THE recent arrest of four people, including Parti Sosialis Malaysia chairman Michael Jeyakumar Devaraj, for trying to prevent the eviction of farmers in Kanthan, Perak, has brought to light the plight of farmers illegally occupying and engaging in agricultural activities on lands they do not own.

Such incidents are not new.

One just needs to look back on 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

Reports said the Kanthan farmers have been toiling on the 1,000-acre (404.7ha) land currently owned by the Perak State Development Corporation (PSDP), for more than six decades. Does working the land for a long time entitle one to the property? Could one own land just because he had adversely 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 practises the Torrens system, where registration is the cornerstone. To prove ownership, one must ensure his name is 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 the land for more than 60 years is irrelevant as long as the land is not in their name.

Temporary Occupation Licence

It was reported in The Sun and The Star on October 28 that Perak has been issuing TOLs to the farmers. The TOL does not change the status of an occupier of the land to a registered proprietor, nor does it grant Kanthan farmers any right to the land. All the TOL does is grant the farmers permission to occupy the land owned by the registered proprietor, PSDP in this case. Without this permission, the farmers would be considered trespassers and could be rightly sued.

The TOL cannot be assigned and expires at the end of the year in which it commences (section 68(1) and section 67(1) of the National Land Code 2020). Subject to the condition under which a TOL 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 (section 67(3) of the National Land Code 2020).

Based on the TOL’s characteristics, the final decision with regard to 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 licence holder is considered a trespasser (Public Prosecutor v Yap Tai(F) [1947] 1 MLJ 50). This is the position of Kanthan farmers since it was reported they had failed to pay for their TOLs, thereby breaching the conditions of the licence.

As long as the Kanthan farmers are not registered owners of the land, their interests will never be secured. The state government must work towards a fair solution for the farmers and implement land policy reforms that protect all Malaysians’ rights. – November 8, 2023.

* Mark Goh reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.