VNIMPS" P1. AYS OF FORMAL LAND OWNERSHIP AND LAND TITLING WITH REFERENCE TO THE RURAL COMMUNITIES A STUDY OF PEOPLE'S PERCEPTION

Transcription

1 P1. AYS W 7S VNIMPS" f, /f"" A STUDY OF PEOPLE'S PERCEPTION OF FORMAL LAND OWNERSHIP AND LAND TITLING WITH REFERENCE TO THE RURAL COMMUNITIES OF ASAJAYA PENINSULAR, SAALARAHAN Christina Lau Kieng Hung Master of Environmental Management in Development Planning 2005

2 Pusat Khidmat Makiumat Akadomik UNIVERßI'fl MAI. AYSIASARAWAK P. KMIDMAT MAKLUMAT AKADEMIK (III III III IIIII IIIIFiI A STUDY OF PEOPLE'S PERCEPTION OF FORMAL LAND OWNERSHIP AND LAND TITLING WITH REFERENCE TO THE RURAL COMMUNITIES OF ASAJAYA PENINSULAR, SAMARAHAN CHRISTINA LAU KIENG HUNG A thesis submitted in fulfillment of the requirements for the degree of Master of Environmental Management in Development Planning Faculty of Social Science UNIVERSITI MALAYSIA SARAWAK 2005

3 ACKNOWLEDGMENTS First and foremost, I wish to acknowledge the contributions of the many village heads and villagers from Asajaya Peninsular, whose names are too many for me to mention, who contributed their time and willingly provided the information that is essential for the success of this research. My appreciation also goes to Mr Richard Ho of Land and Survey Department, Samarahan Division for his ever ready assistance and for providing me with invaluable information and materials needed in my dissertation. Special thanks is due also to my supervisor, Dr Ling How Kee for her guidance and helpful comments, and patient supervision throughout this research project. Last but not least, my heartfelt gratitude to my parents for the support given throughout the duration of this course. Without them all, this research study would not have been possible. 1

4 ABSTRACT Land is considered an important source of livelihood for the rural population. Recognising this, the government has embarked on the exercise of alienating land to the people under the Section 13 Exercise in 1996 as part of the land alienation policy in Sarawak. To prevent land speculation and to ensure that the people make use of the land for farming, the land is imposed with restriction that prohibits its transfer. In spite of the restriction imposed, reports received alleged that many land are sold off as soon as titles to the land are obtained. This study seeks to uncover people's perception of the importance of formal land ownership and to ascertain whether or not rampant disposal of land took place;: Choosing Asajaya Peninsular as the research site, ground survey of land owners were carried out. Data for the study were collected through face-to-face interview using an interview schedule. A stratified random sampling method was used to select the respondents. The study showed that the people have strong attachment to land and the sale of land is only considered as a last resort. Findings revealed that only 3.25% of the land owners harbour intentions to transfer the land granted by the government. Half of these transfers were actually between family members. Rampant disposal of land did not happen to land alienated to the people in Asajaya Peninsular. The findings confirmed that land alienated is put to the use as intended. The study concludes with the recommendation that the government should continue with the policy of granting land to the rural population. ii

5 ABSTRAK Tanah merupakan punca kehidupan yang penting bagi masyarakat desa. Menerima hakikat ini, kerajaan telah melancarkan satu operasi pemberimilikan tanah kepada mereka di bawah Operasi Seksyen 13 pada tahun 1996 sebagai sebahagian daripada polisi pemberimilikan tanah di Sarawak. Bagi mengelakkan spekulasi tanah dan untuk memastikan tanah digunakan untuk tujuan bercucuk tanam, tanah tersebut telah disekat dari dipindahmilik. Walaupun dengan adanya sekatan yang dikenakan, laporan yang diterima mendakwa kebanyakan tanah telah dijual sebaik sahaja surat hakmilik tanah diperolehi Kajian ini bertujuan untuk mendapatkan pandangan orang mengenai pentingnya pemilikan tanah secara formal and mengenalpasti samada berlakunya penjualan tanah yang berleluasa. Memilih Semenanjung Asajaya sebagai tapak kajian, kajian di tapak terhadap para pemilik tanah telah dijalankan. Maklumat kajian adalah dikumpul melalui temuduga secara bersemuka dengan menggunakan jadual temuduga. Kaedah persampelan rawak berstrata digunakan untuk memilih para responden. Kajian menunjukkan pemilik tanah mempunyai ikatan yang kuat terhadap tanah dan penjualan tanah hanya dipertimbangkan sekiranya mereka tiada pilihan lain. Keputusan kajian mendapati hanya 3.25% daripada pemilik tanah mempunyai niat untuk memindahmilik tanah yang diberimilik oleh kerajaan. Separuh daripada pinclahmilik ini sebenarnya adalah di antara ahli keluarga. Penjualan berleluasa tidak berlaku bagi tanah yang diberimilik kepada mereka di Semenanjung Asajaya. Hasil kajian mengesahkan bahawa tanah yang dibermilik adalah digunakan untuk tujuan yang sepatutnya. Kajian ini disimpulkan dengan cadangan kepada kerajaan untuk meneruskan polisi pemberimilikan tanah kepada masyarakat desa. 111

