Speech by ADUN N.15 API API – Christina Liew
Salam Sejahtera dan Selamat petang kepada semua Ahli ahli Yang berhormat di Dewan yang mulia ini.
1. Saya ingin membahaskan beberapa isu mengenai tanah khusus nya sections 120 dan 70 di bawah Sabah Land Ordinance Cap 68. Izingkan saya bebahas dalam bahasa Malaysia dan English.
2. According to the Police Commercial Crime Department Statistics, the State in Malaysia with the highest number of cases involving land fraud occurred in Sabah. The Police Commercial Crime Department issued the statistics sometime in year 2010.
Regrettably since then land fraud in Sabah continues undiminished. Registered owners and innocent purchasers fall victim to unscrupulous persons using forged documents to transfer land. In Sabah, most of the land fraud cases involving registered being transferred away to 3rd party without the knowledge and consent of the registered owner. They fall victim to unscrupulous fraudster using forged documents to transfer land.
Land fraud is a big problem faced by the people of Sabah. The Land Office must address the problem by taking steps to amend certain provisions of the Land Ordinance. This is to avoid fraudsters taking advantage of the weakness in our land law that may be subjected to mis interpretation.
If amendments are not made to strengthen the Land Ordinance, then fraudsters will continue exploiting its weaknesses and continue committing land fraud. This would have far-reaching effects on the people and potential foreign investors.
Untuk matluman Dewan yang mulia ini, di bawah fasal 120 kurungan (1), (2) dan (3), peraturan dan kaedah untuk memohon salinan geran yang sah, daripada Pejabat Tanah dan Ukur, apabila geran asal telah hilang dalam simpanan pemiliknya.
Section 120 of the Land Ordinance is a provision that allows the Collector to approve an application for a replacement title.
9. Section 120 (1) states that:
“if any document of title is lost or destroyed the person lawfully entitled to the custody… thereof together with the other persons, if any, having knowledge of the circumstances may file in the Land office of the district in which the land is situated an affidavit or statutory declaration containing a full description of such document of title and the circumstances under which it was lost or destroyed”.
10. Maksudnya ialah: If a title has been lost or destroyed, any person – even if that person is not the registered owner, may file an Affidavit or Statutory Declaration to explain the circumstances of the loss or destruction of the land title. That person can affirm the Affidavit or Statutory Declaration so long as he is entitled to lawful custody to the land title.
Fraudsters have exploited the weakness of section 120 to fraudulently transfer land to innocent third parties at the expense of registered landowners. I will explain shortly on how a fraudster can exploit this section to gain certified copies of title and transfer it to a 3rd party.
12. The other weakness of section 120 is the proviso, which states: “provided that the collector shall not in any case issue such certified copy unless he is satisfied as to the truth of the affidavit or declaration and the good faith of the applicant for the same.
13. A fraudster’s modus operandi or method of operation in exploiting the provisions of sections 120 (1) (2) and (3) of the Land Ordinance goes like this:
First, the fraudster will forge a power attorney purportedly given by the registered land owner, with complete powers to him. . The forged power of attorney gives power to the fraudster to deal with the land including the right to sell and transfer the land to a third party.
Using the forged power of attorney the fraudster makes a false police report and then affirms a false Statutory Declaration stating that he had lost the original land title.
He then applies to the Land Office for a replacement land title. The Land Office will hold a hearing where the fraudster appears before the officer in the Land Office. The Land Office then publishes a notice in the local newspaper regarding the loss of the land title.
After expiry of the time period for objections stated in the notice, the Land Office can then issue a replacement land title.
With the replacement title, the fraudster then sells the land to a third party. The fraudster – after having been paid for the fraudulent sale of the land – disappears.
Eventually when the fraud is discovered, the registered owner and the third party suffer losses.
14. The weakness in section 120 is in the wordings of the provision: the Collector is satisfied as to the truth of the affidavit or declaration and the good faith of the applicant.
15. The question is: how does the Collector satisfies himself that all the documents submitted by the applicant, including the contents of the police report, the power of attorney, the affidavit or the declarations are true and genuine and not forged documents?
16. This is very subjective. According to section 120 of the land ordinance, it all depends on the discretion of the particular Collector.
17. Under the present law, the Collector owes no duty of care to the registered landowner. The Collector needs only be satisfied as to the truth of the affidavit or declaration and the good faith of the applicant.
18. The question that arises then: How can the Collector say he is satisfied as to the truth of the affidavit or declaration if the fraudster produces a false affidavit or false declaration and the Collector is misled into saying he is satisfied as to the truth of the affidavit?
19. A related question that arises: How can the Collector say he is satisfied on the good faith of the applicant when most fraudsters are smooth talking and presenting himself as acting in good faith to the collector, and then striking at the victim by committing fraud.
20. What then is the solution? Should the Collector be responsible for the losses suffered by the registered landowner or the innocent buyer?
21. Due to the very subjective provision of section 120, I propose an amendment to the law that requires the registered owner to be present personally to meet with the Collector when applying for a replacement title. This would enable the Collector to satisfy himself as to the truth of the affidavit or declaration and the good faith of the applicant.
There will be cases where it is not possible for a registered landowner to be present before the Collector. For example an elderly registered owner who is overseas and cannot travel. In this kind of situation, there must guidelines for the Collector on how to exercise his discretion.
Saya ingin mengucapkan Tahniah kepada Pejabat Tanah dan Ukur, in their Fast Track Programme called the Sabah Natives Land Service, or PANTAS, in short form.
