Isn’t it time we reviewed these old land laws that concentrate all authority to alienate state land in a small, opaque group within each state, Jeyakumar Devaraj writes.
Yesterday, one of the farming communities that the Socialist Party of Malaysia (PSM) is helping suffered a setback in the courts.
The Ipoh High Court judge ruled in favour of the housing developer who had filed an Order 89 application for vacant possession of the land the Kuala Kuang farmers have been tilling for the past 70 years. The court ruled that the farmers have to move out within two weeks.
Our lawyers had argued that these farmers and their fathers and grandfathers had been tilling this piece of land continuously since World War Two and that these farmers had applied for land titles long before the housing developer, Bukit Aneka Sdn Bhd came on the scene. These farmers only till four to six acres of land each, and farming is their prime source of income.
Our lawyers also filed a third party application seeking to bring in the Land Office and the state director of lands and mines to explain the basis of awarding the land title to Bukit Aneka in 2009, even though these farmers had been applying since the late 1980s. We argued that the issue of the propriety of the alienation of land to a third party, Bukit Aneka, had to be resolved before deciding on Bukit Aneka’s Order 89 application.
The learned judge, however, postponed the decision on our third party application and proceeded to grant Order 89 to the plaintiff. Objectively speaking, the judge was merely keeping to the letter of the law of our country.
We have been independent for 63 years now, but for some strange reason we have not seen it necessary to modify the land laws introduced by the British. These laws gave the British Residents unassailable authority to alienate land to whomever they wished to (usually large British plantation and mining companies). The locals – Malay peasant farmers or the Orang Asli – had no rights to the land, even if they had been there for generations.
Under the current system, all unalienated land in the state belongs to the government, which has an absolute right to give it out to whomever it decides. One can understand why the colonial administration enforced such a lopsided system – it was in line with their economic interests. But why have we maintained it post-independence, and for so long?
Under the present system, the menteri besar or chief minister has taken the place of the British Resident. He decides to whom the land should be given. There are no provisions in the law that confer any rights to Malaysian citizens who have been staying on or tilling the land – the length of stay does not create any equity under current land laws.
In the absence of any checks and balances, one can appreciate how easy it will be for cash-rich developers to “persuade” state authorities that it would be in the “larger interest” of the state for the land to be “developed” for housing or for industrial purposes. And this is what that has been happening all over Perak for the past 30 years – more and more market gardeners on state land have been evicted in stages by developers.
In 2011 I attempted to modify the National Land Code to create a modicum of protection for market gardeners tilling state land. I submitted a private member’s bill to introduce a new section – 214B – to the National Land Code that would create a 10-member committee that would have oversight over the process of alienating state land. I modelled 214B on the existing 214A, which specifies the establishment of an “Estate Land Board”, which is responsible for ensuring that estate workers are not excessively disadvantaged if their estate is sold or subdivided.
The Speaker of the Dewan Rakyat, however, disallowed it. He said as land is a state matter, any amendment to the National Land Code has to be cleared by all the state governments before it can be codified in Parliament. He was right – I was out of bounds.
But that was in 2011. In the nine years that have ensued, the government could have itself taken up this issue, brought it to the National Land Council (Article 91 of the Federal Constitution), cleared it with all the state governments and brought in the necessary legislation. Sadly, that was not done.
The ongoing eviction of scores of small farmers yearly adversely affects the livelihoods of this group of middle 40% of households.
But that is not all: it undermines food security for all of us. The expertise of our market gardeners in tilling disused tin mines and other terrains is a useful resource gained over decades of trial and error. This resource should be consolidated to improve food supply for the nation.
Market gardening activity also generates income for rural communities: it deepens the market and provides jobs in the countryside. It is so shortsighted to destroy this sector in pursuit of short-term profits (and kickbacks?).
The Kuala Kuang farmers have decided to fight on – they have no choice as their source of income is being snatched away.
The current Perak menteri besar has promised several times that all small farmers in Perak will be offered alternative land if their land is required for projects. But for the Kuala Kuang farmers, that remains an empty promise. No one from the state authorities has ever called them for any meeting to discuss alternative farming land for them – despite the numerous letters the farmers have sent to the menteri besar asking for his help.
Our lawyers are preparing to appeal yesterday’s decision and to push the third party application. We will also try to request the state executive council and the Perak menteri besar to play a role in resolving this problem.
The Malaysian public is also to blame: we have been far too quiet on this issue. We do not give enough importance to food production. Only about 400,000 hectares of land is used for the production of vegetables, aquaculture or animal husbandry. Meanwhile, six million hectares are planted with oil palm.
Shouldn’t we the Malaysian public pressure our government to ensure that vegetables and fish production is not compromised by “development” projects? Would it not make more sense to use a portion of oil palm plantations if we need more land for housing?
Isn’t it time we reviewed colonial-era land laws that concentrate all authority to alienate state land in a small, opaque group within each state? Shouldn’t there be an effective oversight mechanism to ensure bone-fide food farmers are not driven out?
Until the Malaysian public wake up and take a principled stand on these issues, small farmers like our friends from Kuala Kuang will have a difficult time upholding their rights.