CHAPTER FOURTEEN

Establishing an Effective Coordination Mechanism between Federal and State for
Promoting Good Governance...
The concept of governance refers to the process of decision-making and the process by which
decisions are implemented or n...
tool needed by governments at all levels: national, state and territory and local to promote good
governance and sustainab...
under the supervision of the National Land Council and the Department of the Director General
of Land and Mines (Federal) ...
Figure 1: A Global Land Administration Perspective (Enemark, 2004) 5
The daily operation and management of the four land a...
however, tend to separate land tenure rights from land use opportunities, undermining their
capacity to link planning and ...
iv.

Raise the nation from poverty (such as in Ghana, Bangladesh, Nepal and Peru); and

v.

Resolve financial crisis (such...
Source: Millennium Development Goals, United Nations 9
II.

Malaysian Land Policy Framework

The term “policy” can be seen...
Malaysia land comes under the exclusive jurisdiction of the State and each State has the
prerogative rights to develop lan...
iii.

A control mechanism for the public sector, through the allocation of finance to implement
its programmes;

In Malays...
c) Strata Titles Act 1985
d) State Malay Reservations Enactments
e) Town and Country Planning Act 1976
f) Local Government...
State Authority to make appropriate transitional rules as it may consider necessary or expedient
for the purpose of removi...
The present legal framework for land administration despite professing to provide for uniformity
of law and policy has acc...
policy for the promotion, control and utilisation of land throughout the country. The highest
policy-making body in regard...
federalism. In fact, coordination and cooperation between the governments at all levels are very
much encouraged. This not...
The DGLM an important role in conducting research and providing opinions on policy, legal and
administrative aspects whene...
appointed by His Majesty, the Yang Di-Pertuan Agong. His Majesty the Yang Dipertuan Agong
appoints any public servant unde...
There are various issues faced by the Federal agencies especially the DGLM in coordinating land
administration between the...
(Ord.5 of 1949) to the Government of Malaya (as it was referred then). Act 349 provides legal
sanction for the Federal Gov...
provide that the Federal Government is empowered to acquire State land for Federal government
purposes and as such it is a...
accompanying agencies empowered to execute a particular project, but also as to whether the
Federal Government had compete...
The discussion above has set out the gaps in coordinating an effective land administration system
at the Federal level, Fe...
Similar efforts come from other federated states and the European Union. The Infrastructure for
Spatial Information in the...
i.

System including Land Office must identify electronic land tax payment method and
generate the coverage and develop a ...
Figure 3: Proposed Restructuring of Malaysian Land Administration Perspective in tandem with
Global Perspective

Sustainab...
dollars and radically improve the ability of businesses, communities and governments to operate
on a national level. 21 Me...
According to Article 91(5) of the Federal Constitution, “it shall be the duty of the National Land
Council to formulate fr...
coordinating an efficient land administration system in the country and promoting sustainable
development. Similar to the ...
It is proposed for the elevation of the Department of Director General of Land and Mines
(DGLM) to be an umbrella organiza...
The followings are some important functions that can be assigned to the DGLM:
i.

Review of the Legal and Institutional Fr...
iv.

Establish Think Tank for Land Administration and Management at Federal
Level

In developing legislation, and procedur...
exist, including releasing internal resources for this work (if suitable resources exist), or external
support. The land a...
elements of a dynamic federalism. There are many factors causing variations in the
implementation of the federal principle...
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Land administration in Malaysia

