This document provides an overview of Malay reservation land in Malaysia, including: 1) The historical rationale for legislating Malay reservation land was to protect Malay land ownership as the British brought in immigrants who took over vast tracts of land. 2) The Malay Reservation Enactments of various states were passed in the 1930s to secure Malay interests in land and prevent the passing of Malay landholdings to non-Malays. 3) There are various restrictions on dealings involving Malay reservation land, including prohibitions on transfers, charges, leases or disposals to non-Malays.

1. SHARIFAH ZUBAIDAH
LAW 3111-2013
MALAY RESERVATION
LAND

2. Coverage:
1) Historical Rationale
2) Legislating Malay Reservation Land
3) Definition of ‘Malay’
4) Revocation of MR Land
5) Position of Non-Malays over MR Land
6) Malay Company & Malay Holdings
7) Powers of Ruler in Council over MR Land
8) Prospects and Challenges

3. Historical Rationale

4. History:
When the British brought in immigrants from China
and India to work in Malaya, vast tracks of land were
allocated to the immigrants for commercial
agriculture ( e.g. rubber, tea plantations) and tin
mining.
Feeling dispossessed and outclassed in their own
motherland, Malays sold their land in urban areas
and moved to the villages.

5. British in Malaya

6. Chinese Miners and Yap Ah Loy

7. Indian plantation workers

8. Malays taking up loans from Indian Chettiars
The British also noted
that the Malays were in
the habit of taking up
loans from chettiars and
pledging their land as
security.
They eventually lost their
lands to these chettiars
upon foreclosure for
failure to pay off the
loans.

9. Legislating Malay Reservation

10. Draft Malay Reservation Bill
“the object of the draft is to prevent the passing of
Malay landholdings into the possession of
foreigners”

11. Malay Reservation Enactment 1913
The purpose of the Enactment was to provide for
securing the Malays their interests in land.
Also to put the Malay temptation to sell their land
‘beyond their reach’.
Silent feature: rubber trees not to be planted on
reservation land. – order directed to the District
Officers.
Why? Malays wanted to plant rubber and then sell
land at higher price.

12. 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

13. Restrictions in the MRE

14. General Restriction on Dealings to non-
Malays
See s.8 of FMS MRE:
“No Malay holding shall be transferred, charged,
leased or otherwise disposed of to any person not
being a Malay”

15. ‘Malay holding’?
s.2:
“any registered interest of a Malay as proprietor or
co-proprietor in any alienated land included in a
Malay Reservation.”

16. Application of section 8:
“In order for s 8 to apply, the land in the Malay
reservation must have, first of all, a Malay registered
proprietor or co-proprietors. If there has been no
such Malay registered proprietor or co-proprietors in
such a Malay reservation land before, then there
should be no prohibition in the transfer of such land
to a non-Malay.”
James Foong, J. (HC)
Sykt Macey Bhd. v Nightingale Allied Services
[1995] 1 CLJ 890

17. Other Restrictions (see)
Section 8 also prohibits
charging of any
Malay holding to a non-
Malay.
Section 8 also prohibits
leasing of Malay holding
to a non-Malay.
Section 9 prohibits the
execution of any
instrument of dealing in
respect of Malay holding
by any person acting
under a power of
attorney if that person is
not a Malay.
Section 10 prohibits the
creation of lien over
a Malay holding even in
favour of a Malay.
Section 11 states that no
private caveat, trust
caveat can be registered
in a Malay holding if
caveator not a Malay.

18. Definition of ‘Malay’

19. Definition of ‘Malay’
Article 160 Federal Constitution lays down 4
requirements:
Muslim
Speaks Bahasa
Malaysia
Complies with
Malay customs
Domiciled in
Malaysia/Singapore

20. Definition of Malay in FC does not apply for MR land
Art. 89(6) Federal Constitution:
‘In this Article “Malay reservation” means land
reserved for alienation to Malays or to natives of the
State in which it lies; and “Malay” includes any
person who under the law of the State in which he is
resident, is treated as a Malay for the purposes of the
reservation of land.’
Thus, depends on the MRE of each state to
determine.

21. ‘Malay’ in the respective MREs
2 categories:
1) Natural person;
2) Company
A person must come within the definition of ‘Malay’
under the MRE.
A company may be recognised as a “Malay”
depending either by declaration, recognition or
characterisation. (See examples in FN 69 of p.441 of
your textbook)

22. FMS MRE defines ‘Malay’:
3 characteristics:
Belong to a Malayan
race
Habitually speaks the
Malay language or
any Malayan language
Muslim

23. Kedah MRE defines “Malay” as:
“whose parents, with at least one of them being a
person of Malayan race or Arab descent.”
This definition does not apply to companies.
(Sime Bank v Projek Kota Langkawi S/B [1998])

24. Kelantan MRE 1930:
Similar definition to FMS MRE but adds “Majlis
Ugama Islam and the Official Administrator” as a
Malay.
Also wider in respect of speaking language, “who
speaks any Malayan language”.
Section 9 of the Enactment prohibits the alienation
of MR land to those who are not ‘natives of
Kelantan’.
Thus, Malays from other states may not own MR
land in Kelantan.

