, the Court of Appeal/ a High Court shall not be

discussed in either House of Parliament except on a substantive motion of which notice has been given by not less than ¼ of the total

number of members of that House,& shall not be discussed in the Legislative Assembly of any

State.

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Sec.128(1)FC Jurisdiction of Federal Court .

a)Any question whether a law made by Parliament/ by the Legislature of a State.

b)Disputes on any question between States/between the Federation & any State.

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Sec.128(2)FC The Federal Court shall have jurisdiction to determine the question & remit the case to the other court to be disposed of in accordance with the determination.

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Sec.128(3)FC The jurisdiction of the

Federal Court to determine appeals

from The Court of Appeal, a High Court/a judge

thereof shall be such as may be

provided by federal law.

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Sec.130FC Advisory jurisdiction of Federal Court to Yang di-Pertuan Agong.

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Group Assignment = 20%Group Assignment = 20%CASES

1. Mohamed vs Kunji Mohidin [1967] 1 MLJ 96

2. Hee Cheng vs Krishnan [1955] MLJ 103

3. Govindaraju vs Krishnan [1962] MLJ 334

4. Tindok Besar Estate Sdn Bhd vs Tinjar Co. [1979] 2 MLJ 229

5. Papoo vs Veeriah [1965] 1 MLJ 127

6. Julaikha Bivi vs Mydin [1961] MLJ 310

7. Public Prosecutor vs Yap Lai [1947] MLJ 50

8. Kiah bt. Hanapiah vs Som (1953) 19 MLJ 82

9. Shell Co. Ltd. vs Commissioner of The Federal Capital of KL (1964) 30 MLJ 302

10. Goh Chong Hin & Anor vs Consildated Malay Rubber Estates Ltd 5 FMS LR 86

11. Ban Seng vs Yak Pek Soon (1967)2 MLJ 156

12. Paruvathy d/o Murugiah vs Krishnan s/o Doraisamy (1983) 2 MLJ 121

13. Mohamed Saidi vs Fatimah (1962) MLJ 328

14. Murugesan vs Krishnasamy & SL (1958) MLJ 92

15. Fatimah vs Moideen Kutty (1969) 1 MLJ 72

16. Cheo Lean How vs Fock Fong Looi (1985) 2 MLJ 440

17. Guan Soon Tin Mining Company vs Wong Fook Kum (1969) 1 MLJ 99

18. Senik vs Hassan and SL (1963) MLJ 368

19. Wong See Kui vs Hong Hin Tin Mining Co. (1969) 2 MLJ 234

20. Ibrahim s/o Idrus vs Lee Yu Mei (1983) MLJ 392

21. Sami vs Sim Teng Chew (1948) MLJ 23

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WHAT YOU NEED TO DO?

Land Administration (RMK 357)Land Administration (RMK 357)

Semester 2 2012/2013

Case Title :……………

Your Name : ……..

Matrics No.:…..

Lecturer Name : Dr.Norazmawati Md.Sani @ Abd.Rahim

Submission Date : 4 April 2013

Writing Format:1.Arial (12)2.Line Spacing (1.5)3.A4 paper (White Colour)

Submit: Hardcopy of assignment & original cases to HBP office before 10:00am. 10 pages of powerpoint slide presentation. Emel softcopy (assignment & slide) to [email protected]

Group Assignment = 20%Group Assignment = 20%

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Print BarcodePrint Barcode

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CONCLUSIONS

Malaysia Land Law = Based on Torrens System.

Land Administrations in Malaysia.Legislative power = Federation

Executive power = State Authority69

CONCLUSIONS

Relations Between The Federation & The State.

Dispute Settlement = Lands Tribunal .

Sources of Law.70

CONCLUSIONS

How to enforce the law?=Bring case & 2 party.

The Judiciary System in Malaysia.

Independence of Judiciary= Impartial to anyone else.

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Note 1 Introduction To Land Law Dr. Nora 210213

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