Wednesday, December 5, 2007


The Democratic Action Party (DAP) all these years had fought hard to amend the Sarawak Land Code seeking provisions to allow the unconditional automatic renewal of land leases to a further 99 years and had also sought land affected by section 47 of the Land Code be automatically lifted after a lapse of two years in the event the government delays the acquisition of the land for public development. The DAP has sought the amendments to the Sarawak Land Code affecting these two important matters affecting land ownerships to take place at the same time and that the Land Code, if amended, should not take place by piecemeal. Both amendments sought have to go hand in hand and we cannot allow the Land Code to be amended to accommodate only one of them as to do so, the landholders will still have not much security to their land.

We regret that we still could not get either of them, however, in the last few days from 19th – 28th November, 2007 DUN sitting we managed to convince the State BN government to come with the formula for the calculation of land premiums.

Frankly speaking we did it by default when the Land Code (Amendment) Bill, 2007 was tabled during the last DUN sitting to amend certain provisions of the Land Code. The amendments were only in respect of allowing foreigners, individuals and corporate personalities to acquire and invest in lands within the Regional Development Corridor and also to allow applications for renewals by landholders before the expiry of land leases, and also powers of Director of Lands Department to renew leases, but, nothing was said about premiums or automatic renewal of land leases.

Since the amendments did not seek for the automatic renewal of land leases and the seeking for calculations of premiums, then, a YB could not, according Order 34(1) of the DUN Standing Order and ruling of the Speaker in a previous sitting, speak about land premiums as debates should only be confined to matters relating to the amendments only. So it was by default that the issue of land premiums were brought up during the DUN sitting which forced the State BN government through its Minister of Planning and Resource Management II, Dato’ Sri Hj. Awang Tengah bin Ali Hasan, to call for a press conference on 28. 11. 2007 to clarify the issue of premiums and to disclose the formula for assessing the land premiums upon the renewal of land leases. All YBs in the DUN were then given the text of the Minister’s speech in the press conference and a brochure explaining the renewal and premiums on the renewed land leases.

Caution against Announcement by State BN government
However, the announcement made by the Minister has to be taken cautiously as it has many hidden political agenda, especially, when Parliamentary Election is around the corner. Members of the public need again be reminded that such announcement by the Minister was a policy announcement which could be subjected to changes without notice at any time. Unless amendments to incorporate what the Minister had announced during the press conference, is legislated or incorporated into the Land Code, it may not be for a permanent or long term basis. This is because if the government could by a simple press announcement reduce the premiums already imposed on various categories of land, for example premiums imposed on residential purposes of 25% - 50% to a flat rate of 25% and premiums for commercial land be reduced from original rates of 25% - 61% to a new rate of 25% - 40%, then there is no reason why these premiums could not be reviewed in the very near future to suit the political agenda of the State government. When the government cries for more money, the government could come with other announcements that could create hardships on the people.

Announcement by Minister Was No More Than Political Mileage
We still should not forget that in the 1980s an announcement in the local press made by a senior Minister from the SUPP that the 8 points land given to the residents from Attapah in Chawan Road to the Stutong Resettlement Scheme in Kuching were given for free to them, but, about 15 years later it turned out that this was not true and all of them have to pay the premiums imposed on their lands. Likewise, the squatters in Sg. Apong in the Pending Constituency and Kpg. Kudei in the Batu Lintang constituency were promised land just before the 1991 State Election until now are yet fulfilled. These therefore were classic examples of announcement made by Ministers and BN leaders unless entrenched in the legislation, nothing said by the Ministers and BN leaders would be of permanent basis and what they said could be subjected to changes or be revoked at anytime. Therefore, members of the public should be cautious of the fact that words spoken by politicians, be they Ministers, carries no legal weight at all.

Members of the public need also be reminded that although the landholders are allowed to renew their leases well ahead before the expiry of their land leases for an extended period of 60 or 90 years, the extended period starts from the date of approval and not from the date of the expiry of the leases. Meaning that, if a landholder renews his land lease for a further period of 60 years although his lease still has 18 years to go before the expiry, the lease holder in actual fact only gets 42 years lease as the remaining 18 years shall be forfeited! The landholders could not get 18 years plus 60 years so to make his lease to hold for a period of 78 years.

Members of the public also need to understand the assessment of land premiums are based on the market value of the unexpired term of land itself and common sense tells us that the shorter is the unexpired lease term of our land, the lesser will be the market value of the land. Then how could many leaders of the SUPP made us fools by telling us that the premiums for renewals will get more expensive once the land lease gets shorter or when it expires!

One needs to observe that from the text for the press statement of the Minister which stated as examples for lands in Rejang Park, Sibu and in Merbau Estate in Miri although with a lease of 20 years to expire for the same 0.04 acres of land with renewal premiums of RM2,200 did not give any indication of the current market value of these lands in the Rejang Park and also in the Merbau Estate.

