Documente Academic
Documente Profesional
Documente Cultură
: A MALAY
DILEMMA
BY
Submitted in partial fulfillment of the requirements for the Diploma In Law at the Mara Institute of Te chnology
^ ^ *
s*
TABLE OF CONTENT
( -
I.
Introduction. A. B. C. Purpose For the Reservation of Land Development Before the Formation A Historical Background to The Enactment
II.
Defination Of A Malay
A.
The Malays
A Historical
Background
B. C.
Constitution Reservation
III.
Regarding
A.
General
Prohibition
1X
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Land Held by Non-Malays (i) Existing Holdings of Non-Malays Which later come To be Included Enactment
(ii)
pe of Prohibition
Exceptions To The
Recommendations
Amendment To the Present Law Restrictions To Renovation Uniformity of the Enactment Role of Government (i) (ii) Agencies Land
On Agricultural
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VI
XI
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Preface
The aim of the thesis is to the extent to which the legal system and the Malay Reservation Enactments
cular operate in West Malaysia as a constraint on the free flow of development. To see how far and
one could generalize from these experiences to make such proposals appropriate. for reform as seemed
necessary to proceed far beyond a study of laws alone and to investigate also
government
policies and the needs and interest of the Malay Communi ty.
to express
my indebtedness to my friend, Chok Chin Y o u , 3rd year, Law faculty, University of Malaya who has given me great help in collecting materials. the to my
supervisor, Mrs Shamsiah Subhan and the Penolong Pengarah Kanan, Bahagian Pentadbiran dan Perundangan, Kementerian Kemajuan Tanah dan Wilayah, Encik Afandi Ismail for their kind assistance.
H I
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completed
without the love and devotion of my family who is my constant source of encouragement support. and
It remains only to state that the opinions expressed in this thesis are mine. be taken to represent They must not or
organisations who have assisted me. remaining errors are entirely mine.
IV
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Abs tract
Reservation
Enactment was the perpetuation of the ownership of lands under Malay settlement and cultivation
in the hands of the Malays and hence the preservation of the social, economic and physical intergrity of the Malay peasantry.
Reservations
in the overall protection of Malay interest in rural and urban land ownership is questionable.
land different
non-Reservation holdings in terms of the commercial value of the holdings. The insulation of and
Malay Reservation from non-Malay influence dealings debarred the Malay owners from
mortgaging their land to non-Malay moneylenders. Since Malay moneylenders are rare due to the Moslem the
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the
Although Malaysia has adopted a free economy and a property owning society, leaving the distribution of wealth to market forces, free The
economy will lead to undesirable results. 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 the land codes and Enactments and economic policies. in
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Table
of
Cases
Pelita
(193S)E.M.S.L.R.39 v Ng Ah Sip.u
Mohammad
Amin
How
Aishah
v Lim K i n W a n v Chong
(1946) Kee
Seng
(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 Enactment Cap 142 Federated Malay States Malay Enactment 1913 Reservation Reservation
Perlis Malay Reservation Enactment N o . 7/1353 Trengganu Malay Reservation Enactment N o . 17/1360 Federal Constitution
National Land Code Act 56 of 1965 Customary Tenure Enactment Cap 215 (Settlement of Malacca) Malacca Land Tenure Rights Ordinance) (Straits Settlement
V 111
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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 n l i a and China c
flocked to the country to overcome the labour shortage. These labourers were provided land As a result, the Malays had to
by the British.
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the Government felt that there was a need to protecL the Malays from being deprived land . of their
large areas
of land especially in Ulu Lipis to the Chinese in Kelantan, a syndicate called the Duff Corporation
for their
In 1910, 1416 lots of land in Selangor were sold to foreigners . Large areas of land chettiars due to
paid
jual-janji
transactions as the Malays were the main padi growers - the staple food supplier. Thus the which
formation of the Malay Reservation Enactment reserved land 2 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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B.
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 to be not
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 peasant , categorised Malay
plantation land
(iii) village
3. 4. 5#
fesident
of Perak.
Lim Teck Gheet ; P-107. 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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should
remain in the hands of the Malays as that is where their homes and plantations are. The formation these
of a Malay Reservation would ensure that land remains in the hands of the Malays.
In Perak similar suggestions were made by J.W.W. Birch. H e , on the other hand categorised
Malay holdings into 2 classes : (i) agricultured purpo ses (ii) Malay owned land on which were land for speculation
situated their homes and plantations 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.
Minutes by British Resident to Perak to Acting Resident General, 7th September 1910 SS7 3170/10. 8. Perak SCM, 2nd September p. 893. 1910, F.M.S. G.G 1910
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1,584 lots of land totalling 1,567 were reported to have been passed
acres
to the non-malays between 1909 till 1910 in Selangor 9 . 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.
3 ways to overcome
reservation;
Malays must be made with the written approval of the Collector of Land Revenue; (iii) Malays owning land outside a Malay Reserve should Reservation. change it into a Malay Lower leasing rates or
9.
1910, F.M.S.G.G
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In July 1911, the 2nd suggestion was accepted and ancestral conditions were imposed and
1 0
Ulu Selangor In Perak, unlike in Selangor, the committee suggested legal protection administrative restrictions. in lieu of
draft to 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 Enactthe transfers
The economic development in Pahang was very slow and the administrators were more with trying to overcome outstanding debts. concerned Thereland
1 3
seriously
13.