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  1. 1. CHAPTER FOURTEEN Establishing an Effective Coordination Mechanism between Federal and State for Promoting Good Governance and Achieving Sustainable Land Administration for Malaysia Ainul Jaria Maidin, Phd Introduction Land is the greatest resource for all countries especially those carrying out agricultural activities and relying on natural resources for economic development. Access to land, security of tenure and land management has significant implications for development. Land administration provides important parts of the infrastructure for an efficient economy, which means that it touches all aspects of how people earn a living. Land administration through taxes on land plays a significant role in raising revenue for public finances. Through registration and cadastre systems, land administration provides security of tenure and facilitates securing of credit facilities through mortgages. Yet formal land administration systems commonly fail. 1 Lack of good governance can lead to serious problems in land administration and loss of confidence in the system. Governance is the way in which society is managed and how the competing priorities and interests of different groups are reconciled. It includes the formal institutions of government but also informal arrangements. Governance is concerned with the processes by which citizens participate in decision-making, how government is accountable to its citizens and how society obliges its members to observe its rules and laws. 1 Good governance in land tenure and administration, Food and Agriculture Organization of the United Nations, Rome, 2007, FAO land tenure studies, pp 2- 15. 1
  2. 2. The concept of governance refers to the process of decision-making and the process by which decisions are implemented or not implemented. Governance is used in various contexts such as corporate governance, international governance, national governance and local governance. Since governance is the process of decision-making and the process by which decisions are implemented, an analysis of governance focuses on the formal and informal actors involved in decision-making and implementing the decisions made and the formal and informal structures that have been set in place to arrive at and implement the decision. The government is one of the main actors in governance and has the obligation in ensuring the promotion of good governance. Land governance is an important aspect of a governmental obligation as land is the most important resource of any nation. Land governance is specific about the policies, processes and institutions by which land, property and natural resources are managed, this includes decisions on access to land, land rights, land use and development. 2 Land administration is a central part of the infrastructure that supports good land governance. Land Administration refers to the processes of recording and disseminating information about the ownership, value and use of land and its associated resources. Such processes include the determination of property rights and other attributes of the land that relate to its value and use, the survey and general description of these, their detailed documentation, and the provision of relevant information in support of land markets. Undeniably, the land administration system has a crucial role in the successful management and utilization of land resources for the mutual benefit of the governed and the government. 3 Land management issues in the millennium require approaches based on need, not jurisdictional divisions. A national coordinating mechanism for managing land administration is an obvious 2 ibid The information in this introductory part is obtained from various United Nation and Federation of Surveyors literature which are permitted to be sued for academic purposes, Peter Dale, “The Importance Of Land Administration In The Development Of Land Markets - A Global Perspective”, internet edition http://www.landentwicklung-muenchen.de/aktuelle_aufsaetze_extern/seminar_04.pdf, accessed on 10th June 2011; Dale P. F. & McLaughlin J. D, (2000): Land Administration. Oxford University Press; FIG (1999): Report of the Workshop on Land Tenure and Cadastral Infrastructures for Sustainable Development. Bathurst, Australia. http://www.fig.net/ ; UN (1996): The Habitat Agenda. UN New York; UNCHS (2000): "Global Campaign for Secure Tenure - implementing the habitat agenda: adequate shelter for all". http:///www.unchs.org/; Wallace, J. (1999): "A Methodology to Review Torrens Systems and their Relevance to Changing Societies from a Legal Perspective". Paper prepared for the Workshop on Land Tenure and Cadastral Infrastructures for Sustainable Development. Bathurst, Australia. 3 2
  3. 3. tool needed by governments at all levels: national, state and territory and local to promote good governance and sustainable land administration system that can accommodate the needs of globalization and evolution of modern technology. Given Malaysia's complex federal arrangements, an infrastructure built on existing systems that overcomes the need for a new national federal agency appears to be the optimal approach. Malaysia in the quest for achieving developed nation status cannot be left out from meeting the needs of globalization as globalization is a natural, evolutionary, and largely inevitable development. Most countries including Malaysia is left without a choice but to face the imminent responsibility of developing a land administration system that is able to meet the needs of globalization to remain competitive to attract both local and foreign direct investments. The 21st century has dawned with the world facing global issues of climate change, critical food and fuels shortages, environmental degradation and natural disaster related challenges as today’s world population of 6.8 billion continues to grow to an estimated 9 billion by 2040 when over 60% will be urbanised. This is placing excessive pressure on the world’s natural resources. The eight Millennium Development Goals (MDGs) form a blueprint agreed to by all the world’s countries and the world’s leading development institutions to support the mitigation of these global issues. These goals are now placed at the heart of the global agenda. 4 The land administration system in Malaysia is within the authority of the State government and the Federal government has very limited role to play. The Federal and State jurisdictional issues has great implications on the efficient implementation and enforcement of land policies, law and institutional arrangements. This paper seeks to justify the need to establish a coordination mechanism at the Federal level to promote sustainable land administration for Malaysia. This paper sets out a brief analysis of the existing policy, legal regulatory and institutional framework of the Malaysian land administration system, the weaknesses and the proposed reforms to the system to make it globally competitive and to achieve sustainable development. A National agency to coordinate the development and maintenance of a single, comprehensive, and authoritative database for all managed lands, including public lands is proposed to be established 4 FIG/World Bank (2010): Land Governance in Support of the Millennium Development Goals. FIG publication no. 45. FIG Office, Copenhagen, Denmark. http://www.fig.net/pub/figpub/pub45/figpub45.htm United Nations (2000): United Nations Millennium Declaration. Millennium Summit, New York, 6-8 September 2000. UN, New York. http://www.un.org/millennium/declaration/ares552e.pdf 3
  4. 4. under the supervision of the National Land Council and the Department of the Director General of Land and Mines (Federal) known as My-ELAS. II. Good Governance in Land Administration System Land administration is concerned with four principal and interdependent commodities, the tenure, value, use, and development of the land within the overall context of land resource management. Figure 1 below depicts how these elements link together to provide a sustainable land administration system. i. the allocation and security of rights in lands; the geodetic surveys and topographic mapping; the legal surveys to determine parcel boundaries; the transfer of property or use from one party to another through sale or lease; ii. the assessment of the value of land and properties; the gathering of revenues through taxation; iii. the control of land use through adoption of planning policies and land use regulations at national, regional and local levels; and iv. the building of new physical infrastructure; the implementation of construction planning and change of land use through planning permission and granting of permits. 4
  5. 5. Figure 1: A Global Land Administration Perspective (Enemark, 2004) 5 The daily operation and management of the four land administration elements involves national agencies, regional and local authorities, and the private sector in terms of, for instance, surveying and mapping companies. Land administration must be sustainable and locally responsive as it balances the economic, social, and environmental needs of present and future generations, and locates its service provision at the closest level to citizens. 6 i. Legitimate and equitable: It has been endorsed by society through democratic processes and deals fairly and impartially with individuals and groups providing nondiscriminatory access to services. Efficient, effective and competent: It formulates policy and implements it efficiently by delivering services of high quality. ii. Transparent, accountable and predictable: It is open and demonstrates stewardship by responding to questioning and providing decisions in accordance with rules and regulations. iii. Participatory and providing security and stability: It enables citizens to participate in government and provides security of livelihoods, freedom from crime and intolerance. iv. Dedicated to integrity: Officials perform their duties without bribe and give independent advice and judgments, and respects confidentiality. There is a clear separation between private interests of officials and politicians and the affairs of government. Sound land governance is a key to achieve sustainable development and to support the global agenda as set by adoption of the Millennium Development Goals (MDGs). Land governance is basically about determining and implementing sustainable land policies. 7 Many countries, 5 Building Land Information Policies in the Americas. Aguascalientes, Mexico, 26-27 October 2004. http://www.fig.net/pub/mexico/papers_eng/ts2_enemark_eng.pdf; Enemark, S. (2006): People, Politics, and Places – responding to the Millennium Development Goals. Proceedings of international conference on Land Policies & legal Empowerment of the Poor. World Bank, Washington, 2-3- November 2006. http://www.fig.net/council/ enemark_papers/2006/wb_workshop_enemark_nov_2006_paper.pdf 6 Food and Agriculture Organization of the United Nations, (2007), Good governance in land tenure and administration, Rome, http://www.fao.org/docrep/010/a1179e/a1179e00.htm 6 http://www.fig.net/pub/figpub/pub47/figpub47.htm 7 Enemark,S, Robin Mclaren, Paul van der Molen, “Land Governance in Support of the millennium Development Goals Land Governance in Support of the Millennium Development Goals – A New Agenda for Land Professionals”, paper presented at the FIG Congress 2010 Facing the Challenges – Building the Capacity Sydney, Australia, 11-16 April 2010 5
