Legal Opinion: "The controversy on land conversion" by Nga Hock Cheh in Ipoh on
Wednesday, 7th January 2009:
The controversy on land conversion
in new villages and Kg Tersusun
Under the Pak Lah regime the Nation
witnessed a raging controversy stemming from the religious conversion of
a convert with the ensuing tussle for his dead body between the bereaved
family and certain religious department. Currently yet another
controversy has broken up; this time it relates to land conversion.
Recently the DPM was quoted in the press (NST 24-12-2008) as having said
that State Governments cannot make decision on land conversion without
referring to the National Land Council. Is the said remark by the DPM
correct and consonant with the provisions of the Federal Constitution
and the national Land Code 1965?
In the Federal system of political set up like our country the
legislative powers is distributed between the State and the Federation.
In Malaysia Part VI of the Federal Constitution deals with the relations
between the Federation and the States. Under Article 74 of the Federal
Constitution Parliament may make laws on any matters enumerated in the
Federal List (First List) or the Concurrent List (Third List) while the
State may make laws on any matters enumerated in the State List (Second
List) or the Concurrent List stipulated in the Ninth Schedule to the
Federal Constitution. In this regard “land” falls under the Second List
of the Ninth Schedule to the Federal Constitution and therefore comes
under the jurisdiction of the States. Consequently the decision of the
Perak State Government under Pakatan Rakyat to allow the conversion of a
leasehold title into freehold in New Villages and Kg Tersusun is
perfectly legal and valid without any infringement of any constitutional
or statutory provision.
Further more for purpose of ensuring uniformity of law and policy to
make law with respect to land tenure, Parliament has codified the land
law in the form of the National Land Code 1965 (Act 56 of 1965). By
virtue of LN 474/1965 the National Land Code came into operation in each
State on 1-1-1966.
Under Section 76 of the National Land Code Parliament has expressly
given the powers to the State Authority whether to alienate State land
for a term not exceeding 99 years or in perpetuity “where the
State Authority is satisfied that there are special circumstances which
render it appropriate to do so”.
There is no definition whatsoever on the meaning of “special
circumstances” in the National Land Code. Obviously under Section 76
(aa)(iii) of the National Land Code Parliament has left it to the wisdom
of the State Authority to determine what constitutes special
circumstances and it is the satisfaction of the State Authority that
matters. There is no statutory provision which requires a State
Government to refer to the National Land Council its decision to allow
the conversion of leasehold titles into freehold titles in the New
Villages and Kg Tersusun. The Perak State Government is legally and
morally justified to treat the New Villages and Kg Tersusun as special
circumstances for freehold land titles to be alienated in view of the
historical backdrop.
Article 91 of the Federal Constitution provides for the establishment of
the National Land Council. The composition of the NLC is as follows: a
minister as chairman; one representative from each of the States and a
maximum of 10 representatives of the Federal Government. According to
Article 91(5) of the Federal Constitution it shall be the duty of the
National Land Council to formulate from time to time in consultation
with the Federal Government, the State Governments and the National
Finance Council a national policy for the promotion and control of the
utilization of land throughout the Federation for mining, agriculture,
forestry or any other purpose, and for the administration of any laws
relating thereto; and the Federal and State Governments shall follow the
policy so formulated.
Reading Article 91(5) of the Federal Constitution it is doubtful if the
National Land Council possesses any legislative powers. It has spelt out
the job description of the National Land Council rather than any true
legislative powers. If indeed the National Land Council is possessed of
legislative muscles why did Parliament have to enact the National Land
Code pursuant to Article 76(c) of the Federal Constitution? Why didn’t
the National Land Council formulate any rules or legislations pursuant
to Article 91 (5) of the Constitution?
Even in the formulation of a National Development Plan under Article 92
of the Federal Constitution it is the Yang Di Pertuan Agong who must be
satisfied “that it is conducive to the national interest that a
development plan be put into operation in any area or areas in one or
more states” before the Yang Di Pertuan Agong proclaims the area or
areas as a development area after publishing the plan. It is only then
that Parliament shall have power to give effect to the development plan
or any part thereof.
So where is the statutory basis for the National land Council to
interfere with the right of the Perak State Government to proceed to
fulfill its election pledge to allow leasehold titles in New Villages
and Kg Tersusun to be converted into freehold titles?
The Perak DAP Legal Bureau would call upon the National Land Council to
forthwith cease behaving like a domineering mother in law who
attempts to interfere with the work of a virtuous daughter in law who is
faithfully doing her best for the family. The BN Government has
failed miserably in addressing the land woes of the Rakyat in the New
Villages; after more than 50 years under the BN Government these New
Villages are still in a state of much neglect. They did not receive much
help and MCA has been too helpless to help; perhaps MCA has been too
busy with its factional in fighting to render any meaningful assistance
to alleviate the plight and sufferings in the New Villages.
The people in the New Villages were forced to resettle into new villages
behind barbed wires during the Communist Emergency. They have suffered
long enough. Why should the BN Government grudge even the “little
solace” now handed out to them by the Perak State Government under
Pakatan Rakyat for them to enjoy the security of a roof over their
heads. If the BN regime cannot do or refuses to do the good that the
Rakyat deserve to enjoy from a fair and just Government why should the
BN Federal Government now attempt to obstruct a benevolent act by the
Pakatan Rakyat Government to help the suffering Rakyat?
* Nga Hock Cheh, Charles Santiago, Legal Bureau Perak
DAP
http://dapmalaysia.org