NST’s recent report on Op Lestari 2 in Cameron Highlands (‘Evicted Farmers Seek Alternative Site-NST Dec 30) underscores an unresolved problem relating to security of tenure under our Torrens system, a land registration system originating in Australia that was first implemented in the Federated Malay States in late 19th century.
Yes, the temporary occupation licence (TOL) system has been with us for more than a century. It has remained in its original and archaic form until today, leading to social injustice.A case in point is a piece of TOL land in Kampung Buah Pala in Penang.
The land was given by the Penang government to the residents under TOL before Merdeka. It was renewed repeatedly, but in 2005, the government stopped doing it.
The residents were not aware then the state authority had alienated the land to Koperasi Pegawai Kerajaan Pulau Pinang (KPKPP). As the new registered landowner, KPKPP had asked them to vacate the land. When they refused, KPKPP filed eviction proceedings. In 2009, the Federal Court ruled the residents had to leave.
It was a predictable decision. As ex-TOL holders, the residents had become trespassers, and they could never win against the registered owner. Under the Torrens system, the cardinal principle is ‘the register is everything’.
In the case of Op Lestari 2, the government’s stand is that the farmers’ TOL had expired in 2009 and they have ‘enough time to leave’.It was later discovered that many farmers were allowed to renew their TOL until 2018.
In law, a TOL is just that, a mere licence, a permission to occupy a piece of state land.A TOL cannot last more than a year (expiring on Dec 31), but it can be renewed, not once, but repeatedly.
The law is, however, explicitly clear - repeated renewals of TOL do not guarantee ownership in the future. Most TOL holders do not realise this.
The tragedy is that since ‘land is a state matter’, the federal government does not seem to feel it necessary (or desirable) to formulate a national policy on TOL, nor a long-term action plan to deal with the current practice.
So the land offices in the state are free to decide whether to renew a TOL (once or several times), according to their discretion.
An abrupt decision not to renew a TOL can lead to grave consequences for TOL holders like vegetable farmers in Cameron Highlands.
I agree with Kuantan member of parliament Fuziah Salleh that it would be ‘more humane to wait’ for their crops to be harvested before the farmers were ejected from their farms. The harvest is necessary for them to fund their ‘children’s schooling early next year’, she added.
The misuse and abuse of the TOL system in Cameron Highlands had been highlighted in the Auditor General’s Report of 2012. The report revealed that many of these farms (under TOL) had encroached on forest reserves, causing severe erosion and pollution.
The report added that although the issuance of new TOL for agriculture development had been frozen to curb the development of hillslopes, existing TOLs have been renewed.
In the light of that AG’s Report in 2012, I find it strange that in 2015, the then natural resources and environmental minister said that the issuance of TOL to ‘eligible farmers’ in Cameron Highlands ‘can prevent illegal land clearing, especially in the hilly areas’.
The minister said that ‘the farmers would be required to renew the TOL annually’ because ‘we have to maintain the land for agriculture’.
In January last year, the Pahang government said it would issue 21 TOLs to vegetable farmers in Cameron Highlands. These are in addition to the 51 TOLs issued to vegetable farmers and flower growers as well as reservoir pond operators.
Deputy Agriculture and Agro-based Industries Minister Sim Tze Tzin had requested the Pahang government to ‘extend TOLs for up to 30 years’.The Pahang menteri besar responded that the state ‘would consider it’ (‘State government will speed up TOL issuance to farmers, says MB’, NST, Jan 18, 2019).
Mention ‘Cameron Highlands’ to a friend and ask him what comes first to his mind. He may very well say ‘holiday resort, tea plantations, vegetable farms’.
The owners of the resort and the plantation have security of tenure, but the vegetable farmers do not. For decades they toiled hard in their farms to feed the nation, yet for many of them, ‘their land’ was finally taken away from them.
The writer, a former federal counsel at the Attorney-General’s Chambers, is deputy chairman of the Kuala Lumpur Foundation to Criminalise War