  6. 6. however, tend to separate land tenure rights from land use opportunities, undermining their capacity to link planning and land use controls with land values and the operation of the land market. These problems are often compounded by poor administrative and management procedures that fail to deliver required services. Investment in new technology will only go a small way towards solving a much deeper problem owing to the failure to treat land and its resources in holistic. Features of good governance also include accountability, political stability, government effectiveness, regulatory quality and rule of law, as well as control of corruption. Good governance means that government is well managed, inclusive, and results in desirable outcomes. The principles of good governance can be made operational through equity, efficiency, transparency and accountability, sustainability, subsidiarity, civic engagement and security. Weak governance tends to flourish where the law is complex, inconsistent or obsolete. Fragmented institutional arrangements, weak institutions, ambiguous laws and a weak judiciary aggravate the situation. Corruption is one common factor in governance problems. Sometimes poor motivation, low pay and poor training of staff are at the heart of the problem. Favouritism and cronyism is another factor, jobs may be reserved for a particular ethnic or a favoured gender rather than being allocated on merit. Low pay could also push officials to give priority to other sources of income. Land agencies are particularly vulnerable to practices of weak governance. Bad practices can spread rapidly when there are no safeguards to stop them. 8 A quick survey of several developing countries show that land administration systems have become an integral component of their national strategies to: i. Assist in the shift from a command economy to a market economy (as in Eastern and Central Europe); ii. Address past social injustices (such as with the end of apartheid in South Africa); iii. Rebuild shattered social and governmental institutions (such as in Kosovo, East Timor, El Salvador and Nicaragua, after periods of unrest and civil war); 8 Food and Agriculture Organization of the United Nations, (2007), Good governance administration, Rome, http://www.fao.org/docrep/010/a1179e/a1179e00.htm in land tenure and 6
  7. 7. iv. Raise the nation from poverty (such as in Ghana, Bangladesh, Nepal and Peru); and v. Resolve financial crisis (such as in Indonesia). All countries have to deal with governing their land. They have to deal with the governance of land tenure, land value, land use and land development in some way or another. A country’s capacity may be advanced and combine all the activities in one conceptual framework supported by sophisticated ICT models or, more likely, capacity will be involved in very fragmented and basically analogue approaches. Effective systems for recording various kind of land tenure, assessing land values and controlling the use of land are the foundation of efficient land markets and sustainable and productive management of land resources. Such systems should be based on an overall land policy framework and supported by comprehensive land information and positioning infrastructures. Sustainable land governance should: The eight MDGs form a blueprint agreed to by all the world’s countries and the world’s leading development institutions. The first seven goals are mutually reinforcing and are directed at reducing poverty in all its forms. The last goal – global partnership for development – is about the means of achieving the first seven. These goals, as shown in figure below, are now placed at the heart of the global agenda. To track the progress in achieving the MDGs a framework of targets and indicators has been developed. This framework includes 18 targets and 48 indicators enabling the ongoing monitoring of the progress that is reported on annually. Figure 2: The Eight Millennium Development Goals. 7
  8. 8. Source: Millennium Development Goals, United Nations 9 II. Malaysian Land Policy Framework The term “policy” can be seen as an abstraction of reality and is defined as a group of decisions taken by authoritative decision makers which can at least analytically be linked to some degree of coherence and which are concerned with the selection of prime goals and the means to achieve them. 10 Land policy provides the boundaries and parameters within which the direction and continuity of decisions made for the function of land in the implementation of the national development plans at the regional, state-wide and local levels. Many countries have formulated land policies, some incorporate policies into statutes, statements and guidelines for implementation. In Malaysia, there is no one single land policy and it can be gathered from legislation enacted to manage and administer land. This void can be attributed to the fact that in 9 Millennium Development Goals, United Nations http://www.un.org/millenniumgoals/ In 2000, 189 nations made a promise to free people from extreme poverty and multiple deprivations. This pledge became the eight Millennium Development Goals to be achieved by 2015. In September 2010, the world recommitted itself to accelerate progress towards these goals. 10 Gray, CJ., Stringer JK., and Williamson, P., ‘Policy Change: An analytical framework. Annual PSA conference, University of Newcastle, April 1983 8
  9. 9. Malaysia land comes under the exclusive jurisdiction of the State and each State has the prerogative rights to develop land policy. Article 91 of the Malaysian Constitution provides for the establishment of a National Land Council comprising of State representatives with a Federal Minister as a Chairman. The main function of this Council is to formulate a national policy for the promotion and control of the utilization of land throughout the country for mining, agriculture, forestry of any other purpose in consultation with the Federal and State Governments and the National Finance Council. It is mandatory for the Federal and State Governments to follow the policy formulated. The Council has in the past formulated broad based policies on squatters, land speculation and use of land for industries. These policies however, are not publicized. As land is a State matter it can be expected that each State will want to decide on what it can do with its land first rather than be subjected to a national policy. The adoption of the land policy would be difficult it not impossible. Indeed, policy analysts have noted that the policy so formulated is merely directory in its affirmative aspects in so far as no method is know by which the legislative bodies of the State Government could be required to enact specific legislative measures. 11 The Federal Government is provided with considerable constitutional powers to undertake national development planning by virtue of Article 92 of the Federal Constitution. At the top of the hierarchy of development planning in Malaysia, the national development policies set out the broad social and economic objectives adopted by the Government. These plans are supported by the outline perspective plans which amplify the national objectives for social and economic change and establish the long range targets. These national development plans establish the following: 12 i. The social and economic direction in which the country is to move; ii. The socioeconomic and physical perspective of the country within which implications of day to day decision can be considered; 11 Sheridan, LA. and Groves, HE. (1967), The Constitution of Malaysia. Oceana Publications, New York. Gurjit Singh, (1988), The implementation of Urban housing programmes Under the New Economic Policy: A case Study of Kuala Lumpur, M. Phil Dissertation, University of Cambridge. 12 9
  10. 10. iii. A control mechanism for the public sector, through the allocation of finance to implement its programmes; In Malaysia there are four levels at which attempts are made to coordinate activity within the development planning framework. At the highest level, the politico administrative level, the Parliament, the Cabinet of Ministers and the National Action Council (a coordination and evaluation unit) formulate political, socio-economic and administrative policies. At the next level is the National Development Planning Committee. This committee consults the National Land Council, National Finance Council, Federal and State Governments before it formulates, evaluates, revises national policy and implements the national development budget before it makes recommendations to the National Action Council. The committee comprises of various representatives of Ministries and autonomous bodies. This establishes a link between Ministries and agencies under the jurisdiction of the NDPC such as the Economic Planning Unit, the Implementation and Coordination Unit (ICU), and Inter Agency Planning Groups. The third level of the hierarchy consists of Federal Ministries and various autonomous bodies which are responsible for preparing and proposing sectoral strategies and program. The EPU evaluates the sectoral proposals submitted by these bodies and plays the part of the processing agent and makes recommendations to the NDPC. This arrangement makes it easy for the NDPC to act as the mediator between the ‘higher’ politico administrative level and the ‘lower’ implementation level. At the fourth level or the State, Federal Territory and Local Authority, the sectoral policies and program which have been decided are translated into more detailed instruments for implementation. The State Governments thus in theory at least perform a regulatory function and ensure that the Local Authorities within its boundaries carry out the program. The land policies are stipulated on the issue document of title and also in the various legislations enacted to regulate land administration, management and development. The relevant legislations are: a) National Land Code 1965 b) National Land Code (Penang and Malacca Titles) Act 1963 10