25. Ruler in Council in Kelantan has powers to
determine who is a ‘Malay’ for purposes of MR
See s.13.
Also power to defeat the restriction in MRE:
under s.13A, The Ruler in Council may also approve
the alienation of any MR land, the transfer and
transmission of any MR land to any person not being
a Malay, subject to conditions and restrictions.

26. Johor MRE
1) Belonging to a
Malay or any
Malaysian race.
2) Habitually speaks
the Malay language.
3) Professes the
Muslim religion.
‘Malaysian race’ – race
that is indigenous to the
Malay Peninsular and
archipelago. (Blacker)
Note:
In 1989, by a PTG
circular under s.22 of the
Johor MRE, an
additional requirement
was added: the ‘Malay’
must have Malaysian
citizenship.

27. Zaleha bte Sahri v Pendaftar Hakmilik Johor
[1996]
Zaleha , owner of MR land, was a Malaysian Malay.
Married a Singaporean Malay and became a
Singaporean citizen.
Due to additional requirement imposed in 1989 for
Malaysian citizenship
Zaleha applied to the High Court for a declaration to
revoke the status of her MR land in Johor so that she
could transmit the land to her husband and children.
HC allowed the application.
Q: Can MR status be revoked by court order?

28. Common Characteristics in Definition of
‘Malay’ in all state enactments

29. Revocation of MR Land

30. MR land declared before
Merdeka
MR land declared after
Merdeka
Subject to stringent
procedures under Art.
89(1) Fed. Consti.
Any excise, revocation,
acquisition/alteration of
size of MR land requires a
new MR Enactment that
goes thru’ the State
Legislative assembly and
Parliament.
Any alteration and
revocation of MR land
is done by the Mentri
Besar with consent of
Ruler in Council.
See s.4(i)(b) FMS
MRE, 1933.
2 Categories of MR Land:

31. Mohd. Isa & Ors v Abdul Karim & Ors. [1970]
In this case the judge (Raja Azlan Shah, J.) held that
the only way a MR land can be de-reserved is by way
of revocation by the Mentri Besar under s.4(i)(b)
MRE.
With respect, this is incorrect as in this case the MR
land was declared in 1921, making it land subject to
the stringent procedures under art. 89(1) Fed.
Consti.

32. Forfeiture of MR Land
Under Article 89(1A) of the Fed. Consti., MR land
declared prior to Merdeka may be forfeited by the
State Authority where the owner of the MR land
ceases to qualify to own the MR land. i.e. a company,
due to changed shareholding, ceases to qualify as a
‘Malay’.
State Authority may forfeit the MR land without
paying compensation to the land owner.

33. Declaration of New MR Land
Art. 89(2) Fed. Consti. states that any state land,
which has not been developed or cultivated, may be
declared as MR land in accordance with that law.
(law relating to MR in such state).
Let’s look at what the FMS MRE says, (see s.5).
 Thus even alienated land may be declared as MR
land in the FMS states.
Also in Johor and Terengganu.
Note: Not applicable in Penang and Malacca.

34. Revocation and Replacement of MR land
Art. 89(3) FC: If MR land is revoked, then the State
Authority has to replace it with any other state land.
3 conditions:
i. It is similar in character.
ii. Area not exceeding the area revoked.
iii. Should be done immediately.

35. ‘Similar in character’
Not defined. Guidelines:
1) Same economic value relating to type of
cultivation.
2) Location similar. E.g. access to road.
3) Potential for development similar.
4) Same type of soil.
5) Same category of land use.

36. ‘Immediately’
In V SP Suppiah Chettiar v KS Navaradnam [1972],
the High Court held that ‘immediately’ means
“allowing a reasonable time for doing it.”

37. The Position of Non-Malays
over MR Land

38. No declaration of MR Land
for Land of Non-Malays
Article 89(4) FC:
The State Authority cannot declare any land which is
occupied or owned by non-Malays as Malay
reservation.
Thus, if a non-Malay has any title or interest in land,
the State Authority is barred from declaring the land
as Malay reservation.
This is to protect the legitimate interests of non-
Malays under Art. 8 and 153(7) of the Fed. Consti.

39. FMS MRE 1933
Prohibits a non-Malay from occupying MR land.
A non-Malay may however get an interest in MR
land if he applies through a company specified in the
3rd
Schedule.
The Ruler in Council has wide powers in declaring a
company as a Malay company, irrespective of its
members. (see s.7 & 20).

