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Restrictions of Public Access to Beaches in Malaysia: The Legal Prescriptions, the

Justifications and Implications.


Ahmad Naim bin Zaid

Introduction
In Malaysia, private ownership of beaches is permitted by the law. The constitution of
Malaysia guarantees its citizen the rights of private ownership. Lands can be bought freely
without any restriction on the type of area the land belongs to on the geographical aspect. Private
lands are owned solely by the owner and trespassing is not allowed. Consequently, privately
owned beaches are not accessible by the public unless permitted by the owner. This is mostly the
case at resorts or hotels located near beaches where the area can be blocked from public access.
While this issue has sparked debates in many developed nations, the issue received little
attention in Malaysia due partly to the fact that many portions of coastal areas in the country are
still accessible to public and even the privately owned beaches are still accessible. Nevertheless,
it is a fact that private tourism interests normally obtain the best beaches and thus they are not
anymore public. The paper aims to discuss Malaysia laws in relation to public access to beaches,
the implications, the advantages and disadvantages of allowing private ownership of beaches and
its consequences on coastal area management.
Land Jurisdiction in Malaysia and Rights of Private Ownership of Beaches
A glance of the legislative list in the Ninth Schedule of the Constitution divulges that
land, agriculture, forestry, local government and turtles and riverine fishing are assigned to the
State List, but, town and country planning, rehabilitation of mining land, housing, drainage and
irrigation are placed under the concurrent list, meaning that, both the federal and state
governments shares jurisdiction over these matters. On the other hand, environmental related
matters appear in all parts of the legislative list of the Ninth Schedule. In other words land, land
related matters and its resources do not exclusively belong to the states. Moreover, the
Constitution in many instances allows federal intervention in land matters. In encouraging
diversity in its land law it also promotes uniformity of law and policy by permitting federal
intervention in land and land related matters. This federal intervention on grounds of achieving
uniformity of land law and policy however, is not applicable to the two states of East Malaysia
that is Sabah and Sarawak.
Malaysia has, on the national level, the National Land Code (enforced since 1966) as the
main reference on land laws. However, it cannot override land laws of individual states. The
implication is that the state government is the highest authority on land matters. Nonetheless,
there have been many instances of federal intervention on land related issues over the years,
giving an indication that the federal government can, to some extent, interfere with state
authority over land matters with the pretext of national interest. Individual land laws legislated
must not contradict enactments within the National Land Code. Any area that is not privately
owned is considered state land and it is considered as part of public domain where the public can
have unrestricted access unless prohibited by the state.
Land ownership is protected by the NLC1 and guaranteed by the Federal Constitution in
Article 13. Under the NLC, if a person is registered as owner of a piece of land, his title (or
interest) is “indefeasible.” Indefeasibility of title means that one’s ownership cannot be
“challenged or questioned,” unless the case falls under any one or more of the circumstances
mentioned in section 340(2) NLC - e.g. where there has been fraud, misrepresentation, or so on,
when ownership is acquired. Land cannot be compulsorily acquired or used by anyone (even by
the government) unless it has been acquired in accordance with the procedure laid down in the
law (the Land Acquisition Act 1960) and “adequate compensation” has been paid.
The lands owned by private entities are under private jurisdiction and the public must
obtain consent prior to access. The state have jurisdiction on land and 3 nautica miles (nm)
seawards from mean low water mark according to the Emergency Ordinance and thus any
private ownership of beaches extends from the beach land up to 3 nm of the territorial waters
(see Figure 1). It must be noted, however, that while beaches can be legally owned by private
entities in Malaysia, most of them still allow considerable access to the public.
While a private owner of a beach have the right to impede entrance into their property,
they cannot develop the area freely. Any building of structures must be in accordance to
Environmental Quality Act 1974 which obligates developers to conduct Environmental Impact
Assessment (EIA) prior to development of the area. This is due to the sensitive nature of beaches
in particular and the coastal areas in general. Any structure enlisted in Environmental Quality
Act, 1974 Environmental Quality (Prescribed Activities) (Environmental Impact Assessment)
Order 1987 must have EIA or Detailed EIA (DEIA) approved prior to its commencement.
All in all, there is no specific law regarding private ownership of beaches but there is
enough legal prescriptions indicating that beaches can be privately owned in Malaysia. However,
there are laws that prohibit excessive development activities on beaches with strict procedural
requirements as a prevention measures. Most beaches are still very much accessible for the
public but nonetheless, the existence of laws allowing private ownership which in turn grant
them the authority to prohibit access can result in less access in the future. This is very true in
developed nations where impediment of public access to beaches are already exercised by
private owners and are receiving opposition from various quarter of the public and the CSOs2.
Beaches are indeed a public domain and the public should have rights to access them.