  11. 11. c) Strata Titles Act 1985 d) State Malay Reservations Enactments e) Town and Country Planning Act 1976 f) Local Government Act 1976 g) Federal Territory Planning Act 1982 h) Land Acquisition Act 1960 i) Environmental Quality Act 1974 j) State Land Rules k) Sabah Land Ordinance Chapter 68 (inclusive of Land (Subsidiary Title) Enactment 1972; Town and Country Planning Ordinance Cap 141; Land Acquisition Ordinance Cap 69 and Country Land Utilization Ordinance 1962) l) Sarawak Land Code Chapter 81 (inclusive of Land (Control of Subdivision) Ordinance; Town and Country Planning Ordinance; Natural Resources Ordinance) There is an urgent need to prepare a national land policy to promote efficient use and development of land in the country towards achieving good governance and promoting sustainable land administration. III. Legal Regulatory Framework The National Land Code 1965 was enacted by the Federal Parliament by virtue of the power conferred by Article 76(4) of Federal Constitution of Malaysia 1957 for the purposes of ensuring uniformity of law and policy on land matters. The National Land Code came into force on 1st January 1966 simultaneously with the National Land Code (Penang and Malacca Titles) Act 1963. The National Land Code (Penang and Malacca Titles) Act 1963 was subsequently revised in 1994 to the National Land Code (Penang and Malacca Titles) Act 1963. Pursuant to the provisions of section 438A, the Federal Territory (Modification of National Land Code) Order 1974 (with effect from 1 February 1974) made provision for the National Land Code to apply in the Federal Territory subject to appropriate amendments thereto. On the coming into force of the National Land Code, the enactments listed in the Eleventh Schedule in National Land Code were repealed (s.438 of National Land Code). Section 445 of the National Land Code, authorized each 11
  12. 12. State Authority to make appropriate transitional rules as it may consider necessary or expedient for the purpose of removing any difficulties occasioned by the coming into force of National Land Code 1965. The National Land Code 1965 comes into force in each State with the appointment of the date by the Minister, with the approval of the National Land Council. The State must give effect to the appointment by a notification in the Gazette of the Federation. In Lim Chee Cheng &Ors v Pentadbir Tanah Daerah Seberang Perai Tengah, Bukit Mertajam, 13 the Court of Appeal observed that the National Land Code was enacted by Parliament at the request of all States under Article 76(4) of Federal Constitution 1957 for the sake of uniformity. Therefore, there is no necessity of adopting the National Land Code before it could be applicable to any State. The National Land Code provides the procedures relating to registration of titles, dealings and entry of non dealings on land, uses of land and other related matters. The application of the National Land Code is limited to the states of Peninsular Malaysia. The National Land Code (Penang and Malacca Titles) Act 1963 regulates land tenure in the states of Penang and Malacca only. The Sabah Land Code (Cap 68) regulates land tenure in Sabah, whilst land tenure in Sarawak is regulated by the Sarawak Land Code (Cap 81). In addition to the legal regulatory framework created by the National Land Code, the land administration governance practices and values have also evolved to meet the changing needs of the rapidly developing Malaysian society. Article 73 of Federal Constitution, demarcates the legislative powers between the State and Federal Authority, Federal Parliament makes federal laws, and the state legislative assemblies makes state laws. Article 74 of Federal Constitution prescribes the subject matter of these laws by reference to the legislative lists in the Ninth Schedule to the Federal Constitution. There are three lists in the Ninth Schedule, namely, the Federal List, the State List and the Concurrent List. The general rule is that Parliament may make laws with respect to any of the matters in the Federal List or the Service Commissions Concurrent List whilst the state legislative assemblies may make laws with respect to any matters in the State List or Concurrent List. 14 13 [1999] 3 CLJ 759, CA See Article 74(1) Federal Constitution. The Concurrent List contains matters that both the Federal government and the state governments may legislate on. 14 12
  13. 13. The present legal framework for land administration despite professing to provide for uniformity of law and policy has accommodated variations at State level which to a certain extent has caused lack of uniformity. The National Land Code 1965 may not be able to accommodate the needs of land administration stemming from the evolution of the land administration system from paper based to electronic system. IV. Institutional and Administrative Framework The Malaysian Federalism provides for the establishment of 2 authorities to be responsible for land matters. The jurisdiction to administer and manage land is exclusively within the jurisdiction of the State Authorities. The Federal government assumes an advisory role and assists the State Authority by providing professional services and funding for development of new systems and other aspects relating to land. The Federal ministry responsible for land matters is the Ministry of Natural Resources and Environment (NRE). Land is treated as a natural resource and the Ministry is secretariat to the National Land Council. The Department of Director General of Land and Mines (DGLM) is currently established under the Ministry. Other departments coming under the same Ministry are the Department of Environment, Department of Mineral and Geo-science, Peninsular Malaysia Forestry Department, Department of Survey and Mapping, Department of Wildlife and National Parks and the Department of Drainage and Irrigation. The Federal Constitution and the National Land Code has expressly provided for the establishment of the National Land Council whilst the DGLM is established under the Ministry of Natural Resources and Environment to coordinate land administration and advise on land policies, law and other aspects relating to land administration between the Federal and State Authorities mainly for purposes of ensuring uniformity of law and policies. • The National Land Council Article 91 of the Federal Constitution provides for the establishment of the National Land Council chaired by the Deputy Prime Minister with representatives from various states (including Sabah and Sarawak). The main objective of this Council is to formulate a national 13
  14. 14. policy for the promotion, control and utilisation of land throughout the country. The highest policy-making body in regards to land matters in Malaysia is the National Land Council established by Article 91(1) of the Federal Constitution. Article 91 reads as follows: “There shall be a National Land Council consisting of a Minister as chairman, one representative from each of the States, who shall be appointed by the Ruler or Yang di Pertua Negeri, and such number of representatives of the Federal Government as that Government may appoint…the number of representatives of the Federal Government shall not exceed ten.” The duty of the National Land Council as prescribed in Article 91(5) of Federal Constitution is to formulate from time to time, a national policy for the promotion and control of the utilisation of land throughout the Federation for mining, agriculture, forestry or any other purpose and for the administration of any laws relating thereto. In formulating such policies, the National Land Council is to consult with the Federal Government, the State Governments and the National Finance Council. Policies made by the National Land Council are to be followed by all states in Peninsular Malaysia. However, in respect of Sabah and Sarawak, the States are not bound by such policies as stipulated in Article 95E of the Federal Constitution. The National Land Council has been described as one of the central bodies established under the Federal Constitution exerting a centripetal influence. This is because it is a federal level body empowered to formulate policies to be followed by the States. From the constitutional scheme relating to land as discussed above, it is clear that although land is a state matter, there is a certain degree of centralisation in that the Federal government has also been given powers to make the land laws uniform and to streamline policies relating to land administration between the states (except for Sabah and Sarawak). The division of power under the Federal Constitution establishes State autonomy whereby the Federal Government and Governments of other States cannot interfere with the business of a State Government. It does not mean, however, that cooperation and coordination between the Federal Government and the States, as well as between the States themselves, are contrary to 14