6 Pusat Khidmat Maklumat Akademik UNIVERSITI MALAYSIA SARAWAK TABLE OF CONTENTS Page ACKNOWLEDGEMENT 1 ABSTRACT ii TABLE OF CONTENTS iv LIST OF TABLES vii LIST OF APPENDICES viii CHAPTER 1: INTRODUCTION 1.1 Introduction Background of the Study 1.3 Problem Statement 1.4 Research Goal and Objectives Research Goal Research Objective 1.5 Justification for Research 1.6 Significance of the Study 1.7 Overview of the Study Conclusion CHAPTER 2: LITERATURE REVIEW 2.1 Introduction What is Land to the People? Land Ownership Need for Legal Ownership Benefits of Registered Titles Controversies Over the Issue of Title 2.4 Rights over Land Property Rights... 2,4,2 Restriction to Rights and its Implication Restrictive Conditions and its Effect Conclusion iv

7 CHAPTER 3: METHODOLOGY 3.1 Introduction Background of the Study Area Asajaya Peninsular and Its People Target Population under Study 3.3 Research Design 3.4 Research Instrument Data Collection Methods 3.6 Sampling Technique Stratified Random Sampling Sampling Process 3.7 Field Survey Pretest of Interview Schedule Research Ethics Field Work Data Analysis Reliability and Validity Limitations of the Study Conclusion CHAPTER 4: FINDINGS AND DISCUSSIONS 4.1 Introduction Land Alienation Policy Restrictive Condition 4.3 Background of the Respondents Population Under Study Respondents' Profile Importance of Land Ownership and Land Title Importance of Land Ownership Significance of Land Title Perception and Attitudes Towards Land Purchase of Land To Sell or Not to Sell? Land as Collateral Awareness and Agreement to the Restrictive Condition Perception of the Restrictive Condition Effect of the Restrictive Condition Conclusion... I V

8 CHAPTER 5: CONCLUSION AND RECOMMENDATION 5.1 Introduction Conclusion and Recommendation Land Policy Land Ownership and Land Titling Disposal of Land Recommendation for Future Research REFERENCES 105 APPENDICES 109 GLOSSARY OF TERMS 119 V1

9 LIST OF TABLES Page Table 3.1 No of Titles Issued as at end of Table 3.2 Research Framework Table 3.3 Particulars of Key Informants Interviewed 41 Table 3.4 Application for Consent to Transfer According to Category 45 Table 3.5 Sample Size of Respondents.. 47 Table 3.6 Respondents According to Subgroups and Gender Table 3.7 Identification of Respondents 52 Table 4.1 Ethnicity and Gender of Respondents 59 Table 4.2 Age of Respondents 60 Table 4.3 Education Level of Respondents 60.. Table 4.4 Main Occupation of Respondents 61 Table 4.5 Second Occupation of Respondents.. 62 Table 4.6 Income and Family Size of Respondents 64 Table 4.7 Differences Between Titled and Untitled Land 68 Table 4.8 Benefits of Titled Land 71 Table 4,9 Possibility of Purchasing Land Without Title 72 Table 4.10 Likelihood in Selling Land 75 Table 4.11 Possible Selling Circumstances.. 78 Table 4.12 Reasons Given for the Transfer of Land 80 Table 4.13 Awareness and Agreement to Condition Imposed 87 Table 4.14 Effect of the Restrictive Condition.. 90 Vll

