^{Sarawak Sea. Public domain – downloaded from Flikr}

Land governance in Malaysia is highly pluralistic. Firstly, within a federal political structure, there are eleven states and two federal territories in Peninsular Malaysia. Two further states (Sarawak and Sabah) and one federal territory are found on north Borneo. The Federal government operates within a constitutional monarchy and a Westminster parliamentary system of government, while nine States are hereditary monarchies in their own right. Land law and regulation is engaged at both federal and state levels, with Sarawak and Sabah having their own legal systems to draw upon. Ethnicity and religion further influence land governance, particularly in the prevalence of Islam (over 60% of the population are Muslim) and customary land practices. The population is placed into two categories, namely Bumiputera (Malays and other indigenous groups) and non-Bumiputera (Chinese and Indians arriving during colonial times)³.  However, there are numerous minorities, with 67 groups making up 14% of the total population⁴.  At present, the overall population is approaching 33 million people.

Land Legislation and Regulations

The Federal Constitution of Malaysia came into force in 1957⁵.  Article 13 offers basic rights and protection over private property. The Constitution prescribes a two-tier governmental structure, namely at federal and state levels. Article 74 and the Ninth Schedule⁶  determines that authority on land legislation, a cadastral system, and administration is applied at the state level. However, the federal government has the power to make laws and policy in order to achieve uniformity (article 76), excluding Sarawak and Sabah. The main unifying law for Peninsular Malaysia is the National Land Code (Act 56 of 1965). States in Borneo have separate legal frameworks, namely the Sarawak Land Code (Cap 81) and the Sabah Land Ordinance (Cap 68). All three laws apply a Torrens system of land registration, introducing the concept of the indefeasibility of land where legal priority is given to the owner of the title⁷.  

Article 91 of the Constitution establishes a National Land Council with a representative from each state, and ten representatives appointed by the federal government. The council meets once a year, tasked to formulate national land policy, use and legislation. Sarawak and Sabah do have representation on the council, but are not bound by decisions if they choose not to vote. Urban and rural planning, the rehabilitation of mining land, housing and irrigation are jointly managed by federation and state. A consequence of the system is that the duality between federal and state systems can lead to gaps in information or extra costs in the administration of land⁸. 

Land tenure classifications

There are different classifications of land depending on the state and its corresponding law⁹.  In Peninsular Malaysia, the National Land Code (NLC) has two categories of: a) above shoreline (subdivided into town, village, country); b) foreshore and sea bed. There are land use categories of agriculture, building and industry. The Sarawak Land Ordinance uses the land categories of mixed zone, native area, native customary land, government reserved, and interior area¹⁰.  The Sabah Land Ordinance identifies ‘town land’ and ‘country land’, and the state here holds allodial right to all land, with ownership only allowed for land surface.

In general, four types of land tenure are recognised, namely freehold, leasehold, customary and agricultural. There are two types of freehold parcel, those owned by a developer and those owned by an individual or company, which can then be sub-divided into those with or without a title¹¹.  It is possible to issue qualified titles ahead of a formal cadastral survey and then a final title, following a 1990 amendment to the NLC. Article 67a of the NLC allows individuals to occupy State land no more than 99 years, although such a leasehold is extendable. Public uses leases can last no longer than 21 years¹².  The NLC determines that state land is all land that is not alienated, mined, or reserved, or is registered forest land.

Malaysia has benefitted from well-developed IT systems for the registration and administration of land, where transfers can take place within a day. In Peninsular Malaysia, there were an estimated 7.3 million land parcels in 2016, of which 98% have been surveyed and registered. The Federal Department of Surveying and Mapping (JUPEM) carries out cadastral surveying using eKadastar, while at state level, the land office uses eTannah for overall management and administration of land¹³.  LASIS is the information system in Sarawak for a land cadastre and administration system, while Sabah uses LaDess as a land submission system and SALIS as an information system¹⁴. 