  15. 15. federalism. In fact, coordination and cooperation between the governments at all levels are very much encouraged. This notion is very clear from the Reid Commission Report (1957): “When we say that exclusive responsibility should rest with the Federal Government or with the State Government as the case may be we do not intend to hamper or discourage cooperation between the States and the Federation. On the contrary we think that close cooperation between them will promote the interests of all concerned and be of great benefit to the nation.” The Council is a forum where the Federal and State Authorities meets and have a consensus over important aspects in land administration, development and management. Without discussion, consultation and cooperation between the Federal and State Authorities, it is not possible to have an integrated and holistic approach in developing efficient land administration system. The States realise that, in terms of finance and expertise, the Federal Government is in a better position and they rely heavily on Federal funding for implementing various development policies at States. In the interest of the citizenry, it is only logical and prudent for the States to seek to benefit from cooperating with Federal authorities. The National Land Council is not the ultimate approval authority over any matters affecting land administration, management and development. The States should not be too sceptical over the existence and function of the Council though the composition of the Council tilts towards the Federal Government, and the Director General of DGLM is a federal officer, which apparently allows Federal Government's to focus on efficient administration of matters pertaining to land at the Federal level. Nevertheless, it should be remembered that land is a matter under State List, and State-exclusive matter. It should also be borne in mind that the decision and approval of the Council are made in consultation with States' representatives, which allow the States to air their views and grievances. This is much preferred than decision made by the Federal Authorities alone. More importantly, when it comes to actual implementation of law or policy at State or local level, the State Authorities remain the approving authority with a measure of discretion to ensure their decision suits the State development policies and needs of the State and its people. • Department of Director General of Land and Mines (DGLM) 15
  16. 16. The DGLM an important role in conducting research and providing opinions on policy, legal and administrative aspects whenever required by the National Land Council for purposes of improving various aspects relating to land administration, management and development. The Federal agencies are to assume an advisory and consultative role for the State and there is no room for involving in decision making at the State. Since land is a State matter, it is a special jurisdiction given to the National Land Council aimed at promoting uniformity in law, policy and procedures for the States in the Peninsular Malaysia to facilitate dealings over land. The DGLM is established to perform functions and exercises administrative directions under several statutes relating to land and land administration such as Federal Land Commissioner Act 1957, Strata Titles Act 1985, Small Estates (Distribution) Act 1955, Land Acquisition Act 1960, the National Land Code (Penang and Malacca) Titles Act 1963 and the National Land Code 1965. The National Land Code provide for the establishment of land administration organisations at the Federal level which is known as the office of the Director General of Land and Mines Federal (DGLM) and the office for Department of Director of Survey and Mapping (“JUPEM”). It is an administrative duty of DGLM in promoting uniformity of law and policy between all States in Peninsular Malaysia by coordinating the land administration matters at Federal level except for Sabah and Sarawak. Despite all these functions, DGLM also assumes that function as the Federal Lands Commissioner in accordance with the Federal Land Commissioner Act 1957 to carry out the responsibility of managing the Federal-owned lands. The legal and administrative power of the DGLM is conferred by virtue of sections 6-8 of the National Land Code. Prior to the amendment of the National Land Code via Act A587 and Act A832 respectively, the office of the DGLM was known as “the Federal Commissioner” and appointed under the Federal Lands Commissioner Ordinance 1957. The DGLM is given the arduous tasks of assisting the National Land Council in coordinating and ensuring uniformity of law and policy throughout the Peninsular Malaysian states and to promote National development policies to be balanced with the implementation of State policies to ensure sustainable development and use of natural resources. Since the introduction of the National Land Code, the functions of the Federal Lands Commissioner and the Director General of Land and Mines Federal has been held by the same person. The Director General of Land and Mines Federal and the Federal Land Commissioner is 16
  17. 17. appointed by His Majesty, the Yang Di-Pertuan Agong. His Majesty the Yang Dipertuan Agong appoints any public servant under Section 3 of Federal Lands Commissioners Act 1957 (Act 349) to carry out the function. The position of the Director General of DGLM is established pursuant to the provision of section 6 of the National Land Code which provides that whoever is appointed as the Federal Land Commissioner is also to assume the function of the DGLM. In respect of land administration in Peninsular Malaysia, the overall functions of the DGLM as expressly provided by section 8 of the National Land Code are to: i. consult and correspond with any State Director; ii. require any State Director to furnish him with such returns, reports and other information as he may require relating to land administration within the State; iii. convene meetings of the State Directors for the purpose of consultation concerning the administration of the National Land Code consistently; iv. with the approval of the State Director, enter within and inspect the records of any Land Registry or Land Office in any State; v. with the concurrence of the State Directors, issue such circulars relating to the administration of this Act as may be considered desirable. vi. Carry out such other duties as directed by the Minister of Natural Resources and Environment. All the functions of the DGLM as expressly provided in section 8 of the National Land Code appears to be advisory and consultative and there is no executive powers that cofers them with authority to implement policies and law. The rationale of this provision is to protect the sanctity of the concept of Federalism and separation of powers between the Federal and State authority as envisaged by the Federal Constitution and to safeguard against encroachment on State jurisdiction and exercise of powers. The DGLM’s function is to assume advisory and consultative role to the State Authorities in matters relating to land administration, policy and law. V. Analysis of the Effectiveness of the Functions of the Federal Agencies in Coordinating Land Administration System 17
  18. 18. There are various issues faced by the Federal agencies especially the DGLM in coordinating land administration between the States and the Federal Government as envisaged by the National Land Code. However, since the land administration is a matter within the purview of the respective State’s jurisdiction, it has given rise to some inherent weaknesses that has had the effect of reducing the efficiency of the land administration and the delivery system. It would be useful to identify the issues effecting the effective coordination of land administration between the Federal and State Authorities. This will be discussed in the preceding paragraphs. • Lack of powers for Coordinating the Federal and State Land Administration Relationship The law provide for the establishment of organisation at the Federal level such as the office of the DGLM and the Federal Lands Commissioner for promoting uniformity of law and policy between all States in Peninsular Malaysia except for Sabah and Sarawak. The position of the Federal Land Commissioner is to provide services in procurement and management of Federal Land and to assist in promoting the development objectives set out in the 5 yearly Malaysian Development Plans. The department is also responsible for managing the revenue generated by granting of lease of undeveloped Federal lands and issuance of deep sea sand permits. The functioning of the two positions under one official confers vast responsibilities and administrative duties on the Director General of DGLM. The Federal Land Commissioner is the custodian of the Federal Government’s movable and unmovable properties, whereas the DGLM functions as the coordinator for land administration activities between the Federal and State Governments. The emphasis accorded to the functions of the DGLM and FLC depends on the importance accorded by the official appointed serve as the Director General of DGLM. It sways from one way to the other depending on the political or administrative pressures exerted by the administration of the day. This situation will hamper the development and growth of the DGLM and FLC. This situation needs to be changed in order to improve the land administration service delivery at both the States and the Federal. In the DGLM’s organizational framework, the Federal Land Commissioner’s position was created to regulate the vesting of all movable and immovable properties of Her Majesty the Queen of Great Britain obtained under the Chief Secretary (Incorporation) Ordinance 1949 18
