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Talking Points.

Topic: Land-related Problems in Sabah.

Date: Monday 30 January 2012.

Time: 2 pm. [ Speaking time 20 minutes followed

by 10 minutes for questions and answers ]

Venue: School of Social Sciences, UMS.

Mr. Chairman,

Mr. Moderator,

Paper presenters,

Illustration 1: Tan Sri Simon Sipaun


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Participants,

Ladies and gentlemen.

The topic originally assigned to me was Land

Rights, Native Rights and Human Rights : The

Proposed Kaiduan Dam and the Violation of Sabah

State and Native Rights by Outsiders which is

quite a mouthful. I am not privy to the backgroundinformation leading to the proposed dam. I also

have no access to detailed and statistical

information regarding alleged violation of rights by

outsiders. I therefore feel that it would be more

appropriate and meaningful if I utilize this forum toshare with you some of my thoughts, observations

and perceptions on land-related problems based on

my personal experience especially during the 10

years that I was with the Malaysian Human Rights

Commission, popularly known as Suhakam. I willalso make some specific suggestions on how some

of these problems could be resolved. Following my

presentation I will be delighted to respond to


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questions, views and comments from the floor.

2. For your information, I was appointed as

Suhakam Commissioner with effect from 24 April,2000. I was elected its Vice-Chairman with effect

from 13 October, 2003 until 25 April, 2010. During

the period Suhakam Sabah Office organized a

programme called Suhakam Bersama Rakyat in

29 different districts throughout Sabah. It wasessentially a road show to create awareness of

human rights and to hear and receive complaints

from the general public. I do not remember visiting

any district in which land related problems were

not raised. For 10 long years Suhakam had beenlistening and receiving a litany of grouses and

complaints. During the same period Suhakam had

been referring the complaints together with its

recommendations to the relevant State Government

departments and agencies. Some of the problemswere attended to and resolved. Unfortunately, the

majority remain unresolved until today. I am happy

that Suhakam continues to focus on land matters


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and is now in the midst of conducting a National

Land Inquiry throughout the country. Suhakam

deserves to be congratulated for this initiative. For

the record this is the first inquiry of its kind to be

conducted by Suhakam. As part of the National

Inquiry a public consultation was carried out by

Suhakam in Sabah from 17 June to 5 July last year

[2011]. A total of 2,875 people attended theconsultation exercise. 407 people submitted land

related complaints in writing either individually or

as a group.

3. Land and forest come under the full jurisdiction

of the State Government. People especially in therural areas are very much dependent on land for

their livelihood. The relationship between people

and land is very close, almost sacred. If the

relationship is disturbed, a very emotional response

is triggered. The literacy standard of the ruralpeople also tends to be generally low. This being

the case, their understanding of government

legislations, rules, regulations,procedures, policies


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etc is very limited at best. Poverty is also common

and the standard of living is low. Their access to

health and educational facilities, if any, is very

limited. So is their access to legal remedy. They

cannot afford lawyers when they are left with no

other option. When we hear of them winning cases

in court, more often than not they would be

defended by lawyers who offer their services on apro bono basis. Article 3 of the Universal

Declaration of Human Rights provides that

everyone has the right to life, liberty and security

of person. Without life there will be no one to

enjoy any right. The life of the people who dependon land for survival is threatened when his right to

land is violated. Right to life is the mother of all

rights. I have once described the Sabah situation as

the weak, voiceless, poor and marginalized were

being punished and victimized whilst the strongand well-connected were being assisted. I was

particularly thinking of the people who are

experiencing problems associated with land issues.


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4. Accordingly Suhakam Sabah Office organized

several forums, roundtable discussions, dialogues,

meetings etc on land matters. I remember a forum

held in KK on 16 August 2004 on Native

Customary Land Rights. Suhakam expected

between 40 and 60 participants. As it turned out,

the forum attracted more than 500 very enthusiastic

participants. This reflected the gravity andseriousness of land-related problems in Sabah.

5. Land issues in Sabah can be divided into 3 broad

categories as follows:

i} For the lack of better term I call the first category

administrative. This includes lack of response or

delay in responding to land applications, later

applications being entertained or approved at the

expense of earlier ones, delay in surveying etc. One

of the main causes of this problem is related to the

work culture and attitude of civil servants. Let me

give a couple of examples. Haji Rashid Bin Burut

from Sepanggar came to the Suhakam Office in KK

for assistance on 20 December, 2004. At the time


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he was 69 years of age. His 7.68 acre land was

acquired compulsorily by the State Government for

a low cost housing project on 15 September 1973

to be implemented by the Lembaga Pembangunan

Perumahan dan Bandar [LPPB]. He was

compensated with another piece of land of

equivalent size. His complaint was that every time

he went to the LPPB he was advised to go to theLand and Survey Department and vice-versa. He

was told by both agencies that the title of the land

as his compensation was not ready. This went on

for 31 years ! This is hard to believe but true. Then

he heard of an organization called Suhakam andsomeone suggested to him to bring his case to

Suhakam. Immediately Suhakam took up his case.

