LETTER | The recent arrest of four individuals, including PSM chairperson Dr Michael Jeyakumar Devaraj, for trying to prevent the eviction of farmers in Kanthan, Tambun, has brought to light the plight of farmers who are illegally occupying and engaging in agricultural activities on lands that do not belong to them.
Such incidents are not new. One just needs to look back to 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).
According to newspaper reports, the farmers in Kanthan have been toiling on the 404ha that is currently owned by the Perak State Development Corporation (PSDP) for more than six decades.
Does toiling on the soil for long periods of time automatically entitle one to own the property? In other words, can a person become the owner of the land just because he has 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 of land, a person must ensure that his name is registered on the title. It was decided in the case of Mercu Pusu Development Sdn Bhd v Setara Jaya Sdn Bhd (2021) that “under the (National Land Code) or the Torrens system, registration is everything”.
Therefore, the fact that the farmers have been occupying and working on the land for more than 60 years is irrelevant as long as the land is not registered in their names.
Temporary occupation licence (TOL)
It was reported that Perak has been issuing TOLs for the occupiers. The TOL does not change the status of an occupier of the land into a registered proprietor, nor does it grant the Kanthan farmers any right to the land on which they are toiling.
All the TOL does is grant the farmers permission to occupy the land which is owned by the registered proprietor (PSDP in this case). Without this permission, the farmers are considered trespassers on the land, and they can be rightly sued.
The TOL is a temporary personal licence that is given only to the TOL holder. It cannot be assigned and will expire at the end of the year in which it commences (S68  and S67 National Land Code 2020).
Furthermore, subject to the condition under which a temporary occupation licence 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 (S67 National Land Code 2020).
Based on the characteristics of the TOL, the final decision as regards 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 TOL holder is considered a trespasser of the land (Public Prosecutor v Yap Tai(F) ). This is the position of the Kanthan farmers since it was reported that they had failed to pay their TOL, thereby breaching the conditions of the TOL.
As long as the Kanthan farmers are not the registered owners of the land that they are cultivating, their interests will never be secured.
The state government must work towards a fair and just solution for the Kanthan farmers and implement land reform policies that will protect the rights of all Malaysians.
MARK GOH is senior lecturer with HELP University.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.