Sunday, June 22, 2008

Anti-hopping law vital for stability

LAST Wednesday, the president of the Sabah Progressive Party (SAPP), Datuk Seri Yong Teck Lee, said his party had lost its confidence in the leadership of the prime minister, Datuk Seri Abdullah Ahmad Badawi. Yong also revealed that its two members of parliament would either table or support a motion of no confidence against the prime minister tomorrow.

On Friday, the party's supreme council endorsed Yong's no confidence motion against the prime minister but did not make any decision whether to quit the Barisan Nasional.

Apparently, this is not the first time Yong has made such a dramatic political move.

On Oct 15, 1990, Yong was among some of the Parti Bersatu Sabah (PBS) leaders who were instrumental in abruptly pulling the party out of the BN on the eve of that year's general election.

The then prime minister, Datuk Seri (now Tun) Dr Mahathir Mohamad, called the act as evil as stabbing him in his back.

Yong obviously thought then that the BN government would fall when PBS threw its support behind Gagasan Rakyat and Semangat 46 led by Tengku Razaleigh Hamzah. He was wrong.

The scenario was best captured by DAP's Lim Kit Siang in his media statement issued on Nov 19, 2001:

"The PBS leaders who came over to Peninsular Malaysia to assess the political climate in the run-up to the 1990 general election were led by Tan Sri Bernard Dompok, then PBS deputy president, and Datuk Yong Teck Lee, then a PBS vice-president.

"From their political assessments, both Dompok and Yong believed that Malaysia was on the cusp of unprecedented political change, and that the 1990 general election could see the downfall of Dr Mahathir and the rise of Tengku Razaleigh to take over the Federal Government as prime minister.

"For reasons which both Dompok and Yong are the best persons to explain, both of them believed that there were the 'numbers' for such a change of government, that Gagasan Rakyat could win over 60 parliamentary seats in Peninsular Malaysia, that a Barisan Nasional party in Sarawak was on the verge of defecting from BN to Gagasan Rakyat involving over 20 parliamentary seats and that PBS with control of over 15 parliamentary seats could be the king-maker in Malaysian politics in deciding the toppling of Dr Mahathir and the election of Tengku Razaleigh as the new prime minister of Malaysia."

This is not all. In 1994, Yong abandoned PBS and his mentor, Datuk Seri Joseph Pairin Kitingan, to form the SAPP just before the state elections, which eventually helped cause Pairin's two-week-old government to collapse. But PBS returned to the BN fold in 2002.

It now calls into question whether party-switching or hopping is illegal, if not immoral in Malaysia.

In fact, this issue has been cropping up ever so often since the March 8 general election.

Legally, party-hopping is not unlawful.

Article 10(1)(c) of the Federal Constitution expressly states that all citizens have the right to form associations, that is, to join, not to join and leave any association, but Parliament may by law impose such restrictions as it deems necessary in the interest of the security of Malaysia or any part thereof, public order, morality, labour or education.

In 1992, the Supreme Court (now Federal Court) had the opportunity to decide in the case of Dewan Undangan Negeri Kelantan v Nordin Salleh 1992 whether an amendment to the Kelantan state constitution which prohibits party-hopping is inconsistent with Article 10(1)(c). Article XXXIA of Part I of the Kelantan constitution provides that if any member of the Legislative Assembly who is a member of a political party resigns or is expelled from, or for any reasons whatsoever, ceases to be a member of such political party, he shall cease to be a member of the Legislative Assembly and his seat shall become vacant.

The Supreme Court declared that such a law was invalid because the restriction imposed by the Kelantan Constitution could not be a restriction imposed under clauses 2(c) and (3) of Article 10 as it was a law passed by a state legislature and not the Federal Parliament.

In the words of Justice Tan Sri Gunn Chit Tuan: "I cannot, by any stretch of imagination, see how such a restriction on the membership of a Legislative Assembly, which infringes a citizen's right to form associations under Article 10(1)(c) of the Federal Constitution, can be deemed necessary or expedient in the interest of Malaysia or any part thereof, public order, morality or even labour or education."