Customary land rights

In Peninsular Malaysia, only 0.7% of the population is classed as indigenous, but this rises to 60% in Sabah and 70% in Sarawak¹⁵.  In theory, the rights of these groups should be protected through both the Constitution (article 8) and with Malaysia as a signatory of the UN Declaration on the Rights of Indigenous Peoples¹⁶.  Indigenous groups on Peninsular Malaysia are collectively termed as Orang Asli, with three sub-categories of Senoi, Proto-Malay, and Negrito¹⁷.  The Aboriginal Peoples Act (1954) infers land rights as tenant-at-will (wards of the state), allowing for the reservation of native lands¹⁸.  The Constitution (article 161) allows for the state-level reservation or alienation of land for natives in Sabah and Sarawak. The Sarawak Land Code provides for Native Area Land (held under titles) and Native Customary Land (not under titles but subject to customary tenure rights)¹⁹.  The latter is most commonly found as licenced state land. A 2018 revision to the Sarawak Land Code allows title in perpetuity for native communal lands at a maximum of 1,000 hectares per title. There have been many complaints over this ceiling, pointing to previous claims over 10,000 hectares²⁰.  Meanwhile, in the Sabah Land Ordinance, customary lands are indefeasible without the need for a documented title. Such lands can be declared as a Native Reserve, and it is also possible to receive Native Titles, a tangled mix of options derived from colonial rules²¹. 

Despite legal protections, indigenous groups are vulnerable to state acquisition of their lands for resource extraction, conversion into plantations, infrastructure projects, and the establishment of protected areas. Since the time of independence, Malay rulers have called for 50% of land in Peninsular Malaysia to be alienated as a reserve for Malay peoples, connecting to the Malay Reservation Enactment 1913. This figure has never been reached, although calculations in 2017 indicate a rise to 33.3%²².  In 2011 and 2012 the Human Rights Commission of Malaysia (SUHAKAM) instigated a national inquiry into customary land rights, and how to make development a more inclusive process²³.  The commission reported a need for greater recognition and security for indigenous customary land tenure, and better mechanisms so that they may benefit rather than lose out in development projects²⁴.  However, despite some landmark legal cases ruling against state-granted projects on indigenous land²⁵, the recommendations of the inquiry have not been implemented by the Malaysian government.

Land use trends

Malaysia in total covers an area of 329,847 km2, of which 328,657 km2 is land-based territory and 1,190 km2 is on water²⁶.  The country is known as one of the most urbanised in Southeast Asia, with over 77% of the population living in urban areas²⁷.  An estimated 8 million people reside in the wider Kuala Lumpur area. There is a disparity in the spread of the population with over 80% residing in Peninsular Malaysia2⁸  despite the fact that it constitutes only around 40% of total land for the whole country.

According to land use indicators from FAOSTAT, in 2017 26.2% of land in Malaysia was agricultural, a figure which has slowly increased over the past 50 years²⁹. O 67.6% of total land is forest, of which only 22.7% is primary forest, 8.9% is planted, while the rest is naturally regenerated. Yet in 2018 figures from FAOSTAT, oil palm plantations reach 15.9% of total land area for the country, with rubber at 3.4%. These two crops represent the principal means of agricultural production in Malaysia, significantly outperforming paddy rice. For oil palm, a remarkable rise is witnessed from just 433 km2 in 1961 to 52,355 km2 in 2018. This reflects a transition to industrial crops since the 1960s that has favoured large-scale land use and control over smallholder production. The approach to agriculture has contributed to a rise in food imports, raising questions about food security³⁰. O 19.1% of terrestrial land is held under protected status including forest reserves, national parks and wildlife sanctuaries³¹. 

City Slices. Public domain – downloaded from Flikr

Land Investments and Acquisitions

Malaysia has a positive climate for foreign investors to acquire land and housing³².  Unlike most of Southeast Asia, it is possible to buy and own land and its buildings, although there are some limitations to protect affordable housing and favourable conditions for members of the Bumiputera group. Using the Land Acquisition Act of 1960, state authorities may acquire land for public purpose, economic development beneficial to the Malaysian people, and for mining, agricultural, commercial, industrial or recreational purposes³³.  State governments can also reserve state land, grant leases, and permit extraction on, above or from below the land.

