Thursday, November 13, 2008

Kedah’s housing policy should go by the law

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.

Published in the The Star, 13 November 2008

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