Usually government departments and agencies are

quite responsive to Suhakam because they are

afraid that cases affecting their organizations mayend up in the newspapers. Within 2 days Suhakam

was informed that the mans land title had been

waiting for collection for a long time. The only


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problem was the officers who met with Haji Rashid

never bothered to check the actual position. I

suspect the easiest way to get rid of him every time

he appeared was to give him the standard reply

geran belum ada lagi.

The second example is associated with the Desa

Monteki incident in Kundasang. This involved a

74-acre piece of land which had been occupied andcultivated by villagers beginning in 1985. In 1989

they submitted their land applications based on

native customary land rights. To their dismay, the

same piece of land had already been alienated to a

company, Desa Highlands Sdn Bhd, whichsubmitted its application only in 1992 which was

much later. To add misery into injury, the company

was assisted by the police to evict the villagers. In

the process 18 villagers were remanded for 14

days. Based on their allegation of violation ofhuman rights during detention Suhakam conducted

a public inquiry from 11 to 14 February and from 4

to 6 March 2004. I am given to understand that


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there is no indication that the land had been

developed by the company. If that is the case the

State Government should examine the terms and

conditions for alienation to ascertain if they have

been complied with. If not there could be grounds

for the land to be reverted to State land and the

original settlers should be given top priority.

Similar cases are quite widespread throughoutSabah.

ii} The second category is related to forest reserves,

Sabah parks, water conservation areas, settlement

schemes and large scale commercial developments.

The main complaints are that people have settled inthe respective areas long before they were gazetted

for their respective use.

iii} The third category is a combination of

categories i] and ii]. These are mostly combination

between administrative and settlement scheme,

commercial projects, commercial intrusions, forest

reserves, Sabah parks and dam constructions. There

are also cases involving forest reserves and


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settlement schemes such as areas which were taken

over by SFI.

6. Why do land-related problems continue topersist? It is not as if no one has ever suggested

how the problems could be minimized or even

eliminated. In fact recommendations after

recommendations have been submitted to the State

relevant authorities. Unfortunately, at the same timethe problems continue to subsist and more often

than not get more complicated in nature judging

from the complaints received by Suhakam alone.

Other agencies also receive complaints on land-

related issues. These include the FederalComplaints Bureau, State Complaints Bureau,

Land and Survey Department, Forest Department,

Ministers, political and community leaders etc. I

believe the answer is that there is lack of political

will and usually personal and vested interestsprevailing over general and public interests.

7. In conclusion, let me make the following

suggestions:-


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i) Civil servants involved in land and forest

administration should have a more caring attitude,

be human rights compliant and observe and

practice the golden rule do unto others what you

would like others do unto you. This could be

achieved through suitably designed training

program.

ii) The Sabah Land Ordinance (Cap 68) (SFO)should be reviewed and amended to eliminate

ambiguity and confusion. A workshop could be

organized to bring together experts, complainants

representatives and other interested parties to

identify the changes needed. For example, Section13 of the SLO provides enquiry as to native

rights. It states upon the receipt of any

application for un-alienated country land (ie state

land) it shall be the duty of the collector to publish

a notice calling upon any claimant to nativecustomary rights in such land who is not yet in

possession of a registered documentary title to

make or send in a statement of his claim within a


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date to be specified in the notice. However the law

does not specify the method how the collector

should display the notice. He could place the notice

in an obscure place where no one would notice it.

iii) Multiple land applications should not be

entertained in respect of the same piece of land. If

the first application is rejected the applicant should

be informed the reason for rejection before the nextapplication is considered. Section 70(i) of the SLO

actually provides for this but obviously not

complied with in practice. ( elaborate, if necessary)

iv) Assistant Collectors of Land Revenue should

not be allowed to stay in the same place longer than

3 years.

v) An independent mediator should be appointed to

examine and make recommendations how to

resolve outstanding land disputes.

vi) An independent expert should be engaged to

identify the root causes of the problems related to

land and forest and make recommendations to


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resolve them.

vii) The capability and capacity of officers and staff

involved in land and forest administration andmanagement should be upgraded on a regular and

continuous basis and making them more human

rights compliant.

viii) There should be zero tolerance stance on

corruption in all the relevant departments andagencies.

ix) An independent committee should be appointed

to look into the grouses and complaints of those

whose applications for land have been rejected.

x) The valuation section in the Land and Survey

Department should be separated to operate as a

separate department in its own right.

xi) The rural communitys understanding of

legislations and policies associated with land andforest should be upgraded by having road shows

throughout the State.

xii) Land and forest administration and


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management should be made more transparent and

close consultations with the affected community

should be carried out as and when a project is

planned and implemented such as the construction

of dams, gazettement of forest reserves, water

catchments, wild life conservation, Sabah parks,

settlement schemes, commercial and agricultural

projects etc.xiii) Enforcement authorities should take

immediate action as soon as encroachment occurs

and not wait for settlers to be fully established and

in some cases when the crops such as palm oil and

fruit trees are already ready for harvesting.

xiv) The State Government must ensure that in any

gazettement exercise no human habitation exists

and included in the area to be gazetted. In other

words it should be pro-active and not re-active.

xv) In cases of land being compulsorily acquired by

government, compensation should be paid without

undue delay.


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8. Let me stop here as I think I have consumed my

20 minutes. However I will be happy to respond to

questions from the floor, if any.

Thank you for your kind attention.

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