Sunday, April 20, 2008

The day the Bar dined for justice

ON July 24, 2003, the then chief justice Tan Sri (now Tun) Ahmad Fairuz Sheikh Abdul Halim announced the promotions of eight judges. The four new Federal Court judges were Datuk Abdul Hamid Mohamad, Datuk Wira Mohd Noor Ahmad, Datuk Pajan Singh Gill and Datin Paduka Rahmah Hussain.

Four other High Court judges were elevated to the Court of Appeal: Datuk Nik Hashim Nik Ab Rahman, Tengku Datuk Baharudin Shah Tengku Mahmud, Datuk Arifin Jaka and Datuk S. Augustine Paul.

However, the Malaysian Bar was not happy with the promotion list because its then president, Kutubul Zaman Bukhari, had issued a statement on July 5 on the promotions arguing that if senior judges were bypassed in promotions in favour of junior ones, there must exist reasons which must be explained to the public.

"Anything less than a full and convincing explanation will damage public confidence in the administration of justice."

He said the Bar would, if necessary, call an extraordinary general meeting to discuss the matter.

In announcing the new appointments, Ahmad Fairuz said seniority was not the only criterion, and that if it was, then there would be much deadwood.

"The seniors will not work because they know they will move up when the time comes because they are seniors."

He also denied that the promotions of three of the eight judges -- Arifin, Paul and Pajan -- were a "reward" for their decisions in cases involving Datuk Seri Anwar Ibrahim.

Responding to the promotions, Khutubul issued the following statement:

"Today's announcement of promotions in the judiciary, which saw so many senior judges being passed over, has unfortunately confirmed the fears of the Bar that such an important aspect of our system of justice has been lightly treated, with indifference to transparency and objectivity, and in the absence of consultation with the Bar.

"There has been no credible explanation for the en masse bypass of senior judges, and none is apparent. This process, or lack of proper process, has been carried out despite the clarion call by the Bar Council as exemplified in the Bar Council's press statement dated July 5, 2003.

"The Bar Council had taken great pains to explain that, when senior judges are bypassed en bloc in favour of junior ones, the question that immediately presents itself is not so much the suitability of the latter, but rather on what acceptable criteria have the former been considered unsuitable and therefore not been chosen (as would otherwise have been in the ordinary course of things).

"This issue is of legitimate concern to the Bar and the public, especially when passing-over appears to have become the rule rather than the exception.

"Today's event has exposed the alarming breakdown of a much needed mechanism for the determination of fair and proper judicial promotions in this country.

"It leaves many questions unanswered, and sinks the system into poorer health."

With this, Khutubul reiterated the Bar's call made even much earlier for an independent judicial appointments and promotions commission in consultation with the Bar to ensure the appointments and promotions process is transparent, structured, accountable, objective and consultative in manner.

Hence, the Bar Council called an EGM on Oct 5, 2003, to pass a resolution for the inception of this commission and also to call on the chief justice to disclose and make public the method and criteria employed in the July 24, 2003 judicial promotions.

In response, former prime minister Datuk Seri (now Tun) Dr Mahathir Mohamad said that in the event that the Bar Council's resolution was adopted, the judges appointed would be indebted to the council and would no longer be independent.

The then de facto law minister, Datuk Seri Rais Yatim, said the appointment of judges must be decided by law and not through public sentiment or pressure from interest groups.

Writing in the New Sunday Times on Sept 28, 2003 ("Appointment of judges: Bar should act rationally"), lawyer Datuk Zaid Ibrahim joined in calling on the Bar not to go ahead with the EGM and instead use diplomacy when dealing with the judiciary, but he did not say that he was against the Bar's proposal.

Alas, due more to the members' insouciance and the stringent quota requirement, the EGM scheduled on Oct 4, 2003, could not proceed.

But in the government's view, Rais said the lack of quorum exemplified the conclusion that the legal fraternity, especially practitioners, were not of the same view as the council.

The Bar Council did not lose hope and it continued with its call for the commission whenever an opportunity arose.

Expectedly, the Bar's lukewarm relationship with the judiciary worsened as thenceforth Ahmad Fairuz virtually stopped all dialogue with the Bar Council, and refused to meet Khutubul.

Instead, he chose only to engage with the state Bar committees with the council wondering whether this was a divide-and-rule tactic.

At the Johor Bar annual dinner on March 11, 2006, in Johor Baru, Ahmad Fairuz shocked everyone present by revealing that he did not like Khutubul and believed that the latter's successor, Yeo Yang Poh, would be a better person to work with. But he was obviously mistaken.

