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Dark side of the Torrens system
12/01/09 NST By Salleh Buang

One important fact about our land administration system which many people forget or overlook is that our local Torrens system is not a close-door or an exclusive system. It does not preclude other sources of land law � which includes (in chronological sequence) relevant principles of Malay custom, Islamic law and English law.

If you are still in doubt, take a quick look at the growing body of case law in our local law reports, or if you don't have the time, glance at the 2007 edition of The Malaysian Torrens System published by Dewan Bahasa dan Pustaka.

Borrowed from Australia more than a century ago, our Torrens system (devoid of a crucial assurance fund system) has worked fairly well all this time. However, in the past few years, its weaknesses and fatal flaws have repeatedly made headline news.

Questions are now frequently asked, by practising lawyers as well as academicians, whether it will be good enough for the 21st century.

I came across an example of the dark side of the local Torrens system in Kedah last year.

A news article (81 villagers claim government officers seized their land, Nov 17, 2008) stated that 81 villagers have lodged a report with the Anti- Corruption Agency (ACA) alleging that a group of government officers have "seized and obtained titles" to 278.63 acres of government land which they had been working on over the past 20 years.

A spokesman for the villagers, Jafree Don, said the report was lodged at the ACA headquarters in Putrajaya recently. The case had subsequently been referred to the Kedah ACA for further investigation, he added.

The disputed land is situated in the Kuala Nerang villages of Ban Lok Koi, Padang Wat and Sungai Sari and had been planted with rubber and fruit trees.

Jafree told the media that each of the villagers had paid RM50 to the Padang Terap Land Office in 2003 as processing fees for their application for land titles "to be processed". After waiting for five years, they were told in April 2008 that the land which they had been working on all these years had been alienated to other people.

Meanwhile, Kedah ACA director Nooraziah Abdul Manaf confirmed that she had received the report and an investigation file on the matter "had been opened". From now on, the wheels of bureaucracy will turn.

As we await the result of the ACA investigation, what lesson can we draw from this case? For the answer, we have to take another look at the letter of the law and the cases handed down by the courts.

According to a case decided more than two decades ago by a Malaysian judge (now deceased), "Under the Torrens system, the register is everything".

According to another distinguished judge (also now deceased), as long as a land title had not been issued in respect of a piece of land, the land is still state land.

As state land, the State Authority can give it away to anybody it likes and no one can question its discretion. Never mind the fact that in years gone by, the authorities had made a promise to the people who had been working on that same piece of land that one day soon the land will be theirs. That promise is not the same thing as a piece of paper � the document signifying alienation.

Never mind the fact that in the decades that have gone by, the kampung folks have been allowed (even encouraged) to cultivate the land and to apply for the land which they had been occupying all these years. That alone cannot guarantee that the land that they had been working upon will become theirs one day.

This recent case in Kuala Nerang, Kedah, reminds me of a parallel case which happened in Sekakap, Mersing, Johor, in 1972.

In that old case, a group of 184 fishermen had applied for state land in the area from the State Authority. Unfortunately for them, in 1976 the land in question was alienated to some other people including the then Menteri Besar.

The issue here is not whether civil servants or politicians can apply for and be given state land. That is a policy matter for the State Authority to decide � and when they do that, my fervent hope is that the whole exercise will be fair and transparent, done in good faith and in accordance with the principles of good governance.

The real issue here is whether our local brand of Torrens system is capable of delivering justice to deserving kampung folks like those in Kuala Nerang and Sekakap.

In my opinion, the system has failed because it still allows the land alienation process to be hijacked and abused.

 

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