Jeremiah Mahadevan often finds himself in the strangest situations. He doesn’t trust the political animal, and currently reviews motorhomes for a living.
A Merdeka message from Kampung Buah Pala
AUG 31 — Among the many headaches that Penang’s former Barisan Nasional administration left for its Pakatan Rakyat replacement, Kampung Buah Pala must command a particularly high painkiller budget. As time passes, the hubbub surrounding this small community has twisted and turned so many times that anyone who has paid attention to the issue probably feels like they accidentally wandered into a game of blindman’s buff.
Initially, the reaction from the public was one of general contempt for the machinations of the BN administration, and sympathy for the villagers, but this was turned on its head when the villagers — some say under the influence of controversial Indian rights activist group Hindraf — turned their ire on Pakatan Rakyat, and began making hardline demands which many saw as disproportionate and acquisitive. Their subsequent refusal to accept the house-for-house compensation package brokered by the PR government sealed the general conviction among Jill and Joe Jalanraya that they are just plain greedy.
Those who take this view argue that the villagers have no legal entitlement to the land, and hence it is doubly ungracious of them to thumb their noses at the Pakatan government's efforts. To counter this, the opposing camp has argued that the villagers are not actually illegal squatters, but victims of a land grab perpetrated by the state. It is said that their predecessors were in the employ of British planters, who eventually left the country and bequeathed them the land, but — in typically paternalist fashion — had it held in trust by the government. At some point, this arrangement was altered — the government became the owners of the land, and the villagers were accorded Temporary Occupational Licences (TOL), which are essentially contrivances that allow people to be conveniently earmarked as squatters without alarming them in the short term. The villagers’ champions claim that these licences were forced upon them without adequate explanation or compensation.
So far the debate regarding this issue has centred on the legality of the villagers' claim to the land, but from my point of view what we ought to be discussing is whether or not we have the right laws in the first place. It's possible that Malaysian law ought to allow the villagers to keep their land, and that the entire practice of handing out temporary occupational licenses ought to be abolished in favour of giving occupiers — even informal or illegal occupiers — the right to eventually possess their land. The crux of the matter revolves around an obscure area of property law known as adverse possession.
Property law allows us to form entitlements that are technically everlasting — when you own something, you own it forever, unless you legally transfer your entitlement, by selling something or giving it away. Eternal ownership became a facet of property law because, being generally very possessive creatures, we humans tend to intuitively believe that our property rights are impregnable, and want our intuitions to be reflected in law. However, while eternal ownership is useful in that it inspires confidence in the law, it is also to some degree a phantasm, and can easily crumble when pitted against the hard facts of life. In the physical world, property exists in a state of flux — like everything else, we and our property are transient, and the passage of time necessarily alters our relationships, in ways we would be foolish to ignore. For example, the logical upshot of infinite ownership is that even after our property has disintegrated into its component particles, we continue owning those particles — which is a bit silly, to say the least.
Now, admittedly it takes a long time for something to break down to its subatomics; but once we have admitted the temporal fluidity of property rights, we can perhaps entertain the idea that they can lapse or transfer over much shorter periods, even when no formal or legal transaction has taken place. For example, let's say Muthu owns a bicycle, which he never rides, and which Ah Chong one day steals and uses for his ketupat delivery business. After 12 years Muthu orders some ketupat and feels convinced that something is fishy about the ketupat man's bicycle. He runs into his backyard, works out what's happened, and promptly demands its return. According to the most basic tenets of property law Muthu is in the right; however, much time has passed, and Muthu can't really have needed the bicycle if in all that time he never noticed its disappearance, or the fact that Ah Chong was openly using it. Ah Chong, on the other hand, clearly needs the bike — it's pivotal to his livelihood. So who shall we give the bike to? Scenarios like this raise some thorny concerns about the humanity of our system of property entitlements. Adverse possession legislation is concocted to address these concerns, by allowing Ah Chong to gain control of the bicycle after a certain number of years, provided Muthu has never made a claim for its return, and provided that Ah Chong's use of it has met certain conditions — such as being open and publicly knowable.
