1

Influence of Islamic Law in the Early Malay Land Tenure System

By
Ainul Jaria Bt. Maidin

Paper presented at the “International Conference on Contemporary Issues of Law, Syariah and
Legal Research and Education in Malaysia and Jordan”

Jointly organized by Ahmad Ibrahim Kulliyyah of Laws, International Islamic University

Malaysia, and Faculty of Law and Faculty of Syariah, University of Jordan, Amman, Jordan 13th
and 14th December, 2008

Abstract
This paper seeks to explore the assimilation of the principles of Islamic law in the early Malay
Land Tenure System. The early Malay Land Tenure system is often said to be a fusion of
customary (adat) and Islamic law. However, the advent of colonialism, and introduction
imposition of their laws, witnessed the erosion of the existing laws just to make space for the
development of the colonial legal system. This article seeks to present the characteristics of the
customary law and how infusion of the principles of Islamic law was possible. The article will
also briefly set out the apparent reasons that contributed to the erosion of Islamic law from the
Malay land tenure system

Introduction
A study of the development of the law of real property (land law) in Malaysia can be traced to the
legal development in the country during the period before Independence (Merdeka). Before the
introduction of the Torrens system of acquisition of title or ownership to land by way of
registration in Malaysia, the land tenure system prevailing was customary in nature. However, in
order to properly understand the nature of the development of the system of acquiring title by way
of registration in Malaysia it is important to know the general structure of the early Malay states
viz. the political history and land tenure system that was practised then. This is crucial as the
Torrens System was not introduced simultaneously in all Malay states (Federated or Unfederated)
but rather was a product of gradual development. (as and when the need arises). Before achieving
independence in 1957 and during the British occupation, Malaya or Tanah Melayu comprised of
the following entities:
a) The Straits Settlements comprised of Singapore Island (with Christmas island and Cocos-
Keeling group), Penang Island (with Province Wellesley) and the state of Malacca.
b) The Federated Malay States comprised of the states of Perak, Selangor, Negeri Sembilan
and Pahang.
c) The Unfederated Malay States comprised of the states Johore, Kedah, Perlis, Kelantan
and Trengganu.

Each one of these entities used to possess its’ distinctive features of land tenure systems
prevailing within its territories. Before 1400, the concept of ‘one who fells the trees own the land’
was practised in Malaya. The nature of the custom was that any person may clear any portion of
waste land and occupy it by utilisation and would be regarded as owner, provided he continued to
cultivate it and in addition gave one-tenth of the produce to the Sultan or to the State Authority
whoever is appropriate. This system is infact still existing amongst the ‘Orang Asal’ or natives in
Malaysia. With the coming of Islam to Malacca, the rules of Islamic law relating to land tenure
had regulated the affairs dealing with the land of the Malays over the centuries between the
period of 1400 and 1786 (i.e. since the coming of Islam to Malaya.1). However, the practice of the

1
When the Malacca Sultanate embraced the Islamic religion.
 2

local customs of the people related to land tenure were continued. The Western legal historians
referred customary law or customary land tenure as a harmonious blend of Islamic law and local
custom. Hence, it became the integral part of the Malay way of life commonly referred to as the
“Adat” Roland Braddell,2 a well known legal historian said that:

“By this customary tenure, the natives were entitled to take up waste land where
they chose and to cultivate it temporarily or permanently on the condition that as
long as it was cultivated, one tenth of its produce was payable to the state and the
abandonment for more than a certain period operated as a forfeiture.”

Land tenure system prevailing in Malacca at the time of arrival of the British colonialist was that
land belongs to the Ruler who has the discretion to grant the right of possession only and not
ownership of the land to the people.3 However, such right of possession includes the right of
succession, sale, waqf etc. alienation of land was subject to two important conditions:
1. payment of one tenth of produce (tithe) to the Ruler;
2. the land must be cultivated.

If these two conditions are not fulfilled, ownership of the land will revert to the State or Ruler
(whichever is appropriate). The system of land tenure prevailing in the Peninsular Malayan States
then reflects the concept of land ownership in Islam, where land belongs to Allah and the State is
entrusted with the duty of ensuring that the alienated land will remain in cultivation for the
benefit of the Ummah in general. The court in a few cases had upheld that Islamic law was the
law of the land (Malaya). In Ramah v Laton, (1927) 6 FMSLR 128, it was established that Islamic
law is the law of the land and the local courts should take judicial notice.