The Rejang Park and Merbau Estate lands although have a lease term of two years more than that of Kenyalang Park in Kuching seems to pay less premiums than those in Kenyalang Park in Kuching. They were required only to pay RM2,200 – a difference of RM400.00 and the market value of these lands in Rejang Park and Merbau Estate remains unknown. One also need to take note that Dato' Hj.Awang Tengah bin Ali Hasan picked as examples lands in Kenyalang Park, Rejang Park and Merbau Estate, these lands being low cost houses could no more command good market value and this market value would vary if it involves lands of upper class people.

One also needs to be told that the Minister had failed, at this moment to come up with the actual premiums to be paid by the landholders on the renewals of these lands. What the Minister said during the press conference were “estimated premiums” only and this was clearly shown in the Minister’s text distributed to all DUN members. Therefore at this moment we still could not know how much landholders will actually have to pay for a 0.04 acre land in Kenyalang Park upon renewal of their leases. The Minister only produced an estimated value of RM2,600.00 and therefore, it could be more.

Outcome of Application
Although the brochure distributed to the public stated that the outcome of the renewal application could be known within three months from the date of submission, but, I have cases that submissions made few months ago also did not receive any reply at all. The so-called interim reply was also not forthcoming! Therefore, unless legal rules are made to this effect in the Land Code, many landholders could also find that the suspense of waiting for a favourable reply in soonest possible could affect their health. Without any frame time in the Land Code to approve or to set aside applications, the procedure could be subject to abuse.

Change of government will go with change of Policy
At the same time, we also need to understand that no political party could rule a country forever as it would be a matter of time in any democratic process that the Opposition, as His Majesty’s Government-in-waiting will one day take over the government. The Government-in-waiting when it takes over the government of the day may most probably amend the law to keep its’ promise and will go on to allow the automatic renewal of land leases without premiums! If this may happen, then those who had renewed theirs during the present government will regret for doing so. We all need to understand that DAP all these had fought for the automatic renewal of land leases to another 99 years and it would not be difficult to understand that if DAP one day would be in the government, the issue on lease terms will definitely be solved as we all would be assured of the automatic renewal of our land leases.

I had been told outside the DUN by a very senior Lands Officer that it would be advisable to renew these land leases within five years before its expiry, however, due to public pressure the government had no choice but came out with an acceptable formula on the land premiums which is now known as A – B x C formula = D as amount of premium to be charged.

Value of Land
Although the government maintains that the value of the land does not include buildings in the land itself, but, it is a known fact that value of the land rises corresponding with the value of the building on it. Under section 2 of the Sarawak Land Code, the definition of land includes any permanent structures or things attached to the earth, then, how could the Minister said that land does not include permanent structures or buildings on the land for the purpose of evaluating the market value of the land? When the Minister said the market value of the land takes into consideration the commercial transactions of lands, locality, accessibility and etc, then, are not “etc” includes the value of surrounding buildings near to the land? How could the government twisted and fooled us again!

Take for example, are we going to say that the value of land within the golden triangle of Padungan, Jalan Ban Hock and the Tua Pek Kong Temple in Kuching should be the same in value to any land within the Batu Lintang or Pending Constituencies? This again is common sense as no where within the Batu Lintang or Pending Constituencies there are lands that have more valued buildings than that within the golden triangle which went to enhance the value of the lands there.

People in Kenyalang Park should also be cautious as the assessment of the market value of the land was based on the fact that Kenyalang Park was started as a low cost housing estate in which gave the Minister the confident to announce that land premiums for the renewal of a 0.4 acre land with 18 years more to expire is at RM2,600.00 as the said land was said as having a market value of RM31,800 only. For Kenyalang Park residents would you sell your land which has a remaining lease term of 18 years at RM31,800.00 while knowing very well of the recent rapid development within the area with a supermarket and a foreign university coming up soon?

Effect of Sections 27 & 47 of Land Code
Now, the next issue is that since section 47 of the Sarawak Land Code has not been amended to provide for an automatic lapse after two years. If section 47 conditions are imposed on the lands in Kenyalang Park, especially that near to the present upcoming supermarket near to the present Divisional Police Headquarters, then present houses which included those renewed to 60 years may give way or be acquired in the name of public development.

Since the current market value of the land upon which the land premium based is cheap, then the acquisition of the said land, if have been imposed under section 47 of the Land Code, especially those next to the present Divisional Police Headquarters shall also be cheap. Although one knew that as development within the said area was fast, the land value should also rise up accordingly. Under the Land Code the compensation for land placed under section 47 of the Land Code was normally based on value of the land at the time the land was placed under the said provision of section 47 and not based on the market price at the time of acquisition for public development. Such acquisition may only be realized, if any, say 20 years later, but, by that time the value of the said land placed under section 47 would have jumped up several times, but, one could only be compensated based on the market value at the time section 47 was imposed.