10 LIST OF APPENDICES Appendix A Interview Guide for Land and Survey Department Appendix B Interview Guide for District Officer/Community Leaders Appendix C Interview Schedule Appendix D Research Statement to Participant viii

11 CHAPTER I INTRODUCTION 1.1 Introduction Land is a natural resource that is crucial for the livelihood of the people especially in the rural areas. Among the rural communities, land is a key asset that not only provides a foundation for economic and social development but also helps them to adjust to the challenges posed by the trends of globalization (Deininger, 2004). It is the people's access to land that determines to what extent livelihood can be enhanced and how living standard can be improved. Whether the people hold formal ownership over the land through legally recognized state law or were accorded the privilege under the customary tenure recognised by the local communities, it is a fact that land is necessary for the economic production in agrarian societies. This is especially true for those who depend largely on the land to earn their living. As long as humankind exists, land will continue to remain an integral part of rural community living. The importance of land to the people cannot be denied as land is the basis of existence for the rural people. Holding either formal or informal rights over the land both guarantee the people's access to land and thus safeguard their livelihoods. The rights to land may originate from the use of the land over a long period of time. These are often rights developed by ancestral use and occupation of the land. In such cases, it is through the act of original clearance of the land and settlement by ancestors that rights are claimed. The rights to the land however are only beneficial when such rights can be easily and 1

12 independently verified. Where rights are difficult to ascertain and not recognized by the communities, the likelihood of dispute over the claims of land remained. This is especially true where there is no legal document to proof the true ownership of land and the basis of claims depend solely on the confirmation and agreement among members of the same communities. False claims exist because there are instances where people have acquired land through illegal means. Examples of these are when land were acquired through cunningness or sheer force such as when the rich and strong take unfair advantage of the poor and weak by depriving them of their access to land and a place to stay. By these means, they may have acquired possession of the land but they have not acquired property rights. Property rights, and with them the right of protection against those one would exclude from the holding or use of a property, arise only when a sovereign authority - the family, clan, tribe, or the state - recognizes and enforces one's exclusive right of possession. Regardless of their origins, rights over land do not exist merely because someone claims it. Land are often acquired by inheritance and with it, the rights to the use and occupation of the land. People within the same community generally agree among themselves as to where and how each can exercise these rights (McLaughlin and Palmer, 1996). Individuals can hold the rights alone or share them with others to the exclusion of all other persons. It is this rights which the person holds that play an important role in determining what people may or may not do with the land. 2

13 Many of the problems relating to land arise when people hold land without having the rights that is recognized either by statutory law or customary law. Examples of these are squatters or occupants on state owned land who do not have documented proof of ownership of the land they occupied. Neither are these land recognized by local communities as communal land. The occupiers may be occupying the land but in the eyes of the law, they are deemed to be occupying the land illegally. Occupants on state land have often made considerable efforts to increase their level of security, in some cases through significant investments, but they often remain vulnerable to eviction threats. Without the legal proof of ownership, these illegal occupants constantly live in fear of being evicted from their land. There is also the danger of their homes being razed to the ground and themselves left without a shelter. Many of them are dragged into ownership disputes. Moreover, poor families cannot obtain mortgages to upgrade their homes, start small businesses or pay for their children's schooling. Due to the unrecognized rights, occupants of state land often cannot make full use of the land they occupy. A way out of this predicament would be for the government to regularize their possession and to grant the occupiers legal rights by the issue of land titles. The document of title provides proof of land ownership. By possessing the land title which confirms which individual has exclusive rights to a clearly demarcated land parcel, the land can then be productively used. This guarantees that what is sown can also be reaped. Having legal rights over the land coupled with their labour, allow the people to produce food for home consumption as well as cash crops that allow the family to pay for other needs such as health care and education. With secure tenure, land is a source of wealth and investment to the people. 3

