Land Law and Legislative Legerdemain

Throughout the history of English land law the operative concept has been possession, not ownership.

—  K. Gray & S. Gray, British law professors

There is no law of “ownership” of land in England and Wales, only a law of “possession”. Two totally different imported concepts that have aided the coloniser to transform possession into occupation and ultimately ownership using legislative doublespeak that espouses double standards.

Malaysia today is morbidly stuck in the rut of awkward technicalities (read: bad law) with recourse only to the common law that never fails to fudge our statutes. Quote a statute and rest assured some hundred-year-old badly or oddly decided cases would trump it. 

The imported concept of land titles is a recurring menace. Christian Scriptures forbid the taking of land for purposes of ownership (Leviticus 25:23).

The Holy Quran at 20:6 and 67:15, and the Hadith, make it abundantly clear as to actual and real ownership of land that forbid taking over the property of others through unlawful means by the individual or by the government.

A paper land title with official stamps using antiquated legal fictions blur the lines caused by feudal era English concepts. We need unambiguous Malaysian land laws based on adat. De jure must be set aside by de facto imperatives that the Borneo States proved and entrenched in their land laws.

Global aboriginal peoples consider land sacred. The logic is simple — the land does not die and get buried into humans, but humans die and are buried into the land. Dust unto dust and unto dust to be … You don’t own the land for the land will inevitably own you some day.

Customary land tenure in s. 4(2)(a) National Land Code 1965 (Act 56) (NLC 1965) keeps in tune and stays in pace with section 6 and section 7 of the Aboriginal Peoples Act 1954 (Act 134): “No land shall be declared a Malay Reservation under any written law relating to Malay Reservations.

Parliament seems to say that no law can be made to justify Malay Reservations to the detriment of the aboriginal peoples.

Article 8(5)(c) of the Federal Constitution (FC) is another powerful indictment against suspect legislation that has the tendency to erode, diminish or destroy aboriginal peoples’ land rights: “This Article does not invalidate or prohibit any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) …” 

Indigenous Communities’ concept of common or communal property has a history of more than forty thousand years. Mischievous Europeans with sinister motives introduced the system of private property since the 14th century fueling the greedy business of third-rate legal practitioners. Adorna Properties is a case in point.

In Bohari Taib & Ors. v. Pengarah Tanah & Galian Selangor [1990] 2 MLRA, the presiding judge took a telling swipe at third-rate counsel whose “duty is to advise their clients on what the law is and not what in their or the clients’ opinions it ought to be.” 

Leading land law practitioners in Kuala Lumpur should be in a state of flux whether the Dataran Merdeka padang, a component of the Royal Selangor Club, enjoys customary land tenure in that it is an Article 8(5)(c) FC protected piece of land read together with s.4(2)(a) NLC 1965 where clear and proper title should have been granted by the aboriginal peoples of Peninsular Malaysia and not by the state government of Selangor or the federal government to prospective lessors and lessees.

One would hardly encounter any reference to customary land tenure enjoyed by aboriginal peoples upon reading various scholarly articles written by local and foreign historians concerning the Dataran Merdeka padang. Almost every grovelingly pathetic article made reference to the colonisers’ desire to create open spaces for recreation in the early 1900s. Shame on these “historians.”

Where’s the evidence of the chain and transfer of land title to the state of Selangor from the aboriginal peoples who have doubtless not received any provable rent since time immemorial.

The government owes a fiduciary duty to the aboriginal people, and the Royal Selangor Club of the actual facts surrounding the Dataran Merdeka padang land title conundrum without running afoul of the Official Secrets Act!

Legislative legerdemain has become the mainstay of parliamentary proceedings where rules and principles are unceremoniously broken and ignobly ignored. Winston Churchill captured the malaise: “The function of Parliament is not only to pass good laws but to stop bad laws.”

The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.

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