LAND ACQUISTION (THE LEGAL AND THE MORAL RIGHTS OF THE SQUATTERS)

1.0 INTRODUCTION AND BACKGROUND

All 2SGT students had given the task or individual assignment on the title “legal and moral right of squatters” for the subject Land Acquisition (SGT2213) and the task should be submitted on 2 March 2010 or on Tuesday for 10 percent individual marks. With the busy daily life because of the responsible and the trust given during the election as Student Representative Council (SRCUTM), I had try my best to do this assignment perfectly and the best. Although within the short and limited time that I have, I had promise myself that even though now I am the busy man now but I still can perform and score in order to maintain my GPA (3.92). Besides that, to apply the knowledge that I gain in lecture hall and at the same time to maintain good networking with my lecturer also to show my respect to them.

Firstly, after get the task I had made my own brainstorming and go and meet my lecturer Associate Profesor Dr Tahir bin Hj Sabit for further discussion after class. After that, I had coming out with the few question as the outline for the whole assignment. It is so important to answer the question in order to finish this task. The questions are:
1. What are squatters actually are?
2. The historical and development of squatters in Malaysia
3. What is legal right that the squatters have?
4. What is the moral right?
5. What is the squatters right?
6. What the case that related to this right?
7. What the rules or legal that binding the right of squatters?
8. The latest issues based on squatter’s problem.
9. What are the solution to the problem arise?
10. Who are those that involve in this problem?

Based on Mart, the squatters are the one who settles on the lands of others without any legal authority; this term is applied particularly to persons who settle on the public land. Squatting is when someone occupies an empty or abandoned property without the owner's permission, often without his knowledge and without any normal legal right to do so. According to author Robert Neuwirth, there are one billion squatters globally, that is, about one in every seven people on the planet. Yet, according to Kesia Reeve, "squatting is largely absent from policy and academic debate and is rarely conceptualized, as a problem, as a symptom, or as a social or housing movement." While based on my conclusion, if an occupier has no ownership documents, no lease or tenancy agreement, no record of having paid rent to a landlord, and no other evidence of occupancy rights exist, then the occupier is a squatter. It is perhaps of no consolation to landlords that squatters often believe they have a perfect right to occupy when properties are left vacant, especially for long periods. Even so, the squatter has rights. Squatters cannot be legally evicted from premises without a court possession order, unless they leave voluntarily or the owner secures peaceable re-entry.

From the book that had been written by Dr. Syed Husin Ali who is formerly professor of anthropology and sociology at the University of Malaya. Dr. Syed Husin was detained without trial under the Internal Security Act [ISA] for six years [1974-1980] and has written a number of books, including Two Faces: Detention without Trial, he had shared about the historical and distribution of the squatters in Malaysia where I think very important to discuss in this assignment. From my on summary from his book, what can I shared is the majorities of the squatters are from lower or lower middle income groups. They used to be mainly local people, but now there are a number of squatter settlements that have been opened up by migrants, both legal and illegal. The problem arise because of the shortage and high prices of houses as well as exorbitant rentals, large number of people cannot afford them and so have been forced to build houses in squatter areas. Although initially meant to be temporary, these often ultimately become their permanent homes.

If we return back to the history, after World War II, and particularly after independence in 1957, administrative, commercial and to some extent industrial development attracted more people from the outlying areas. This helped to further speed up the urbanization process in many cities - like Kuala Lumpur, Penang, Ipoh, Johor Bharu, Kuantan and Kota Bharu. Then, following the bloody inter-ethnic conflicts in Kuala Lumpur in 1969, the government adopted a policy of encouraging rural Malays to migrate to urban areas in order to foster ethnic balance in the population of the big cities. The majority of these rural-urban migrants were encouraged to settle in existing squatter settlements or to open new ones. Most of the land they occupied belonged to the government, but there were also those that were owned by private individuals or companies. The squatters formed local branches of the ruling parties, and were protected by these parties and provided with facilities like water, electricity, health and education. In other words, they were and are recognized, with almost tacit legal status.

Basically, in academic report we are advice to insert the number as a fact and it going to make your report is strong and more academic. What can I shared about the distribution of squatters is about the percentage of squatters in Malaysia. As we know, Malaysia has a population of about 24 million, with the federal capital Kuala Lumpur having about 1.7 million people. Most of the other major towns like Georgetown, Ipoh, Johor Bharu, Kuantan, Kelang and Kota Bharu have much less than a million each. Most of the urban squatter populations are concentrated in the capital and these major towns. There is no reliable statistics regarding the squatter population and its distribution in the country. Estimates have varied from one to two million, which is five to 10 percent of the population. For Selangor they are concentrated in Kelang and Petaling districts, for the Federal Territory in Kuala Lumpur, for Perak in Ipoh, for Johor in Johor Bharu, and for Sabah in Kota Kinabalu. Kuala Lumpur, Petaling and Kelang are included in what is often referred to as the Kelang Valley, and it is in this valley that we have the highest concentration of squatters. It is estimated that nearly 20 percent of the population in Kelang Valley are squatters.