McLaughlin4 defines land tenure as "rights, responsibilities and restraints that individuals and
groups of individuals have with respect to land".

Acquaye,5 suggests that customary land tenure "does not lend itself easily to precise definition"
for two main reasons. First, "it can never be of universal application because it varies between
communities". Second, "it is constantly undergoing natural evolution, and [is] being modified or
even completely changed by the grafting on of foreign legal concepts".

A report prepared for the United Nations (UN) defined customary land tenure as:

“The rights to use or dispose of use-rights over land which rest neither on
the exercise of brute force, nor on evidence of rights guaranteed by
government statute, but on the fact that they are recognized as legitimate by
the community, the rules governing the acquisition and transmission of

2
Roland Braddell, The Law of the Straits Settlement A Commentary, (Oxford University Press, 1982), p.54.
This system is commonly known as “Ihya Al Mawat” under the Islamic concept of land ownership where a
person is entitled to take claim possession of abandoned land upon cultivating it.
3
Judith Sihombing, National Land Code, A Commentary (2 nd. ed.), Chapter generally.
4
McLaughlin, J. 1981. Notes and materials for cadastral studies. Fredericton, NB, Canada, Department of
Surveying Engineering, University of New Brunswick.
5
Acquaye, E. 1984. Principle and issues. In E. Acquaye & R. Crocombe, eds. Land tenure and rural
productivity in the Pacific Islands, p. 11-25. Suva, Fiji, University of the South Pacific.
 3

these rights being usually explicit and generally known though not
normally recorded in writing.” 6

A custom (also called a tradition) is any thing which lots of people do, and have done for a long
time. Usually, the people come from the same country, culture, time or religion. If something is
usually done the same way, you might say that is the "customary way" of doing things. 7 The
meaning of culture is similar to the meaning of custom. A custom is more about practices, while
culture is more about ideas or a group of customs. A custom overall is just similar to culture and
culture means the way of life of a people.8

Worley J. in Low Bee Hoe (w) v Morsalim and Goh Tien Lim v Lee Ang Chin9 cited the Indian
case of Harpushad v Sheo Dyal (1876) LR 3 IA 259 and accepted the Privy Council’s explanation
of the meaning of custom as:

“a rule which in a particular family or in a particular district has from long usage
obtained the force of law. It must be ancient, certain and reasonable and being in
derogation of the general rules of law must be construed strictly.” It must be
proved as a fact and in the case above cited their Lordships said, “A judge cannot
without giving evidence as a witness import into a case his own knowledge of
particular facts.”

In Haji Saemah v Haji Sulaiman, Horne J.10

“There is a wealth of authority as to how a custom must be established and the

effect of those authorities is concisely stated in the ninth edition of Law of
Evidence (Woodroffe and Ameer Ali) p.175: “Custom as used in the sense of a
rule which in a particular district, class, or family has from long usage obtained
the force of law must be ancient, continued, unaltered, uninterrupted, uniform,
constant, peaceable and acquiesced in reasonable, certain and definite,
compulsory and not optional to every person to follow or not. The acts required
for the establishment of customary law must have been performed with the
consciousness that they spring from a legal necessity… .”

Therefore, the meaning of custom can be simplified to mean, a rule which in a particular family
or in a particular district has from long usage obtained the force of law. It must be ancient, certain
and reasonable and being in derogation of the general rules of law must be construed strictly. The
custom practiced by a particular group of people in a particular district may govern various parts
of their lives. This custom is also passed on throughout the generation and is strongly adhered to
by the group of people in that particular district. There are two types of adat or customary law in
the Peninsular Malayan states namely adat perpateh and adat temenggong in practise.”

