Squatting on state land: The Kanthan farmers’ dilemma

 

From Mark Goh

The recent arrest of four individuals, including the Parti Sosialis Malaysia chairman, for trying to prevent the eviction of farmers in Kanthan, Tambun, has brought to light the plight of farmers who are illegally occupying and engaging in agricultural activities on lands that do not belong to them.

Such incidents are not new. One just needs to look back to previous episodes like Operation Lestari 2, Kampung Buah Pala and the Raub Durian King fiasco.

The Kanthan farmers’ case involves two legal issues: adverse possession and temporary occupation licence (TOL).

Adverse possession

According to news reports, the farmers in Kanthan have been toiling on the 1,000 acres of land (that is currently owned by the Perak State Development Corporation, or PKNP) for more than six decades.

Does toiling on the soil for long periods of time automatically entitle one to own the property? In other words, can a person become the owner of the land just because he has occupied it for a long uninterrupted period of time?

The simple answer is “no”. The National Land Code does not recognise the English law of adverse possession. Instead, Malaysia practices the Torrens system where registration is the cornerstone.

To prove ownership of land, a person must ensure that his name is registered on the title. It was decided in the case of Mercu Pusu Development Sdn Bhd v Setara Jaya Sdn Bhd (2021) MLJU 2798 that “Under the (National Land Code) or the Torrens system, registration is everything”.

Therefore, the fact that the farmers have been occupying and working on the land for more than 60 years is irrelevant as long as the land is not registered in their name.

Temporary occupation licence

It was reported that Perak had been issuing TOLs to the occupiers.

The TOL does not change the status of an occupier of the land into a registered proprietor, nor does it grant the Kanthan farmers any right to the land on which they are toiling.

All it does is grant the farmers permission to occupy the land which is owned by the registered proprietor (PKNP in this case). Without this permission, the farmers are considered trespassers on the land, and they can be rightly sued.

The TOL is a temporary personal licence that is given only to the TOL holder. It cannot be assigned and will expire at the end of the year in which it commences (S68(1) and S67(1) National Land Code 2020).

Furthermore, subject to the condition under which a temporary occupation licence is issued, the land administrator may on the
application of a licensee renew such a licence for a term of not more than one calendar year (S67(3) National Land Code 2020).

Based on the characteristics of the TOL, the final decision as regards the imposition of conditions on a TOL and the decision to renew the TOL lies solely with the state authority. Once the TOL is revoked, the TOL holder is considered a trespasser of the land (Public Prosecutor v Yap Tai (F) [1947] 1 MLJ 50).

This is the position of the Kanthan farmers since it was reported that they had failed to pay for their TOL, thereby breaching the conditions of the TOL.

As long as the Kanthan farmers are not the registered owners of the land they are cultivating, their interests will never be secured.

The state government must work towards a fair and just solution for the Kanthan farmers and implement land reform policies that will protect the rights of all Malaysians. - FMT

Mark Goh is a senior lecturer at HELP University.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.