LAS654 LAW AND PLANNING REGULATION

ASSIGNMENT 1 : REPORT

MALAY RESERVATION LAND

Prepared by :

MUHAMMAD MUSTAQIM QHATIMULLAH BIN MAZLAN

2020950793

MUHAMMAD NAIM BIN MOHD PADZLI

2020978403

FARID AZHARI BIN LABULLAH

2020990921

Checked by :

LAr. HAJAH SITI ZABEDA HAJI MOHAMMAD

Submit Date :

29th May, 2022

 TABLE OF CONTENT

Topic page

1.0 INTRODUCTION 1

2.0 MALAY RESERVATION LAND 2-8

3.0 CONCLUSION 9

4.0 REFERENCES 10
1.0 INTRODUCTION

Malay, Malay Orang Melayu ("Malay People"), any member of an ethnic group from
the Malay Peninsula and adjacent Southeast Asian islands, including the east coast of
Sumatra, the coast of Borneo, and smaller islands in between. The Malays speak a variety
of dialects from the Austronesian (Malayo-Polynesian) language family.

The act or fact of a grantor reserving some newly created thing out of the thing
granted and the right or interest so reserved are examples of reservations. Setting limiting
conditions or refraining from full exposition. something set aside: such as a section of public
land set aside for hunting purposes.

The British first introduced the concept of Malay Reservation Land in the Fedeilan,
and Pahang rated Malay States of Perak, Selangor, Negeri Sembin 1913 to prevent lands
held by Malays in those states from being disposed of to non-Malays. Because land in
Malaysia is administered by the respective states and federal territories of Peninsular
Malaysia, Sabah, and Sarawak, different Malay Reservation laws apply to each state.

The Malay Reservation Land Law has two main goals: to prevent State Land in
Malay Reservation Areas from being disposed of to non-Malays in any way, and to prohibit
any private dealings between Malays and non-Malays in terms of Malay Holdings or Malay
Reservation Land.

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2.0 MALAY RESERVATION LAND

2.1 Historical Rationale

Once the British brought in immigrants from China and India to work in Malaya, they
were given vast tracts of land for commercial agriculture (e.g., rubber and tea plantations)
and tin mining. Malays sold their land in urban areas and moved to the villages, feeling
dispossessed and outclassed in their own motherland.

2.2 Legislating Malay Reservation

Malay Reservation Enactment (MRE) 1913

The purpose of the Enactment was to protect Malays' land interests. Also, to make
the Malay temptation to sell their land "out of reach." Rubber trees are not to be planted on
reservation land, according to an order directed to the District Officers. This is due to Malays'
desire to plant rubber and then sell land at a higher price.

Present Malay Reservation Enactments:

1) The FMS Malay Reservation Enactment 1933

(Cap. 142) for Selangor, Perak, Pahang, Negri 9
and KL.
2) Perlis MRE 1353H
3) MRE of Kedah 1931
4) Johor MRE 1936
5) MRE of Trengganu 1941
6) Kelantan MRE 1930

2.3 Restrictions in the Malay Reservation Enactment

General Restriction on Dealings to non-Malays

Section 8 of the FMS MRE states that "no Malay holding shall be transferred,
charged, leased, or otherwise disposed of to any person who is not a Malay."

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‘Malay holding’
s.2: "any registered Malay interest as proprietor or co-proprietor in any alienated land
included in a Malay Reservation."

Section 8 application:
"In order for section 8 to apply, the land in the Malay reservation must first have a
Malay registered proprietor or co-proprietors." If there has never been a Malay registered
proprietor or co-proprietor in such a Malay reservation land, there should be no prohibition
on transferring such land to a non-Malay."

Sykt Macey Bhd. v. Nightingale Allied Services, J. James Foong (HC)

Other Restrictions:

Section 8 also prohibits the transfer of any if the person is not a Malay, under a power
Malay holding to a non-Malay. of attorney

Section 8 also forbids the leasing of Malay Section 10 forbids the creation of a lien over
holdings to non-Malays. a Malay holding, even if it is in favor of a
Malay.

Section 9 forbids the execution of any Section 11 states that if the caveator is not
instrument of dealing in violation of Malay a Malay, no private caveat or trust caveat
holdings by any person acting on their can be registered in a Malay holding.
behalf.

2.4 Definition of Malay

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 "Malay" means a person who professes Islam, speaks the Malay language regularly,
and follows Malay custom, according to the first part of Article 160 ("the constitutional
definition"). Because this is the most commonly quoted definition of Malay, it tends to imply
that anyone can become a Malay through religious conversion and adoption of customs and
language, and that anyone born a Malay is obligated by law to be a Muslim. This is more of
a tribal distinction than a racial distinction. Before a person can be considered a Malay in the
sense of the Constitution, the second half of the definition must be met:

1. was before Merdeka Day born in the Federation or in Singapore or born of parents
one of whom was born in the Federation or in Singapore, or is on that day domiciled
in the Federation or in Singapore; or
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2. is the issue of such a person; Therefore, anyone who claims to be entitled as a
Malay under the Constitution will need to trace their birth or ancestry to Merdeka Day.
That someone is a Muslim, speaks Malay and adopts Malay custom is not, without
more, sufficient to qualify them as a Malay under the Constitution.