6
Noronha, R. & Lethem, F.J. 1983. Traditional land tenures and land use systems in the design of
agricultural projects. Washington, DC, World Bank at p.7
7
From Wikipedia Internet Edition, at http://simple.wikipedia.org/wiki/Custom Accessed on 14th September
2007
8
ibid.
9
(1947) MLJ 3 at p.6
10
[1948] MLJ 108
 4

“Customary land” is thus given a limited meaning and applies to land with an endorsed title. The
endorsement of the words “customary land” upon the entry in or the extract from the Mukim
Register can be made in two cases:
(a) On proof that the land is occupied subject to the custom and that the
entry is in the name of a female member of the tribe. S.4(i);
(b) The tile of land alienated by the state to a female member of the tribe
may be so endorsed with her consent; that is to say, that her acquired property
may with her consent be ear-marked as ancestral without waiting for a devolution
S. 4(ii);

As such an endorsement is to be taken as ‘conclusive proof” that the land in question “is
occupied subject to the custom”, this latter phrase must be taken as a meaning ancestral
land. If acquired land is to be under the description “occupied subject to custom” then the
acquired land of a female registered proprietor could be endorsed under S.4(1), while yet
under S.4(ii) when she acquires it from the state it can only be endorsed as at her option.
Again the expression “customary land” used in S.176 of Cap 8 must I think also be
construed as ancestral land. For otherwise that section will not fit in with Cap 215.”

In the case of Haji Hussin Bin Haji Matsom vMaheran Binti Haji Hokamed Tahir 11 as per Horne
J, where it was held that;

“Customary land is land the title to which has been endorsed “Customary land”
and that the expression “customary land” meant land which was ancestral
property (harta pesaka) as opposed to land which acquired property (harta
charian).”

Dealings with the tribal lands were restricted, for instance there were certain restrictions on sale,
in that certain land can only be held by females and if the sale of the property was permitted, then
the tribe had to have the first option to purchase. However, in the event of default in exercising
this option, the land could only be sold to an outsider with the consent of the tribe. Once land was
sold outside the tribe it is no longer tribal land. This customary land was governed by the Malacca
Customary Law Ordinance.

Initially, the early Malay inhabitants practiced shifting cultivation whereby whosoever cultivates
the land will own it and in the event if he decides to quit cultivation and abandon the land, his
rights over the land will be extinguished. The Hindu influence brought about the allegiance to the
Hindu Kings and the system of tithes and forced labour as service to the Hindu Kings. This
system linked closely to the shifting cultivation, which was in practice earlier. The coming of
Islam to the South East Asia since the 13th century and reached the shores of Malaya in the 14th
century caused the Rulers and their subjects to embrace the religion of Islam. Thus, came about
the assimilation of Islamic law principles with the existing local custom of the people modified in
order to make them conform to Islam, which is called the Malay customary land tenure system.

Tan Sri Dato Prof. Emeritus Ahmad Ibrahim observed as follows:12

“ … Muslim law … absorbed such parts of the Malay Customary Law as were
compatible with Islam. We may therefore also call it Malay Adat … Muslim law

11
[1946] MLJ 116 at 117
12
Ahmad Ibrahim and Ahliemah Joned, The Malaysian Legal System (Kuala Lumpur: Dewan Bahasa dan
Pustaka, 1987) at p.52.
 5

is the law of the land, of which the Court must take judicial notice but the
Muslim law which is followed and applied is … the Muslim law as varied by
Malay custom”

Sir Maxwell in the Malay Digests at p.121 aptly described the Malay customary land tenure as:

“ … the Malay cultivator can transfer only the interest in the land which he
himself possesses; that interest … is merely a permanent and inheritable right of
occupation, conditional on the continuous occupation of the land on the payment
of tenths and taxes, and on the rendering of certain customary services; and …
the price to be paid has no reference to the value of the land itself … but is
calculated if garden land, by estimating the value of the fruit trees, or, if padi [i.e.
rice-fields] land, by assessing at a reasonable sum the probable, value of the
labour bestowed by the first cultivator in clearing the forest and bringing the filed
into cultivation.”

The matters related to succession of land were decided in accordance with the Shari’ah or
Muslim law as modified by the local adat (Malay Custom) of the people. Therefore, when the
British first occupied the Malay states with the exception of the state of Penang the land tenure
system, which was in force was the Malay Customary Land Tenure system.