Yeo was no less determined and convinced than his predecessor that there ought to be a commission. Backed by a strong Bar Council and its website, Yeo continued with the mission.

In a statement dated June 6, 2006, he said if the commission was implemented, "this will prove to be one of the greatest legacies that the government and the people of Malaysia can leave behind for the benefit of generations to come".

But the Bar's call for such a commission continued to fall on deaf ears.

The new de facto law minister, Datuk Seri Nazri Aziz, felt that it should be the judiciary and not the executive who should initiate this.

Thanks to the infamous V.K. Lingam video clip, the need for a more transparent and accountable appointments mechanism could not have been more urgent.

On Sept 26 last year, the Bar led by its president, Ambiga Sreenevasan walked from the Palace of Justice, Putrajaya, to the Prime Minister's Office to hand over the memorandum calling for the formation of a commission.

Hence, needless to say, when the prime minister announced last Thursday that the government agreed to the setting up of a commission, the Bar gave him a standing ovation.

Indeed, the Bar must acknowledge the efforts of Zaid, and the determination of the previous and current Bar leaderships for this struggle now coming to fruition.

If Sept 26 is remembered as the day the Bar walked for justice, then April 17 should be celebrated as the day the Bar dined for justice, savouring the fruits of its many years of struggle for an independent commission leading to an independent judiciary.

The Bar proposes that this commission acts in a recommending capacity in that when the prime minister consults the chief justice over judicial appointments before advising the Conference of Rulers, under Article 122B of the Federal Constitution, the chief justice's advice to the prime minister on candidates will be the candidates identified by this commission.

In other words, it only changes the chief justice's constitutional role in this process and not that of the prime minister and the Conference of Rulers.

With this procedure, it will also render the appointment of judicial commissioners unnecessary.

The Bar is of the view that the commission should comprise 13 members made up of the following:

- Chief justice, who should head the commission;

- The attorney-general;

- The president of the Court of Appeal;

- The chief judge of Malaya;

- The chief judge of Sabah and Sarawak;

- The minister of law or his nominee;

- President or vice-president of the Malaysian Bar;

- Three senior practising lawyers (nominated by the Bar Council); and,

- Three lay people who are not practising lawyers and have never held judicial office (to be appointed by agreement of the other members of the commission).

In this respect, I wish to say that any argument that the judiciary will be beholden to the Bar is fallacious as the Bar, though a minority in this composition, is nevertheless a major stakeholder in the administration of justice.

To say so will mean also that judges appointed are beholden to the executive.

As Ambiga said at the dinner last Thursday, this issue should not arise as judges know that they discharge their responsibilities impartially, independent of who the appointing authority is, guided only by their oath of office and their conscience.

However, it cannot be denied that whoever is nominated and appointed to sit in this commission does matter a great deal.

This is echoed by Chief Justice Datuk Abdul Hamid Mohamad in his speech at the recent Judges' Conference. He said: "They (the commissioners) themselves must be people of integrity, knowledgeable, incorruptible, fair and without any vested interest. They should not have an agenda of their own. Neither should they be the conduit for lobbying for the judgeship.

"Again, as I have said at Universiti Utara Malaysia, whatever system we have, in the final analysis, it is the people who implement the system that matters."

Indeed, there is no perfect mechanism but this is nevertheless the best option available as many Commonwealth countries have also adopted it.

Even Britain has opted for such an independent judicial appointments commission, doing away with the centuries-old practice of letting the lord chancellor make or recommend judicial appointments to the Queen.

But here, we have the executive and the rulers who continue to act as the check and balance just in case the commission fails in its constitutional duty, and vice versa.

In conclusion, let no one mistake the Bar's resolve when it sets its mind into doing something which is good for the people and country.

The public can be assured that notwithstanding this historic announcement, the Bar will not sit back until the commission becomes a reality.

Sunday, April 13, 2008

What's fine for some is not for others

New Sunday Times
by Yong Huey Jiun

Roger-KarpalSome say it is a populist measure. But response to the waiver of summonses by the new state administrations is all but warm. YONG HUEY JIUN talks to the different parties to find out what about the controversy

ONE of the first things Penang Chief Minister Lim Guan Eng did after assuming power was to waive summonses issued (before March 11) for parking and illegal hawking offences. Lim's announcement, which appeared to stun many, came hours after he was sworn in as the chief minister.

For Chong Foo Shen (not his real name), the announcement came a little too late. The 32-year-old settled his two parking summonses in January.

"I think the waiver is unfair to those who have paid their summonses. In the interest of fairness and equality, they should get a reimbursement," says Chong.