When we discuss about the rapid development that occur in our countries nowadays, we cannot forget to discuss about the eviction of the squatters. The process of house demolition and squatter eviction has been taking place for a long time. Following the inter-ethnic carnage in 1969, the government, by using emergency powers, evicted thousands of squatters - mostly of Chinese origin - from the centre of Kuala Lumpur, for the purpose of widening one of the main thoroughfares in the city and constructing a modern commercial and administrative centre. Some of the squatters were relocated to low cost flats provided by the City Hall while others built or rented houses elsewhere, including in some old or new squatter settlements. In 1974, following the national election, a squatter community in Tasik Utara, Johor Bharu, which was a stronghold of the ruling party, was evicted to make way for the construction of a golf course. The squatters were relocated to a temporary housing scheme in Tampoi, where they are still living. This area is now going to be cleared for a new housing development scheme, and there is an on-going court case to settle the demand of these people for terrace houses.

Under the present prime minister at the time who is Tun Dr Mahathir Mohammad, who came to power in 1981, the focus of development shifted from the rural to the urban. A large number of projects have been undertaken, especially for infrastructure, office, housing and industrial development. More land was needed in and around the major cities for these developments; but there was increasing shortage of it, and so its market value spiraled up many folds. Some government lands occupied by squatters were sold to private developers. The owners of these areas were ever too eager to evict the squatters the moment they were ready with their own plans for development.
Particularly in the 1990s, moves to clear squatter areas became more active. The Kuala Lumpur City Hall and the Selangor state government have committed themselves to clear the existing squatter settlements by the year 2002, something they realize is not possible to achieve. Furthermore, in anticipation of the Commonwealth Games in 1998, both the federal and Selangor state governments have been feverishly carrying out projects to beautify and upgrade the capital. Many hotels, condominiums and other structures (including the Kuala Lumpur City Centre (KLCC), PETRONAS Twin Tower, which prides themselves as the world’s tallest twin buildings) have been built. Roads have been widened, and new tracks have been constructed for the Light Railway Transit and commuter trains. The new Kuala Lumpur International Airport, administrative capital Putrajaya and Cyber City are being built. All these will be connected to the KLCC to form the Multi-media Super Corridor. These projects may well cost over RM80 billion (US.32 billion). Yet there is not enough money for low cost housing, especially for the lower income groups. Indeed, all the costly projects have resulted in eviction of the increasing number squatters recently, many of whom face great difficulty in finding alternative land or houses.

What can I conclude from my reading, discussion n observation, because of the active afford and willing by federal government and Selangor state to make them clear from the squatter settlement, this is one from the biggest reason why the federal lost 2/3 majority during the 2009 election but just win the simple majority and the Selangor state government that previously had been administration by Barisan Nasional had been taken away by Pakatan Rakyat. Most of the votes decide to not give their vote to the government in order to show their unhappiness with afford had be taken by them. As what we can see in Selangor territory, the rapid house demolition and squatter eviction has been taking place in Wira Damai, Kampung Bukit Botak, Ampang, Sepang, Petaling Jaya and Selayang Indah is the biggest reason. But something contradicts happened in Pulau Pinang where’s the votes had decide to make the change in administration to the opposite party. The conflict that happened here is when the Pakatan Rakyat whom had taken the administration from Barisan Nasional had make a decision to alienate the land that have squatters in the land to Koperasi Kakitangan Pulau Pinang at kampung Buah Pala. These decisions make all the voters so upset and lost the trust in the administration of Lim Guan Eng as the Chief Minister and all his EXCO members. The most important reason why I put the senario politics in my discussion is because usually in our country, the politics power is the most important factors that influence all the decision and also in the eviction of the squatters.

 
2.0 THE LEGAL AND THE MORAL RIGHTS

In Malaysia, referring to the National Land Code 1965 that basically from Torrens System that has the root from the Australia stated that registration is everything. It is mean here no wonder how long did you have site on the land and occupy it, it still consider as illegal in law of Malaysia. If we refer to section 425 of the National Land Code 1965, it is clearly stated that is an offence to occupy and to erect any building or run any activities on State land, reserved land or mining land without lawful authorization. This principle is best illustrated in the judgment of Ali CJ in Teh Bee v K. Marithamuthu [1977] 2 MLJ 77. In the case, long occupation of land by a temporary occupation license holder whose application for alienation has not been approved, was regarded as a trespass since the only way to obtain land is by way of proper alienation from the state authority. The principle of powers of the state authority on alienation was also established in the one of the leading case of Sidek bin Hj Mohamad & 461 other v The Government of the State of Perak & Ors.

