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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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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