Toh Ming Liang, Tan Liat Choon, Tan Wee Vern, Muhamad Uznir bin Ujang, Thoo Ai Chin
International Journal of Engineering and Advanced Technology (IJEAT) ISSN: 2249 – 8958, Volume-8 Issue-5C, May 2019
A historical perspective of Sarawak Land Law.
Different from West Malaysia, Sarawak Land and Survey Department is responsible for matters related to land, survey, planning, valuation and enforcement of land legislations under the Sarawak Land Code.
Historic aspects of land legislation in Sarawak which can be categorised into
- pre-Brooke Sarawak,
- the Brooke Era 1841-1946, and
- British Crown Colony 1946-1963.
Pre-Brooke Era – Native Customary Rights (NCR), rights to cultivate land, collection of forest products, hunting, burial as well as inheritance. NCR is still recognisable under section 5, 6, 15 and 18 of the Sarawak Land Code (Cap. 81) which is the current land legislation in force.
Brooke Era (1841-1946) – Land Regulations in 1863, the first land legislation which stated all unoccupied and waste lands belongs to the government. Under Land regulation 1863, applicants were eligible for a lease of government land up to 900 years. Later on, the introduction of Land Order 1920 (Order VIII) and in 1928, English law was formally applied through Order L – 4 (Laws of Sarawak Ordinance) by the White Raja.
Land Order 1931 (Order L – 2) was introduced to further consolidate the land legislation in Sarawak. Order L – 2 enabled registration of titles and land transaction with a clear definition of grants, lease and state land.
Land Settlement 1933 (Order L – 7) which required all lands to be registered for guaranteed boundaries and titles based on accurate cadastral survey. Nasser and Salleh (see reference cited below) further added that new land register was created for the registration purpose under Land Settlement 1933. Thus, this reflected the principle of Torrens system in Sarawak.
British Crown Colony (1946-1963) – With the cession of Sarawak to British Crown in 1946, Order L – 2 and Order L – 7 with their amendments were incorporated in the Laws of Sarawak (Revised Edition) 1948. Land Ordinance (Cap. 27) replaced Order L – 2 while Land Settlement Ordinance (Cap. 28) replaced Order L – 7.
The next significance land legislation was the Land (Classification) Ordinance, No. 19 of 1948 which came into operation on first January 1949. As suggested by the title of the legislation, it classified the land into 5 categories; mixed zoned land, native area land, native communal reserve, reserved land, interior area land and native customary land. Most of the land categories are still in practice today.
Finally, in order to consolidate all existing land legislations which some are overlapping, a new comprehensive land code was drafted by J Caradus; the Sarawak Land Code 1958 (Sarawak Cap. 81). Under the Torrens system of Sarawak Land Code 1958, a person is given the indefeasibility of titles once the interest is registered and document of title is issued. The main purpose of the Sarawak Land Code is to facilitate land administration in Sarawak to deliver sustainability in land development.
Now (>1963 Independence as a Federation within Malaysia)
Sarawak Land Code 1958 (Chap. 81), key importance for the Torrens System are: land registration (section 112), the provision for caveats (section 173) and the concept of indefeasibility (section 132), among others.
White Raja’s first attempt at codification of land tenure through the Land Regulations 1863 treated all land in the state as belonging to the government but only if it was ‘unoccupied and waste lands’.
Order VIII of 1920 consolidated and amended all preceding orders and defined state land to mean ‘all lands which are not leased or granted or lawfully occupied by any person’.
In 1931, Order L – 2 redefined state land as ‘all lands for which no document of title has been issued’.
This was followed by Order L – 7 of 1933, which required all lands to be registered on pain of nullity, and in effect marked the first introduction of the Torrens system in Sarawak, because it required an accurate cadastral survey as its basis, even though the government did not have the machinery to cope with a survey of the whole country.
Bulan, R. Statutory Recognition of Native Customary Rights under the Sarawak Land Code 1958. 34 JMCL; 2007, Pg 21.
Nasser H, Salleh B. Land Law in Sarawak. Subang Indah: Gavel Publications; 2011