S.S.F 3170/10 Perak S.C.K, 1st December 1910, F.M.S.G.G. 1910 p. 1597. Memorandum to accompany a draft of Customary Tenure Enactment 1909 by D.G. Campbell- 3rd June 1909, H.C.O.F. 826/09. Lim Teck Ghee; ibid . ; p. 110
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Legal restric-
ting Ancestral Malay Land from being sold to nonMalays. Thus was the outcome of the Federated
Malay States Residents' Conference which was held in 1911 14 . The first draft was completed . in
" For some time past the Rulers of the Federated Malay states and their anxiety
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 offered,
entranced by the visions of let mean pleasures conjured up, they fail to realise that for those illusory they are surrendering and pleasures
of yeoman peasantry aforetime happy and prosperous incapable from the very nature
14.
Conference of Residents, November 1919. H.C.O.F. 58 3/11. F.M.S. G G 1913, p. 651 - 654.
15.
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wanderers advisors
C.
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.
from the
strongest opposition.
C.
A Historical Background of the Enactment. The Malay Reservation Enactment was passed
by the Federal Council on the 25th of November It was later gazetted on the 30th of December and took effect on the 1st of January 1914.
1913 1913
i6. 17.
(misplaced
file).
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The preamble of the Federated Malay Enactment cited thus : " An enactment to provide for
States
securing
1 Q
Section 3 gave the Residents power to declare an area to be a Malay Reservation. 7 stated that a Malay Reservation Section sold,
shall not be
Section 8, 9 on
and restrictions
Malay Reservation landowners from passing it on to a non-Malay in whatever form. Section 13 made any to be
protected
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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10
discretion
On the 5th of June 1914, Larut became the first province to be gazetted as a Malay Reservation area. 13 areas totalling 140,000 followed
by Krian, Kuala Kangsar, Ulu Perak, Hilir Perak and Batang Padang 19
Kuala Pilah and Tampin were the first two areas in Negeri Sembilan to be gazetted as a Malay Reservation. In 1918, more than as a Malay 400,000 Reservation
than
Reservation (i) .
See table
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.
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11
TABLE
(i)
SELANGOR
1917
Daerah
Kelulus an Bil Kawasan Kelulusan Rizab Rizab Melayu Melayu (ekar) (ekar) 213,511 140,800 486,400 512,000 5 4 13 6 3 4 6,0S5 7,642 10,000 4 ,055 Tidak diketahui |
f
8,760
in Selangor,
Prohibitions imposed by the 1913 Enactment against private dealings appeared to be indiscrimiHowever drawback. in land these
native of their nature and purposes. prohibition soon revealed a serious Prohibition against security
transaction
cultivators they
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12
repealed
and replaced by a New Enactment - The Malay Reservations Enactment Cap 142 21 . One of the
most important changes made by the new enactment was to forbid all kinds of dealings including purporting
security transaction, at the same time to meet the problems regarding of the Malay cultivators.
The Enactment
allowed any Malay owners to charge his land to the "resident" or any cooperative societies for such purposes 22 approved
After the 1933 replacement, several ments were made in 1 9 3 4 2 3 , 1 9 3 6 2 4 , 1 9 3 8 2 5 , 27 1954 and in 1959 28 . One of the most
amend194826,
important
amendments made was section 7 of the present Federated Malay States Enactment provides : 20. 21. 22. 23. 24. 25. 26. 27. 28. David, S . Y . Wong, Tenure And Land the Malay States; p. 5 10 Deal in;-, s in Cap 142 which
Enactment No. 3o of 1933 S.17 No. 30 of 1933, F.MS Malay Reservation Enactment. Enactment N o . 2 8 , 1934 Enactment No. 2 8 , 1936 and Enactment N o . 5 1 , 1936 Enactment No. 3, 1938. Enactment No. 1, 1948 Ordinance No. 2 5 , 1954 COPYRIGHT UiTM L .N . No. 233, 1959.
13
" 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 Rulerin- Council may alienate state land within a Malay Reservation to any body corporate or company specified 3rd schedule which the may, by order published to time : And provided further that any state land thus alienated shall be deemed to be a a Malay holding". in the Ruler-In-Council in the Gazette,
States
the state otherwise than to Malays of any land included in a Malay Reservation 29 .
qualified
Meanwhile, between 1961 to 1963, each of the former Federated Malay States Separately a further amendment to the Enactment introduced available
to make
29. 3Q .
thereof.
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14 . . 31 more credit facilities , with safeguards abuses and oppression. increased The list has been
against considerably
financial
in the
1913
Federated Malay States Enactment was enacted in 33 34 Kelantan in 19J30 , m Kedah in 1931 and in Perlis 35 Johor adopted the Federated Malay States 1935 Enactment, Cap 142 in 1936 substantially and Trengganu also
,-.37 Malay States Enactment in 1941 However Malacca has its own (i) legislation (Straits
Settlement
Ordinance)
See Supplementary B. S. 7 Second Schedule. Kelantan Malay Reservations Enactment No. 18 of 1930. Kedah Malay Reservations Enactment No. 63 of 1948 Perlis Malay Reservations Enactment No. 7 of 1353 Johor Malay Reservation Enactment N o . 1 of 1936. Trengganu Malay Reservations Enactment No. 17 of 1360 Chapter 125.
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