Little did Lim know then the seemingly innocuous (even populist, some may say) move would spark a controversy that would spiral out of control and plague his leadership a month after taking the helm.

Already beleaguered with problems stemming from the power transition, what was supposed to be a "fresh start" for the new administration has generated a backlash among critics and legal experts.

Joining the torrent of criticism, Bar Council member Roger Tan denounced Lim's action as interfering with the power of local authorities, lacking rudimentary knowledge of law principles, and violating the (Article 8) Federal Constitution.

But Lim stood firm and so did Perak Menteri Besar Mohammad Nizar Jamaluddin, who also declared a similar waiver in Perak.

Despite objections from several quarters, Perak senior state executive councillor Ngeh Koo Ham said in a statement on Wednesday the state government would stick to its decision.

He defended the state government's action, noting that "the state government has jurisdiction over the local government" (Schedule 9), as enshrined in the Federal Constitution. DAP national chairman Karpal Singh backs his fellow party member's statement, saying that "the Constitution supersedes any provisions of the Local Government Act".

Tan disagrees: "The Local Government Act is a legislation made under Article 76(4) of the Federal Constitution, of which Schedule 9 is subject to. Schedule 9 merely states the state government has the power to legislate; however, it is not a licence for the state government to ignore existing laws."

The main contention is that local councils are not state government departments. There have been strident calls for the revival of local council elections. Some say subjecting the local government to the directive of the state government undermines or defeats the very purpose of the push for reform.

While critics blast the move, Karpal claims the waiver is a form of amnesty.

An amnesty is granted on rare and significant occasions, such as the release of prisoners during the 25th Merdeka anniversary.

That Karpal referred to the waiver as an amnesty -- one which all will benefit from regardless of political preferences -- should strike a chord given that the opposition's victory was a historic event. But Tan argues that "chief ministers do not possess the power to grant amnesties".

Tan went one step further to note that some of the summonses may have expired.

"Technically, they may be prosecuted if they have expired. And only the local authorities have the power to prosecute."

Karpal says that the waiver does not bypass any authority as long as prosecution has not commenced. In past interviews, he had said: "The amnesty granted cannot be said to impinge on the powers of the public prosecutor because the compound notices and summonses have not reached the stage of prosecution."

In the midst of the ruckus, Housing and Local Government Minister Datuk Ong Ka Chuan had said chief ministers could advise the local authorities on the issue but ultimately, it was left to the heads of councils to decide.

When Lim first declared the waiver, he had said he wanted to "reduce the burden faced by the people, especially the poor". In one of his speeches, Lim said there had been many complaints on how the summonses were issued haphazardly and policies which were not carried out in a transparent manner.

Some offenders refuse to pay because they feel aggrieved, says executive council member Chow Kon Yeow, who is in charge of local government.

"They get a ticket even if they park for just a while. Or hawkers are slapped with a RM250 fine when they narrowly breach the perimeter of the stipulated area."

S.M. Mohamed Idris, president of the Consumers Association of Penang, says the waiver is clearly a violation of law. He points out that the move is unfair to those who have settled their summonses.

"Car owners should not feel burdened because if they can afford to own a car, surely they can afford to pay up," he adds.

While the proposal may seem unfair to law-abiding citizens, Gunaseelan M. Segaran, with three outstanding summonses, welcomes and expresses support for the move.

"This does not happen regularly. It is a one-time waiver by the chief minister to express his appreciation for the people's support," he says.

It is not known how much the waived summonses would total. From a monetary point of view, Chow does not think the councils' operations would be affected as they are "uncollected compounds". But local councils face financial constraints and frequently have to rely on federal grants.

"It does not make sense to waive the summonses since they serve as a source of revenue for the local authorities," says Tan.

Right or wrong, some parties have grown weary of the issue and are ready to put it behind them. Whether one is for or against the waiver, both sides agree there is a greater urgency to focus on the myriad of issues of reform facing the administration in the next few years.

"It should not deflect attention from other more important issues," stresses Idris.

"The matter should be laid to rest. It's time to move on."

The Attorney-General's Chambers and the Perak government were not available for comment.

