The Malaysian Bar - Housing Quotas: Constitution must apply in this case

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Housing Quotas: Constitution must apply in this case

Thursday, 13 November 2008 09:34am

©New Straits Times (Letters Section) (Used by permission)
by Roger Tan, Kuala Lumpur

THE Kedah government should rule by law and not by administrative policies. It has introduced a housing policy of setting aside 50 per cent of every housing development for Bumiputeras.

Such a policy is not new: Selangor and Malacca have imposed quotas for Bumiputeras of up to 70 per cent in some urban areas.

Also, Bumiputeras from Sabah and Sarawak complain that they are being denied discounts when buying properties in Peninsular Malaysia .

In implementing the policy, state governments impose conditions in the land title deed, such as endorsing the word “Bumiputera” on the title deed. This means the property can be owned by and conveyed only to a Bumiputera.

However, the expression “Bumiputera” has not been defined either in the National Land Code 1965 or in the Federal Constitution.

Even though Section 120 of the code allows the state authority to impose express conditions and restrictions-in-interest upon land alienation, this section also states that they must be done so they are “conformable to law”.

In other words, Section 120 does not give a state authority the unfettered opportunity to impose any condition it deems fit as the supreme law which must be conformed to is Article 8 of the Constitution.

Article 8 provides that except as expressly authorised by the Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in matters such as the administration of any law relating to the “acquisition, holding or disposition of property”.

The express authorisation allowed in the Constitution is with respect to the exclusive rights of Malays to hold Malay reserve land in Peninsular Malaysia and such rights are entrenched in Article 89 of the Constitution.

A “Malay” is properly defined in the relevant state’s Malay reserve land enactment.

The other express authorisation is contained in Article 161A of the Constitution, which provides that Article 89 does not apply to Sabah and Sarawak and Article 8 shall not invalidate or prohibit any state law in Sabah or Sarawak that reserves land for natives of these states or gives them preferential treatment as regards the alienation of land by the states.

Courts have ruled that unwarranted use of administrative measures is no substitute for principles of good governance which enjoin authorities to implement laws and policies guided exclusively by equitable and fair principles.