THE Kedah Government should have ruled by law and not by administrative policies
when it introduced a housing policy of setting aside 50% of every housing
development for bumiputras even though land is a state matter.
In fact, such policy is not new as the state governments of Selangor and Malacca
had previously even imposed bumiputra quotas of up to 70% in some town areas.
Currently, the quotas differ from one state to the other.
These policies are also being implemented haphazardly throughout the country as
bumiputras from Sabah and Sarawak have complained that they have been denied
discounts when purchasing properties in the peninsula.
In implementing the policy, the state governments would impose and endorse the
conditions unto the land titles such as endorsing the word “bumiputra” unto the
land title and this means the property can only be owned by and conveyed to a
bumiputra. However, the expression “bumiputra” has not been defined either in
the Code (National Land Code, 1965) or the Constitution.
In this respect, it must be emphasised that even though section 120 of the
National Land Code, 1965 allows the state authority to impose express conditions
and restrictions in interest upon land alienation as it deems fit, this section
also clearly states that they must be done “conformable to law”.
In other words, section 120 does not give a state authority the carte blanche to
impose any condition it deems fit as the supreme law which must be conformed to
is Article 8 of the Federal Constitution.
Article 8 provides, inter alia, 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 reserved land in West Malaysia and such
rights are entrenched in Article 89 of the Constitution. A “Malay” is properly
defined in the relevant state’s Malay reserved land enactments.
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 which
reserves land for natives of these states or gives them preferential treatment
as regards the alienation of land by the states. For this purpose, a native
of Sabah and Sarawak is defined in Article 161A(6) of the Constitution.
Hence, the Kedah government must conform to Article 8 of the
Constitution and not administer by way of policies.
This is especially so when our courts have consistently ruled that unwarranted
use of administrative measures is no substitute for principles of good
governance which enjoins all authorities to implement laws and policies guided
at all times exclusively by equitable and fair principles.
Equality is such a difficult word written by Yeo Yang Poh,
Thursday, November 13 2008 11:28 am
As pointed out, this is by no means an issue peculiar to Kedah alone. Malacca has done worse. The quota in Johor is currently 40%.
Underlying all these is the fundamental principle of equal treatment. Assistance, where appropriate, must be given based on needs, not on race, creed or affiliation.
Helping the needy (regardless of race, creed or affiliation) is the responsibility of every society. Treating persons discriminately in accordance with race, creed or affiliation leads to nepotism and bigotry.
It is time for change, throughout Malaysia.
Yeo Yang Poh
CHANGE OR BE CHANGED written by Stephen Tan Ban Cheng,
Thursday, November 13 2008 11:33 am
It comes as a deep disappointment to me that the PAS-PKR coalition State Government of Kedah and the PKR-DAP-PAS coalition State Government of Selangor are aping what the previous counterparts have done.
I believe that State Bar chair persons in the respective states must step up to the plate and spell out the Malaysia Bar's position so that the menteri besars can take note.
They either adjust or get adjusted.
I recall attending a Bar Games dinner in Langkawi where the incumbent MB told all those who drank that night to go to the back of the hall. Where is the MB now?
Stephen Tan Ban Cheng
Bumiputra discount does not necessarily help the poor written by Lim Chong Leong,
Thursday, November 13 2008 12:08 pm
I saw a billboard advertisement for sale of house, bungalows to be precise. It said "From RM1,288,000.00 - Bumi discount 7%". How does this NEP move help to eradicate poverty? If a Bumiputra can buy a house for RM1 million, the discount surely cannot be meant for him.
Lim Chong Leong
Do not let all spell of greeds, and greediness all the way up, or down. written by Tan Peek Guat,
Thursday, November 13 2008 12:32 pm
It is indeed time for everyone with "Human Rights" in mind to seriously consider the rights of others, not his own.
Why can't human beings care for one another without special emphasis on his very own race and religion? If they cannot, we should seriously consider that they are indeed unfit for their offices of power and authority.
Over and above all, are we not all brothers in the hoods of Mankind?
Rethink.
Tan Peek Guat
The Golden Rule written by Nicole Tan Lee Koon,
Thursday, November 13 2008 01:53 pm
As Roger rightly pointed out, the quota system is merely a administrative policy and not law. Can bureaucrats be above the law?
When I was a law student, one of my favourite topics was statutory interpretation. I found it relevant to many things including the topic at hand, administrative policy. You see, we were taught that the first rule to use is the Literal Rule. However, if we use the Literal Rule and reached an absurd result then we have to use the Golden Rule. the Golden rule allows a judge to depart from a word's normal meaning in order to avoid an absurd result.
To stick to the administrative policy (quota system) would result in an absurd result as even Bumiputra themselves prefer not to have the discount if they want to speculate in properties. Bumi lots fetch lower than market rate as non-Bumis cannot buy them. Hence, limiting the market scope. It is also absurd to leave Bumi lots hanging around even though there are no takers. These results in a stifled economy. Do we need it at this point of time when there is a global economic crisis ?
Nicole Tan Lee Koon
SOME ECONOMC DISTORTIONS written by Stephen Tan Ban Cheng,
Thursday, November 13 2008 04:40 pm
My dear Nicole
Actually, you are referring to economic distortions. And we have many of such distortions in Malaysia. A glaring example is the depressed wages of labour further depressed by cheap labour imports vis-a-vis the price of, say, housing, education and essential commodities.
When petrol prices were raised to reflect the increased world market price, I had thought that our policy makers were at long last coming to grips with reality and moving away from our false economy. Of course, I was wrong on that score.
And you are right about things being done by administrative fiat.
But then, in a democracy where votes are not equal - read the Reid Rep;ort - problems turn complex. For instance, even in a simple democracy, tensions arise with the market economy where profit is placed on the altar. Such tensions are mitigated by public policy set by the government of the day.
Even given that background, I am of the view that such a policy is still damaging in the long run - assuming that there is a long run, of course.
Not just that, but our resource allocation policies must be reviewed. We cannot be allocating scarce resources to housing and office construction for such a long time ... unless we are consciously working towards a glut.
Stephen Tan Ban Cheng
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As pointed out, this is by no means an issue peculiar to Kedah alone. Malacca has done worse. The quota in Johor is currently 40%.
Underlying all these is the fundamental principle of equal treatment. Assistance, where appropriate, must be given based on needs, not on race, creed or affiliation.
Helping the needy (regardless of race, creed or affiliation) is the responsibility of every society. Treating persons discriminately in accordance with race, creed or affiliation leads to nepotism and bigotry.
It is time for change, throughout Malaysia.
Yeo Yang Poh