Amendments to land law fail to go far enough

Sabah lawyers are not satisfied with the amendments to the Sabah Land Ordinance, which was passed by the state assembly at its Nov 19 sitting.

According to them, the Sabah Land Ordinance falls flat despite the amendments.

The lawyers want much more in the form of a powerful Land Tribunal and the related question of who is a native to be resolved.

They also want amendments to be made to the outdated Advocates Ordinance in the state “to facilitate disciplinary action to be taken against errant lawyers”.

“Disputes over land matters are getting increasingly complex and the state government should consider amending the law (again) to allow the formation of a Land Tribunal,” said Sabah Law Association (SLA) president John Sikayun.

“This will be at minimum cost to the state if the Land Tribunal is empowered to order costs against unsuccessful parties.”

Sikayun suggests that the Land Tribunal consist of the collector of land revenue, senior lawyers and retired judges.

In an unflattering comparison with Sarawak, the SLA chief noted that it takes more than a month to register a land title in Sabah. This compares with only two days in the neighbouring state where the use of electronic government, it is said, is much higher.

On a plus point, Sikayun lauded the concept of communal title introduced by the Nov 19 amendments to the Sabah Land Ordinance. This is seen as a novel approach towards protecting the rights of natives over their land for the long term.

With the amendment, it is not easy for natives to sell land given to them by the government under communal title unless the land is subdivided.

This must have the prior approval of the land revenue collector, who in fact holds the title in trust under Section 77 of the Land Ordinance.

Natives can also request communal title for their NCR (native customary rights) land to prevent them from falling into the hands of plantation and other companies.

It’s easier to obtain a communal title from the state government compared with a native title which may involve conflicting claims.

“It has been found that the natives of Sabah tend to sell land, which is only a land application status, or by using the Power of Attorney letter in a transaction involving more than one buyer,” acknowledged Nasrun Mansur, assistant minister to the chief minister.

“This results in serious disputes that would finally end in court and drags in the state government as well.”

Even so, Sikayun reiterates that much still needs to be done to bring Sabah’s land law up-to-date in keeping with the challenge of the times.

‘Power of Attorney’ abused

Sikayun opines the law on the Power of Attorney (PA) needs tightening up to avoid it from being continued to be used as “an instrument of fraud”.

Generally, the modus operandi of non-native PA holders is to finance a native to buy up separately-owned parcels of native land to build up a sizeable contiguous area.

This is then “transferred” by the native “landowner” to the non-native financier vide a PA.

The PA, can in turn, even transfer to the PA to another non-native or even sell the land to a non-native via a native front. This is seen as a legally permitted abuse of the laws on who can own native land.

PA holders have also been known to sell the same land to different buyers. Finally, only one buyer gets the title from the Land and Survey Department while others are left screaming fraud.

The PA is generally prepared by a lawyer who cannot, under the existing Advocates Ordinance, be hauled up for disciplinary action.

The SLA is an association where membership is not compulsory unlike the Bar Council in Peninsular Malaysia.

The SLA wants the Advocates Ordinance to be streamlined in line with the Legal Practice Act 1976 which is applicable in Peninsular Malaysia.

According to the SLA, of the 463 lawyers in Sabah, only 345 are practicing and of these 10 are not members of the association.

Deprived of native rights

Elsewhere, Sikayun sees a need to re-activate the ministerial committee to review the Interpretation (Definition of Native) Ordinance and the processing of the Sijil Anak Negeri (native certificate).

He sees many genuine natives who are unable to obtain the benefits of the native certificate and deprived of their constitutional and birth right to own native land.

“This must be viewed with urgency lest the government face embarrassing law suits,” said Sikayun.

“The constitutionality of the suspension on the issuance of native certificates can be challenged (successfully).”

Huge plantations owned by publicly-listed companies are said to be sitting on native titled land in Kinabatangan and other places in Sabah.

It is also said that thousands of acres of native land in Sabah are owned by those with allegedly forged native certificates.

Both categories of land would come under public scrutiny once the land laws and the law on PA is further tightened to close existing loopholes.