At the same time, under section 27 of the Sarawak Land Code, the outgoing proprietors of land shall have no right or claim against the government in respect of the value of any improvements that may be in existence on the land at the date of the expiration of the interest under which the land was held. So, if our land reverts to the government upon expiry of the lease term, the government pays us nothing! It was due to this reason DAP had all these years insisted the Land Code be amended to include for the automatic renewal of land leases without premiums. Please think!

Leases on Chinese Cemeteries Affected By Land Code
Another area regarding land ownership in which one has to be concerned with were cemeteries as when lands were alienated for such purpose as burial grounds or cemeteries the lease term was made pursuant to rule 13 of the Land Rules only allowed a lease term period of 99 years only. Then where should the dead go when the lease term expires and when renewals would not be allowed by the Director of the Lands Department? This is because without the automatic renewal of land leases, cemeteries in the years to come will have to be dug out and corpses will have to be taken out of the graves and be disposed off by other means alien to a person’s belief or customs.

At the same time, when lease terms of cemeteries become shorter, less dead would find their ways to the old cemeteries!

1 comment:

freedom said...

KUCHING: By Nancy Nais : One of the few remaining mission schools in Sarawak, St Martin primary school in Samarahan, was forced to close indefinitely as it was evicted out of the land on which the school stood in a land dispute.

Its 313 pupils and teachers have been given an early year-end holiday, a week earlier than scheduled.
The last classes for the 45 year-old school in the largely Iban village of Merdang Gayam, about 35km from here, were Wednesday ( Nov.7).

Pupils continuing their primary education at the start of the new term in the new year would do so in a number of schools in the area.
But the majority of them would be placed at SK Barangan about 4km away. Some of them spent their last day in school playing cricket.

The first sign of trouble for the school administrators came in April this year when the landowner Millah Kitat, 71, through her legal counsel Voon Lee Shan issued a letter giving them an ultimatum: Buy the whole parcel of land including that on which the school stands or move out within a week.

The whole parcel of land Millah owned, titled Native Customary Rights (NCR) land, covers about 12ha. The school stood on 5ha.
When the school failed to move out within the deadline set, Voon, who is also the DAP state assemblyman for Batu Lintang, served another legal letter demanding compensation claiming the school had trespassed on Millah's land.

The letter stated that Millah had demanded a RM700,000 compensation to be paid within a week as cost to cover damages.
To avoid further legal complications, the state Education Department ordered the school shut.

"The root of the problem was that the previous land owner who had alienated the land for the (Anglican) mission to build the school there had not legalised it," state Education director Dr Julaihi Bujang said of the eviction.

In 1962, Lian Teetat Emparu, described as a staunch Christian who had the welfare of villagers there at heart set aside 5ha of his 12 ha land there to the Anglican Christian mission to build a school.

"In those days, there were a number of attap schools run by Anglican missionaries in that area of Samarahan," the parish priest Rev Nelson Sinken said.

"It was then decided that there should be one good school where all these pupils from these attap schools could be relocated," Rev Sinken, who is also chairman of the school's board of management, added.

He said Emparu came to the church's assistance by volunteering to alienate part of his land to the mission for the building of the school.
"He even drew up an agreement for that," Rev Sinken said as he showed the document retrieved from the parish archieve.

The "agreement" stated how the 5ha land should be used.

It also stated that the land would be "free of charge or encumbrances" and that his "heir or heirs would not develop that portion of the land alienated for the school".

But since that "agreement" was not legalised, it became of point of contention with Millah, Emparu's daughter who inherited the land when he died.

But the school's fate was doomed when the school's board of management in an 11 to 1 decision decided not to act to save the school.
The dissenting decision was that of Rev Sinken who argued the mission should have some say over the management of the school.The other board members however are of the opinion the school should be altogether surrendered to the government in order to secure more funds for the school.

In line with that decision, the board decided not to act to save the school but left it to state Education Department to do so, Sinken said.
"Since the mission was not interested in saving the school, we followed likewise," Julaihi said.

"Moreover, the landowner and her legal counsel did not give us much time to negotiate.

"For example, there is no way we can come up with that RM700,000 they demanded in seven days.

"They are not giving us much options."

Julaihi said his recommendation to the Education Ministry was to shut down the school but at the same time look for a piece of land where the ministry could buy to build a new school.

Last Tuesday, the school summoned all parents to the school to inform them of the shut down decision and the relocation of their children to other schools.

The head of the school's Parents-Teachers Association Agun Bujang described the meeting as tense and filled with anger.
"There was much anger as expected," Agun said.

"Not only do they (parents) have to adjust their daily routine next year. The cost of sending their children to school would spiral upwards.

"Those who start work early would have to send their children to school early. That could be as early as 6am. "And they would have to make at least four trips daily to send their children to school. "Now what if they could not fetch them back from school because of work commitment?

"You can't expect them to walk 4km home can you?" Agun asked.

"They are very angry but there is little they could do."

These parents are resigned to the arrangements made by the Education Department until another school is built in the area.