Mod­ernising Malay re­serve law in Kedah

Kedah MB says the law should fa­cil­i­tate, not hin­der devel­op­ment of re­serve land

New Straits Times - - Opinion - The writer for­merly served the At­tor­ney-Gen­eral’s Cham­bers be­fore he left for prac­tice, the cor­po­rate sec­tor and, then, the academia

THE Kedah De­part­ment of Lands and Mines or­gan­ised a one-day con­ven­tion on Malay re­serve land on Sun­day, March 26, 2017. It was at­tended by some 300 peo­ple, com­pris­ing se­nior gov­ern­ment of­fi­cials from the north­ern states of Kedah, Pe­nang and Perak, mem­bers of the lo­cal and na­tional hous­ing in­dus­try, and sev­eral lead­ing politi­cians in the state.

It is a fol­low-up of a na­tional sem­i­nar on Malay re­serve land held some two years ago. What dis­tin­guishes this event from the ear­lier sem­i­nar is the plan by the de­part­ment to get the par­tic­i­pants’ ac­tive and di­rect dis­cus­sion in three si­mul­ta­ne­ously-held work­shops (held in the af­ter­noon) to draw a road-map on what fur­ther steps should be taken to mod­ernise the Malay reser­va­tion law in the state.

The morn­ing ses­sion be­gan with a his­tor­i­cal sur­vey of the law by an aca­demi­cian from Univer­siti Te­knologi Mara Perak, Dr Mohd Has­rol Haf­fiz Aliasak. This was im­me­di­ately fol­lowed by Pro­fes­sor Datuk Dr Nik Mohd Zain Nik Yu­sof (for­mer sec­re­tary-gen­eral of the then Land and Co­op­er­a­tives Devel­op­ment Min­istry), who spoke on the need for high com­mit­ment and in­tegrity on the part of of­fi­cials in im­ple­ment­ing and en­forc­ing the law.

The high point in the morn­ing ses­sion was a fo­rum ti­tled “Trans­for­masi Tanah Rizab Me­layu: Isu dan Cabaran”, moder­ated by Mohd Sha­hadan Ab­dul­lah, deputy to the state di­rec­tor of the de­part­ment.

The fo­rum fo­cused on le­gal and pol­icy is­sues af­fect­ing Malay re­serve land, as well as the so­cioe­co­nomic and val­u­a­tion as­pects per­tain­ing to it. I was in­vited to speak on the for­mer, while my col­league from Univer­siti Te­knologi Malaysia days, Pro­fes­sor Dr Is­mail Omar (cur­rently at Univer­siti Tun Hus­sein Onn) spoke on the lat­ter.

At the con­clu­sion of the fo­rum, the mod­er­a­tor told the par­tic­i­pants to pon­der fur­ther on sev­eral is­sues and chal­lenges raised at the fo­rum dur­ing their lunch­break and when they meet sep­a­rately in the three work­shops in the af­ter­noon, they should then put for­ward their de­tailed sug­ges­tions on how Kedah should take the next step in this ini­tia­tive to mod­ernise its 80-year-old law.

In the af­ter­noon, the par­tic­i­pants were di­vided into three groups for the three work­shops held si­mul­ta­ne­ously. The par­tic­i­pants were free to choose which of the three groups they would like to at­tend, but the or­gan­is­ers en­sured that al­most an equal num­ber at­tended each work­shop. The first work­shop fo­cused on le­gal is­sues, the sec­ond on ad­min­is­tra­tion and man­age­ment, and the third on so­cio-eco­nomic and val­u­a­tion is­sues. The work­shop ses­sions be­gan at 2pm and lasted un­til 5pm. At the end of the work­shop ses­sions, the con­ven­tion went in ple­nary again to en­able the rep­re­sen­ta­tives of these three work­shops to present their res­o­lu­tions and rec­om­men­da­tions. At the con­clu­sion of this ple­nary ses­sion, Sha­hadan told the gath­er­ing that fur­ther ac­tion would be taken by his de­part­ment to fine-tune these res­o­lu­tions be­fore they were sub­mit­ted to the state gov­ern­ment.

It was late in the evening, al­most 7pm, when the Kedah menteri be­sar ar­rived at the hall to of­fi­cially close the con­ven­tion. In his short ad­dress, he said his ad­min­is­tra­tion was com­mit­ted and se­ri­ous in re­form­ing and mod­ernising the state law on Malay reser­va­tion.

He ac­knowl­edged sev­eral times that the state law on Malay reser­va­tion con­tained fun­da­men­tal dif­fer­ences when com­pared with the law pre­vail­ing in the other states. The im­por­tant point re­mained that the law should fa­cil­i­tate and not hin­der the devel­op­ment of Malay re­serve land in the state, he added.

Dur­ing the af­ter­noon cof­fee­break, two gen­tle­men (hous­ing de­vel­op­ers), sought my views on the im­pact of the re­cent de­ci­sion in Ja­malud­din Jaa­far v Af­fin Bank Ber­had (de­liv­ered by the Fed­eral Court on Sept 30, 2016), now pend­ing ap­peal to the Fed­eral Court. In that case, the court had held that a Malay re­serve land in Kedah can­not be charged to Af­fin Bank as it is not a “Malay” as de­fined in the Kedah Malay Re­serve En­act­ment.

Fol­low­ing that de­ci­sion, the Kedah gov­ern­ment in­voked Sec­tion 19 to de­clare all banks es­tab­lished in Malaysia as a “Malay” for the pur­pose of ac­cept­ing a land charge over Malay re­serve land. In short, the prob­lem re­sult­ing from the Court of Ap­peal’s de­ci­sion was quickly re­solved by ad­min­is­tra­tive ac­tion un­der Sec­tion 19.

I told the two gen­tle­men that as the case was still sub ju­dice un­til it was fi­nally dis­posed of by the Fed­eral Court, I could not speak on it in pub­lic. The two gen­tle­men then told me that they were now fac­ing a dilemma be­cause their banks (lenders / charges) wanted a new charge to be reg­is­tered on their land, as the ex­ist­ing charge had been de­clared void by the Court of Ap­peal. I told them that the banks were be­ing pru­dent, be­cause af­ter the ex­ist­ing charge had been de­clared void by the Court of Ap­peal, it was no longer good se­cu­rity for the loan they granted to their cus­tomers. Now that ad­min­is­tra­tive ac­tion had been taken by the Kedah state to de­clare them as “Malay” un­der sec­tion 19, the banks wish to avail the se­cu­rity now be­ing avail­able. As the reg­is­tra­tion of a new charge will in­cur costs (which the de­vel­op­ers wish to avoid), I told the two gen­tle­men to ex­plore fur­ther av­enues to re­solve their predica­ment.

As we were walk­ing out of the Con­ven­tion hall, an old friend, Ab­dul Aziz Mohd Jo­hdi (un­der sec­re­tary from the Nat­u­ral Re­sources and En­vi­ron­ment Min­istry), who chaired one of the af­ter­noon work­shops, whis­pered to me that as a next step the de­part­ment should take was to ar­range a “brief­ing ses­sion” with the en­tire state ex­ec­u­tive coun­cil mem­bers and as­sem­bly­men so that as the po­lit­i­cal lead­ers of the state, they would be on the same page as the de­part­ment in this ini­tia­tive to re­form the state Malay re­serve law. I told him “I ab­so­lutely agree”.

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