  19. 19. (Ord.5 of 1949) to the Government of Malaya (as it was referred then). Act 349 provides legal sanction for the Federal Government of Malaysia to hold land. Lands which are used to build schools, hospitals, police stations, army bases, fire stations, public highways, higher education institutes, Federal Government buildings and public purpose infrastructures are held by the Federal Government in the form of reserves and titles registered under the name of Federal Lands Commissioner. • Lack of Powers for DGLM in coordinating Land Administration for Country Section 8 of National Land Code provides the Director General of Land and Mines with limited powers in land administration. Perception of the general public is that the DGLM need to assume an important role in developing an efficient land administration and delivery system for the nation. However, many reforms and suggestions developed by the DGLM to improve the land administration system could not be realized for lack of legislative or legal backing. The functions of the DGLM are limited. It is clearly prescribed in section 8 of the National Land Code. Reforms cannot be implemented in the States’ without the prior approval of the respective State Land Director and consent of the State Authority. The lack of power provides limited scope for development of experts in land administration and developing of a specialized discipline in land administration in the country. State Directors has the discretion to withhold information or refuse to cooperate with the DGLM. This hampers the effective implementation and enforcement of Federal Government policies and law that can promote uniformity within the country. The DGLM is not empowered to impose any punitive action on the State that refuses to comply with any policies or law. The Federal policies and law is implemented in State by relying on Cabinet decisions, persuasion, financing incentives or ultimately by resorting to exert political influence. • Federal and State jurisdictional issues As with other countries with federal structures of government, there are always some problematic issues particularly those relating to the jurisdiction between the federal and state authorities. The Federal Constitution gives substantial powers over land use and natural resource management to the respective States. According to article 74 of the Federal Constitution, matters relating to land, rivers, forests, local government, and town and country planning are within the jurisdiction of the respective State Authority. Articles 83 and 92 of the Federal Constitution 19
  20. 20. provide that the Federal Government is empowered to acquire State land for Federal government purposes and as such it is assumed that Federal legislation is applicable in the acquired areas. The State Legislative Assembly has powers to make laws on matters relating to the items listed in the State List in the Federal Constitution. State laws on matters relating to soil, water, or forestry often lack uniformity. The reason is often attributed to the fact that these laws have diverse origins, i.e. some based on Federated Malay States enactments, some on Straits Settlements ordinances and some on an amalgam of both. The States usually have little incentive and rarely relinquish control over issues relating to land, mines and forests to the Federal government, or to acquiesce in the application of the federal legislation. The Federal Government has the power to make laws in respect of the matters listed in the Federal List and the Concurrent List. Article 74 of the Federal Constitution provides that, the Federal Parliament may make laws with respect only to subjects on the Federal and Concurrent Lists, and the States may only introduce laws with respect to subjects enumerated in the State and Concurrent Lists. The Federal Government can introduce laws on state matters at the request of the state legislative assembly or for purposes of ensuring and promoting uniformity between the laws of two or more states. Land Conservation Act 1960 was introduced in an attempt to standardize the pre-existing state legislation. Federal Legislation is introduced for purposes of uniformity are not automatically operative in a state, and it is applicable in a state only with the adoption of the same by the State Authority of the respective states. Such laws can be amended or repealed at a later time without the any reference to the Federal Government. Article 94 of the Federal Constitution requires amongst others that, state agricultural and forestry officers must accept professional advice from their federal counterparts. In addition the Article makes provision for the Federal Government to establish departments or ministries with respect to the state subjects i.e. soil conservation, local government, and town and country planning. Subject to the inhibitions imposed by the Federal Constitution on the powers to legislate on matters relating to State jurisdiction. If a State had inadequate legislation concerning natural resources, it was not in the province of the federal government to impose its own legislation (if any) on these states. That meant that it was only the state legislature who was endowed with competence to legislate in matters relating to natural resources. Confusion is inevitable not only with regard to the application of laws or the 20
  21. 21. accompanying agencies empowered to execute a particular project, but also as to whether the Federal Government had competence to regulate the subject matter in the first place. The Federal structure inhibits concerted policy for land administration at both the federal and state levels. According to Safruddin it is the interaction between design and process and consequently between the competing interests that defines centre-state relations in Malaysia. 15 It is in the nature of such political competition that centre-state tensions and strains frequently emerge. The centre-state relationship is strong in states where the central government candidate is able to form the state government and implement the central government policies. However, in states where the federal government is unable to establish its stronghold, especially in the opposition controlled states, the Federal government is often able to implement the Federal policies. • Lack of Coordination Between Government Agencies Lack of coordination between various government agencies delays renders service delivery process. As a Federation of States, Malaysia maintains decentralized land administration offices in each State. There is no prescribed organizational structure common to all states; land administration is a state government responsibility performed under different levels of government departments such as District Land Offices, State Director of Land and Mines Offices and Departments of Survey and Mapping. Embedded in these departments are the state’s cadastral mapping system within controlled of the federal agencies, that is Department of Survey and Mapping, land registry and titles office within controlled of the State’s District Land Offices and Director of Land and Mines Offices, and Federal own-lands management within controlled of the Federal Land Commissioner, Department of Director General of Land and Mines (Federal). Combinations of these services can be found in each state, integrated through sharing understandings. Today this is assisted by the computerisation of spatial and non-spatial information. Smart partnership is required to create an integrated and efficient service delivery system with decision making in planning and economic development. 15 Safruddin, B.H., “Malaysian Center-State Relations by Design and Process”, in Shafruddin, B.H. & Fadzli, I.,(eds.) Between Centre and State: Federalism in Perspective,(Malaysia, ISIS Malaysia, 1988) at p.22. 21
  22. 22. The discussion above has set out the gaps in coordinating an effective land administration system at the Federal level, Federal and States Authorities. It is necessary to identity the reforms, to the functions of DGLM and other agencies involved in land administration in assuming an important role in steering the land administration system in Peninsular Malaysia to achieve the millennium development goals. The policies, legal and administrative measures needed to enhance service delivery and improve and deliver effective land administration services in Peninsular Malaysia. VI. Globally Emerging Initiatives in Nationalising Management of Land Administration The analysis of the Malaysian and international contexts revealed a range of initiatives relating to national or standardized approaches to managing land administration system. The Australian, European, and United States contexts are discussed briefly to provide useful example for Malaysia. • Australian initiatives 16 Australia is at the forefront of integration of and management of land administration at both state and national levels. Australia’s pragmatism in the face of complicated federalism has delivered solutions to the land administration problems. Public Sector Mapping Agencies (PSMA) Australia successfully produces national scale integrated information services. • European Union initiatives 17 16 Jude Wallace(et.al.), “Spatially Enabling Land Administration: Drivers, Initiatives and Future Directions for Australia, Centre for SDI and Land Administration,” The University of Melbourne, Australia, accessed from internet on 20th June 2011 at http://www.gsdi.org/gsdiconf/gsdi12/papers/55.pdf http://www.gsdi.org/gsdiconf/ gsdi12/ papers/55.pdf 22
  23. 23. Similar efforts come from other federated states and the European Union. The Infrastructure for Spatial Information in the European Community (INSPIRE) initiative to create a European Union (EU) spatial data infrastructure was implemented by the European Union in 2007. The aim of INSPIRE is to enable the sharing of spatial information among public sector organisation and better facilitate public access to spatial information across Europe. It with be implemented incrementally across 34 spatial data themes with full implementation scheduled for 2019. • United States Initiatives In the United States private sector solutions to land information problems remain a popular approach. A plea for building a national cadastral database is eloquently presented to the US Congress by in paper titled National Land Parcel Data: A Vision for the Future. 18 Meanwhile global initiatives undertaken by Google, Microsoft Maps, and Yahoo have popularized spatial information with the special capacity to integrate place or geocoded information with images and pictures, and even live videos. These systems are highly commercial and increasingly well organized and popular with users. The Bathurst Declaration (Land Administration for Sustainable Development) under the UNFIG 19 and Work-Group 3 (Land Administration) under the annual PCGIAP meeting are major international initiatives that is undertaken to improve land administration. VI. Malaysian Initiatives in Meeting Global Needs Isahak 20 identified four mains aspects for Malaysia to improve its land administration organisation towards achieving world class level as follows: 17 INSPIRE Infrastructure for Spatial Information in Europe, Accessed from http://inspire.jrc.ec.europa.eu/reports/ImplementingRules/network/D3.5_INSPIRE_NS_Architecture_v2.0.pdf 18 National Academy of Sciences, 2007 19 UN-FIG. (1999), The Bathurst Declaration on Land Administration for Sustainable Development. Bathurst, NSW, Australia 23