14 The land title is a legitimate item that can be used as collateral and it showed who the owner of the property is. Land title gives value to property and provides psychological security as well as financial security to its owner. Clearly, there are more advantages to having titles to the land compared with informal land ownership. Towards this end, the governments of many countries have granted recognition of the rights of the people towards the land they occupied through the process of land titling. In the case of land held under the customary tenure, land titles are issued which gave formal recognition of the rights of the people towards their land. For state land occupied by the people, the land is granted through the process of alienation and the issue of formal titles to the occupiers. With the issuance of formal land titles, there is increase in the tenure security of land, which also empowers a flourishing land markets and facilitates the use of land as collateral in credit markets (Deininger and Binswanger, 1999). In spite of this increase in tenure security which enables its owners to make a more productive use of the land, seemingly people are found to have abused the use of the land after being given formal recognition by the government. Instances of these are when the land are immediately sold off for quick profit soon after obtaining the land title rather than making full use of the land to improve their living standard. Once the cash is gone, the circle of landlessness and poverty begins anew as people move in search of land and shelter all over again (Hartzok, 1999). 1.2 Background of the Study Closer to home in Sarawak, many of our rural communities are found to be occupying and deriving their livelihood from land which do not legally belong to them. Some of 4

15 Pusat Khidmat Makfumat Akademik UNIVERSITI MALAYSIA SARAWAK the people may be occupying the land under a customary tenure but many are found to be in occupation of state land illegally. One such area is in Asajaya Peninsular, Samarahan where many of the local communities were found to have carried out farming activities on state land for many decades. Although the people have made use of the land for a long time and treated those land as their own, nevertheless in the eyes of the law, they have not acquire any rights under the law to use the land for farming. As far as the Land Code (Cap. 81) is concerned, they are illegal occupiers on state land. To address the problem of this illegal occupation of state land, during the launching of the Gerakan Desa Wawasan programme at Kampung Moyan Laut, Asajaya, Kota Samarahan on , the Honourable Chief Minister of Sarawak gave a directive to the Land and Survey Department, Samarahan Division, that action is to be taken immediately by the department to regularize this illegal occupation of state land by the local population (Jabatan Tanah dan Survei, 1997). The local population are made up of the Malays, Ibans and Chinese communities living in the area who have been making use of the land for cultivation of various types of crops since This directive is in line with the government's effort to eradicate poverty and to create a resilient rural community motivated towards bringing about greater development as outlined in the Seventh Malaysia Plan. Resulting from the above directive, an action plan taken to implement the issuance of titles was carried out in an operation called the Section 13 Exercise (Jabatan Tanah dan Survei, 1997). The outcome of the Exercise is that land titles were issued to the occupiers of those state land for agricultural purposes through the process of direct 5

16 alienation. For all state land alienated to the people, it is the policy of the government to discourage the sale of land which were the subject of direct alienation. Instead, the land owners were encouraged to make use of the land to raise their standard of living (Jabatan Tanah dan Survei, 2003). As part of the policy, all land granted to the people through the process of direct alienation will carry a "no dealings" condition against the transfer and sublease of the land. The two conditions are imposed to discourage further dealings on the land by the original owner as part of the government's effort to safeguard the land ownership and ensure that the land are developed in accordance with the purpose of alienation. With the restriction emplaced, it means that any intended dealings by the land owners would need to have a prior consent from the authorities before dealings on land can legally be carried out and formally registered. Without the restrictive clause, it is the concern of the government that the land owners may unwittingly dispose of their land and be deprived of an important land- related social safety net which is very much needed for their survival. The restrictive conditions therefore served as assurance that the land alienated by the government will always be kept within the family and for the use of their future generation. 1.3 Problem Statement As mentioned earlier, land is of utmost importance especially to the rural communities in deriving their livelihood and as a way out of poverty. To those who have been occupying state land such as the rural people in Asajaya Peninsular, Samarahan, the government granted the land because the people do not have legal 6

