“IT is a matter of political will. Without it, there is no way Malay Reserve Land lost through compulsory acquisition can be replaced.”
That sums up the sentiment of Prof Datuk Dr Nik Mohd Zain Nik Yusof, former secretary-general of the Ministry of Land and Cooperative Development. Nik Zain was speaking at a forum on “Malay Reserve Land — Past, Present and Future” organised by INSPIN (a Kedah state government-linked organisation) at a convention centre in Alor Star last Sunday.
There is a general belief, held by various quarters for a long time, that there were at least three million hectares (ha) of Malay Reserve Land (MRL) in the nine Malay States in Peninsular Malaysia on Merdeka Day (Aug 31, 1957) but that the number had dwindled over time as a result of compulsory land acquisition until it stood at more than 1.7 million ha. Researchers later discovered that these figures were actually guesstimates, as no conclusive data had been published by any relevant authority.
In October last year, Dr Mohd Hasrol Haffiz Aliasak, a senior lecturer at UiTM, revealed that based on his own research in 2009, only 12 per cent remains now out of 12.9 million ha of land in Peninsular Malaysia.
Hasrol, who spoke at this recent forum in Alor Star just before Nik Zain, gave a different picture of the situation. According to him, as of last year, the total land area in Peninsular Malaysia (including Penang and Malacca) was 13 million ha, out of which, four million ha were MRL. This means that as of last year, 31 per cent of land in Peninsular Malaysia was MRL.
I believe this is nearer the truth because my own research shows that we now have somewhere between 31 and 32 per cent of MRL in Peninsular Malaysia. Having said that, it must be remembered that these figures are not static but dynamic; they constantly change from time to time because MRL is being continuously acquired compulsorily by state authorities for development under the Land Acquisition Act 1960.
At the same time, some states are vigorously taking steps to gazette more land as MRL, to replace those lost through acquisition. In September last year, Tan Sri Abdul Khalid Ibrahim (then menteri besar of Selangor) told the media that the area of MRL in Selangor had increased in size — from 126,227ha in 2009 to 170,533ha last year.
There is even a more impressive performance in Johor. In 2009, there were only 195,262ha of MRL in that state. However, by December 2013, the size had increased to 429,386ha. In November last year, the Johor government announced that land in Felda and Felcra schemes will be gazetted as MRL.
In the Auditor-General’s Report of 2013, it was stated that the actual size of MRL in the country could not be ascertained. In Johor, this was largely due to the fact that the MRL Register has not been maintained and updated properly. This is indeed distressful news.
Replacing MRL lost through compulsory land acquisition is not a matter of choice, but a constitutional duty on the part of all state authorities. This is spelt out in Article 89 (3) of the Federal Constitution, which requires the state authority to replace such lost MRL land with “other land of a similar character and of an area not exceeding the area of that land”.
The law affecting MRL is not only out of date; it is also not uniform. We do not have one law of general application in all the nine states. Instead, we have one law (FMS Cap 142) for the former Federated States of Negri Sembilan, Selangor, Pahang and Perak, and five other enactments, one each for the former non-Federated States of Johor, Kedah, Perlis, Terengganu and Kelantan. The earliest law came into force in 1913 (FMS Cap 142), making it now more than a century old.
Whilst there are some similarities between these six enactments, there are also fundamental and glaring differences. Under FMC Cap 142, a “Malay” can be a natural person as well as a corporate entity (a Malay company). There is no such corresponding provision in the five other enactments.
The term “Malay” is also defined differently in all the enactments. In Kedah and Perlis, a person of Arab descent is a Malay, but the position is different in Johor.
In Johor, a circular was issued in 1989 stating that a “Malay” must be a citizen of this country (Zaleha bte Sahri v Pendaftar Hakmilik Tanah Johor [1996] 2 AMR 1604.)
More seriously, the definition of “Malay” in the enactments does not tally with the definition of “Malay” in the Federal Constitution.
If a question should arise as to whether a person is a Malay or not, the final decision is in the hands of the Ruler in Council, not with the courts — Hanisah v Tuan Mat [1970] 1 MLJ 213.
Under FMS Cap 142, there is a strict prohibition against dealings — transfer, charges and leases (section 8). However, under the Kedah Malay Reservation Enactment, a charge of MRL to a non-Malay is not prohibited. This was clearly spelt out by Alaudin J. in Sime Securities Sdn Bhd v Projek Kota Langkawi Sdn Bhd [1999] 4 MLJ 585.
When it was my turn to speak at the recent forum, I raised the issue of the loss of Malay communities when their MRL was acquired to make way for mega developments (cases in Selangor and Johor) and the earlier proposal to amend the law, first mooted by the then deputy prime minister — in accordance with the decision of the 60th meeting of the National Land Council in 2004. It is now more than 10 years since the Federal Government announced that initiative.
My question was answered by Abdul Aziz Mohd Johdi, who spoke at the forum as a last-minute representative of Datuk Seri Azemi Kasim, the director-general of Lands and Mines. Aziz explained that certain “difficult issues” had surfaced since then and as a result that earlier proposal has been shelved.
At the end of the day, suggestions were put forward to revamp the 100-year-old law: to take immediate steps to ensure our records on the status of the loss and replacement of MRL in the country are always accurate and up-to-date; to consider amending the Land Acquisition Act 1960 so that it is no longer discriminatory of the owners of MRL; to provide incentives to MRL owners who wish to develop their land; and finally, to prepare a road map for a National Policy of MRL and a comprehensive master plan for MRL for the next 100 years.
Whilst the recent forum had drawn a decent crowd of more than 200 participants from all over the country, it is a pity that the people who actually have the power to make decisions to shape the future of MRL did not care to attend.
As we were walking out of the hall, an elderly gentleman shook my hand and said, “We must have phase two of this forum in the near future”.
The writer formerly served the Attorney-General’s Chambers before he left for private pra ctice, the corporate sector and then the academia