by Ganesh Sahathevan
Sultan Sharafuddin Idris Shah Alhaj Ibni Almarhum Sultan Salahuddin Abdul Aziz Shah Alhaj may well be the rightful owner of the temple land Anwar Ibrahim says construction of Madani Mosque a ‘victory’ of wisdom and strength, but for whom
The Dewi Pathra Kaliamman temple is said to have been located on the site in question since 1893, when Kuala Lumpur was already a thriving, commercial settlement.
There was already at that time, a system of (land) title by registration:.
In the words of Richard Wu, Associate Professor Of Law , University Of Hong Kong:
After the British occupation, common law and equity principles were introduced into the Federated Malay States ('FMS') as the new sources of land law, in addition to the local customary land tenure (Maidin, 2008). Moreover, the laws governing lands in these FMS were characterised by the Torrens system, instead of Islamic land law.13 This marked the beginning of a new regime of the registration of title law akin to the Torrens system in Australia on the basis of the Real Property Act 1857 of South Australia. The four states of Perak, Selangor, Negeri Sembilan and Pahang, which later became the Federated Malay States were the first to enact laws introducing Torrens title for use in a Malaysia setting (Sood and Tee, 2008). The registration of title system was first introduced in Perak by way of the General Land Regulations 1879; in Selangor by way of the General Land Regulations 1882, in Negeri Sembilan by way of the General Land Regulations 1887 and in Pahang by way of the General Land Regulations 1889 (Sood and Tee, 2008). By 1911, a unified Federated Malay States land enactment was passed. Currently, the main registration of title statute in Malaysia is the National Land Code ('NLC'). According to Suriyadi J in the case of Sime Bank Bhd v Mohd Hassan bin Sulaiman:14 the National Land Code 1965 was made effective from 1 January 1966 whereby thenceforth a uniform system of land tenure and dealing existed throughout Peninsular Malaysia. Penang and Malacca were also absorbed into the system by the promulgation of the National Land Code (Penang and Malacca Titles) 1963, effective also on 1 January 1966.
The Temple sits of prime land, which has almost always been prime land. It is likely to have been alienated and registered a very long time ago, long before the DBKL came into existence in the 1970s, after the then Sultan Of Selangor , Sultan Abdul aziz Shah, surrendered Kuala Lumpur to the Federal Government in 1974.. There is therefore the likelihood that DBKL never had any title to the land, and never had anything with regards the land in question that it could have sold to Jakel.
The fact that Kuala Lumpur was part of Selangor before it became Federal Territory also raises an intriguing question as to whether the land could possibly still belong to the Sultan Of Selangor, now Sultan Sarafuddin . Wu reminds us:
Before the introduction of Torrens system to Malaysia, the rights over land allegedly belonged to the Sultans but the people were given the liberty to occupy and use it. Sir Benson Maxwell CJ in Sahrip v Mitchell & Anor summarised the legal position by stating that: 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 waste land, subject to the payment, to the sovereign, of one-tenth of the produce of the land so taken ... If he abandoned the paddy land or fruit trees for more than three years, his right ceased and the land reverted to the sovereign.
If the people of the time were granted the right to build and pray on the land in question in 1893 by the then Sultan Of Selangor, Sultan Abdul Samad Shah, and given that the temple can no longer exist on that land, does it not now follow that all rights and interests, including monetary interests that flow from that land, must flow to the Sultan, and no one else? Does it not then follow that DBKL, Jakel and all others involved are guilty of stealing from the Sultan?
Readers are reminded that the Sultan surrendered sovereignty, and not necessarily ownership of his land in 1974. To illustrate, see for example how the Sultan Of Johor remans an owner of large tracts of land in Singapore, even after his predecessors surrendered sovereignty to Queen Victoria in 1819.
