Ancient aboriginal communities were the original land occupiers. Over a lengthened period of time, they assumed the label of land possessors. Then came the philosophers who claimed that occupancy and possession must mean ownership.
“There is no law of ownership of land in England and Wales, only a law of possession” according to G. Cheshire and E. Burn, The Modern Law of Real Property (15th edn, London, Butterworths, 1994, at p.26).
Thousands of books, articles, essays and treaties have helped shaped the common law and ultimately statutory law concerning the myth, mystery and magic of landownership in various shades and hues of jurisprudence and practical politics.
All said, done and dusted in the realms of law, religious texts contain revelatory messages to mankind concerning land. The Holy Quran (English version) and the Holy Bible are identical in their commandments on this issue.
In Islam, “land ownership is vested solely in Allah S.W.T. (An Nisa (4):132; Al A’raf (7):128). However, as man acts as a trustee and vicegerent of Allah (SWT) on this earth, the State Authority is not the absolute owner of the land.”
The Holy Bible says in Leviticus 25:23 that man is a sojourner on God’s earth, and therefore he is not to engage in the selling of land because of his temporary mortal existence.
Where does Malaya and later Malaysia stand on this issue? If the government follows the revelation in the Holy Quran, it negates and makes null and void Chapter 4 (Land), Federal Constitution that includes Article 83 right up to Article 91.
Can the supreme law of the land trump religious texts? Does the supreme law of Malaysia separate State and religion like the United States Constitution? These are relevant to the issue at hand.
The British introduced the Torrens system of land registration despite Section 6 and Section 7 of the Aboriginal Peoples Act of 1954 which statutorily states that aboriginal reserves and areas are not to be alienated as Malay Reservations.
The 1954 Act is still relevant. It has not been amended or repealed. It simply means that every bit of land in Peninsular Malaysia must have customary native title attached to it issued and patented by the eighteen Orang Asli Tribes of peninsular Malaysia.
But in matters of government and governance, the land issue is always contentious, vexatious and totally confused in theory and practice. Law and politics try to do the tango on a pin head quite successfully.
What law, or other persuasion should the government follow? Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor (1997) 1 MLJ 418 established the concept of native title in Malaysian law. Theory and practice are two separate galaxies each orbiting in its own peculiar axis.
That seminal decision encouraged two High Court decisions: Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhd & Ors, (2001) 6 MLJ 241, a case involving the logging of Iban forest land in Bintulu, Sarawak, and Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors, (2002) 2 MLJ 591, a case involving the taking of Temuan land in Sepang in conjunction with the building of the Kuala Lumpur International Airport.
These three cases raise an important question: what law did the judges decide to adopt without disturbing any authoritative texts relating to land claims, rights and interests?
There are ancient doctrines of law that dictate land rights where the first in point of time holds superior and better title. In other words, aboriginal communities that had occupied and possessed the land were the lawful titleholders to the land because they were already there before outsiders came to settle in their customary land.
If the law in Malaysia means anything minus political overtones, oversight and overreach, then it is fair to say that customary native title must be issued to every piece of land that the state authority decides to alienate, allocate, allot, assign or apportion.
In support of the foregoing, it is submitted that Article 8(5)(c) of the Federal Constitution offers an unambiguous and unequivocal remedy concerning the protection, well-being or advancement of the aboriginal peoples of the Malay peninsula including the reservation of land.
But is that cast in stone? Will government obey the law and religious texts that compel obedience? These are troubling questions for those holding the reins of power and authority.
Under the United Nations Declaration on the Rights of Indigenous Peoples 2007, which Malaysia has adopted, Indigenous communities are not to be forcibly removed from their lands (Article 10), and have the right to control the lands, territories and resources that they protect (Article 26).
But greed overturns and overtakes need because the fact of the matter is that commercial interests have largely prevailed over community interests in the context of Sarawak and Sabahthat are co-equal sovereigns under international treaty law (MA63). Maybe time has come for the enforcement of the Land Police in Sabah and Sarawak.
When greed and need lock horns, the speed of politics is super-swift in finding a favourable political decision for commercial interests while judicial decisions are forced to take a number and stand in the queue.
Strict and stricter laws can easily be explained away by Executive overreach when the Attorney General is politically required to kiss the ring or take a knee. This is an ongoing insult to democracy!
So, where do we go from here? Does the Cabinet and Parliament need to be better informed and learned in the law of land? Can any MP rattle off a definition for fee simple, allodial title, deed, grant, easement, gazetted land, etc., when asked to comment on an issue concerning land?
Malaysian leadership is yet to fix the problem. The issue of land is still a raging storm. Temporary occupancy of land, qualified title, leasehold and freehold titles are a veritable rojak mixture. Nobody bothers to draw a red line.
The problem is worse in North America, Australia and New Zealand with aboriginal native title rights fight treaty rights, the common law and statutory law. The Golden Chersonese has no records of treaties signed with the original peoples of the archipelago by traders, invaders or settlers.
Islam is the official religion of Malaysia. The dominant political majority is made up of Malay Muslims. No argument there. But why not obey the Holy Quran in all matters including that of land? Religious texts are meant to be the Guide and Guardian of human conscience and consciousness.
Political leadership has no other option but to obey. William Odom observed that “the whole notion of land property rights in the Arab world is different from that of Europe.” It’s very obvious what the Arab world follows and obeys.
There is an interesting Sanskrit apothegm that says “God sleeps in minerals, awakens in plants, walks in animals, and thinks in man.” Land ownership in spiritual philosophical texts takes on a mystical journey where there is no room for doubt, confusion or uncertainty.
Likewise, political leaders must establish an ironclad land policy not dictated by personal beliefs and views, but by pragmatic common-sense decisions fuelled by spiritual, legal and socioeconomic impellers.
Perhaps our political leaders can learn the bitter lesson wrought by the infamous Adorna Properties case when indefeasibility of title was upheld and validated despite a forged land title document.
Leaders must acknowledge that we have a faulty system in place concerning land. Clear rules and guidelines are required to aid and assist the factfinder roaming the halls of law and justice. We simply cannot go on like this.
Driving along the North-South highway is painful seeing raw, fertile, and verdant soil and land wasted with jungle foliage when the government could encourage the planting of fruits and vegetables as gesture of good will for needy people. Instead, we import billions of ringgits worth of food products!
Better land and soil management is the key. It must be a people’s effort. Government should play the role of a willing ally. Land belongs to the People and not to any government that comes and goes following elections.
The views expressed here are those of the columnist and do not necessarily represent the views of Sarawak Tribune. The writer can be reached at chiefjudge@secamtektektribe.org.