40. Johor MRE
Where a non-Malay has been occupying the land
before its declaration as MR land, such non-Malay
may continue to occupy and own such land and can
enter into dealings with other non-Malays on such
land.
Similarly, in Kedah and Perlis MRE.
It is only where the MR land comes into the hands of
a Malay owner that the restrictions on transfers and
dealings will apply.

41. Tan Hong Chit v Lim Kin Wan (1964)
Federal Court held that there are 2 ways where non-
Malays can acquire MR land:
1) Approval of Ruler in Council.
2) Where such non-Malay has occupied the land
before its declaration as MR land.

42. Through approval of Ruler
in Council
Occupied land b4
declaration as MR land.
Subsequent dealings
with non-Malays will
require approval of
Ruler in Council.
Subsequent dealings with
non-Malays do not
require approval of Ruler
in Council.
Provisions of MR land not
applicable to such
proprietor.
(Sykt Macey Bhd. V
Nightingale Allied
Services [1995])
Non-Malays Who Own MR land

43. ‘Malay Company’ and ‘Malay
Holdings’

44. ‘Malay’ Company
Under FMS MRE and Trengganu MRE.
Requirements:
1) Registered u-Companies Act.
2) All members are Malay.
3) Restriction on transfer of shares to Malays only
in Articles of Association.
4) One of the objects of the company is to deal with
Malay holding land.

45. Wan Ismail & Seng Liang S/B v Musa b. Mat Jani &
Anor. [1990]
Held:
Any dealings in favour of a company where not all
members are Malay is contrary to s.7 of the FMS
MRE and shall be declared null and void.

46. Malay Holding
S.2(a) FMS MRE 1933 and s.2(d) Trengganu MRE
define a Malay holding as:
1) Either the proprietor or co-proprietor are Malay;
2) Alienated land;
3) Such land has been declared and gazetted as MR
land; and
4) Such land has been included in the official MR
list.

47. Powers of Ruler in Council over
MR Lands

48. Reference to Ruler in Council
Where in doubt as to the
MR law in the state,
reference should be
made to the Ruler in
Council. (see s.20 FMS
MRE)
Doubts may arise as
regards:
-who is a “Malay’ in such
state.
- The mode of operation
of the MRE.
- Interpretation and
enforcement of the MRE.

49. Who is the ‘Ruler in Council’?
Hanisah v Tuan Mat [1970]:
“Ruler in Council means His Highness acting in
accordance with the advise of the State Executive
Council.”

50. Can a question on MR land be referred
DIRECTLY to the Ruler?
FMS MRE:
Must refer the matter
THROUGH the Mentri
Besar. (s. 20)
Johor MRE – must refer
the matter THROUGH
the State Secretary.
(s. 22)
Other states MRE do not
contain provision for
reference to be made
THROUGH the MB or
other officers.

51. Can the Ruler in Council declare a person as
a ‘Malay’?
Only under Kedah MRE
(see s. 19)
See also s. 13 of Kelantan
MRE.

52. Foo Say Lee v Ooi Heng Wai [1969]
Fed. Ct. held:
The purported agreement to transfer the MR land to
a non-Malay, was subject to the consent of the Ruler
in Council, and was therefore not contrary to the
Kelantan MRE.

53. Decision of Ruler in Council final
Asia Commercial
Finance (M) Bhd v PHT
& Anor. [1983] CLJ 86
Zainal Abidin bn Mohd.
Taib v Malaysia
National Insurance
Sdn.Bhd. [1994] 3 CLJ
731

54. Challenges & Prospects for MR
Lands

55. Some Problems Identified:
1. Ignorance of the purpose of MR lands.
2. Complacency by owners of MR lands.
3. Remoteness and low fertility of MR lands.
4. Unfavourable location of MR lands.
5. The effectiveness of restrictions on MR lands.
6. the State Authority’s powers of disposal

56. MR land typically in areas difficult to develop
From the statistics of MR land in Peninsular
Malaysia (see p.446 of textbook), it can be seen that
MR land has mostly been declared in remote areas
and not in states with town centres like KL, Penang,
Malacca etc.
Thus, no infrastructure and limited accessability and
difficult to develop.
British prohibited mining lands from being declared
MR land and rubber trees not to be planted in MR
land.
Thus, decline in value of MR land.

57. Further Reading on MR Land:
Bashiran Begum Mobarak Ali, Nor Asiah Mohamad;
“The Red-Ink Grants”: The Malays and the Land
(2007) 15 IIUM Law Journal 273.
Bashiran Begum Mobarak Ali, “The Federal
Constitution – A Shield for the Protection of Malay
Reservation Policy” (2008) The Law Review p.53.
Bashiran Begum, Ainul Jaria Maidin, “Who is a
Malay: Defining ‘Malayness’ from the Legislative
Perspective” [2008] 5 CLJ i.