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FOCUS December 2003 Volume 34

Malaysian Plantation Workers and Judicial Recourse

S. Arutchelvan

Will justice prevail? Will the poor get justice from the courts? Is legal recourse a solution?

These are fundamental questions confronting the plantation community in Malaysia. In recent times, the courts have given mixed answers to these questions. Many factors seem to have a hand in the judiciary and justice system in Malaysia but non-governmental organizations (NGOs) and groups working with the plantation workers have learned to be cautious and never let legal solution per se determine the future of the struggle for permanent housing rights. Nevertheless, the legal struggle is an important tool, which can be explored and experimented.

Experience illustrates that it was not the legal battle itself that saved the people but the struggle and the environment created by the workers and a few dedicated lawyers. If there were good laws, the workers would not be running up and down.

Eviction in the plantations

The plantation industry in Malaysia is on the way out. Once the largest exporter of natural rubber in the world, today Malaysia has become an importer of rubber. It is said that by the year 2005, there will be less than 10,000 acres planted with rubber trees for research purposes only while the rest will be devoted to palm. The current work force in the rubber plantations is also expected to drop to 5,000 workers from more than 100,000 workers. Palm plantations will continue to employ workers but they will mostly be contract or migrant workers.

The cases of eviction in recent years are due to Prime Minister Mahathir's policy shift in the 1980s of supporting industrialization instead of agriculture. In the 1990s, most plantation companies converted their plantations to property development such as building luxury houses and factories. For example, the huge Kuala Lumpur Airport was the home of workers from 7 plantations while the recently-built New Capital Administration town - Putrajaya - was the home of 4 plantation communities. Besides evicting the workers at home, the Malaysian plantation companies have also ventured in Vietnam and Indonesia to pursue cheaper labor. While workers are evicted in Peninsular Malaysia to give way to development projects, indigenous communities in Sabah and Sarawak (East Malaysia) are being evicted as plantations encroach into their ancestral land.

In 1998, after the currency crisis hit the Asian market, the government temporarily banned the plantation companies from converting their land into other use because it realized that it was the plantation industry that saved the economy and brought in the money. But two years later, from 2000, the plantation companies started converting rubber plantations to palm plantations, threatening thousands of workers and their dependents with homelessness.

So rampant are the development projects that displaced communities are normally seen as anti-development agents and troublemakers. The government always says that since this is an "employer and employee" issue it would not intervene. The truth is that the government is the largest shareholder of these plantation giants. With the power of capital and the power of the State pushing their might, the marginalized plantation communities are left with little option.

The legal struggle

From a legal perspective, the employers or the plantation owners have the upper hand. Once an estate is closed down or converted into other use, the workers are dismissed and their entitlement to the homes withdrawn. If they continue to stay, they will then be labeled as squatters or illegal occupants. The plantation workers who have lived there for more than three generations become illegal squatters overnight upon loss of employment.

Previously, tough actions were carried out by these employers with the aid of police and thugs who use harsh methods to throw out the workers and their dependents from their homes. Though the law is clear that land disputes in private land must be resolved by either party getting a court order to obtain vacant possession, this is seldom practiced. The police and land authorities take it as given that only those who have land titles (in this case the plantation owners) are the only rightful owners and this legal right cannot be challenged.

Things have changed quite a bit today because everywhere plantation workers and NGOs are fighting back. Cases of workers being thrown out of their homes once they lose their jobs are getting rare. Today, plantation communities are seeking alternative decent permanent relocation homes upon termination. The struggle has been to stay put and stay on until the workers are compensated and provided with alternative homes or given a free piece of land each.

Workers and activists have also used two legal provisions under the Specific Relief Act and the Criminal Procedure Code (CPC). Here, the plantation owners are restricted from using means other than legal means to evict the people. In the past, plantation owners disconnected water and electricity supplies to the homes. There were also incidents of poisoning of the water catchment areas supplying water to the homes. Today, using these legal provisions, the plantation owners have to maintain the status quo of the land until the court reaches a verdict. Under the CPC also, there is avenue for lower courts to issue an injunction if there are disputes in the land.

Compensation the plantation owners are willing to give

Plantation owners agree to give termination benefits only in accordance with the 1980 Termination and Lay Off Benefits Act. A letter of termination is given to the workers along with the date of termination and a clause that reads, "...you will have to hand over vacant possession of the estate quarters (homes) that you are currently occupying to the management by certain date". This is the minimum standard action taken by the plantation owners, and will normally not pay one cent more. The State Labor Department interprets the law to mean that once the plantation owners have paid the minimum termination benefits in the Labor Act, they have fulfilled their legal obligation. Under this law, plantation workers with more than 5 years work are entitled to a 20-day wage per year of service. Those who work below 5 years will get less than that. In actual terms, if plantation workers work for around 20 years, they will merely earn RM 6,000 (less than 1,600 US dollars) of termination benefit. This amount definitely cannot purchase a low-cost house which is currently priced in Malaysia ranging from RM 35,000 to RM 42,000 (9,200 to 11,000 US dollars).

Therefore the plantation communities are put in a latch. All their lives, they face low wages and deplorable living conditions, untreated water, low health and nutrition level, and education standards. They are unable to save money. Now, suddenly they will become jobless as well as homeless.