  24. 24. i. System including Land Office must identify electronic land tax payment method and generate the coverage and develop a comprehensive National Land Information Centre. ii. Technology means land administrators must use electronic hardware if they need to carry out land service-related job. Land offices service counters need to use electronic hardware for completion of task. iii. Structure including physical structure (the building design and office layout need greater cleanliness and promote the upbringing of a pleasant environment to reflect the image and credibility of the land office) and organisational structure (improve the service quality for the public). iv. Human Resources especially to improve land administration services in the future and at the same time have good leadership especially related to the organisation. Skills, knowledge and experience are the basic ingredients for creating professional specialists in land administration. 20 Isahak, YMS (2005). Ke Arah Pengurusan Tanah Bertaraf Dunia. Journal INSTUN - Mendahului Cabaran, 1(1), 1-10. 24
  25. 25. Figure 3: Proposed Restructuring of Malaysian Land Administration Perspective in tandem with Global Perspective Sustainable Development Economic, Social & Environmental e-Government Effective Land Use Management Efficient Land Market Land Tenure Land Value Titles, Transfer, Charge, Lease & Easements Secure legal rights Assessment of land value Collection of property tax Land Use Policies and Spatial Planning Control of land use Land Development Construction planning and Permits Regulation and Implementation ELECTRONIC LAND INFORMATION INFRASTRUCTURE COUNTRY CONTEXT (FEDERAL-STATE LEVELS)      VII. Institutional Arrangements Capacity Building Education & Research Services to business and citizens Coordinated land information systems PROPOSED REFORMS TO ENHANCE THE LAND ADMINISTRATION SYSTEM TO MEET THE GLOBAL CHALLENGES Harmonized governance is seen as being an important part in delivering good governance. Harmonized governance attempts to reduce legal and administrative complexities for citizens by demanding that different arms and levels of government integrate their responsibilities and administrative process. The need to harmonize the governance systems of different states and the federal governments is recognized by most stakeholders. Harmonization can save millions of 25
  26. 26. dollars and radically improve the ability of businesses, communities and governments to operate on a national level. 21 Meanwhile, private sector frustrations about inadequate and out of date arrangements continue to grow. Establishment of a national umbrella organization appears to be beneficial move. The following strategies are proposed to enhance the Federal and State level land administration for promoting an efficient and effective land administration system. i. Enhance Role of the National Land Council in Coordinating Land Administration Between Federal and State Authorities; ii. Establish National Centre for Developing and Maintaining Electronic land administration system (MyeLAS); and iii. Elevate Position of Department of Director General of Land and Mines to National Agency for Land Administration and Management This proposal will be discussed in detail in the preceding paragraphs. • Enhance Role of the National Land Council in Coordinating Land Administration Between Federal and State Authorities Land is a subject which remains under the jurisdiction of the States. The federal government has, however, certain powers over legislation and development. For that purpose the Constitution provides for the establishment of the National Land Council. The Council is a constitutional body comprising a Minister appointed by the federal government, who then appoints further members, and State representatives. The Council is required to advise on all matters related to natural resources: land, mining, forestry, agriculture and kindred subjects. Any policy formulated by the Council is binding on both federal and State governments. The Council is further required to advise on any matter brought to it by the federal or State authorities. 21 SCLCA, (2006), Harmonization of legal systems within Australia and between Australia and New Zealand, Parliament of Australia, Standing Committee on Legal and Constitutional Affairs, Canberra, Australia; SCLCA, (2008), Reforming our Constitution: A roundtable discussion, Parliament of Australia, Standing Committee on Legal and Constitutional Affairs, Canberra, Australia. 26
  27. 27. According to Article 91(5) of the Federal Constitution, “it shall be the duty of the National Land Council to formulate from time to time in consultation with the Federal Government, the State Governments and the National Finance Council a national policy for the promotion and control of the utilization of land throughout the Federation for mining, agriculture, forestry or any other purpose, and for the administration of any laws relating thereto; and the Federal and State Governments shall follow the policy so formulated.” The Council’s jurisdiction is limited to formulating of land policies in consultation with the federal and state governments, can only be in respect of the "promotion and control of the utilisation of land" as provided by Article 91 Clause (5) of Federal Constitution. From the perspective of the Federal Constitution, the decision of the National Land Council made pursuant to Article 91(5) is part of the operational effect of the law that binds the Federal Government and the State Governments to abide by the decision. In the circumstances, if there is any State Government’s action made ignoring the decision of the National Land Council, such decisions can be considered to have been made without complying the provisions of the Federal Constitution. However, this position has yet to be tested in the Court of law. The Federal Government has yet to institute any legal proceedings whatsoever against any State for not complying with the decision of the Council. Indeed it’s not easy to impose any sort of sanction upon State Authority for failure to comply with the decision, orders, or directions of the National Land Council. This could only be done if Article 91(5) is amended to confer some executive powers to the National Land Council to ensure effective implementation and enforcement of policies and law relating to land administration and sustainable development within the country. Meanwhile, the National Land Council can exert influence by using the power of persuasion on States to adhere to the law and policies intended to promoted efficient land administration and management. It is proposed to establish a Commission to study the need to enhance the position of the National Land Council in coordinating land administration between the between Federal and State Agencies as well as conferring some executive powers in land administration. Importance to be accorded to the Council’s decision by the State Authority in adopting and implementing at the States the decisions made in consensus with all the members present. This is important in 27
  28. 28. coordinating an efficient land administration system in the country and promoting sustainable development. Similar to the National Physical Planning Council established pursuant to the Town and Country Planning Act 1976, the National Land Council must be accorded an important role as an overarching body by the Federal level to ensure efficient implementation and enforcement of law and policy at the States levels. The findings of the Commission made based on consultation with the State Authorities and concurrence from the Sultan and the Yang DiPertuan Agong can be used to amend the Federal Constitution to vest executive powers to the National Land Council in coordinating efficient land administration system for Peninsular Malaysia. • Establish National Centre for Developing and Maintaining Electronic land administration system (MyeLAS) The development of the electronic land administration system is an important aspect of the evolution of the land administration system in Malaysia. The DGLM has embarked on the creation of e-Tanah which has been launched in Penang as a pilot project. Currently the e-Tanah system has been launched without sufficient legal regulatory measures to regulate the implementation of a fully electronic system. DGLM must take over and constantly seek to develop efficient legal framework to accommodate and regulate the evolution of the present land administration system which is only partially electronic to a fully electronic system. It is proposed for the establishment of a National Centre for Developing and Maintaining of Electronic land administration system (MyeLAS) under DGLM to specifically focus on managing all aspects of electronic land administration system to ensure quality control. The centre can be called as MyeLAS. The center is established for purposes of developing a uniform electronic land administration system to be used in all the Peninsular Malaysian states. The present strategy adopted to develop the e-tanah system is not able to promote a uniform system in the States as the system is not developed and rolled out to the States as one single model. • Elevate Position of Department of Director General of Land and Mines to National Agency for Land Administration and Management 28