The discussions show that the law does not recognize at all any act of squatting. The act is also baseless in equity. In fact it is an offence under the Malaysian law and thus has not been treated as social or social-economic problem. All legislations on squatters provide that the act against squatters can be preceded summarily. Nevertheless, it has been argued that the requirement of 7 days notice is inadequate period for squatters. If squatters have been remaining on the land for 30-40 years then it would not be reasonable at all to ask them to vacate the land within 7 days. Squatting on private land is a civil wrong in which the registered proprietor may sue for trespass without having to prove any damage. It is an actionable per se. Section 7 and 8 of the Civil Law Act 1956 allow the registered proprietor to file summary proceeding according to Order 89 of the Rules of High Court 1980 against the trespasser to eject them from his/her land. The example of court cases where the summary procedure has been used to evict the squatters can be seen in case of Chiu Wing Wa &Ors v Ong Beng Cheng [1994] 1 CLJ 313; Titular Roman Catholic Bishop of Penang v Stephen Ramachandran [1994] 1 LNS 202 and Bohari Taib & Ors v Pengarah Tanah Galian Selangor [1991] 1 CLJ 647.

Squatter's Rights are a laymen's term for something called adverse possession in the legal world. And, indeed, in UK and Wales, someone can lose their property through adverse possession, though it is an ancient law and not something that occurs often in today's world. This is just for sharing because while searching for the information I had meet with this information where I think is better as the view and comparison the system or doctrine apply at UK and Wales with the system in Malaysia. The doctrine of adverse possession is one that discouraged disuse of property, thus, if property was abandoned, and someone else "squatted" on it for a number of years, the squatter could gain control over the land.

Under the law of adverse possession in UK and Wales, however, it's not as easy as just pitching a tent on a piece of land and after a certain period of time has passed claiming that it is yours. Through adverse possession, someone must be on the land for a period of five to fifteen years, depending on the state. During that time, the person must hold the property hostile to the owner's rights - in other words, the person couldn't be there under the permission of the owner. The possession must also be open and notorious, i.e. the possessor is saying to the world, "This land is mine!" The possessor must also be holding the land exclusively for him or herself, and not for someone else.

In most cases, adverse possession is not of entire areas of land. Rather, adverse possession is usually where a neighbor is using a piece of someone else's property for a garden or something similar for a period of years. After the statutory period has passed, that piece of land becomes the property of the possessor. This case would not apply to a landlord tenant relationship, even if the tenant stopped paying rent, because the tenant entered the property with permission of the owner-landlord.
 
3.0 CASE

Based on the National Land Code 1965 as the most important provision about the land matter, there have maintain the rule contained in earlier 1928 code that adverse possession is no longer possible as against the state as well as against any individual landowner like what had been stated in section 48 and section 341 of National Land Code 1965. The position of the State as absolute owner of the State land combined with the legal protection afforded under section 48 of the Code against adverse possession has created a socio-economic problem on major scale in the country. This is illustrated in the case of Sidek & 461 Ors. V. The Government of Perak n Ors.

As the fact of the case, on 1950, the appellants, numbering 377, came to Teluk Anson or now known as Teluk Intan from Kedah, North Perak and Selangor and there after opened up a large jungle area situated in kampung Gajah in the District of Perak Tengah. In the two decades, more squatters came and settled in the area. Finding the situation uncontrollable, the State Government devised a plan accordingly to solve the problem. The whole area was divided into four blocks. Block A and B were allotted to local settlers, the squatters from the State of Perak itself. Block C was given to federal agency, FELCRA, which accepts only ex-serviceman and youth. The larger body of squatters from out of the state, including the pioneer group comprising the appellants, had to fight for a place within the fourth sector, Block D. as a result, some were successful, whilst the others included the appellants were not so fortunate. The State Government then asked them to leave. The appellants respondents by filing a writ, asking for a declaration that they were entitled in law and equity to be in possession of their respective lots in Block D which was “originally pioneered, opened up and occupied by them”.