Investment practices have led to rich primary forest making way for mainly rubber, palm-oil and timber plantations³⁴.  Dams have also been established in upland Peninsular Malaysia and the interior of Sarawak, such as the Bakun Dam that displaced 10,000 local inhabitants, primarily from indigenous groups. As a result there has been significant conflicts between indigenous groups and large land development companies. A number of NGOs have emerged throughout the country, often networked with international organisations, to fight for indigenous rights against perceived land injustices in the courts, through protests, but also local resistance. There is a federal judiciary and then at state level, Syariah (Islamic) and native courts to deal with land disputes³⁵. 

Since independence, Malaysia has attempted to combat tenure insecurity and landlessness, particularly for Malay poor. FELDA (Federal Land Development Authority) has carried out a resettlement scheme as framed by the Land Group Settlement Areas Act 1960³⁶.  From the establishment of FELDA in 1956 up to 2015, the scheme has involved 16% of land in Malaysia, amalgamating resettlement needs with land investment and agribusiness. It has been identified as one the most successful land resettlement schemes in the world.

Women’s Land Rights

Due to ethnic and legal plurality in Malaysia, a range of gender relations are found throughout the country. There are matriarchal ethnic groups where property, including land, is passed through female kin. However, such practices are frequently disregarded by statutory law, where the next male kin is recognised as legal heir in the absence of a formalised will, and men may deny women access rights to communal lands³⁷.  As well as bias emerging from formal legal systems, there are patriarchal customary systems and male-dominated sharia laws. In these, men are the head of the household and retain control over property and its use³⁸. 

Article 8 of the Constitution promotes equal rights including those of gender. Malaysia is also a signatory to United Nations' Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). However, the country has yet to incorporate the convention into domestic law, such as in the passing of a national law on gender equality. It does not help that gender equality often clashes with overlapping legal systems including civil, Syariah Islamic laws, and customary laws. Each state has its own Islamic system of laws and court. These local systems frequently favour property and marriage rights in favour of men, such as in allowances for polygamy and denying the existence of marital rape³⁹.  The Law Reform Marriage and Divorce Act 164 from 1976 (article 76) calls for equal claims to marital property upon divorce (or proceeds for the sale of assets). However, Section 3 the Married Women Act, No. 450, (1957, revised in 1990) states that married Muslim women will be subject to Islamic law concerning property. This promotes an unequal sharing of property in terms of gender, which does not necessarily reflect the changing role for women in contemporary times⁴⁰.  

The Ministry of Women, Family and Community Development determines policies relating to women and gender equality at the federal level in Malaysia. It was established in 2001 as the Ministry of Women’s Affairs. The current name was adopted in 2004, and includes the Department for Women’s Development. The Ministry has achieved a commitment from the government that women should gain a representation of 30% in decision-making positions within the public sector. There are also hundreds of women’s organisations registered in Malaysia. A National Council of Women’s Organisations (NCWO) was established in 1960 as a consultatory base for its many affiliates.

Voluntary Guidelines on Responsible Tenure (VGGT)

Malaysia has hosted regional consultations during the conception phase of the VGGT. However, at present there are no activities to promote or activate the guidelines.

Timeline - milestones in Malaysia's land governance

1956 – Establishment of FELDA (Federal Land Development Authority)
As one of the most successful land resettlement schemes in the world, the FELDA scheme has involved 16% of land in Malaysia, amalgamating resettlement needs with land investment and agribusiness.

1957 – The Federal Constitution of Malaysia comes into force
Article 13 offers basic rights and protection over private property.

1960 – Promulgation of Land Acquisition Act
Through the act, state authorities may acquire land for public purpose, economic development beneficial to the Malaysian people, and for mining, agricultural, commercial, industrial or recreational purposes.