The Constitution's special position benefits a determinable class of people who were
born in, or born of a parent who was born in, or were domiciled in Malaya on Merdeka Day,
and their descendants, as long as they spoke Malay, followed Malay customs, and were
Muslims. To put it another way, being ethnically Malay is not and has never been a part of
the Constitution's definition of a Malay. Indeed, many people who are clearly not ethnically
Malay, such as those of Caucasian or Chinese ancestry, qualify as Malay under the
Constitution (along with their descendants) because they meet the definition's criteria.

2.4.1 Malay in the respective MREs

There are two types of people:

1. natural people
2. businesses.

Under the MRE, a person must meet the definition of "Malay."

A company can be designated as "Malay" through declaration, recognition, or
characterisation.

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2.4.2 Malay is defined by the Kedah MRE

"Malay" is defined in S.2 of the Kedah Enactment as "a person professing the Muslim
religion and habitually speaking the Malay language whose parents are at least one of
Malayan or Arab descent." (See Kedah Laws 1559, E 9/54). Siamese people are considered
natives and have the right to purchase Malay reserve lands.

2.4.3 Kelantan MRE 1930

"Malay" means a person of any Malayan race who speaks any Malayan language
and practises the Mohammedan religion, according to S.3 I and includes::
1. the Majlis Agama Islam
2. the Official Administrator when acting as administrator or trustee of the estate of a
deceased Malay.”

2.4.4 Johor MRE

A person belonging to the Malay or any Malaysian race who habitually speaks the
Malay language and professes the Muslim religion is referred to as a "Malay," and such
expression shall be deemed to include the authorities, boards, bodies, societies,
associations, and companies listed in the Enactment's Second Schedule:
1. With a preamble that reads ‘An Enactment to prevent interests in land passing out of
the hands of the Malay race.’
2. Johor Malay Reservation Enactment 1936 has employed the word ‘Malaysian’
instead of ‘Malayan.

2.4.5 Common Features in the Definition of "Malay" in All State Enactments

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2.5 Revocation of Malay Reservation Land

2.5.1 There are two types of MR Land:

Prior to Merdeka, MR land was declared.

● Subject to stringent procedures outlined in Art.89(1) of the Federal Constitution.
● Any excise, revocation, acquisition/alteration of the size of MR land necessitates the
passage of a new MR enactment through the State Legislative Assembly and
Parliament.

After Merdeka, MR land was declared.

● Any changes or revocation of MR land are made by the Mentri Besar with the
approval of the Ruler in Council.
● FMS MRE, 1933, s.4(i)(b).

2.5.2 Mohd. Isa and Others v. Abdul Karim and Others [1970]

In this case, the judge (Raja Azlan Shah, J.) ruled that the only way to de-reserve an
MR land is for the Menteri Besar to revoke it under section 4(i)(b) MRE. With due respect,
this is incorrect because the MRland was declared in 1921, making it land subject to the
stringent procedures outlined in Art. 89(1) of the Federal Constitution.

2.5.3 Forfeiture of MR Land

According to Federal Constitution Article 89(1A), MR land declared prior to Merdeka

may be forfeited by the State Authority if the owner no longer qualifies to own the MR land.
i.e. a company that is no longer considered a 'Malay' due to a change in shareholding. The
State Authority may forfeit the MR land without compensation to the landowner.

2.5.4 Declaration of New MR Land

Any state land that has not been developed or cultivated may be declared as MR
land in accordance with Art. 89(2) of the Federal Constitution. (The relevant state's MR law).
Take a look at what the FMS MRE says (see s.5). As a result, in the FMS states, even
alienated land can be designated as MRland. Terengganu and Johor are also included. Not
valid in Penang or Malacca.

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2.5.5 MR Land Revocation and Replacement

Art. 89(3) FC requires the State Authority to replace MR land with any other state land if it is
revoked.

3 conditions:
1. It has a similar personality.
2. Area that does not exceed the revoked area.
3. Should be completed immediately.

2.5.6 [2017] 10 MLJ 53 Nor Azahar bin Zainol v PT Langkawi & Ors.

Pf entered into an SPA with the 4th Df in April 2006 to sell his land in Kuah town for
RM 1.1 million. The full purchase price was paid. Pf sought a declaration that the SPA was
null and void ab initio because the land was MR land and the fourth Df was not Malay.

A third party had previously held the land but had failed to pay the annual rent. The
State Authority had forfeited the land and re-alienated it to the Pf. There was no
endorsement of MRland on the new title, but the land was MR land under the old title. Df
claimed that the land was no longer MRland due to the redrawing of Kuahtown's boundaries.
The question was whether the land was MRland.