1
National Land Code 1965
2
Civil Society Organizations or more commonly referred to as NGOs (Non-Government
Organizations)
Figure 1: Classification of jurisdiction of state and federal governments as well as international waters.
Consequences on ICZM
Allowing private ownership on beaches can make integrated coastal management more
complicated than it already is. The interconnected nature of coastal areas necessitate that all
areas to be managed as a whole. A private beach means that the authority must get consent from
owners prior to implementation of any policies within the area. To compulsorily acquire the land
can involve very complicated legal procedures and monitoring opportunities will be limited. The
beach is the most sensitive part of a coastal area due to its direct contact to the wave forces and
strong winds. It is also more exposed to the risk of storms and ocean related natural disasters like
the tsunami. Thus, this area are more suited to be a public domain owned by the state for it will
allow for more opportunities for monitoring and preserving activites by the state. It is a fact that
most beaches acquired are used for tourism and the ones that attract the tourists are normally the
most beautiful ones. As many evidences suggest, this has brought so much pollution to the
beaches and ultimately the sea, disrupting many other economic resources such as the fisheries
and polluting other areas that are not privately owned. Although the Environmental Quality Act
has its reservation for such events, the enforcement has been very poor and the punishment is not
severe enough to serve as a deterrent for irresponsible acts. This is the same for beaches open to
the public but the state can have monitoring authority on these lands. The wastes are also less
from open beaches compared to the ones utilized for tourism purposes by private enterprises.
Natural Landscapes of Beaches
A beach can be defined as the zone of unconsolidated material that extends from the
mean low water line to the place where there is a marked change in material or physiographic
form, or to the line of permanent vegetation (the effective limit of storm waves and storm surge),
i.e. to the coastline (see Figure 2). The beach or shore3 can be divided in the foreshore and the
backshore. The width and location of the shore (or beach) vary as wave conditions change and
erosion and sedimentation processes occur.

3
The term beach can be used interchangeably with shore
Figure 2: Coastal profile

The beach is very dynamic due to the fact that it is constantly affected by the waves.
Beaches often occur along coastal areas where wave or current action deposits and reworks
sediments. Beaches in Malaysia are dominated by natural landscapes of flat sandy beaches,
estuaries, bays and capes which are all shaped by wave forces (see Figure 3). All these
landscapes are very sensitive to changes and offers very high economic value. Any physical
structure that interferes with wave directions and forces can alter the natural landscape
significantly (the magnitude of the effect varies) and thus require careful planning. Vigilant
monitoring is also imperative as wave forces are a constant force in shaping the beach.