17 ownership over the land on which they farmed and earned their living. By granting formal ownership over the land, the land becomes an asset that can be used to improve their standard of living. Where titles to the land had been issued, these land owners are encouraged to make full use of the land for cultivation and make improvement to the land as there would no longer be any doubt as to whom the land belonged to. In addition, the land titles can be used to secure loans for their farm improvement in order to improve productivity. However, despite the effort on the part of the government to try to improve the lives of the people living in the rural area by granting land and land titles to the land, there is a general impression that once the land titles are obtained, thereafter the land are immediately disposed off for a quick profit by the land owners. The contention is that if the land is sold, it is only for one time gain. Land will go to the third parties and once again, the families will be landless again with no place to farm. Without land and any available resource to improve their living, the rural communities will continue to live in poverty. There is therefore a contradiction between the perceived importance of land to the rural communities for their survival and the apparent disregard of the preciousness of land which had been alienated to them, leading to thoughtless disposal of such land soon after obtaining the land titles. This study therefore is an attempt to find out whether there is really a truth to what has seemingly been observed as rampant disposal of land. The focus of the study is on the rural communities to find out how they regard land, and in turn their action towards the land owned. Once the land are alienated and land titles issued in their names, what do the land owners do with the land and/or the land titles in their 7

18 possession? Actions taken by the owners would naturally be influenced by how they perceive land and what they understand as their rights over the land which had been alienated to them for their use. For that matter, how do the people perceive as their rights over the land and how do their understanding of their rights over the land influence their action and decision with regard to the use of the land? If land is indeed very important to the rural communities and is most crucial for their survival, what likely reasons could there be for the disposal of their land? Earlier in the background of the study, it has also been mentioned that for land alienated by the government, the land would be imposed with restrictive conditions that restrict dealings on the land. Firstly, what are the reasons for the imposition of such restrictions and secondly, to what extent are the control and limitations placed on the use of this land? What do the people think about such conditions? For that matter, are the people aware of the conditions imposed and what are the implications to them who are affected by it? In seeking the answers to all the above issues relating to the importance of land to the people, the following research questions are posed. These research questions which will act as a framework and guide the path of the study are: i) What are the policies of the government with regard to state land alienation? a) What policies are those? b) What are the reasons for such policies? ii) What do the rural people understand as their rights over their land? a) What does having land title mean to the people? b) What do they think are the benefits of having land title? 8

19 iii) How are the actions of the rural people influenced by their interpretation of their rights over their land? a) What do they do with the title document? b) What are the reasons for their actions? 1.4 Research Goal and Objectives The preceding sections had introduced the reader to the background and purpose of the study. The research goal and objectives will now be outlined Research Goal The goal of this study is to look at issues from the perspective of the people themselves who are directly affected by the government policies, analyze the results, and translate the data into meaningful information that is of use to both the government and the general public alike Research Objective The objective of this study is to gain a better understanding of the mindset of the rural communities. Specifically, the study seeks to: i) Understand the policies with regard to state land alienation specifically the reasons for the imposition of the restrictive condition on the alienation of land ii) Explore the perceptions and attitudes of the rural communities towards land ownership and land titling iii) Find out contributing factors leading to the disposal of land 9

20 1.5 Justification for Research An operation carried out by the Samarahan Land and Survey Department to regularize the illegal occupation of state land in Asajaya Peninsular is termed as the Section 13 Exercise (Jabatan Tanah dan Survei, 1997). This Exercise has been chosen as a study project mainly because there have been reports of increasing frequency of land being disposed off once the land titles to the land are obtained but no proper records in term of the numbers, the frequency of such occurrences and reasons for the disposal has ever been documented. This study therefore provides an avenue to evaluate the result of its implementation since the launching of the operation in Another reason for choosing to study the Section 13 Exercise is also due to the location of Asajaya Peninsular, which is located within Samarahan Division and close to where the researcher works in the Land and Survey Department. By doing a study which is relevant to the department, the research would be made much easier and complete as the researcher would have an insider's access to the records and information related to the Section 13 Exercise especially on the reasons and the modes of transfer by the people. Moreover, the Section 13 Exercise is a one-time operation which enables the duration of each stage of the exercise to be determined for purpose of statistical documentation. This would enable an analysis of the frequency of occurrences over land to be made, in order to understand the nature of the problems faced and how they might be addressed. 10

