Malaysia's System of Conditional Land Titles as a Potential Policy Instrument

Abstract

Conflict between government policy and constitutional property rights is as old as constitutions. With increasing frequency however, developing countries are today seeking ways to avoid that conflict by discarding or at least restricting constitutional rights. This has been especially true of those nations facing very severe economic pressures. But there are indications that even Malaysia, which enjoys a relatively sunny economic climate, may be about to seek the same solution, albeit in a subtle way. For a number of developing countries, including Malaysia, there is irony in the fact that such conflict exists at all. While verbal genuflections are still occasionally made to Sir Edward Coke's famous description of a man's home, the current Common Law rule was depicted, with probably more accuracy, by a judge in the tiny New Zealand colony of Western Samoa as long ago as 1940. He found it funny that anyone should mention fundamental property rights: I think it will clear the ground if I deal first with what may be termed obiter dicta of counsel in regard to the inherent rights of private property and the Bill of Rights. The question has been ably discussed by Mr. A.P. Herbert in his Misleading Cases and these, although not authoritative, set out most clearly and ably the leading principles of the law and Mr. Herbert concludes that any individual rights which may have resulted from the Bill of Rights have long since disappeared