LAND LAW AND THE JUDICIAL FIASCO

K. Sila Dass

Introduction
The function of the law is to regulate human affairs so to avoid regular conflicts and the possibility of lawlessness. In a civilized society it is envisaged that law will protect everybody and everybody’s right. There can be no doubt or confusion over this simple proposition; yet, recent case laws seem to suggest that there could be instances when an innocent person could lose his most cherished rights and there is nothing the court do.

The most characteristic feature of a civilized society is the existence of an effective, independent, uncorrupt judiciary which administers justice in accordance with law and upholding the spirit and letter of the constitution. The powers of our Constitution had no doubt that the people of Malaysia (initially Federation of Malaya) wanted a constitution that will have provisions consistent with a civilized society aspiring to be a civilized Nation. It is with that noble idea Article 4(1) was enshrined which says that the constitution shall be the supreme law of the country.

“The constitution is not a mere collection of pious platitudes” so pointed out Raja Azlan FJ (as he then was and now HRH the Sultan of Perak), in the case of Loh Kooi Choon v. The Government of Malaysia 1.

1 (1977) 2 MLJ 18 at p. 188
The fundamental liberties that are enshrined and which are the supreme laws of the Federation could be gleaned from Part II which deals with (Art. 5) (a) liberty of the person; (Art. 5) (b) prohibition of slavery and forced labour; (Art. 6) (c) protection of laws, retrospective criminal laws and repeated trials; (Art. 7) (e) Equality; Art. 8(f) Prohibition of banishment and freedom of movement; (Art. 9), (f) freedom of speech, assembly and association, (Art. 10); Freedom of religion (Art. 11) (g) Rights in respect of education (Art. 12) and (h) Rights to property (Art. 13). All these are sacred rights and they cannot be whittled down or denied except where there is a built-in restrictions and this has been recognized, however, no force or institution could effectively invade, erode these rights and if they do so, such an act will be unconstitutional.

Under the constitution an individual has certain fundamental rights upon which not even the power of the State may encroach. These powerful words are from Raja Azlan Shah (as he then was) in the case of Loh Kooi Choon, supra.

Rights to property
The objective of this essay is to address the issues pertaining the Rights to property as enshrined in the constitution and the lukewarm appreciation of it by the court, especially the Federal Court.

Article 13 clearly says that no person shall be deprived of property save in accordance with law.

The word “property” means land, and land also includes building, structures, fixtures annexed to it. This meaning is supported by Clause (2) of Article 13 which says that no law shall provide for compulsory acquisition of property without adequate compensation.

While Article 13(1) speaks of a person’s fundamental rights over his property, the mechanism to protect these rights are to be found in the National Land Code, 1965. It would be safe to say that the National Land Code complements Article 13(1) of the Constitution and in so far as the rights of the land owner (or proprietor) are concerned with, Article 13(1) and the protection accorded by the National Land Code should be considered together.

National Land Code 1965:

The National Land Code 1965 is an Act of Parliament and it codified all the existing laws into one. Thus, the further Land Code (FMS) and all over State Land Enactments although repealed over the National Land Code 1965 came into effect.

Effect of a Codifying Act A codifying Act is an important piece of legislation. It set out to present an orderly and authoritative statement of the leading notes of law on a given subject, whether those rules are to be found in Statute Law or common law. (see Ilbert’s legislative Methods and Forms)


The basic rule for a codifying statute is to look at the language and what is its natural meaning 3(See Odger’s Construction of Deeds and Statutes, 5th Edition at p. 335). In the case of Bank of England v. Vagliano 3 Lord Hershell said :

“I think the proper course is in the first instance to examine the language of the statute and to ask what is it its natural meaning un-influenced by any considerations derived from the previous state of the law and not to start with enquiring how the law previously stood and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. I am of course far from asserting that resort may never be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the code. If for example such a provision be of doubtful import, such resort will be perfectly legitimate.”

When a codifying statute is under deliberation it is permissible to look at the state of the provisions of law in cases of ambiguity or where words have acquired a technical meaning4.






3. [1891] A.C. 107 at p. 144
4. See Yorkshire Insurance Co. Ltd v. Niebet Shipping Co. [1962] 2 QB 330.