However, neither Gunn nor the other two Supreme Court judges, Tun Abdul Hamid Omar and Tan Sri Edgar Joseph Jr expounded further why such legislation would not be in the interest of the security of Malaysia, public order or morality except to imply that the word "morality" related to immoral activities in a sexual sense.

But later in 2005, the Court of Appeal held in Sivarasa Rasiah v Badan Peguam Malaysia & Anor that Section 46A(1)(c)(ii) of the Legal Profession Act 1976 is one example of such restrictions which Parliament may impose in the interest of "morality" as it involved the issue of ethics.

This section prohibits any person who is holding an office in any political party from becoming an elected member of the Bar Council or a Bar Committee or a member of any of its committees.

Justice Datuk (now Tan Sri) Alauddin Mohd Sheriff said the word "morality" should be given a broad, liberal and extensive meaning, wider than merely good values. As "morality" was not defined in the Federal Constitution, Alauddin went on to say the word in the Federal Constitution should be given its ordinary meaning.

He then adopted the meaning from the New Shorter Oxford English Dictionary on Historical Principles by Lesley Brown, Volume 1, which defines "morality" to include the doctrine or branch of knowledge that deals with right and wrong conduct and with duty and responsibility; moral philosophy, ethics.

With these two decisions, it would mean only Parliament and not any state legislature can bring in a law to prohibit party-hopping. If such law can be justified on the grounds of "morality", then no amendment to the Federal Constitution will be necessary and the government will only need a simple majority to pass an anti-hopping legislation.

So, we must now answer the second question whether party-hopping is immoral, not in a sexual sense albeit the hopper's enemies may very well throw obscenities at him.

Indeed, Datuk Ibrahim Ali, often described as one of Malaysia's most habitual party-hoppers, does not think so.

He argued that just like a human marriage, a political marriage can naturally lead to a divorce, and any anti-hopping law will be against human rights principles.

In fact, other countries have taken totally divergent legal positions on this issue.

In South Africa, amendments were made to its Constitution and other laws in 2006 to enable party-hopping by removing clauses which required members of the National Assembly to give up their seats should they change parties.

On the other hand, New Zealand enacted the Electoral Integrity Act of 2001 (since expired) to proscribe party-hopping or waka-jumping (in its local language) requiring politicians elected from a party to resign from Parliament if they left their party's parliamentary caucus.

In my view, party-hopping is not only against morality, it is a nefarious act of betrayal against the politician's own party and the people who have voted him in because of his association with a particular political party. Party-hopping, therefore, has no place in a parliamentary democracy like ours. Party-hopping breeds corruption -- not just in the monetary sense as it is also a corruption of power.

If any government comes into existence through this unethical means, it has no moral credibility to govern. Neither does it have any moral authority to preach on accountability and good governance.

As a matter of principle, any person who wishes to abandon ship and cross over should seek a fresh mandate from the electorate, failing which his act of divorcing from the party which the people have voted in is equipollent to committing an act of dishonesty.

In the oft-quoted words of the 15th American president, James Buchanan, "The ballot box is the surest arbiter of disputes among free men."

Further, if we can have Article 48(6) of the Constitution which disqualifies a person who has resigned from the Dewan Rakyat from running again in a general election for a period of five years from the date of his resignation, then I see no reason why we should not have a law requiring any MP who defects to another political party to resign so that a fresh election can be held.

If only we had an anti-hopping legislation now, there would not be so much politicking and uncertainty going on with members of various political parties sardonically enticing each other to join them.

A fortiori, the country can also move on by accepting the March 8 general election results as final and incapable of being altered.

An anti-hopping law will bring about and maintain political stability, and politicians from all divides should very well remember that what goes around will come around to haunt them, and it is in their interest to support an anti-hopping legislation.

To conclude, let me quote South African Inkatha Freedom Party president Mangosuthu Buthelezi on party-hopping: "Floor-crossing is like the HI-virus because it robs the political system of all honour, holding political parties hostage by rendering them unable to discipline their own members. It allows the emergence of careerists, self-serving politicians, which are a very strange breed because they do not honour the sanctity of the vote cast in the ballot box."