Pantas has the objective of managing and administering Native land affairs. Baru baru ini, kita di beritahu melalui laporan di surat khabar, bahawa Pantas telah berjaya mengukur, daftar dan keluarkan 57 keping communal geran untuk 24,016 hectars, kepada berapa penduduk mengenai tanah NCR.
While PANTAS assists in processing NCR land, kita tidak boleh nafikan masih banyuk masalah masalah mengenai tanah adat yang di tuntut oleh penduduk di kg masing- masing. Misal nya, hari khamis minggu lalu, kira kira 100 penduduk dari Kg Solob membentuk sekatan jalan untuk menghalang orang luar masuk ke tanah tanah adat atau NCR. mereka menuntut perbincangan rasmi diadakan antara mereka dan pihak berkaitan untuk menyelesaikan perkara tersebut.
Many Sabah natives still live off the land. Not by choice, but because the land is all what they have for their livelihood and survival
27. It is common knowledge that some natives in Sabah have grievances on land upon which they claim to have native customary rights – especially land which their forefathers have been occupying and which the present generation of natives continues to occupy for their livelihood. Land is the only thing they have.
It is a common knowledge that many native land applicants have applied for land years ago. They wait for the outcome of their applications but nothing is known about it. So they continue to wait. Years go by and still no results.
All these years they do not know if their applications have been rejected or approved. This happens despite many visits to the Land Office inquiring about the status of their land applications.
However, they often come to know that their applications have been rejected only when someone gives them a visit and tells them to leave the land because the land now belongs to someone else.
Many of the natives are too poor to engage lawyers to resolve their claims on the land. Those who can afford face many years of waiting for the court process to be completed to resolve their claims.
32. Section 70 (1) of the Sabah Land Ordinance is an important provision. Under section 70(1) Collectors in Districts must exercise their statutory duty to process land applications by natives. Section 70 (1) requires the Collector to deal with land applications by natives without delay and as far as possible in the order in which the applications are received. Section 70 (1) is a mandatory provision.
33. Collectors should therefore comply with section 70 (1). Compliance with the law would go a long way in addressing the current plight of natives’ land applications.
34. Walau bagaimanapun, saya difahamkan bahawa jabatan tanah dan ukur mempun -yai polisi, mengenai pemohonan Tanah di Sabah, ia itu, sesiapa sahaja boleh memohon Tanah ke pejabat tanah, sekiranya tanah yang dipohon ada kekosongan. Tetapi saya menggesa agar setiap Pejabat Tanah di Daerah dapat melaksanakan sistem pendataan yang lebih berkesan dan di kemaskinikan dari masa ke semasa, yang mana setiap pemohonan sepatutnya di terima mengikut masa yang pemohon apabila mereka menyerahkan borang permohonan.
35. Sekali lagi saya merayu kepada kerajaan dan Pejabat Tanah dan ukur, untuk menubuhkan sebuah pusat atau Center untuk mem bantu rakyat dengan masalah yang me nge nai Tanah, khususnya tanah adat or NCR.
36. I propose that a Native Land Dispute Resolution Centre be set up, di bawah Pejabat Tanah dan Ukur atau di bawah Pejabat Ketua Menteri, to include officers from all the relevant Departments such as the Director of the Lands & Surveys, the State Attorney General Chambers, the Forest Department, the Sabah Law Association and ACLRs from all the Districts. The role of the Native Land Dispute Centre would be to arbitrate and resolve land disputes concerning native land or native customary rights on land.
37. The Centre would include a pool of experienced adjudicators who would become specialists to deal with native land disputes.
38 Most natives do not know about their rights or because they are poor they cannot afford seek to legal advice. The Native Land Dispute Centre would be a place where native can seek help on land matters.
39 The Centre should not charge for the services it provides. If fees are charged they should be minimal and affordable.
I wish to add further what YB Kepayan had said earlier on the issue of citizenship. Saya ingin mengtarik perhatian dewan yang mulia ini, issue mengenai warganagaraan is a oleh penduduk Sabah is a probamatic issue. Rita Thomas case is only a tip of the ice berg. There are many thousands of our qualified natives who are not given the cetizenships. In the case of Rita Joan Thomson, she was born in Papar before independence. Her mother is a baju from Bongawon. 79 years old. Today, still only a permanent resident of Sabah, unable to obtain her citizenship sampai sekaran. What are we going to do?
I urge the state government to set up a special body or department to assist the thousands of Rita Joan Thomson in Sabah. Who are genuine Sabahan but denied the citizenship while we have hundreds of thousands of foreigners who came to Sabah and became instant Sabahan and registered as voters to vote the government of the day. Even though immigration and NRD are udner the jurisdiction of the federal government, we urge the state government to intervene and assist our Sabahan to get their status correlated. This special body should include, among others, assisting the non muslim natives on the issues of bin and binti on thir MyKads. Their status should be corrected as non muslim. Just because their mykads has bin or binti does not make them automatic muslim. The NRD must recognize the uniqueness of our Sabah natives. The thousands of Sabahan who are still deprived of their status as citizens and the issue of birth certificates also must be handled under this special body or department.
41. Saya ingin mengucapkan taniah kepada DBKK for the no litter policy in KK city.
A fine of RM30.00 to be imposed on people who litter. However, I wish to suggest that more rubbish bins must be placed around KK city. Without rubbish bins the people may just throw their rubbish on the ground. The cleanliness campaign should include the back lanes of the shops in KK. KK city is the capital of Sabah, a clean environment will be helpful to our tourism industry.
42. Dengan ini, saya menyokong ucapan oleh Tuan yang Terutama yang Di- Pertua Negeri Sabah.
Selamat bersidang kepada semua ahli- ahli yang berhormat di dewan yang mulia ini.
Sekian dan Terima kasih