Pemakaian Sistem Torrens dalam perundangan tanah Malaysia dan kesannya terhadap Iḥyā’ al-Mawāt

Abstract

Iḥyā’ al-mawāt is one of the methods to own certain land in Islam. Anyone who clears land and works on it has a right of ownership on the land. The method to own land by iḥyā’ al-mawāt is actually was practiced in Tanah Melayu before the British colonialisation. However, during the colonial period, they introduced a land system which is known as the Torrens system. The Torrens system is a system of land administration in which registration is very important to recognised land ownership and it is in contradiction to iḥyā’ al-mawāt. This principle was applied through the enforcement of the National Land Code. The question arises whether ihya’ al-mawāt can still be applied and recognised under the Malaysian land law. Therefore, the objectives of this paper are to discuss iḥyā’ al-mawāt and also to determine its place in the Malaysian land law. This paper which employs the content analysis method of court case and statute finds that iḥyā’ al-mawāt is not recognised under the Malaysian land law and further, it is an offence under section 425 of the National Land Code.