2.6 The Position of Non-Malays over MR Land

There is no declaration of MR Land for Non-Malay Land. Article 89(4) FC states that
the State Authority may not declare any land occupied or owned by non-Malays as a Malay
reservation. As a result, if a non-Malay has a title or interest in land, the State Authority is
prohibited from declaring the land a Malay reservation. This is to safeguard the legitimate
interests of non-Malays under Articles 8 and 153(7) of the Federal Constitution.

The State Authority's power is limited by Article 89(4), which states that the State
Authority cannot declare a Malay reservation on land that is occupied or owned by
non-Malays. As a result, if a non-Malay has any right or interest in the land, such as as a
registered owner or licensee on a Temporary Occupation Licence, or as a leasee or a
charge, the State Authority is prohibited from declaring the land as a Malay reservation.
Under Articles 844 and 153 (7) of the Federal Constitution, this is done to protect
non-Malays' legitimate interests.

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 The State Authority has the final say in acquiring land for Malays and other races,
according to Article 89(5). Article 89(7) goes on to say that all Malay reservation land must
be declared as such only if Articles 89 and 90 have been read. Article 89(8) states that for
land in the Federal Territory of Kuala Lumpur, the law on Malay reservation in Article 89(1) is
subject to some modifications.

The FMS MRE 1933 forbids non-Malays from occupying MR land. A non-Malay may
obtain an interest in MR land if he applies through one of the companies listed in the Third
Schedule. The Ruler in Council has broad authority to declare a company a Malay company,
regardless of its members.

MRE Johor, If a non-Malay was occupying the land prior to its designation as MR
land, such non-Malay may continue to occupy and own such land, as well as engage in
transactions with other non-Malays on such land. MRE is also available in Kedah and Perlis.
Only when the MRland is in the hands of a Malay owner will the restrictions on transfers and
dealings apply.

Lim Kin Wan vs. Tan Hong Chit (1964)

The Federal Court ruled that non-Malays can acquire MR land in two ways:
1. In Council Ruler Approval
2. Where such non-Malay occupants occupied the land prior to its designation as
MRland

Non-Malays Who Own MR land

Along with approval of the Rulerin Prior to declaring land as MR, it was
Council occupied.

Subsequent transactions with non-Malays Subsequent transactions with non-Malays

will require the approval of the Ruler in do not necessitate Ruler in Council
Council. approval.

MR land provisions are not applicable to

such proprietors.

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3.0 CONCLUSION

The preceding discussion emphasises the government's role in developing and

protecting Malay Reservation land to ensure the safety of indigenous Malays. Without
sacrificing its status, Malay Reservation land is being transformed into a valuable asset
through activities, projects, planning, policies, and legislation.

Government and Malay-owned private agencies must now prioritise the quality, not
the quantity, of Malay Reservation land. Land on the Malay Reservation should be valued
using fewer factors and conditions.
Land within a Malay reservation should not be valued economically. This is a historically
significant and valuable Malay security. Due to the scarcity of land in Malaysia, the value of
Malay reservation land should be increased.

The current administration deals openly with the Malay reservation institution,
recognising that the land is held in trust. Present and future Malay populations will benefit.
Government is developing land within the Malay Reservation. The government should
establish a special organisation to safeguard and oversee Malay reservation land.
Departments and agencies should coordinate regarding Malay reservation land via a
Computerised Land Bank or Malay Reservation Land Development Corporation. Politically,
socially, and economically, all concerns regarding Malay Reservation land must be
addressed. All applicable authorities must be holistic.

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4.0 REFERENCES

Meriam Webster (1828) Definition of Reservation,

- https://www.merriam-webster.com/dictionary/reservation

Kuiper K. Definition of Orang Melayu, The Editors of Encyclopaedia Britannica,

- https://www.britannica.com/topic/Malay-people

Oon H. L. (2021) Malay Reservation Holdings, Real Estate Practice of Skrine

- https://www.lexology.com/library/detail.aspx?g=b896b5df-b5fc-47cb-90da-c1f01214d
719

Daily Express (2019) What you need to know about Malay Reservation Land,
- https://www.dailyexpress.com.my/interest/244/what-you-need-to-know-about-malay-r
eserve-land-/

Lee H. A. & Gledhill ( Malaysia: Who Is The Malay?)

- https://www.mondaq.com/indigenous-peoples/469128/who-is-the-malay

Azmi J., Abd Rahman Z., Ahd Sakri N. A. L., M. Azmi M. J., Malay Reservation Land
- https://www.academia.edu/15952936/Malay_Reservation_Land

Ashiran B. M. A. & Nor Asiah M. THE ‘RED-INK GRANTS’:1 THE MALAYS AND THE LAND
- https://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/download/72/70/281

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