Modern pig farming the solution

Old Macdonald had a farm
Ee-eye, ee-eye oh
And on that farm he had a pig
Ee-eye, ee-eye oh
With an oink, oink here
And an oink, oink there
Here an oink
There an oink
Everywhere an oink, oink
Old Macdonald had a farm
Ee-eye, ee-eye oh

Old Macdonald had a farm
Ee-eye, ee-eye oh
And on that farm he had a cow
Ee-eye, ee-eye oh
With a moo, moo here
And a moo, moo there
Here a moo
There a moo
Everywhere a moo, moo
Old Macdonald had a farm
Ee-eye, ee-eye oh

I USED to sing this nursery rhyme in primary school. I do not know whether this is still being sung in our schools today, but I certainly hope it is still being permitted.

But one thing is certain, if old Macdonald had a farm in Malaysia, he would not be able to keep both the pigs and the cows together.

The reason is that in a multi-religious country like ours, what we eat is an issue.

For the Muslims, the Quran as stated in Al-Baqarah 173 specifically mentions that a pig is haram and hence Muslims are forbidden from consuming pork.

So our government banned the 1995 Academy Award-winning Australian film, Babe, which tells the story of a pig which wants to be a sheepdog

To a Hindu, a cow is a sacred animal and while Hindus do not eat beef, they do drink cow's milk.

That is why Hindus protested when the Backbenchers Club, though done with good intentions, unwittingly undertook a mass slaughter of cows on the grounds of Parliament House last July.

As for a Chinese, he eats almost everything! As a Chinese saying goes, "A Chinese eats everything that has four legs, except tables; everything that flies, except airplanes; and, everything that is found on water, except boats".

Therefore, as we are sensitive to all religious groups, the Malaysian Bar has long stopped serving pork and beef at its functions. The same goes for shark's fin soup to appease the environmentalists.

Recently, pig farming has become a hot issue. But then, pig farming has been here for a long time. At one time, the pig population in Sepang outnumbered humans.

In fact, when my parents first came over from China in 1947, they settled down in Sepang as pig farmers until they moved to Yong Peng in 1958.

In the 1960s, when I was about 5-years-old, my parents still kept a sow behind the house. So did some of our neighbours.

There was one event which I still recall with much amusement. It was that of this cheeky-looking old man bringing his boar to mate with our sow -- a paid service though!

Those days, there was no such thing as transporting the boar on a vehicle. So, the old man had to leash the boar along the street which led to the pigsty.

Of course, if this were done today, it would probably cause a riot even though pigs are still kept as domestic animals in some remote areas of Sabah and Sarawak.

A story was also narrated to me of a senior Umno leader who stayed opposite a Chinese family in the kampung when he was a boy.

During some of the Chinese festivals, the Chinese neighbour would sacrifice a pig for prayers, with the pig's head pointing towards his house. It did not matter to him and his family then as it was tolerable conduct in those days.

But times have changed. The recent demonstration by hundreds of Muslim residents against the RM100 million pig farm project in Kuala Langat, Sepang, was understandable.

I am no expert on pig farming, but from the little I know, a pig produces three times more excrement than human beings do.

Over 90 per cent of the manure is water as half of a pig's body is made up of water. Only four to five per cent of the waste is solid material. This includes nitrogen, phosphorus and other organic materials.

As these omnivorous animals are prone to heat stress, pigs have to be washed regularly to cool them down. Therefore, how we control the discharge of effluent and waste water is important.

The traditional way was to use lagoons and small ponds located behind the farm to contain it, but the effluent still managed to escape into rivers and waterways.

Before the 1970s, most of the pig farms were sited far away from human populations. Today, it has obviously become not only an environmental problem, but a social one when rapid development brings the people closer to these farms.

Further, apart from the stench emanating from the waste, it also causes noise pollution as pig squeals can reach up to 112 decibels, about the same as a Boeing 747 jet at take-off. This is harmful to human hearing.

Secondly, the pig population multiplies fairly quickly. A sow can farrow a litter of up to 13 piglets after a gestation period of only 120 days.

Piglets can be sold after two months or so to restaurants for roasted suckling pigs.

Male pigs sold for meat are known as hogs, and they are usually neutered or castrated after a few weeks. The hogs are fully grown after five months and the life span of a pig is generally 10-15 years.

According to a study conducted by the Department of Veterinary Services in 2006, there are close to 900 pig farms, with a population of about 1.8 million pigs in Malaysia. This figure is small compared with countries like Thailand, which rears about 11.5 million pigs.

In fact, this RM2 billion industry is not without controversy, apart from being hit by diseases such as Japanese Encephalitis (JE) and the Nipah virus.

Two years back, pig farmers were accused of using the banned drug, beta-agonist, in their feed so that the pigs would mature faster and have a higher amount of lean meat.

This drug can cause palpitations, headaches and even death, especially in heart patients.