The Government resisted the claim, stating that the appellants were not entitled in law and equity to compel the state Government land to give State land to them as they were in illegal occupation of State land. They applied to strike out the appellants’ action on the grounds that they were squatters and that it was within “the sole discretion of the State Government to alienate State land”. The trial judge upheld the application, stating that “being mere trespassers they cannot claim title as against the State Government”.
On appeal to Federal Court, Raja Azlan Shah C.J (Malaya) held:
In our opinion there is one issue which is lies at the heart of this case. It is whether the appellants have a cause of action against the respondents. The answer is obvious. It is clear beyond doubt that they cannot succeed because they are squatters. Squatters have no right either in law or in equity….
Section 48 of the Code is against them…illegal occupation of State land is an offence under section 425 of the National land Code…
The appellants sought to justify or excuse their conduct by arguing before us, they did before the learned judge that the State government should not renege on the promise given to them. They relied on the article attributed Bernama in Utusan Melayu … assuming what the State Director of Land and Mines said in the Utusan Melayu is true, can he bind the State Government? The short answer is that he had no authority to bind the government to alienate State land to the settlers. For this formal resolution of the state Authority is necessary. The want of authority was clearly pleaded, and is a formidable obstacle to any contention that the appellants’ claim lay in estoppels.

Shorn of its usual legal armory provided by section 48 and 425 of the code was the Governments decision morally justifiable? It has been suggested by Teow and Khaw, 1987 in their book Land law in Malaysia, Cases and commentary that published in Butterworth that the director had the power to bind the State by virtue of powers delegated to him pursuant to section 13 of the Code. If this contention could have been substantiated and that there was in fact no want of authority on the part of the Director, it would seem inequitable for the State not to give effect to the promise made.

In Selayang Raya Development Sdn. Bhd. V. 123 Persons, the Shah Alam High Court held that if the defendants are “squatters’ simpliciter”, they can be summarily evicted from the land by the proprietor invoking Order 89 of the High Court Rules 1980. On the evidence, the court was satisfied that the defendants had never been in occupation of the land with the consent of the State Authority, despite their allegations that their occupation of the land since 70s had the blessing of the Gombak Land and District Office.
The court held that the defendants had failed to prove what they had claimed (that they were indeed in occupation of state land with the consent of the state Authority), thereby distinguished this case from several other cases before, including Shaheen bte Abu Bakar v. Perbadanan Kemajuan Negeri Selangor, Bohari bin Taib & Ors. V. Pengarah Tanah dan Galian Negeri Selangor and Salim bin Ismail & Ors. V. Lebbey Sdn. Bhd.


 
4.0 CONCLUSION

The squatter problem is still serious in this country. On one hand, it is the result of urbanization and industrialization towards capitalist development. On the other hand, this development process itself is forcing the squatters out. Both the state and federal governments are determined to clear squatter settlements in order to make way for development projects. Actually, most of the squatters are not against development. A large majority of them live in their settlements - that are polluted, unhealthy, devoid of basic facilities and full of social problems - not because they enjoy it, but rather because they have no choice; there are simply not enough houses for them, and the rentals or prices of available ones are often beyond their means.
Housing for the poor is still insufficient and inadequate. Housing development continues to be a business for profit, and housing for squatters is now seen as part of the government’s social responsibility to provide shelter and to protect the welfare of the lower income groups. Recently, the government by our Prime Minister, Datuk Seri Najib Tun Razak had focusing on the lower income group by providing more low cost houses in budget 2010 and in RMK-10. He had stated that, the squatter problem must be solved, among others, by building enough low cost houses that are easily available to the affected squatters. If houses cannot be built, land should be provided for squatters to build their houses in a more planned manner. A good approach is to encourage a land sharing system, whereby land occupied by squatters should be shared between developers and squatters so that both can carry out their own housing development, each for its own welfare or profit. This good approach by government should be supported by all Malaysians citizen especially those that think about the profit and not about the social obligations to make a transformation in their thinking way.

At present, there are many laws that affect the squatters. These laws are one-sided and only looking after the interests of the government, large private landowners and housing developers. There are laws that protect ownership and allow for eviction of squatters. But there is no law that protects the life and property of squatters, who, as human beings and citizens, have contributed their part towards the development of this country. There is no law that ensures squatters should be provided with alternative land and/or houses together with adequate compensation, if necessary. After all, in many instances, the squatters have been encouraged to open their settlements; they have been encouraged and given protection by the ruling political parties, and provided with all kinds of facilities, like water, electricity and so forth.

Surely, the better thing is to resolve disputes through negotiations among all parties involved, to provide alternative land and/or houses for squatters and to institute legislation that can protect their interests and welfare. Forced eviction is certainly not the answer to the problem of squatters, which has political, economic, social and human connotations. In fact, it may even perpetuate the problem because those evicted will build new houses in the existing squatter areas or even try to build new ones. That is important for the squatters to give the good cooperation with the Federal, State and Local Government when these issues arise. No need to be too aggressive but be tolerating because from my point of view, discussion will bring the win-win situation and at the end of the day all the parties involved will get the benefits from it. When this situation arrive, the development of country can be continue and at the same time will help in the development not only physically but in all aspect such as social, economic, environmental and many other aspect or we can conclude as sustainable development. InsyaAllah!