By Majangkim Office
KOTA KINABALU: If the definition of “native” determines who may claim, a separate constitutional question determines who has the power to grant or withhold land in the first place.
Malaysia is a federation, and its Constitution divides legislative power between the Federal Parliament and the State Legislative Assemblies. This division is set out in the Ninth Schedule to the Federal Constitution, which contains several lists enumerating matters within federal, state, and concurrent jurisdiction.
List II of the Ninth Schedule—the State List—places “land” squarely within the jurisdiction of the states. This includes:
Land tenure
The relationship of landlord and tenant
Registration of titles and deeds
Compulsory acquisition of land
In plain terms, land matters are state matters. The Sabah State Legislative Assembly, not the Federal Parliament in Kuala Lumpur, has the power to make laws governing land in Sabah. The Sabah Land Ordinance (Cap. 68) is precisely such a law—a state enactment, not a federal one.
For the Borneo states, this allocation of power is reinforced by additional protections. List IIA of the Ninth Schedule provides matters specifically for the States of Sabah and Sarawak, including native law and customs.
This means that not only land, but the entire body of customary law governing native communities, falls within the exclusive legislative competence of the state.
Article 95D of the Federal Constitution provides a further safeguard: no Act of Parliament dealing with matters in the State List—including land—shall have effect in Sabah or Sarawak unless adopted by the State Legislative Assembly.
This provision reflects the unique position of the Borneo states as equal partners in the formation of Malaysia, not as mere additions to an existing federation.
As constitutional law expert Professor Shad Saleem Faruqi has written, the division of powers in the Ninth Schedule is fundamental to Malaysia’s federal structure, and the special position of Sabah and Sarawak under Article 95D ensures that their legislative autonomy cannot be overridden by federal laws without their consent.
As lawyer Yong Yit Jie of the Sabah Progressive Party recently wrote in the context of Sabah’s resource rights: “Sabah entered Malaysia as a founding partner, not on the basis that its control over land and natural resources could later be extinguished by implication. … Sabah does not seek special treatment. Sabah insists on constitutional respect.”
What does this mean for our hypothetical community? It means that the ultimate authority over their land rests with the Sabah government, not Putrajaya. The decision to approve KDCA’s application, to recognise or reject the community’s NCR claim, and to determine the process by which these matters are resolved, lies with the Sabah Lands and Surveys Department, acting under state law. The community’s fight is with their own state government, not a distant federal authority.
This is both a vulnerability and a strength. It is a vulnerability because the state government may be closer to developers and political interests. But it is a strength because the constitutional framework recognises Sabah’s autonomy—an autonomy that includes the power to protect native communities if the political will exists.