1963 – The Federation of Malaysia is formed
This follows the formation of the Federation of Malaya in 1948, and independence from British sovereignty in 1957. The new federation brought in the states of Singapore (temporarily until 1965), Sarawak and Sabah.

1965 – Promulgation of National Land Code
This is the main unifying law on land for Peninsular Malaysia.

2018 – Oil palm plantations cover 52,355 km2
This compares to just 433 km2 in 1961.

Where to go next?

The author's suggestion for further reading

The World Bank report Enhancing Public Sector Support gives important background information on land tenure and the accompanying legal system within the federal system of Malaysia, then focusing on developments in land administration⁴¹.  Toh et al. then make a detailed analysis of the governance system in the state of Sarawak⁴².  Barau and Said provide important analysis on the FELDA land resettlement scheme and its impact for landless families⁴³.  Concerning indigenous rights, the report The Forest is our Heartbeat by Amnesty International examines the struggle for native groups to maintain access and use of their lands, and the risks faced by those who attempt to do so⁴⁴.  A more specified scenario is addressed in the report The Land We Lost by the NGO Sahabat Alam Malaysia, who look at the threats to native customary rights in the face of monoculture plantations in Sarawak⁴⁵.  For a gender perspective on challenges to indigenous rights in Sarawak, we recommend looking at the book chapter from Yong and Pang⁴⁶. 

^{CEphoto, Uwe Aranas. Telupid Sabah Oilpalm-Plantation-along-Buis-Kiabau-Road-01. Downloaded from wikicommons}
 

