Disclaimers:
First, let me come clean about Land Law. It’s the one paper I failed twice in my entire life. It’s not my best subject. I’m doing this to deepen my understanding and reinforce my memory. I’m doing it piece by piece before the semester opens in October.
Secondly, this – as my other posts on law – are purely academic revisionary in nature. It does not constitute legal advice that you could act upon. If you need legal assistance, please consult a licenced legal practitioner in your area/jurisdiction.
Historical Context of Land Tenure in Malaya
First, the land law in Malaysia – specifically Malaya – did not appear out of a vacuum. Prior to the British, land ownership was present in the local customary form: the Malay Customary Land Tenure. The concept can be reduced to one maxim: he who fells the trees owns the land.
if you’re wondering: why Malaya?
In the modern sense, Sabah and Sarawak have their own Land Codes. Peninsula Malaysia, on the other hand, adheres to the National Land Code. Historically, the timeline between Malaya, Sabah, and Sarawak only merged regularly from the 60s. Some customs of Peninsula Malaysia are alien to Sabah and Sarawak, and vice versa. That is the nature of customs. Furthermore, prior to the arrival of the British, customs were the prevailing legal systems that governed the tribes and ethnic groups within these territories. Over time, written laws, common law, and equity were introduced.
Peninsula Malaysia – or Tanah Melayu – is not a single entity until recent history. It has nine sultanates and two of the three Straits Settlements (Singapore being the third). At different stages, the states asserted their political independence or dominance. For instance, the Malacca Sultanate dominated the two sides of the Straits of Malacca in the 1400s until the early 1510s. Then came the rise of the Johor-Riau Sultanate (1528) and the Perak Sultanate (1528). Before Malacca, there were various kingdoms and empire which had either political or diplomatic influence within their territories and the region.
After Malacca, other states began to emerge. The custom was then specialised to specific geographies. Naning in Malacca and neighbouring Negeri Sembilan, for instance, adopted a different custom or ‘adat’. Adat Perpatih practised by the Minangkabau people took hold in the Malay Peninsula following the migration of the Minang. Adat Temenggong developed in other parts of the Peninsula.
Common Characteristics
Earlier you read “he who fell the trees own the land”. But that is scratching the surface. One instance where Malay customary land tenure was formally inducted into the formal legal sphere is the case of Sahrip v Mitchell & Anor (1870) Leic. 466.
It is well known by the old Malay law or custom of Malacca, while the sovereign was the owner of the soil, every man had nevertheless the right to clear and occupy all forest and wasted land, subject to payment to the sovereign of one tenth the produce of the land so taken. The trees he planted, the houses he built, were his property, which he could sell or mortgage or hand down to his children. If he abandoned the paddy land or fruit trees for three years, his rights ceased and the land reverted to the sovereign. If, without deserting the land, he left it uncultivated longer than usual and necessary, he was liable to ejectment.
Sir Benson Maxwell CJ in Sahrip v Mitchell & Anor (1870) Leic. 466
Before we proceed, please do not regard custom being trivial by virtue of it not being a formal law. Without primary sources of law in the form of written law, customs were the primary sources of law at the time. It was a set of systems that aimed to maintain law and order. It was displaced by the Common Law system and the Written Law as primary sources later.
There are six main characteristics which I group into three different parts:
1. How does one acquire the rights?
The Owner of the land is the Ruler (i.e., the Sultan). Thus, his subjects don’t own the land per se. Rather, they are landholders with proprietary rights and the right to occupation.
2. How does one become a landholder?
They proceed to a virgin jungle or wasteland where they can open and cultivate the land for their use. Anyone may do so.
Now that you have the land, what next? Is it yours without condition? To retain your rights, there are obligations that you owe.
3. Tax
As the landholder, you’re free to cultivate and toil on your land. In exchange, the Ruler may demand one-tenth (10%) of the produce as tax.
4. Cultivation
As the landholder, the obligation is on you to ensure that your land is continuously cultivated. Abandoning it without reasonable cause allows the Ruler to forfeit your rights to the land. Sometimes you may occupy the land and leave it neglected. You have about three years to remedy the situation. You could be ejected from your holding if you fail to fix the situation.
I’m applying some commentary just as the first pillars. How I see it is a form of control against greed. I’m imagining an era where money as we know it is uncommon.