Figure 3: Common natural landscapes on Malaysian beaches


A buildup of sediment deposited by waves and longshore drift along the coast, shaping
various landscapes as illustrated in Figure 3. The upper limit is roughly the limit of high tides;
the lower of low tides. Beach material is very well sorted and the size range tends to be very
limited at any particular beach; pebble beaches usually have very little sand, and sand beaches
have little shingle. The size of the sediment determines the slope of a beach; shingle and pebble
beaches are steeper than sandy ones. Beach form is also related to the nature of waves (the
frequency, energy and direction).
The shape of a beach depends on whether or not the waves are constructive or
destructive, and whether the material is sand or shingle. Constructive waves move material up
the beach while destructive waves move the material down the beach. On sandy beaches, the
backwash of the waves removes material forming a gently sloping beach. On shingle beaches the
swash is dissipated because the large particle size allows percolation, so the backwash is not very
powerful, and the beach remains steep. Cusps and horns form where incoming waves divide,
depositing sand as horns and scouring out sand to form cusps. This forms the uneven face on
some sand shorelines.
Wild beaches are beaches which do not have lifeguards or trappings of modernity nearby,
such as resorts and hotels. They are sometimes called undeclared, undeveloped, undefined, or
undiscovered beaches. Wild beaches can be valued for their untouched beauty and preserved
nature. They are very rare these days in Malaysia. Due to intense use by the expanding human
population, beaches are often dumping grounds for waste and litter, necessitating the use of
beach cleaners and other cleanup projects. More significantly, many beaches are a discharge
zone for untreated sewage. In these cases of marine discharge, waterborne disease from fecal
pathogens and contamination of certain marine species is a frequent outcome. This mostly results
from private entities.
Allowing public access to Beaches: the Boons and the Banes
Allowing the public to access the beach can have mixed effects. Overcrowding and
pollution are the two most obvious disadvantage of public access to beaches. However, allowing
private owners to seal entrance can also result to the same outcome. Building structures along the
beach can also adversely affect the beach environment. In the case of tourism, prime beach area
in every coastal resort is the main target for tourism development. Resort owners try to occupy
the best plot of land and fence off their boundaries in order to create an exclusive beautiful
private beach for their guests, without providing public access to these beaches. Development in
the restricted area can affect the surrounding are due to the dynamic nature of the shore. For
example, a jetty can block the waves and sediment movements and cause erosion. The public has
to pay for the loss of the natural environment and in the event of modifications, the government
would seek to remedy the situation using tax money which belongs to the general public. The
cost of externalities can be very high and the private owners have little to pay for when the beach
is polluted.
It is therefore not prudent to deny the public of their rights to access the beach by
granting private ownership. The tragedy of commons has always been cited as an argument
against public access but private ownership can have the same or even more appalling effect. As
discussed above, an alteration in on a private beach can affect other areas of the beach. In
Malaysia where funds to replenish the beach has mostly been from the government, the funds are
public funds. Thus, it is not justifiable to restrict the public from beaches. There has to be laws to
allow the public to access all beaches (with suitable restrictions to reduce environmental and
societal impact) or to make private ownership of beaches impossible. Land laws must explicitly
delineate the extent to which lands can be acquired by private entities and beaches should be
excluded.
For the purpose of recreation, every individual has the right to walk in forests, on water
embankments, in fields and in unused lands of privately owned properties. Everyone using these
walking rights does so at his own risk and must not pollute, change or damage the areas or injure
the free-living animals. The walking rights can be restricted or prohibited for a period of time
and/or for a certain region but only for very special and important reasons, e.g. the protection of
fields being used for husbandry; the security of the public while water embankments are being
repaired; the protection of a forest during a very dry season or to protect a nursery, etc. Notices
citing the legal reason for the restriction or prohibition have to be posted for the public.
Related laws of other countries
The laws regarding public access to beaches are very diverse around the world. Some have
specific mention on beaches but mostly refers to private land in general. It is common that all
state lands (no private ownership) are considered as public domain. Some examples in relation to
public access to beaches are as follows;
• In Switzerland, the Civil Code 1 is quite general. It states that everyone is allowed to
enter forests and fields to pick up mushrooms, berries and other wild fruits according to
the traditional usage and customs of the area, as long as it is not prohibited by the
responsible authorities.
• In Denmark the Conservation of Nature Act 2 of 1 October 1972 is definitely more
explicit. Part VIII of this Act deals especially with the public right of access to beaches,
woodlands and uncultivated areas. The main rule is that state-owned properties are open
to the public. Access to privately owned areas is more limited. For example, Article 54
restricts the public access on private land "... no stay or batting shall however be allowed
within 50 m. of dwelling houses". Article 56 also restricts the access to uncultivated areas
"...private areas shall be open for access only from 7 a.m. until sunset...".
• In the Federal Republic of Germany the federal government and the state governments
have laws regulating this right of access principle, supported by Germany's Basic Law of
23 May 1949. Article 14 states that "property and the right of inheritance are guaranteed
and their content and limits shall be determined by the laws. Property imposes duties and
its use should serve the public weal. Expropriation shall be permitted only in the public
weal. It may be effected only by or pursuant to a law which shall provide for the nature
and extent of the compensation."
• In America, private owners are given the absolute right on beaches they own. The case is
the same in Britain.
• In Wales, public access is given for non-extracting activities on beaches. The Countryside
and Rights of Way Act (2000) has conferred a statutory right of access.

The case for open access to coastal lands


The right of individuals to enjoy the beauties of nature and the environment has to be
protected in this day and age. The overcrowded population of cities and the public in general
need recreation areas but legislation has to regulate the pluses and minuses of these "wandering
rights". Such laws would serve the interests of the public, landowners, communities and the
authorities.
Coastal lands are of considerable economic importance to coastal communities by
providing a wide range of recreation and tourism opportunities. The freedom and confidence
provided by the feeling of being free to roam cannot be overstated. The feeling of being free is
part of the ‘product’ that is such a powerful draw to walkers. For walkers to know that the
countryside stretched out in front of them is available for them to explore, makes a countryside
experience special. The aesthetic value and the natural value of beaches must be made available
to the public.
In fact, for many beaches, access is tolerated and accepted even if it is not a right. It is
therefore important to translate this perceived right, into a legal right to move from de facto to de
jure. The issue of conflict between conservation and access is an important one. Of prime
importance in making any decision concerned with any conflict between conservation and access
is to understand the nature and magnitude of the conflict. There are undoubtedly areas on the
coastal lands where access may conflict with conservation. However, for the majority of the
coast, there will be little if any conflict. To conclude, it is crucial that there are laws that
explicitly allow public access to all beaches with guidelines and policies to educate the public on
preserving the beauty of the beaches and any structures built must not impede access to the
beaches.