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