Wealth is obtained by effort and stewardship. So, the concept of obligation calls to mind a seemingly egalitarian society. Sure, you’re free to open up an acre’s area of land. Yet, you can also go greedy and open up 100,000 acres. However, the moment you neglect or abandon it, you forfeit your rights to occupy and benefit from the land. Thus, one’s greed and failure lead to opportunities for others.
I cannot help but to also romanticise the idea and spirit of proprietorship and enterprise. This is an era with simple commerce and trade. An era before complex multinational tax codes, tariffs, breaks, and incentives. You get what you give.
Now, we know the world isn’t always fair. Even in a seemingly egalitarian society, there are disputes, sabotage, and injustices. Sometimes sheer dumb luck can make or break one’s livelihood. Pests and locusts descending upon an orchard just as the fruit or harvest season starts is an example. This is an era without refrigeration. Wet food spoils sooner than today. We’re worried about SARS-CoV-2 and its variants, yet we have modern medicine to mitigate other diseases like malaria and dengue.
But in a simplistic sense, one’s livelihood and wealth were determined by the effort they put into cultivation, hunting, or trading. They were not immune to the simplistic vices of humankind either.
After you’re done with your land, what next?
5. Pulang Belanja
Can you sell something that you don’t own? When you don’t own the land, can you dispose of it?
Yes, under the concept of pulang belanja. Pulang is Malay for return(ing) and belanja is expenses or spending. As a landholder, when you sell, you’re not selling the land. Rather, you’re selling the thing that you owned associated with the land: the cost of labour and out of pocket expenses incurred during opening and cultivation. You may not own the soil, but you own the houses you erected and trees that you planted over the years.
Under the Malay customary land tenure, you can recover these costs as these are yours. Of course, alongside these fixtures and chattels are the rights to occupy and benefit from the land you once worked on.
6. Jual Janji & Jual Putus
Cash isn’t always handy. Sometimes you need cash in exchange for medicine or other expenses. The Malay customary land tenure allows you to enter into an agreement with another. In exchange for the proprietory rights over your land, you benefit from some immediate cash. The arrangement spans over an agreed period which you will have time to repay the other party. Once whatever debt owed is paid, you regain the proprietorship of your holding. This is jual janji.
What happens when you defaulted in your payment? After the expiry of the term, the other party assumes uncontested proprietorship over your landholding. You lose yours. This is jual putus.
Challenging Theories
In trying to understand the concept of Malay customary land tenure, I came across an interesting article. I confess that I nearly mixed it up with the ruling by Maxwell CJ.
Hunud Abia Kadouf, PhD, wrote The Traditional Malay Ruler and the Land: Maxwell’s Theory Revisited [1997] 1 MLJ cxxi. Maxwell here isn’t the judge in the 1870 case. Rather it refers to WE Maxwell, author of The Law and Customs of the Malays with Reference to the Tenure of Land (1884) 13 JSMBRAS 75.
When we try to understand history, we often make the mistake of fitting it into something familiar. The Court cautions us against this error in Amodu Tijani v The Secretary, Southern Nigeria [1921] 2 AC 399:
…There is a tendency, operating at times unconsciously, to render that the title [held by the natives] conceptually in terms which are appropriate only to systems which have grown up under English Law.
Per Viscount Haldane in Amodu Tijani v The Secretary, Southern Nigeria [1921] 2 AC 399
You have no idea how many times I tried to draw parallels between modern concepts with historical context. Yes, it is hard not to connect the dots. Some themes are common, but their context isn’t always so.
A Case for Reform
Before ending, let’s quickly bring up some questions related to the disadvantages and limitations of this system.
When your territorial dominion is agrarian, egalitarian, and finite, the Malay Customary Land Tenure is sufficient. But that isn’t the case in Tanah Melayu in the 1800s. Trade, commerce, and population boomed!
Here are some questions which came up:
- How do we trace the boundaries definitively?
- How do we record complex and new commercial transactions involving land?
- How do we know who owns the land?
- How far do we have to search and hunt for the landholder?
- Who will maintain the records? What happens when there are discrepencies?
For now, let me leave you with the flipbook version of the deck I created.
I’d love to hear from you as well. Do leave your comments or reach out on LinkedIn.