I am not suggesting that pig farming must now be outlawed. Given the political and economic considerations, this industry will stay, a reality which we have to accept.

However, it is a sensitive issue which all parties must look at rationally. To argue that pig farming ought to be abolished because one section of society does not consume pork is wholly flawed as the same argument can be applied to the rearing of cows for meat when beef is not consumed by another section of society.

The sad part of it is that for too long now, pig farming has been sorely neglected. The reason is obvious because, if not handled properly, a politician will be committing political suicide. So, if it is possible, most of them prefer to stay away from it rather than pluck up the courage to deal with it.

For decades, pig farms have been scattered here and there without any efficient or centralised facilities to treat pig waste.

As demand for pork increases, the discharge of waste correspondingly increases. Also, as land status over these farms is often unsettled and temporary, pig farmers are more motivated by greed and the need to make quick profits rather than investing monies for pollution control.

Indeed, in some countries like Singapore, an environmental levy was imposed on each pig towards a fund to help farmers construct high quality waste treatment facilities.

I visited a modern pig farm in Denmark in September 2000. When I reached the farm, the place looked more like a factory to me because the pigs were virtually out of sight.

Neither was there any odour and the effluent was efficiently treated. The pigs were housed indoors in properly ventilated, temperature-regulated and sound-proofed buildings. Each pig was confined to its individual stall. The workers were required to shower and cleanse their bodies before and after entering the building to prevent the spread of any swine disease to humans.

Such modernised pig farming will be ideal for our country environmentally and socially.

In this respect, it is hoped that right-thinking Malaysians will support any move by the government to implement this concept of centralised pig farming areas (PFAs), whereby existing pig farms can be relocated to a PFA.

I believe the Kuala Langat project is one such PFA, where modern and environmentally-friendly waste treatment techniques will be employed so that no effluent will escape into the rivers and waterways. The waste can also be converted into alternative energy and fertilisers.

By confining these animals indoors and out of sight of locals, it will also avert any confrontation between pigs and people.

I am confident that with greater public awareness and education, our people and pig farmers will be better informed and accept this win-win situation, devoid of any emotion.

It follows that if, according to Selangor Menteri Besar Tan Sri Khalid Ibrahim, that the Kuala Langat project was initiated by the previous Selangor government, then the Barisan Nasional government ought be congratulated for this.

The new Selangor government too ought to be praised for having the gumption to continue with it.

Modern pig farms, such as those in Denmark, have shown that this can be a profitable and environmentally safe industry. At a pig farm in Ratchaburi, 130km south of Bangkok, pig waste is dried in the sun to be sold as organic fertiliser. Pig waste can also be processed to provide methane gas, used for cooking and generating power.

Wednesday, April 9, 2008

Perak sticks by promise to waive fines

New Straits Times

IPOH: Despite criticisms from certain quarters, the state government will keep its promise to cancel compound notices issued by the local councils for parking offences and illegal trading.

Senior state executive councillor Ngeh Koo Ham told the New Straits Times that official letters would be sent to all 15 local government heads in the state advising them to implement the policy announcement issued by Menteri Besar Mohammad Nizar Jamaluddin.

On March 17, a day after he was sworn into office, Nizar declared that all notices of compound issued by local councils would be cancelled.

Ngeh, who is also national DAP legal bureau head, said the letters would be sent soon to the mayor here and the presidents of the 14 other local councils.

"The letters will be an advisory to follow up with the announcement of the menteri besar.

"We (the state government) intend to fulfil that promise," he said here yesterday.

Several quarters, including non-governmental organisations such as Ipoh City Watch and Ipoh Ratepayers and Taxpayers Association, academics like Penang-based Dr Goh Ban Lee and lawyers like Gurbachan Singh and Roger Tan have criticised Nizar's announcement as being out of the ordinary and in contravention of established laws.

Ngeh brushed aside the criticisms.

He said while the state government recognised that local councils were another tier of government, they were subject to the direction of the state government.

He said by virtue of legal provision in the Federal Constitution, which states that local governments came under the purview of the state government, the instruction to the local councils to cancel the notices to compound could not be questioned.

He pointed to Federal Constitution's Schedule 9, List II (State List) item 4(a) which expressly states "the state government has jurisdiction over the local government" as the underlying provision by which the state government could direct the local councils to act according to its wishes.

"It is important to look at the Federal Constitution instead of taking a narrow view by looking only at the Local Government Act 1976.

"The Federal Constitution is the supreme law of the land."