I will not judge but I shall leave it to you readers to decide whether a political hopper is like a HIV-carrier. Likewise, whether our society should treat a political leaper like a political leper.

Sunday, June 15, 2008

Why let a child suffer sins of adults?

"I didn't marry you because you were perfect.
I didn't even marry you because I loved you.
I married you because you gave me a promise.
That promise made up for your faults.
And the promise I gave you made up for mine.
Two imperfect people got married and it was the promise that made the marriage.
And when our children were growing up, it wasn't a house that protected them; and it wasn't our love that protected them - it was that promise."
Thornton Niven Wilder (1897-1975)
American playwright and novelist

INDEED, the institution of marriage is the preservation and fulfilment of that promise. Sadly, once that promise is breached and the marriage is dissolved, more often than not, the children will become the pawns and casualties of the breakdown.

Therefore, every state will have laws to deal with marriage and divorce. Here, we have the Law Reform (Marriage and Divorce) Act 1976, which is also numbered as Act 164 in our statute books ("the act"). To the superstitious Cantonese-speaking readers, it is hardly auspicious to number the act "164" as it means "to die all the way!"

The act applies to all non-Muslims in this country except any native of Sabah or Sarawak and aborigine of Peninsular Malaysia whose marriage and divorce is governed by native customary law or aboriginal custom unless he elects to marry under the act or he has contracted his marriage under the Christian Marriage Ordinance of Sabah or the Church and Civil Marriage Ordinance of Sarawak.

Currently, pursuant to Section 95 of the act, a non-Muslim parent's obligation to provide for a child financially expires when the child attains the age of 18, or where the child is under physical or mental disability, on the ceasing of such disability, whichever is the later.

In 2004, the Federal Court ruled in Karunairajah Rasiah v Punithambigai Poniah that the word "disability" in section 95 only covers "physical" and "mental" disability and does not cover financial dependence.

Federal Court judges Datuk (now Tun) Abdul Hamid Mohamad, Datuk Mohd Noor Ahmad and Datuk Pajan Singh Gill held that there was no legal basis to interpret the exceptions to Section 95 to include voluntary financial dependence for the purpose of pursuing tertiary and/or vocational education after the child had attained the age of 18.

The Federal Court, therefore, overruled the Court of Appeal which had attempted in that case, and in an earlier case of Ching Seng Woah v Lim Shook Lin 1997, to use creative interpretation to equate financial dependence to "disability".

In Ching Seng Woah, the Court of Appeal held that a child's inability to fend for himself on the job market without completing tertiary education amounted to involuntary financial dependence which could constitute "physical disability" under Section 95.

In Karunairajah Rasiah, Dr Punithambigai filed a divorce petition at the High Court against Dr Karunairajah in 1994. The latter was then ordered by the High Court to pay maintenance of RM4,200 a month to his three children who were all below 18 at that time.

In May 1998, Dr Karunairajah stopped paying maintenance when one of the children turned 18. This led the mother to file an application to the High Court asking that maintenance for all three children be continued until they completed their tertiary education.

The High Court allowed the application which was later upheld by the Court of Appeal. The Court of Appeal ruled that involuntary financial dependence was not only "physical disability" but it was also tantamount to "mental disability" under section 95.

Delivering the Court of Appeal judgment, justice Datuk Abdul Kadir Sulaiman said: "We may even go a step further in saying that this involuntary financial dependence can also be taken as a mental disability under the section for the purpose of the child of the marriage pursuing his tertiary education in order to be better equipped in his future working life. It needs able body and mind to undergo a tertiary education... The pertinent question to ask is, if their marriage had not gone to the rocks, would the appellant have left his children to wander in the streets to fend for themselves upon their attaining the age of 18 years?

"Surely not. No sensible parents would have done that to their children... The future of the children's well-being would be his paramount consideration. It is our view, therefore, that it could not have been the intention of the legislator in incorporating the provisions of Section 95 into the act to make the children worse off in the event of the break-up of the marriage of their parents compared with children living together with their parents under the same roof."

However, in delivering the decision of the Federal Court, Abdul Hamid said: "A case has to be decided according to the law as it stands, irrespective of a judge's personal view on it and moral obligations can never take precedence over the law. What the law should be is a matter for the legislature."

