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.