The Federated Malay States consisted of the four states of Perak, Selangor, Negeri Sembilan and
Pahang and was joined as a Federation in 1895. The British intervention in the four states came
about with the Treaty of Pangkor in 1874. This introduced the British Resident system where a
British officer known as the Resident is appointed for the states respectively. The advise of the
Resident must be sought and adhered to in all matters except for those matters related to Malay
custom or adat. The Courts have recognised that the Malay Customary Land Tenure was the law
of the land when the British came. In the case of Shaik Abdul Latif & Ors. v Shaik Elias Bux
(1915) 1 FMSLR 204 Edmonds JC said that:

"… the only law at that time applicable to the Malays was the Mohamedan law
modified by custom."

In Tengku Jaafar & Anor v the State of Pahang [1987] 2 MLJ 74 Salleh Abbas LP said that:

"There can be no doubt that before the British intervention, the Sultan was an
absolute ruler of his State in whom powers to make laws and to govern the State
were vested, and there he exercised these powers presumably after advise of or
more appropriately, consultation with his Orang-orang Besar (Ministers), was
sought or held. After the British intervention, however he still remained an
absolute ruler but was required to administer the State with the advice of a British
Resident."

British intervention brought about the application of English common law and equity principles
into the FMS despite there being in existence the local customary land tenure.

According to the British also there were no formal land law in the state of Penang at the time the
East India Company occupied the states. In Ong Cheng Neo v Yeap Cheah Neo (1872) Kyshe
326, the Privy Council was of the view that;
 6

“In either view, the law of England must be taken to be the governing law, so far
as it is applicable to the circumstances of the place court held that the island was
wholly uninhabited when the British arrived, thus the English law should be
applicable.“

Thus, in 1839, the Straits Land Act was enacted and a land office was established. The
establishment of the land office brought about the issuance of written grants to those who
occupied virgin lands during the British occupation. In addition to those grants, land in
Penang was also held upon "Measurement Papers" and "Cutting Papers."

Malacca had enjoyed a long and illustrious history, which began from the time it was founded by
Parameswara and developed under the rule of the Muslim Sultans. However, with the arrival of
the Portuguese in the 15th century (from 1511 to 1641) followed by the Dutch in the 16th and 17th
centuries,13 and finally it fell under the British rule who took over Malacca from the Dutch
pursuant to the Anglo Dutch Treaty of 1824 in return for handing over Bencoolen to the Dutch.
During the Japanese invasion, Malacca was under the Japanese occupation from 1941-1945. This
diminished the glorious period of the Malacca Sultanate.

The early land tenure system prevailing in the state of Malacca was the Malay customary tenure,
which remained unchanged in any way either by Portuguese or the Dutch colonial masters.14
Historical records show that Malay customary tenure and principles of law were contained in
some of the Malacca state laws of the time as in the Malacca laws of 1523 and also as provided in
the Malay Annals and the Malacca digests.15 It is also important to note that in some areas in
Malacca, the land tenure system was subject to the Adat Perpateh, which is followed by a number
of the inhabitants of Malacca, which is also known as Adat Naning. The tenure under the Adat
Perpateh differs from the land tenure described in the Malay Annals and Digests.

The basic principles of the Malay customary land tenure apart from the Adat Perpateh recognised
the concept that all land belongs to the Ruler. Proprietary right is created by clearing “dead land”
by way of cultivation or building a house on the land and thus causes the dead land to “live.”
Such right is absolute so long as it is followed by the continuous occupation or the land bears
signs of appropriation. This concept was accorded judicial recognition in Abdul Latif v Mohamed
Meera Lebe (1829) 4 Kyshe 249 Court of Judicature of Prince of Wales Island Singapore and
Malacca where Claridge R, said:

“There are two kinds of land, first the ‘living land’ and second, the ‘dead land.’
With regard to ‘dead land’ nobody has property rights to it, (when) there is no
sign of it being under cultivation by someone, (then) certainly nobody can lay a
claim to that land. If someone cultivates it into a (rice field, be it) a huma or
ladang or sawah or bendang, no one can proceed against him. Thai is what is
understood by ‘living land’.”

In the same case, it was further held that:

13
from 1641-1795, and later from 1818 to 1824 for another period of 160 years)
14
Maxwell, WE., The Law and Customs of the Malays with Reference to the Tenure of Land, (1884) 13
JMBRAS, p.148.
15
Ahmad Ibrahim, Towards a History of Law in Malaysia and Singapore, Singapore Malayan Law Journal
(1970) p.7.
 7

“The custom in Malacca for a cultivator of land to pay a tenth of the produce to
the proprietor of the land in lieu or rent – and as long as the cultivator does so he
cannot be ejected – it is good and reasonable custom, and one the court will
recognise and uphold.”