I am saddened by this, not so much over the decision, but rather with the inaction and tardiness on the part of the authorities in not taking steps to remedy the situation since the 2004 Federal Court decision. I have also spoken up regarding this matter on several occasions but there does not appear to be any sense of urgency on the part of our legislators to redress this injustice caused to many children caught in this predicament.

Our laws must be progressive and keep up with the times. In this case, tertiary education might not appear to be a necessity in the 1970s when the act was first enacted, but times have changed and a child will now find it difficult to make it in life without having any tertiary education.

It is, therefore, a parent's responsibility to educate his children beyond 18 notwithstanding the fact that the act has defined a "child of marriage" to be a child who is below 18.

In fact, the age limit of 18 is inconsistent with other legal provisions which regard more accurately in practice the age of 21 as the age a minor is capable of assuming an adult's responsibilities even though the Age of Majority Act 1971 determines the age of majority at 18.

For example, Article 119 of the Federal Constitution provides that only a person who has attained the age of 21 is entitled to vote in a general election. Also, Section 12 of the act requires a person below 21 to seek his/her father's consent if he/she wants to marry. This shows a child below 21 is still a dependent of his parents.

Similarly, under Section 3 of the Guardianship of Infants Act 1961, for example, the guardian is responsible for the support, health and education of the child until he/she reaches 21. In this respect, Section 95 unfairly discriminates against children of divorced parents.

Further, our income tax legislation allows a taxpayer to continue to claim relief for his child beyond 18 years of age who is pursuing tertiary education. This indirectly acknowledges a parent's responsibility to maintain his children beyond the age of 18.

Interestingly, the syariah law is more advanced than the civil law in this respect. Section 79 of the Islamic Family Law (Federal Territory) Act 1984 (which has been adopted for application in other states) specifically provides that the Syariah Court may, on application by the child or any other person, extend the order for maintenance "to cover such further period beyond the child's age of 18 years old as it thinks reasonable to enable the child to pursue further or higher education or training."

In Singapore, Section 69(5) of the Women's Charter, which was amended in 1997 reads as follows:

"The court shall not make an order under subsection (2) for the benefit of a child who has attained the age of 21 years or for a period that extends beyond the day on which the child will attain that age unless the court is satisfied that the provision of the maintenance is necessary because:

(a) of a mental or physical disability of the child;

(b) the child is or will be serving full-time national service;

(c) the child is or will be or (if an order were made under subsection (2)) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment; or

(d) special circumstances, other than those stated in paragraphs (a), (b) and (c), exist which justify the making of the order."

All said, it is hoped that our legislature will step in as soon as possible to amend this antiquated provision in Section 95 to compel the obligation to pay maintenance for children beyond 18 if they are receiving education or training.

This makes good sense not only on humanitarian grounds, but also because it is fair and consistent with other jurisdictions. Otherwise, irresponsible parents can refuse to do so by seeking refuge behind the Federal Court's decision of Karunairajah.

It is indeed a sad thing that these children who are at the threshold of their education are denied a chance to realise their true talent and potential. This will not only cause them to sacrifice their future, but ultimately also a loss to us as a nation.

On this Fathers Day, I sincerely hope that parents of such children will reflect upon this and spare a thought for their children because children are never to be blamed when a marriage breaks down.

The children's interest must always be of paramount consideration, and it is inhuman to punish and dump them when they reach 18 all because the marriage between the adults fails to work out.

Having brought them to this world, we as parents do not only owe it to ourselves and our children but also to the creator in fulfilling our parental duties on this earth.

Sunday, June 1, 2008

Land policy that's no walk in park

New Sunday Times
by Aniza Damis and Elizabeth John

KUALA LUMPUR: Change leasehold land to freehold. Come and apply.

This unprecedented invitation from the Penang government to change the status of land titles, quickly earned it a legion of supporters.

And there's little surprise why, said National House Buyers Association secretary-general Chang Kim Loong.

Unlike leasehold land, freehold could be inherited, and owners would not need to worry about the lease expiring.

"When a leasehold property is nearing expiry, for instance, when there are only 30 years left, the lessee can't even use it to get a bank loan."