The plantation owners, after paying the minimum termination benefit possible, obtain an eviction order from the court under a summary proceeding (called Order 89). This is a favorite among the plantation owners.

Another worst case scenario takes place when the government uses the Land Acquisition Act to acquire the land from the plantation owners. This happened in the 7 plantations in Sepang and the 4 plantations in Putrajaya that were taken away for the new airport and new administrative township respectively. Here the plantation workers were put in a limbo. The dispute is on the compensation to be paid between the government and the plantation companies. The interest of the plantation workers is of least importance. There has been numerous calls from grassroots movements and plantation workers on the government to use the same Land Acquisition Act in obtaining land to build permanent houses for the workers. The government had come on record calling these groups Robin Hood, trying to steal from the rich and give to the poor. The government said it would not abuse the law to deprive any quarters.

Results of the legal fight

In recent years, there were some small successes and defeats in the legal struggle. A lot depends on the kind of judge that sits and decides on the case. In recent months, there were judges who give this logic, " Even we judges, when we retire, have to surrender our homes...why are the plantation workers so special". These judges fail to see the fundamental importance of the right to livelihood - a constitutional right under Article 5 of the Constitution. They also fail to see the human dimension of the cases - three generations of the workers had lived on the land, and they (the fourth generation) are still there.

Among notable legal victories was a small break-through made in a labor case in Ladang Bangi where the labor court decided that the company cannot hold back the termination benefit. Previously the owners hold the termination money in ransom until the workers vacate the homes. But now this has been broken. But the plantation owners have appealed against this decision and the matter is pending.

A more significant achievement was the setting aside of Order 89. Before 1981, in the case of Sidek versus Perak State Government, the court ruled, "Squatters have no rights either in law or in equity". Then the developers had a field day in evicting squatters and former plantation workers using this Order. But a breakthrough was made in 1991 in the case of Bohari versus The Director of Land Office. The court decided that the defendant is entitled to a trial in order to have the chance to show that there are "triable" issues. Since then, plantation workers have successfully demolished Order 89 by proving that they have "triable" issues.

Once the court believes there are "triable" issues, Order 89 summary judgment no longer applies and the owners have to go through a long battle to get vacant possession. This has normally enhanced the workers' demand in getting alternative homes and better compensation. Most owners cannot wait that long. It is therefore important to engage the owners into a protracted struggle.

Today the courts recognize the equitable rights of workers. In another landmark case in Lapan Utan, the court decided that the workers have equitable rights and thus the plantation company must compensate the plantation workers.

These court decisions put a break to the plantation owners' drive to evict the plantation workers. The laws in Malaysia do not recognize adverse possession and therefore in the long run the courts finally decide in favor of the owners because they hold the title. The most the workers can gain is some compensation.

There were also some remarkable judgments by a few remarkable judges. In July 2003, Justice Wira from the Appeals Court granted a stay of execution for vacant possession to seven retrenched workers of Changkat Salak Estate.

The Chief Judge, Datuk Wira Hj Mohd Noor, ruled that there is a special circumstance (i.e., the need for shelter until the appeal is heard) to grant a stay of the High Court order. According to the lawyer of Guthrie (the plantation owner), the workers have no such right as they had been offered due compensation and asked to leave the estate. The judge responded, "Leave and go where? Live on trees? Or cow sheds? Or you've got hotels for them?" Clearly stunned, Guthrie's lawyer pointed out a technical flaw in the plaintiff's affidavit saying that there is no mention of the special circumstance. "That is common sense!" said the judge, adding that the issue is not just buildings, but human beings. As a last ditch attempt, Guthrie's lawyer said that even if the workers win in the end, they will still have to leave the quarters, to which the judge replied, "At the end of the day, if they win they go out 'loaded'; now they go with empty stomachs." The well-paid lawyer of Guthrie sank to his seat, defeated by three judges who chose to be guided by the spirit of the law and natural justice.

In Malaysia, a number of communities fought bravely and made significant achievements. There is a very small minority of lawyers who stood by these workers and their communities during these battles. We salute these few lawyers. Many more lawyers remain non-committed and at times even destructive to the struggle put up by the people.

Since the year 2000, some plantation communities succeeded in getting free alternative land or homes. These communities engaged in long-drawn battles, some taking around 10 years using legal and extra-legal means to fight. They have been successful. In these cases, the owners give up because it is still much cheaper to give the workers what they want rather than prolong their possession.

Today, the Malaysian government has a national policy that plantation companies have to build homes for plantation workers before evicting them. This is a good development. But the workers have launched a national campaign asking that this policy be made into law. In 1973, the government issued a policy known as the Workers House Ownership Scheme. But less than 5% of the plantation companies have implemented this policy. Today, the workers are asking for legal safeguard not just toothless policies.

S. A rutchelvan is the Coordinator of the Plantation Workers Support Committee in Malaysia.
For further information, please contact: Plantation Workers Support Committee, 26a, Tingkat Jaya 1, Taman Tasik Jaya, 31400 Ipoh, Perak, Malaysia; ph/fax: (603) 8737-4772; e-mail: parti_sosialis@hotmail.com; www.jerit.org


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