Thursday, September 17, 2009

Do we really own that land we own?

The long and the short of it is we do not own that land which we own. We only have the right to use that land. The land belongs to the government. And the government can take it back from us any time it so wishes.


Raja Petra Kamarudin

I have thus far not commented on the Kampong Buah Pala land issue in Penang. One reason is because so much has already been said about the matter that there is very little I can add to the issue.

It appears that most comments made about the matter are very emotional in nature and the angle being taken is that poor Indian landowners are being oppressed by powerful people. The fact that the government of Penang is a Pakatan Rakyat government makes these people even angrier. They had expected the Pakatan Rakyat government to fight for the people rather than ‘take the side’ of the developer.

Some have even slammed Lim Guan Eng. They wanted Guan Eng to reverse the decision of the previous Barisan Nasional government. They just can’t understand why the Pakatan Rakyat Chief Minister, and from the DAP on top of that, is not the rakyat’s ‘champion’ as they had expected him to be.

I remember back in the old days when my grandfather’s land was acquired by the government. He was then still the Governor of Penang and he had just completed his retirement home on a plot of land in the Lake Gardens in Kuala Lumpur.

The government, however, wanted that plot of land plus the few surrounding it to build Malaysia’s new Parliament House. So the government acquired all the land on that hill and my grandfather lost his retirement home even before the paint on the walls could dry.

I remember seeing the house being given the finishing touches and not long after that it was totally demolished.

My grandfather may have been the Governor of Penang, but if the government wants to take his land then there is nothing you can do about it.

Over the last 50 years I have seen many plots of land acquired by the government. Some of them belonged to my friends and family. Even my own land was once acquired by the government.

Unfortunately, there is nothing much we can do if the government wishes to acquire our land. You see, under the National Land Code, we only have rights over the land as long as we pay the cukai tanah and as long as the government does not need it back. Once the government needs it then we lose that right to the land, never mind how many generations that land has been in the family.

In fact, our right over that land is only as far as the approved land usage of the land is concerned. If we need to change the usage then we need to apply for permission and only if the government approves the conversion of that land can we change the usage.

Therefore, agricultural land must only be for agricultural purposes and even then if it is for padi planting then it can only be used for planting padi and not for planting other agricultural produce.

In short, we can’t simply do whatever we like with ‘our’ land even though we may think we own that land.

Furthermore, our right to the land is only the space within six feet above it and six feet below it, so to speak. Therefore, if we discover oil 100 feet below our land, that oil does not belong to us but to the government. And we can’t stop any plane from flying over our land because the air space more than six feet above our land does not belong to us but to the government. In fact, even to fill your land or level it you need government approval.

Okay, maybe I am over-simplifying the argument, but this is as simple as I can explain it without throwing in too much legal jargon and whatnot.

The long and the short of it is we do not own that land which we own. We only have the right to use that land. The land belongs to the government. And the government can take it back from us any time it so wishes.

But the government can’t just take back our land for the heck of it. There must be a reason for doing so. And the reason must be that they need to develop the land for the needs of the community. So we, the individual, must lose our land so that the community can benefit.

Nevertheless, I remember more than 25 years ago when the Terengganu government acquired big chunks of land just for the heck of it. You see, at that time the state government had plenty of cash and did not know how to spend it -- thanks to the oil royalty it was receiving. So they just acquired as much land as they could get their hands on and built up a huge land bank for future development purposes.

The government did not even know what it was going to do with the land after acquiring it. And all the land belonged to Malays but they had not choice but to surrender their land. And many of them were padi farmers who lost their livelihood. Of course, the cash soon ran out whereas if they still had their land they could continue planting padi.

One thing to note is that the government can’t take back the land for free. The landowner must be compensated. And the compensation must be according to market value plus whatever loss we might suffer.

So, while we can’t challenge the government when it wants to take back our land, we can, however, challenge how much compensation we will receive.

Once the government takes back our land we can’t refuse to accept the compensation that the government wants to pay us. We accept the compensation but we ask for it to be noted that we accept the compensation ‘under protest’. Then we file in court a demand for more compensation.

Say the government acquires our 10,000 square feet land and pays us RM50.00 per square foot as compensation. We may feel this is too low. The compensation should actually be RM120.00 per square foot according to market value. Then there is our house sitting on the land which is worth at least RM350,000.00 if we were to build it today.

So we go to court and challenge the compensation. If the court agrees with us then the government has to pay us the difference of RM70.00 per square foot plus another RM350,000.00 for the house.

But we must first accept the RM50.00 per square foot compensation. We can’t refuse to accept it. If we do not accept the compensation then we can't demand the extra or shortfall. But on accepting the compensation we must note on the papers that we are accepting it under protest so that we can go to court to ask for more.

There is no issue about whether the Penang government can or cannot acquire the Kampong Buah Pala land. It can. The one thing we can argue about is whether the government acquired the land following the proper procedure. The next thing would be, if we are the legal owner of that land, is to challenge the compensation we are being paid, assuming we feel the compensation is too low.

Of course, we must also separate the legal issue from the moral issue. Maybe the government is legally allowed to acquire the land and did, in fact, acquire it following the proper procedure. But is it morally right for them to acquire the land? Is the land being acquired for the sake of development so that it will benefit the entire community or is it being acquired so that someone can make money from it and become very rich?

In short, the intention (niat) behind this whole thing has to be explored. Right, from the legal point of view, might not be right from the moral point of view. For example, it is legally right for the Minister to sign a detention order and detain you without trial for ten years just because you criticised Rosmah Mansor. But is it morally right in spite of the fact that he did it the legal way?

This should be the issue debated with regards to the Kampong Buah Pala land issue. And if the acquisition was because of a larger agenda then we need to go to part two. And part two would be are the landowners, even if they are squatters with no titles over the land, being paid the proper compensation?

Unfortunately, we can’t stand in the way of progress. But we must not become a victim of progress. Sure, sometimes when they widen roads and build schools and hospitals we end up having to make way for this development. But we must be properly compensated for our loss and not short-changed.

If we argue that you can develop the country but please do not touch my land, then there would be no development because most times development will have to be done in the built-up areas and not in the deep isolated jungles where no privately-owned land would be involved.

The Kampong Buah Pala folks are not the first to lose their land -- and neither will they be the last. Penang is crowded and most of the land is no longer government-owned. To continue developing Penang would mean it would affect private land. So what does the Penang government do? Stop all development?