  29. 29. It is proposed for the elevation of the Department of Director General of Land and Mines (DGLM) to be an umbrella organization at the National level undertaking various functions in seeking to coordinate the land administration system for the benefit of the nation as a whole. It is proposed for the DGLM, to be focused in coordinating land administration functions between the Federal and State land administration agencies, formulating policy issues, and as secretariat for the National Land Council. In order to make DGLM to be more competitive in response to the global changes, it is proposed to be restructured and transformed. The functions of the DGLM need to be enhanced to ensure the functions stipulated in section 8 of the National Land Code will be effectively executed. Leadership and Management of the DGLM, State DGLM and State Department of Land and Mines must be equipped with sufficient skills in land administration and management matters to spearhead the functions of the DGLM and to assist the States in land administration. Capacity building of leaders involved in land administration system must be given utmost priority. Quality leaders will produce quality outcome and this will benefit the country immensely. The Malaysian land administration system is strategically handled at two levels of government that is the Federal and State. This requires effective coordination between the two levels of government so as to promote an effective and efficient land administration services throughout the country. This requires skilled leadership. A leader proposed to be appointed to spearhead DGLM is assuming an important task as he has to assume multi-faceted roles, inter alia, as an advisor, a negotiator, resolving disputes, marketing and promotion, consultant and any other roles as the circumstances render necessary. It is proposed for the DGLM leadership to be appointed from an experienced member of the government or corporate sector who has established track record in managing business sectors and making administrative reforms. The leader must be given necessary resources such as efficient group of staff (chosen from various sections in land administration who has good track record in terms of performance). Ensure the DGLM assumes an important role in coordinating land administration at Federal and the State Departments to focus on developing efficient land administration system at State levels. There is a need for building the organizational capacity in response to the global drivers of change in land administration. Leadership must be able to address policy issues, law and administration 29
  30. 30. The followings are some important functions that can be assigned to the DGLM: i. Review of the Legal and Institutional Framework for Land Administration The legal and institutional framework must be able to meet the changing needs of the society and global community. Thus, the law must constantly be reviewed to identify the necessary changes. The DGLM can undertake the task of reviewing the National Land Code and other laws relating to land administration for the benefits of the entire nation and States. Constant review of the legal and institutional framework for land administration to propose improvements and enhance the system to make the Malaysian land administration system globally competitive and able to evolve with the developmental policies taking into consideration the economical, social, cultural and political aspects. ii. Improve Procedures in Land Administration to Enhance Service Delivery Processes and procedures prescribed in the National Land Code and the State Land Rules requires constant review to ensure the irrelevant and obsolete procedures are removed. DGLM can assume an important role in spearheading research and development in enhancing the land administration system by simplifying the procedures and processes involved. To identify the technical and procedural issues that hampers efficient service delivery and propose simplification towards creating a user friendly system. These can improve the delivery system as well as reduce costs and expenses and promote efficient growth in property transaction within the country. iii. Advisor to Federal and State Governments on Land Policy, Law and Administration Matters DGLM can assume an important role in research and development and providing the Federal and State Government advise on aspects relating to formulation of land policies, law and administration, taking into consideration the social, economic, cultural and political aspect of land administration prevalent as well as meeting global needs. This requires constant research to be carried out to identify the developments within the country and globally. This requires DGLM to carry out capacity building of the department and personnels for purposes of assuming advisory functions to the Federal and State Governments. 30
  31. 31. iv. Establish Think Tank for Land Administration and Management at Federal Level In developing legislation, and procedures for land administration, a think tank is to be established for carrying out research and development for purposes of formulating policies, conduct research with Institutions of Higher learning, publish research findings in a specialized journal on land administration for disseminating useful information for the Federal and State officials, researchers, public and also the global community seeking to study the Malaysian system. This would be useful for enhancement of the land administration delivery services. DGLM must assume a lead role in professing the use of electronic registration of titles system providing for integrating information to link cadastral data, identity information, court orders, local authority development plans, and details of property valuation. Besides that DGLM must assist the States in ensuring the security of the electronic Register under the e-Tanah system will be able to be at par with the international security standards. The DGLM must also assume an important role in promoting capacity building to enhance the land administration services so as to be globally competitive and able to meet the changing needs of land administration system. v. Capacity building of land administration Organisation and staff All organizations need to continuously develop and improve if they are to meet, and continue to meet, the needs of their customers and stakeholders. Capacity building is defined as “the development of knowledge, skills and attitudes in individuals and groups of people relevant in the design, development and maintenance of institutional and operational infrastructures and processes that are locally meaningful”. 22 In the land administration field, there are many examples of under-resourced organizations unable to respond effectively to stakeholder requirements, thereby leading to a lack of access to official surveys and land titling (leading to unofficial mechanisms being used, or a total breakdown in efficient land titling). There is a need to provide appropriate assistance to enable the necessary capacity to be built and sustained by such organizations (once the need for such capacity has been accepted by the funding bodies), given the key role of their operations in underpinning national development. A range of methods 22 Enemark, S. and Van der Molen, P. (2003): Guidelines for Self-Assessment of Capacity Needs in Land Administration. Prepared for FAO, The Land Tenure Service of the Rural Development Department; Enemark, S. and Williamson, I. (2004): Capacity Building in Land Administration – A Conceptual Approach. Survey Review, Vol. 37, No 294, pp 639-650. 31
  32. 32. exist, including releasing internal resources for this work (if suitable resources exist), or external support. The land administration authorities in Malaysia must be prepared to identify the global developments and study the relevance of the concepts and principles that are suitable to be adopted in the context of the Malaysian system. VIII. CONCLUSION The case for reforming the institutions involved in land administration at the Federal and State levels to equip the land administration system to meet the global and technological evolution is imminent. The current functions of the Federal and State Authorities have been analysed in order to identify the changes that are necessary to be undertaken to transform both positions from a passive role to proactive to be an impetus for the improvement and enhancement of land administration in Malaysia to meet the global challenges. The National Land Council, as explained earlier, is a forum where the Federal and State Authorities could have a consensus over important aspects in land administration. Without discussion, consultation and cooperation between the Federal and State Authorities, it is not possible to have an integrated and holistic approach in creating a uniform and sustainable land administration system for the country. The States should also realise that, in terms of finance and expertise, the Federal Government is much ahead. In the interest of the people, it is only logical and prudent for the States to have the benefit accrued from cooperating with Federal authorities. It should be reiterated that the National Land Council must be given powers to ensure that public safety and interest are not jeopardised by incompetence and lax attitude towards land use and development. This will not contradict the idea of federalism. The reform proposed seeks to establish, among others, a more effective mechanism to deal with the ever-increasing problems and predicament relating to land administration. The empowerment of the National Land Council, elevating position of DGLM as a national agency and the establishment of My-ELAS must not be viewed as a mechanism to transgress the division of power, usurp or undermine State autonomy. The underlying philosophy of the proposal to empower the National Land Council is aimed at promoting consensus, consultation, coordination and cooperation, which form the essential 32
  33. 33. elements of a dynamic federalism. There are many factors causing variations in the implementation of the federal principle in different countries. New forms and adaptations are bound to result when new ways of applying federal ideas are applied in new emerging situations. This is where the principle of coordinative governments could be implemented in a federal system through a whole range of institutional arrangements suitable to different conditions and is The National Land Council is a forum where the Federal and State Authorities could have a consensus over important aspects in land administration. Without discussion, consultation and cooperation between the Federal and State Authorities, it is not possible to have an integrated and holistic approach in land administration. The States should realise that, in terms of finance, knowledge and expertise, the Federal Government is much advanced. In the interest of the citizenry, it is only logical and prudent for the States to have the benefit accrued from cooperating with Federal authorities. 33

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