For some people all of this will sound plainly ludicrous. In his pre-eminent work “Anarchy, State and Utopia”, the mighty godfather of libertarianism, Robert Nozick, went so far as to write that in an ideal world we would be able to enforce property entitlements indefinitely. In such a world a past act of illegitimate appropriation would be addressed by tracing back all the way to the point of transgression, and putting things right from there. So for Nozick, even if the bicycle made its way down to Ah Chong's great-great-great granddaughter, it would still have to be handed back to Muthu's great-great-great grandson — perhaps with additional compensation. From a bluntly libertarian standpoint, Nozick had good reason to suggest this, because property is at the bedrock of successful free enterprise. Fluid property rights tend not to sit well with the profit motive, so if you subscribe to the rather quaint belief that the free market is humanly possible and that its pursuit will benefit all members of society, then you're likely to be appalled by the idea of the state intervening to sanction stolen land — essentially by handing it over to the thief. How will anyone ever have faith in their property if it can be taken from them when they're looking away? Malaysia got rid of its adverse possession laws altogether years ago, ensuring that the government has pretty much free rein to kick people out once the land they are on becomes desirable.
But the reasoning behind adverse possession laws is difficult to exterminate, because it contains a certain gritty pragmatism that stands counter to the frictionless plane of profit-making; it's a tiny little admission that our elaborate structures of this-mine-you-don't-touch are in fact a bit absurd and entirely temporary. Property entitlements have sell-by dates, they can bleed into obscurity with time and usage, and adverse possession law acknowledges this and as a result also discourages people from sitting idly on their entitlements while there are others who are in greater need.
Obviously, such laws must be formulated with extreme care, in order to ensure that the entitlement holders are not overly compromised. You wouldn't want people's rights to become too fragile, because that would be equally draconian. This is why adverse possession is by no means a universally accepted convention. But in a country like Malaysia, where pockets of land exist which are the subject of disputes dating back to colonial times, legislation can be formulated specifically to sort out the people whom fate has planted on the land, who actually need and use it, from those who are grubbing for it.
In the case of Kampung Buah Pala, even if we ignore the whole backstory involving the British planters, the villagers were clearly using the land and calling it home for many years before they were given temporary occupation licences. It seems to me abjectly inhumane to suggest that that time counts for nothing. However, even if it might be too late to help them — since their village is now so tied up in conflicting ownership claims — there are many more who might be rescued from a similar fate with updated legislation. One thing that has to go is the TOL regime — it is indisputably shameful to give ill-informed people a piece of paper to pacify them while retaining the power to evict them at short notice once potential lucre has been scented.
In Malaysia there exists a strong but less rigorous argument in favour of adverse possession, an argument that has more to do with nation building than jurisprudence. Our nation's history is deeply entangled in property rights. The Malayan Union controversy, and its spiritual descendant the New Economic Policy, are all grounded in a concept of ownership that does not properly acknowledge the transition of entitlements through the passage of time. Some parties conceive of the nation as being fundamentally the property of certain ethnic groups due to a kind of blood right. The land was unjustly taken from them and handed to outsiders, and so it will always be theirs — end of story as far as they're concerned. Dr Mahathir uses a similar argument in his infamous and intellectually flimsy book “The Malay Dilemma”, when he draws parallels between Malays and Native Americans. This argument from eternal entitlement is one of the sources of the NEP's theoretical force — since the land was essentially stolen, anyone living on it now is sort of a squatter, no matter how much time has passed.
I can see few better ways for us — all of us — to make a meaningful start towards ending this parochial and mercenary concept of the land, the very tanah tumpahnya darahku, than by fighting to have the law changed to better protect the rights of the many vulnerable Malaysians who lead borrowed lives on land that will never be their own. Yes, injustices were perpetrated by colonial powers and yes, these injustices involved the appropriation of land, but none of that will change the fact that we are where we are, and the best thing we can do now is move on. Just as we pendatang have slowly lost our moral claim over the places from which our ancestors came, so too must we have gained a moral claim over our present home. Yet despite this, when something like Kampung Buah Pala comes along it is the adversarial minutiae of title deeds and sales documents that occupies us, and not the simple question of who really deserves the land. The history of modern Malaysia is the history of an immense and tangled net of adverse possession — maybe the Kampung Buah Pala fiasco should teach us that, after 52 long years, it's time to stop acting as though this was never the case.
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