However, such right or “private ownership” of land was nothing more than a right of occupation,
although it was capable of being inherited. The occupier was required to pay a tithe in the form of
one-tenth of the harvest or the income derived from the land, regularly and without fail, to the
Ruler. He also had to ensure that the land remained in constant cultivation and in default of which
the land would be subject to forfeiture by the Ruler.16 He also has to ensure that the land remained
in constant cultivation, in default of which the Ruler will forfeit the land. Sir Benson Maxwell CJ
in delivering his decision, in the case of Sahrip v Mitchell & Anor (1879) Leic 466, upheld this
custom:

“It is well known that by the old Malay law or custom of Malacca, while the
sovereign was the owner of the soil, every man had nevertheless the right to clear
and occupy all forest and wasted land, subject to the payment, to the sovereign,
of one tenth of the produce of the land so taken. The trees he planted, the houses
he built, were his property, which he could sell or mortgage or hand down to his
children. If he abandoned the paddy land or fruit trees for three years, his rights
ceased and the land reverted to the sovereign. If, without deserting the land he
left it uncultivated longer than usual or necessary, he was liable to ejectment.”
Despite the occupier having to face such restrictions, at the same time he had been vested with
certain proprietary incidents, which allows him to deal with the land especially to create a charge
or assignment. There were certain dealings with the land that was duly recognised by the Malay
customary land tenure system as follows:17

1. The nature of ownership of land is not absolute ownership as provided in the National
Land Code 1965 but of a lesser extent known as “proprietary rights” where the right of
ownership extends only to the right to utilise the soil;
2. The land is acquired by clearing and cultivating virgin jungle land or wasteland;
3. The occupier is under the obligation to pay one tenth of the produce from the land to the
Ruler as tax;
4. The occupier must maintain the land under continuous cultivation or occupation;
5. The practice of sale of land known as “Pulang Belanja” is to reflect the total amount of
the seller’s labour and out of pocket expenses incurred in cultivating and developing the
land;
6. Letting (sewa) which is an arrangement whereby a cultivator allows another person to
cultivate his land for the return of a share in the produced crops for a rent in kind or
money;
7. Security Transactions (Gadai) which were in two main forms:
(a) One form is commonly known as Jual Janji or Conditional Sale transaction
whereby a person who is in need of money will sell his proprietary rights in the land to a
purchaser to whom the land will be transferred. The transfer or sale is executed subject to
the condition that if Purchaser will re-transfer the land back to the seller when the seller
repays the sale amount within the agreed duration. In the event, the Seller is unable to

16
Maxwell at p.92
17
Maxwell at op cit note 2 at p.121. Refer also David SY Wong, Tenure and Land Dealing in the Malay
States, Singapore: Singapore University Press, 1975 at p.11.
 8

repay the sale amount within the agreed duration the transaction will be Jual Putus or
outright sale.
(b) The other form of security transaction is the practise where a cultivator of land
makes himself a tenant of the creditor for the consideration of a loan given by the latter to
the former. The creditor is entitled to a share of the crops produced by the borrower as
payment of “interest” for the loan.

Accroding to Salleh Buang,18 many scholars failed to see that the customary traits of land tenure
actually reflected Islamic principles. He itemized the followings in support of his claims:
a. the nature of ‘proprietary right’ reflects the Islamic principle of ownership of property. In
Islam, all things belong to Allah absolutely whilst mans’ ownership in the property is
dependant upon his ability to utilise it for the general benefit of the ummah as stipulated
in Surah Al-Dzariat aya 19 (51:19)
b. the method of acquisition as described in Sahrip v Mitchell reflected the principle of Ihya
Al Mawat which had been practiced since the time of the prophet.19
c. The obligation to pay one-tenths of the produce from the land to the Ruler conforms to
the duty to pay ushr’ in Islam.20
d. The need to constantly cultivate the land conforms to the Islamic principles of avoiding
wastage. The case of Bilal, who was given land by Prophet, but taken away by the Calpih
as it was not cultivated.21
e. The principle of pulang belanja is in compliance with the Islamic principles that man
does not own the land but is merely given the privilege to utilise it as long as he could do
so and able to benefit the public.
f. The customary security transaction of jual jani corresponds to the concept of bai’ bil
wafa’ which has been accepted by the Hanafi school.22