Sunday, April 6, 2008

Summons waiver impinges councils' autonomy

THE decision by the Penang and Perak governments waiving all summonses for illegal hawking and traffic offences in the two states prior to March 11 and March 18 respectively, though a politically populist move, has nevertheless raised some concern among legal circles in regard to its legal validity and permissibility.

This is not the first time I am raising such an issue. In "Be you never so high, the law is above you" (NST, Jan 29, 2006), I criticised the police for frequently discounting traffic compounds and the former menteri besar of Perlis, Datuk Seri Shahidan Kassim, for rewarding a teenage traffic offender with a bicycle.

Then, I wrote: "It is a good thing for the government to be seen to be kind, caring and compassionate, but it is quite another to send the wrong message that offenders are above the law because punishment can be postponed or ameliorated. This undermines the rule of law."

In answering this question whether the two chief ministers or state authorities have the power to write off the summonses, one needs to examine first the laws in which the summonses were issued.

Firstly, summonses against illegal hawking are issued under by-laws made by the local authority under Section 73 of the Local Government Act (Act 171) and confirmed by the state authority under Section 103. The offences can be compounded by the local authority pursuant to by-laws made under Section 102(t) of Act 171. (Compounding an offence means offering an offender a chance to settle a specified sum within a stipulated period without being prosecuted in court for the offence.)

On the other hand, a parking summons is issued pursuant to an order made by a local authority under Section 72(1) of the Road Transport Act 1987 (Act 333).

The powers to compound are given to an officer of the local authority specially authorised in writing by the minister of housing and local government under Section 120(1)(e) of Act 333. Such officer is usually the mayor or the president of the local authority.

In fact, an offence under Section 72(7) of Act 333 may also be compounded by police officers under the Road Transport (Compounding Offences) Rules 2003. Section 122 of Act 333 also requires the particulars of offences compounded under Section 120 to be sent to the director-general for road transport.

In this case, a state authority has no jurisdiction over by-laws made under Section 72 of Act 333. While Act 171 does deal with enforcement of by-laws of a local authority, this is however restricted to by-laws made under Act 171, and not under any other written law.

Likewise, the power to prosecute has been given to the officers of local authorities in respect of illegal hawking under Section 120 of Act 171 and illegal parking under Section 377 of the Criminal Procedure Code 1999.

In fact, the compound amounts are a source of revenue for a local authority. The reason why local authorities prefer to collect the monies from the compounds rather than prosecute the offender is because any fines meted out in court belong to the federal government.

Turning now to the lawfulness of the waiver, it is important to appreciate that a local authority is not a state government department.

It is an autonomous body. Under Section 13 of Act 171, a local authority is a body corporate which has perpetual succession and it "may sue and be sued, acquire, hold and sell property and generally do and perform such acts and things as bodies corporate may by law do and perform".

Further, it has power to issue licences under Act 171. It also has wide-ranging powers to issue development orders under the Town and Country Planning Act 1976 and regulate street, drainage and buildings under the Street, Drainage and Building Act 1974.

However, there are three situations under Act 171 where the chief minister and state authority may direct the local authorities.

Firstly, Section 9 allows the state authority to give the local authority from time to time directions of a general character which are not inconsistent with Act 171 on the policy to be followed in the exercise of the powers conferred and the duties imposed on the local authority by Act 171.

However, these must relate to matters which "affect the interests of the local authority area". In my view, granting the waiver does not fall within this category,

Secondly, Section 10 (7) provides that where there is a deadlock between the mayor or president and the councillors as to the exercise of any of his powers or of the powers of the local authority, the decision of the chief minister is final and binding. To my mind, neither does this situation apply in the absence of any deadlock between the two parties.

Thirdly, the waiver can be granted by a chief minister if he has taken over the functions of the local authority or the mayor in the public interest under Section 165 of Act 171. This is not the case either.

It follows that the chief ministers and the two state governments are actually using administrative power to compel the mayor/president of the local authorities, who are beholden to the former for their positions, not to take any action on the summonses.

This threatens the independence and autonomy of a local government. In fact, it was for this reason that in 1980 a DAP stalwart, Lim Cho Hock, took the Perak state government and Ipoh municipal council to court when the state authority appointed the menteri besar of Perak to be also the president of the Ipoh Municipality.

In this respect, it is interesting to observe that those people who advocate in one breath for the re-introduction of local government elections are in another wanting to direct and interfere with a local authority to do something to enhance their political popularity.

Administratively, the local authorities can withhold any action on the outstanding summonses but it is still questionable whether existing laws actually permit them to grant a blanket waiver and immunity from prosecution.

It is also not clear whether the waiver decision applies to summonses wherein the period to pay the compounds has expired.