21 1.6 Significance of the Study The information gathered in this study regarding the rural communities' views on land issues, effect of the land policy and the factors affecting the land owners' decision and reasons for their actions will lead to better understanding of the mindset of the rural communities. The findings will greatly add to an improved knowledge of how a particular government's policy is interpreted by the people. Where there is a gap in the level of understanding and awareness of the policy implication, the study will form a starting point to assess any inadequacies found in response to the needs and concerns of the people. Effort can then be made in the dissemination of information that will address the lack of knowledge and understanding more effectively. The results of this study would be able to aid government and decision makers by providing insights for improving and implementing policies that meet the needs of the people. As development takes place and with the gradual shift of the mentality of the rural communities due to better education and money becoming more important in their daily lives now than before, land certainly would mean differently especially to the younger population. Added with increasing importance in the non-agricultural sector of work, the relevance of the government policy to the target group must be kept under regular review in keeping with the change of time. This findings will therefore serve as a basis for future policy implementation in the state, which can better serve both the government and the people at large. 11

22 1.7 Overview of the Study The broad structure of the study which outlined the course of this research is now briefly described. Chapter 1 introduces the reader to the purpose of the study and gave an overview of what the study is about, the objectives to be achieved and the significance of the research. Chapter 2 is devoted to a review of related literature relating to rights over the land, the extent of those rights that can be exercised and the nature of control due to the land policy and its implication on the use of the land. Chapter 3 presents a detailed description of methodology used in the research, approaches and techniques to data collection, analysis of the data and limitations of the study. This is followed by findings and discussion of data collected during the research in Chapter 4. Chapter 5 concludes the study with recommendations based on lessons learnt and gives suggestions on areas for further research. 1.8 Conclusion This study seeks to understand the importance of land to the rural communities as well as discover their views and attitudes towards land ownership and the effect of the land alienation policy on them. Because of the importance of land, when the people were granted land by the government, land is expected to be used for the purpose as intended. The government does not intend for the land owners to dispose off their land for quick cash benefit. Whether this holds true or not for the people in Asajaya Peninsular, Samarahan who had been alienated land under the Section 13 Exercise is therefore to be discovered in this study. 12

23 CHAPTER 2 LITERATURE REVIEW 2.1 Introduction Chapter 1 has introduced the reader to the subject of land and its relative importance to the rural communities. Land can either be formally or informally owned, but it is the recognition of the many benefits associated with formal land ownership that convinced many governments to undertake land titling programs that legalised this rights over the land. To provide a better understanding of the above issues, relevant literatures on the subject of land, definitions, views and findings on the matter and land related issues will be examined. First, a review of literature will be made on the importance of land to the people. This will be followed by the need for legal ownership of land signified by the possession of land titles. Next, the benefits and controversies relating to the issue of the registered titles will be reviewed. On the legal aspect of land ownership, government plays an important role by determining how the rights to the land are defined. On this issue, the nature of rights over the land, restriction of those rights and the effect of the restriction to the rights over land will be reviewed. Past studies and findings of related topics will be referred to add clarity and to highlight points and issues reviewed. 2.2 What is Land to the People? There is ample literature that pointed to the subject of land. Land is more than just a factor of production or an economic good. The interrelated social, institutional and political factors involved in land make it an asset that is different from all others. Land constitutes an asset and a source of wealth for communities, families and 13

24 individuals, with strong links to cultural and spiritual values (FIAN International, 2003). Land is crucial to economic development and growth, poverty reduction, democratization and governance. It also embodies other values such as homeland or a place of ancestry and serves as a basis for survival and a prerequisite for individual freedom. Such is the importance of land in the lives of the people that it makes a difference to the social and economic status of the people. To people whose livelihood depend on the land, land is not only the main means to derive a livelihood but is often also a main vehicle for investing, a mean to accumulate wealth, reducing vulnerability to shocks and transferring wealth between generations (Deininger and Binswanger, 1999; Deininger, 2002). In traditional China, land is considered as one of the most important assets protecting against poverty (Zhao and Wen, 2000). Land is a powerful weapon to fight poverty because it is often the only asset that the rural poor possess and is therefore the main means of generating a livelihood in the rural areas (Byamugisha and Zakout, 2000). In the absence of much economic diversification, access to land is of great importance in improving their livelihoods and providing greater security (FIAN International, 2003). Having land therefore helps to establish or expand family farms, potentially making a difference between grinding poverty and an economically secure life. For the elderly, in the case of mortality of all children, they could still live on the rent or on the incomes received from the sale of the land. Anyone without land is dependent in an agrarian society. He is forced to work on someone else's land in order to earn his livelihood. 14