***References

[1] World Bank. (2020a). The World Bank in Malaysia: Overview [Text/HTML]. The World Bank. https://www.worldbank.org/en/country/malaysia/overview
[2] Bertelsmann Stiftung. (2020). BTI 2020 Country Report Malaysia. Bertelsmann Stiftung. https://landportal.org/library/resources/bti-2020-country-report-malaysia
[3] ibid
[4] Amnesty International. (2018). ‘The Forest is out Heartbeat’ The Struggle to Defend Indigenous Land in Malaysia.
[5] Kelm, K. M., Burns, T., Kunicova, J., Mccluskey, W. J., Dzurllkanian, D., Arimuthu, A. P., Loo, C., Pacheco, C. L., & Foong, J. C. Y. (2017). Enhancing public sector performance: Malaysia’s experience with transforming land administration (No. 121243; pp. 1–48). The World Bank. https://landportal.org/library/resources/report-number-121243/enhancing-public-sector-performance
[6] A schedule contains additional information in a constitution that is not contained within its articles
[7] Kader, S. Z. A. (2011). Disputes and Issues Relating to Sale and Purchase of Land in Malaysia. In Law and Commerce: The Malaysian Perspective (pp. 345–365). IIUM Press. https://landportal.org/library/resources/disputes-and-issues-relating-sale-and-purchase-land-malaysia
Toh, M. L., Tan, L. C., Tan, W. V., Ujang, M. U. bin, & Thoo, A. C. (2019). A Preliminary Study on The Formation of Land Legislation and Cadastre System in Sarawak, Malaysia. International Journal of Engineering and Advanced Technology (IJEAT), 8(5), 788–797. https://landportal.org/library/resources/issn-2249-%E2%80%93-8958/preliminary-study-formation-land-legislation-and-cadastre-system
[8] Kelm, K. M., Burns, T., Kunicova, J., Mccluskey, W. J., Dzurllkanian, D., Arimuthu, A. P., Loo, C., Pacheco, C. L., & Foong, J. C. Y. (2017). Enhancing public sector performance: Malaysia’s experience with transforming land administration (No. 121243; pp. 1–48). The World Bank. https://landportal.org/library/resources/report-number-121243/enhancing-public-sector-performance
[9] Kelm, K. M., Burns, T., Kunicova, J., Mccluskey, W. J., Dzurllkanian, D., Arimuthu, A. P., Loo, C., Pacheco, C. L., & Foong, J. C. Y. (2017). Enhancing public sector performance: Malaysia’s experience with transforming land administration (No. 121243; pp. 1–48). The World Bank. https://landportal.org/library/resources/report-number-121243/enhancing-public-sector-performance
[10] Mohamed, A. F. (2019). The Land We Lost – Native customary rights and monoculture plantations in Sarawak. Sahabat Alam Malaysia (SAM). https://landportal.org/library/resources/land-we-lost
[11] Kader, S. Z. A. (2011). Disputes and Issues Relating to Sale and Purchase of Land in Malaysia. In Law and Commerce: The Malaysian Perspective (pp. 345–365). IIUM Press. https://landportal.org/library/resources/disputes-and-issues-relating-sale-and-purchase-land-malaysia
[12] FAO. (2020). Gender and Land Rights Database Country Profiles. Food and Agriculture Organization of the United Nations. http://www.fao.org/gender-landrights-database/country-profiles/en/
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Toh, M. L., Tan, L. C., Tan, W. V., Ujang, M. U. bin, & Thoo, A. C. (2019). A Preliminary Study on The Formation of Land Legislation and Cadastre System in Sarawak, Malaysia. International Journal of Engineering and Advanced Technology (IJEAT), 8(5), 788–797. https://landportal.org/library/resources/issn-2249-%E2%80%93-8958/preliminary-study-formation-land-legislation-and-cadastre-system
[15] Amnesty International. (2018). ‘The Forest is our Heartbeat’ The Struggle to Defend Indigenous Land in Malaysia. Amnesty International. https://landportal.org/library/resources/asa-2894242018/forest-our-heartbeat
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[17] Sato, D. (2019). Indigenous Land Rights and the Marginalization of the Orang Asli in Malaysia. The New Malaysia, 37, 56–64. https://landportal.org/library/resources/indigenous-land-rights-and-marginalization-orang-asli-malaysia
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[19] Aiken, S. R., & Leigh, C. H. (2011). In the Way of Development: Indigenous Land-Rights Issues in Malaysia. Geographical Review, 101(4), 471–496. JSTOR.
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[41] Kelm, K. M., Burns, T., Kunicova, J., Mccluskey, W. J., Dzurllkanian, D., Arimuthu, A. P., Loo, C., Pacheco, C. L., & Foong, J. C. Y. (2017). Enhancing public sector performance: Malaysia’s experience with transforming land administration (No. 121243; pp. 1–48). The World Bank. https://landportal.org/library/resources/report-number-121243/enhancing-public-sector-performance
 [42] Toh, M. L., Tan, L. C., Tan, W. V., Ujang, M. U. bin, & Thoo, A. C. (2019). A Preliminary Study on The Formation of Land Legislation and Cadastre System in Sarawak, Malaysia. International Journal of Engineering and Advanced Technology (IJEAT), 8(5), 788–797. https://landportal.org/library/resources/issn-2249-%E2%80%93-8958/preliminary-study-formation-land-legislation-and-cadastre-system
[43] Barau, A. S., & Said, I. (2016). From goodwill to good deals: FELDA land resettlement scheme and the ascendancy of the landless poor in Malaysia. Land Use Policy, 54, 423–431.
[44] Amnesty International. (2018). ‘The Forest is our Heartbeat’ The Struggle to Defend Indigenous Land in Malaysia. Amnesty International. https://landportal.org/library/resources/asa-2894242018/forest-our-heartbeat
[45] Mohamed, A. F. (2019). The Land We Lost – Native customary rights and monoculture plantations in Sarawak. Sahabat Alam Malaysia (SAM). https://landportal.org/library/resources/land-we-lost
[46] Yong, C., & Pang, W. A. (2015). Gender Impact of Large-Scale Deforestation and Oil Palm Plantations Among Indigenous Groups in Sarawak, Malaysia. In K. Kusakabe, R. Shrestha, & V. N. (Eds.), Gender and Land Tenure in the Context of Disaster in Asia (pp. 15–31). Springer International Publishing.