Principles of Islamic Land Adminsitration

The Quran is the primary source for Islamic values.2 Muslims believe that it is the exact word of
Allah revealed to the Prophet Muhammad (pbuh) through the Angel Gabriel. While the Quran
does contain some specific prescriptions that rank as legal, primarily it establishes a general set of
moral guidelines – a compass for Muslims to use in following an Islamic way of life. The Quran
says of itself that "Here is a plain statement to men,3 a guidance and instruction to those who fear
Allah."4

The sunnah reflects what the Prophet said, did, or tacitly approved. In Islam, following the
example of the Prophet is given such importance because the Quran instructs Muslims to follow
him: for example, "O ye who believe! obey Allah and obey the Apostle."5 For Muslims, the
Prophet was the perfect human role model and leader, and the society he built around him is the
model for a caring, equitable society. The degree of importance attached to the Prophet in Islam

18
Salleh Buang, Malaysian Torrens System, Dewan Bahasa dan Pustaka 2001, at p.5
19
Sunan Abu Dawud 1984, Translation by Ahmad Hassan, Lahore Vol. II p.874
20
Abu Yusuf, Kitab Al Kharaj (Taxation In Islam) Vol. III by Ben Shemesh, pp. 78-83
21
Afzalur Rahman, Economic Doctrines of Islam, Lahore, Islamic Publications, Vol. II, 1980, p.155
22
The Mejelle, Law Publishing Company, Lahore, Article 118, The Hedaya (English translation by
Hamilton) Premier Book House, Lahore, p.529
 9

may not find parallel in some other religions. If the Quran is a compass for Muslims, the sunnah
is a more detailed map for the human journey on this earth.

Some of the sahaba, or companions of the Prophet (pbuh), memorized and wrote down what the
Prophet said or did. These documented narrations are called hadith, and they were later checked
for authenticity, based upon such factors as independent confirmation, soundness of the chain of
narration, credibility of narrators in the chain, and consistency with other hadith and the Quran. In
specific cases, known as hadith qudsi, Muslims believe that the Prophet's sayings are the
revelation of Allah expressed in the Prophet's own words. The science of hadith criticism
(mustalan al-hadith) practiced by Islamic scholars also includes the examination of context: that
is, is the hadith relevant only to the specific time and situation, or is it relevant to other cases? Of
the many collections of hadith, six are considered to be the most accurate and reliable: those of
Imam Al-Bukhari, Imam Muslim, Imam Al-Tirmidhi, Imam Malik, Imam Abu-Dawood, and
Imam Ibn Majah. We have relied in this publication on the collection of hadith in the Alim CD-
ROM for consistency and ease of follow-up research; occasionally we cite from the Hadith
Encyclopedia CD version.6

In addition to the Quran and the sunnah, ijtihad can be used to make rulings that address new
questions related to changing conditions. Essentially, ijtihad is the development of Sharia from
its sources (that is, the Quran and the sunnah). The five tools used to carry out ijtihad are qiyas
(analogy), ijma (unanimous agreement of jurists), istihsan (juristic preference), maslaha or
istislah (public interest or human welfare), and istishab (continuity or permanence). Although
some inquiry is indeed prohibited in Islam (bid'ah sayyi'ah), such as questioning key articles of
Islamic faith – for example, the oneness of God – there is an increasing need for multidisciplinary
creative inquiry into new problems and questions arising in today's dynamic society, following
the guidelines already established by the Quran and sunnah.

The Holy Qu’ran is silent on the aspect of land administration but has provided for the
distribution of property acquired through conquest (Ghanimah) and inheritance. Thus, land tenure
in Islam began with no administrative machinery; it therefore developed on a customary basis.
Land ownership as it exists in Islam was mostly determined by Muslim land laws, which
developed during the centuries following the Muslim conquest, largely on the basis of the
Byzantine concept of supreme ownership by the ruler of the state.