So the move is welcomed and leasehold landowners are happy.

But it'll be a while yet before this happens, say experts. Time during which Penang folk will have to wade through the legal mire, cough up a likely hefty premium while the state surmounts hurdles and a niggling sense of doubt on whether this is a good idea or even an achievable one.

For what the Penang government has in mind, the procedure that landowners will likely go through is "surrender and re-alienation".

This is governed by sections 204A to 204 E of the National Land Code.

Here, the landowner "surrenders" back his leasehold land to the state authority, with the assured expectation that it will re-alienate back to him, the same land, but as freehold.

The procedure isn't complicated but can be time-consuming, said land law expert Salleh Buang.

Chief Minister Lim Guan Eng spoke of having to first overcome some "legal hurdle" when he first announced the plan. This could possibly come in the form of section 76 (AA) of the Code.

Under the law, freehold land can be alienated to the federal government or a public authority or where the land is to be used for public purpose.

It can also be alienated when the state authority "is satisfied that there are special circumstances which render it appropriate to do so".

The question is, does the present situation fall under those "special circumstances"?

"I think it is a mixed question of law, politics and good governance," said Salleh, who is visiting professor at Universiti Teknologi Malaysia in Johor Baru. "In the long run, the public is the best judge of that."

A potentially massive problem the government might face in alienating residential land was when landowners surrendered their leasehold titles and the charge would not be carried forward to the banks, said senior lawyer Roger Tan.

This means the bank loses the title and has to re-execute or reapply for the right to hold the title.

"The banks will have to re-execute the charge when the new title comes out."

And, land with caveats on them, like when a property is pending completion of sale, or when it is involved in a contested will, cannot be converted.

"There are a lot of administrative matters to consider," said Tan, who is the Bar Council's former Conveyancing Committee chairman.

"It's a very clever political move. However, I wonder if the state has thought through the implications in terms of land management?" said urban governance and planning columnist Dr Goh Ban Lee.

There was probably a very good reason why the National Land Council and state representatives on this council decided to adopt the alienation of land in leasehold.

And this should be studied before changes are made.

Salleh said the state had to realise that it had limited land. It needed a sufficient bank for future development.

He cited, as an example, the Malacca government that was now facing difficulties because there wasn't any more state land for its future needs.

"It either has to reclaim land from the sea or acquire under the Land Acquisition Act and pay a heavy price for it."

To that, Chang added that the proposed move should only apply to residential land and on a case-by-case basis.

If industries were given freehold titles, he argued, there might come a time, when there would be a need for them to move away.

But if they owned the land outright, the government might be unable to force them out.

"This move might appease the people, but when it comes time to get the land for public purposes like roads and schools, the compensation that has to be paid will be very high," Chang said.

"Land is a state matter, and the state authority is the one that decides on what the special circumstances may be," said Tan.

"Even if they are wrong, nobody can sue them. The federal government can't step in.

"But, the moment the government decides to alienate a huge block of land, there will be no more meaning to 'special circumstances'."

Questions have been raised about whether the state can actually make this decision without the "ok" from the National Land Council.

Article 91(5) of the Constitution states that the "National Land Council could set up a national policy "for the promotion and control of the utilisation of land throughout the Federation for mining, agriculture, forestry and for any other purpose... and the federal and state governments shall follow the policy as formulated".

In addition to the National Land Council, under Article 95A(5) there were also national councils for local governments, with powers to set up national policy for local government.

"But, if the state refuses to comply with the policy, there's nothing the federal government can do, as there is no punishment in place," said Tan.

"The most they can do to express disapproval is to refuse to award grants to the state whenever it needs money for projects."

"If Penang follows through on this, leasehold landowners in other states may put pressure on their states to do the same," said Goh.

And in Penang, he added, landowners would be happy as long as the premium they would have to pay to convert the status of their land wasn't too high. But if the initiative went through without a hitch, said Salleh, it would be a feather in the state government's cap. If it doesn't, due to legal or other restrictions, it still wins. "It can tell its people: There, you see. We have tried but the law does not allow us at the moment. But we are not giving up."