In any event, in order to promote accountability and transparency, the two state governments should now disclose the amount of revenue which will be lost to the local authorities by waiving these summonses.

All in all, a government must be a government of the law, by the law, and for the law.

Undo the acts that hurt others

IN a multi-religious country like ours, religion is one issue which always invokes and provokes strong passions and reactions if not handled carefully.

In the last general election, many non-Muslims turned away from Barisan Nasional and voted for the opposition.

In some cases, church leaders even openly encouraged their Christian congregations to vote for Pas - something hitherto unthinkable, especially when Pas has always been advocating the establishment of an Islamic state.

But why had non-Muslims voted for the opposition so resoundingly this time?

The reason is obvious. The non-Muslims' gravamens are essentially these:

• the authorities were trigger-happy in demolishing illegal places of worship.

• the government's inaction, especially by the non-Muslim component parties in BN, in resolving the conflicts of civil law and syariah arising out of Article 121(1A) of the Federal Constitution. The problem is compounded when non-Muslims could more or less predict the outcome of the decisions of civil courts whenever a remedy was sought there.

• religious polarisation caused by the rivalry between Umno and Pas, each wanting to outdo the other in being more Islamic.

• non-Muslims find it increasingly difficult to build their places of worship.

Of these, I would only like to deal with the last grievance.

Article 3 of the Federal Constitution declares that non-Muslims are entitled to practise their religions in peace and harmony while Islam is the religion of the federation.

This is reinforced by Article 11(1) which provides that every non-Muslim has the right to profess and practise his religion. Article 11(3) also states that every religious group has the right, inter alia, to establish and maintain institutions for religious purposes and to acquire and own property and hold and administer it in accordance with law.

Sadly, in practice, this is not the case. The time taken to obtain approvals to build non-Muslim places of worship is incredibly long. In almost every case, it takes years. The application and approval process is most cumbersome. For a start, it is almost unheard of that state governments would alienate lands for erection of non-Muslim places of worship. Hence, the lands involved are usually private lands and so before it could be used for religious purposes, the land has to be first converted for religious use. So an application will have to be made to the state authority (which is the state executive council), and it will be processed by the land office.

However, because it involves the erection of non-Muslim places of worship, most states require the matter to be first referred to a district security committee. At the district security committee level, the district office will have to obtain comments from various government departments, including the police.

The least palatable aspect of it all is that views from the Religious Affairs Department will also be sought.

Even if the district security committee approves it, the matter would still have to be referred to the state security committee, which is chaired by either the chief minister or state secretary.

In most cases, the process of obtaining comments from the various government departments is repeated.

If the state security committee okays it, it does not mean the application has been approved. It then goes to another committee chaired by the state executive councillor in charge of land matters, a position usually held by the chief minister.

If the committee approves it, the state executive council has to give its final approval.

As the process takes such a long time, it is no surprise that along the way, the file is either misplaced or goes missing. In addition, sometimes there is a delay in submitting the papers for deliberation by some over-zealous junior government officers, who are mono-religious and feel that it is against their religion to support it.

The story does not end there even when the land has been converted for religious use. The next thing is to put up the building.

To do that, an application will now have to be submitted to the local authority for approval of the building plans.

But because it involves a non-Muslim place of worship, the process of going through the district and state security committees has to be repeated.

Even if the final approval is obtained, it still takes a few years for the building to come up. The reason being the costs of financing the construction and completion of these places of worship have to be privately raised and borne. All in all, it is not uncommon for at least 10 years to pass by the time a project comes to fruition.

It follows that because the approval process is so difficult, it is no wonder illegal places of worship mushroom here and there.

What is most insulting to them is the erection of their places of worship is viewed as a security threat. Often, it has to be referred to a security committee whose composition includes representatives from the Religious Affairs Department.

On the other hand, the erection of mosques is efficiently co-ordinated by one body - the state Muslim Council (Majlis Agama Islam).

Land is easily made available and whenever a new housing development is completed, a place will be reserved for the construction of either a mosque or surau. Financing its construction is not a problem either.

Some two years ago, I suggested in this column ("Religious freedom the keystone" - NST, Jan 8, 2006) that each state government should set up a non-Muslim religious department to look into the religious issues affecting non-Muslims and to co-ordinate applications and funding for non-Muslim places of worship.

I repeat this call and it is hoped that all state governments, whether under BN or Pakatan Rakyat, will consider this.

I am confident that any step taken to expedite the approval process and provide funding for non-Muslim places of worship will, in turn, expedite the healing process among these Malaysians who certainly feel aggrieved by this course of events.