Land taxation practices developed according to the general examples given by the Prophet. The
population was divided into two categories: Muslims and non-Muslims or dhimmis. Muslims paid
a tax called usher (tenth or tithe), which varied between 5 and 10 per cent of the value of the
harvest according to whether the land was irrigated (either artificially or naturally) or not.
Dhimmis payed two different forms of taxes: the jizya and the kharaj, which soon became to
mean respectively "poll tax" as a tribute for protection and "land tax."

"Muslim community" is the expression that Muslim jurists use to designate the state, and "imam,"
originally the khalifa and later the sultan, to designate the qualified representative of the
community. Imams, as a matter of principle, never had any legal authority or power in classical
law to control the distribution of waters irrigating private land (miri property, with the owner
having the full right of disposal). Their authority, however, does extend to water attached to miri
property, that is, property in the collective ownership of the entire Muslim community.

The ultimate owner of miri property is the state, while the landowner has the status of a quasi-
owner. He may sell, let, mortgage, or give away ownership, but cannot bequeath it by will. In
 10

practice, the estate can be inherited by sons although this was not allowed in the beginning, but if
there are no heirs the property goes back to the state. The state has a right of supervision. The
theory that land given for the purpose of cultivation must be cultivated by the recipient or
occupant and that he must pay taxes is upheld. The validity of any transfer of such lands must be
certified by the state or its agents.

There are many different forms of collective ownership, the most important being: Mawat,
mewat, or mushaa; kharaj; and waqf.

Mawat, mewat, or mushaa are uncultivated "dead lands." They are considered as being in the
collective ownership of the Muslim community in Arabia, Iraq, Jordan, Lebanon, and Syria. This
form of land ownership allows the individual only a share in the possession of the land which is
owned collectively by the village or tribe; there is no individual right of ownership. A system of
rotation enables each person to receive a different share each year. Although the absolute power
of the khalifa to make land grants out of such idle tracts is recognized, either by granting
ownership of both the soil and the waters thereon or by allocating titles to water and land
separately, other concepts have been developed by the various schools of law. The Hanifi claim
that there cannot be private appropriation of land without cultivation, even with the permission of
the sovereign, and the Maliki claim that land can be owned privately with such permission
provided it is developed (Malik ben Anas 1911, 15:195).

Kharaj or conquered lands are cultivated and productive lands on which the kharaj or land tax is
levied, as is done on all conquered lands from which the sovereign has neither expelled nor
expropriated the inhabitants, whether or not they have converted to Islam. Being the property of
the Muslim community, these lands are administered by the khalifa. The owner, in principle, does
not hold full title to the property but only enjoys the usufruct from it. Muslim administrative
authorities were responsible for all questions dealing with waters on these lands.

Waqf is land owned by the state, the income from which constitutes state revenues, and is allotted
to pious foundations – mosques, cemeteries, fountains, schools, and so on.

Conclusion
The analysis of the Malay Customary Land Tenure clearly proves that it is very much in line with
the Islamic Land Tenure system. However, with its sad to say that the advent of colonial
administration has led to the abolishment of the Malay customary land tenure in Malacca towards
the end of the nineteenth century, three decades after the Third charter of Justice. In 1861, law
was passed by the English administration that all land shall be deemed to be vested in the Crown
in line with the English law of property. A recent UN-HABITAT commissioned study on Islamic
land tools finds that Islamic land law can be seen as an evolving, responsive and assimilating
sphere of competing ideologies and interests, though it is a site of struggle between conservatives
and liberals.23

23
M. Siraj SAIT, Islamic Land Law in Afghanistan: Innovative Land Tools & Strategies
Expert Group Meeting on Secure Land Tenure: 'New Legal Frameworks and Tools in Asia & Pacific'
UNESCAP, World Bank, UN-HABITAT, FIG at Bangkok, Thailand, December 8-9 2005, at p.1; M. Siraj
SAIT, Islamic Land Law in Afghanistan: Innovative Land Tools & Strategies
Expert Group Meeting on Secure Land Tenure: 'New Legal Frameworks and Tools in Asia & Pacific'
UNESCAP, World Bank, UN-HABITAT, FIG at Bangkok, Thailand, December 8-9 2005