5 Things About The Right to Property

1. Guaranteed under the Federal Constitution

Article 13(1) of the Federal Constitution provides the following:

“No person shall be deprived of property save in accordance with law.”

In Superintendent of Land and Survey Department Kuching-Divisional Office & Anor v Ratnawati bt Hasbi Mohamad Suleiman [2020] 2 MLJ 553, the Federal Court affirmed that:

“… no one, not even this court in this regard can dispute that right to property is guaranteed by and firmly entrenched in the Federal Constitution.”[1]

The Federal Court in Bungsar Hill Holdings Sdn Bhd v Damansara Realty Bhd [2019] MLJU 222 shared a similar view when it held:

“A person’s right to property is protected and entrenched in Article 13 of the Federal Constitution …”[2]

2. Is not an absolute right

A person can be deprived of his/her property in accordance with law [see Article 13(1) of the Federal Constitution]

Zainun Ali FCJ in the seminal case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 (“Semenyih Jaya”) observed that:

“[The right to acquire, hold and enjoy property] is not an absolute right since ownership of property is subject to what is provided for in the Federal Constitution.”[3]

3. Property can be compulsorily acquired/used

Implied from the wording of Article 13(2) of the Federal Constitution which provides:

“No law shall provide for the compulsory acquisition or use of property without adequate compensation.”

The Federal Court in Semenyih Jaya also pointed out the following:

“One’s property can be acquired by the state.”[4]

The Land Acquisition Act 1960 is an Act of Parliament which allows the state authority to compulsorily acquire property.

4. Can only be taken away if it is the clear effect of a statute

The Federal Court in Tenaga Nasional Bhd v Bukit Lenang Development Sdn Bhd [2019] 1 MLJ 1 relied on the UK House of Lords decision in R v Secretary of State for the Home Department, ex parte Simms and another [1999] 3 All ER 400; [2000] 2 AC 115 and held:

“A person cannot have his right to property taken away unless that is the clear effect of a statute.”[5]

5. Statutes which deprive a person of the right must be strictly interpreted in favour of the person

In Ee Chong Pang & Ors v The Land Administrator of the District of Alor Gajah & Anor [2013] 2 MLJ 16, the Federal Court opined that:

“The Land Acquisition Act is a legislation that empowers a state authority to deprive a person of his property. As such, we are of the view that the provisions of the Act must be strictly interpreted in favour of the person who is to be deprived of his property so as to give meaning to the constitutional protection of a person’s right to his property (see Ismail bin Bakar & Ors v Director of Lands and Mines, Kedah Darul Aman [2011] 5 MLJ 197; [2010] 9 CLJ 810).”[6]