By allowing them to freely and easily exercise their constitutional right to establish their religious sanctuaries will go a long way towards winning their hearts and minds.

In this respect, the Selangor government's decision to waive quit rent and assessment rates for all registered places of worship and schools in the state is laudable. They now only need to pay a token annual fee of RM1.

Likewise, the statement from the Pahang state secretary that it will now adopt a more liberal approach to matters concerning religion and places of worship is most welcome. Similarly, the prime minister has pledged to improve the situation.

But the most assuring of all came from the Sultan of Selangor, who said that although he is the head of Islam in Selangor, he will not hesitate to take action against any extremists and that it is important to ensure that religious freedom is defended by all.

It is hoped that everyone, be he a leader of BN or Pakatan, a Muslim or otherwise, will now take heed of the voice of the people expressed in the last general election.

It is hoped, too, that politicians will be often reminded by what the regent of Perak Raja Dr Nazrin Shah said exactly a year ago at the Young Malaysians' Roundtable Discussion on National Unity and Development in Malaysia that Malaysia belongs to all Malaysians equally, and all have an equal right and responsibility to take ownership of their country and its future.

He added that the sine qua non of building a strong nation is when its citizens feel a sense of belonging and a common destiny and in our case, when Malaysians of all races, religions and origins are bound together in a common purpose.

Therefore, history has always shown that suppression of a person's inherent right to freedom of religion is a recipe for disaster.

Consonantly, our leaders have also much to learn from the fair and just Muslim ruler in Sultan Abu Bakar, who ruled the state of Johor from 1886 to 1895.

Though a Muslim, he was much loved by his non-Muslim subjects. Hailed as the Father of Modern Johor, he granted many plots of land for the erection of churches and temples throughout Johor.

The best testimony of his sense of fairness and justice is reflected in the Johor constitution promulgated during his reign, wherein it still contains an article proclaiming as follows:

"All the laws and customs of the country shall be carried out and exercised with justice and fairness by all the Courts of Justice and all Officers and Servants of the State between all the people of the country and the aliens who sojourn and reside under its protection, whether for a season or for a lengthened period, that is to say, without their entertaining in the least degree more sympathy or regard to partiality towards those who profess the religion of the country, namely the Muslim religion, or making any difference between those who are the subjects of the State and those who are not."

Let us all Malaysians join hands as one people respecting each other's right to practise his religion in peace and harmony.

Let us take pride rather than cringe with shame if this country is filled not only with mosques but also churches and temples. If it is so, it is only because Malaysia is truly Asia.

Thursday, April 3, 2008

38,000 land titles unclaimed

The Star
by Chelsea L.Y. Ng

PETALING JAYA: At least 38,000 titles to land worth millions of ringgit remain uncollected in the land office vault here.

“The uncollected titles are open to risk of fraudulent transactions,” warned Land and Mines deputy director-general Abd Halim Ain, who revealed this to The Star yesterday.

He said he could not give an indication of the land area involved but stressed that the plots were spread across Petaling District, covering prime areas like Petaling Jaya and Subang.
“Some of these titles were ready for collection from before 2003 but the owners do not seem interested in collecting them despite repeated reminders,” Abd Halim said.
“We cannot do much except to keep on sending reminders. We also cannot set a time limit for them to collect (the titles).”

He feared that if the titles were left in the vault too long, there may be a possibility of them falling into the wrong hands through unscrupulous means.

“We do not know when these fraudsters will strike and how,” Abd Halim said.

“My advice to the landowners is to come and collect the titles as soon as possible, especially in the light of the Adorna Properties Sdn Bhd vs Boonsom Boonyanit judgment.”

Asked to comment on this, the Bar Council’s Conveyancing Practice Committee chairman Roger Tan expressed concern over the situation.

“It appears that the landowners are comfortable with the qualified titles in their possession. I hope all affected landowners will take immediate steps to collect their titles to prevent any fraudulent transactions,” he said.

“In the light of the Boonsom Boonyanit case, it is best for them to collect their land titles as soon as possible.”

Boonsom Boonyanit, a Thai woman, lost two pieces of prime land in Tanjung Bungah, Penang, to Adorna Properties after unscrupulous parties forged her signature to sell and transfer the land.

The Federal Court handed down a landmark ruling in 2001 stating that Adorna Properties could rightly claim ownership to the two pieces of land worth millions of ringgit because it was an innocent buyer with “an indefeasible title to the land.”

She lost everything in the end as the apex court ruled in favour of Adorna Properties.