Friday, November 20, 2009

A must-read speech by Robert Kuok

Even though it has been reproduced on many websites, below is one speech which must be read by all businessmen and politicians:

*Robert Kuok Hock Nien's notes on the past sixty years

(On the occasion of Kuok Group’s 60th Anniversary 10 April 2009)

(1) My brothers and I owe our upbringing completely to Mother. She was steeped in Ru-Jiao – the teachings of Confucius, Mencius, Laozi and other Chinese sages. Ru-Jiao teaches the correct behaviour for a human being on his life on earth. Mother gently, and sometimes strongly, drummed into the minds of her three boys the values of honesty, of never cheating, lying, stealing or envying other people their material wealth or physical attributes.

(2) Father died on 25 December 1948 night without leaving a will. Following the Japanese surrender, he had re-registered the firm as a sole proprietorship. We went to court to get an appointment as managers, permitting us to continue to manage Tong Seng & Co. The judge said that, as there were two widows, the firm and the estate should be wound up.

(3) We decide to establish Kuok Brothers Limited. In mid-January 1949, five of us met at a small roundtable in our home in Johore Bahru. Present were my MOTHER, cousin number five HOCK CHIN, cousin number twelve HOCK SENG, my brother HOCK KHEE nicknamed Philip (a..k.a. cousin number seventeen), and myself (a.k.a. cousin number twenty). We sat down and Mother said, “Nien, would you like to start?” I said, “Fine, yes I will start.” To cut the long story short, we got started, and commenced business from a little shop house in Johore Bharu on 1 April 1949.

(4) As a young man, I thought there was no substitute for hard work and thinking up good, honest business plans and, without respite, pushing them along. There will always be business on earth. Be humble; be straight; don’t be crooked; don’t take advantage of people. To be a successful businessman, I think you really need to brush all your senses every morning, just as you brush your teeth. I coined the phrase “honing your senses” in business: your vision, hearing, sense of smell, touch and taste. All these senses come in very useful.

(5) Mother was the captain of our ship.. She saw and sensed everything, but being a wise person she didn’t interfere. Yet she was the background influence, the glue that bound the Group together. She taught my cousins and my brothers and me never to be greedy, and that in making money one could practise high morality. She stressed that whenever the firm does well it should make donations to the charities operating in our societies. She always kept us focused on the big picture in business. For example: avoid businesses that bring harm, destruction or grief to people. This includes trades like gambling, drugs, arms sales, loan-sharking and prostitution.

(6) We started as little fish swimming in a bathtub. From there we went to a lake and now we are in the open seas.. Today our businesses cover many industries and our operations are worldwide but this would not have been possible without the vision of the founding members, the dedicated contributions and loyalty of our colleagues and employees, and very importantly the strong moral principles espoused by my mother.

(7) When I hire staff, I look for honest, hardworking, intelligent people. When I look candidates in the eye, they must appear very honest to me. I do not look for MBAs or exceptional students. You may hire a brilliant man, summa cum laude, first-class honours, but if his mind is not a fair one or if he has a warped attitude in life, does brilliance really matter?

(8) Among the first employees were Lau Teo Chin (Ee Wor), Kwok Chin Luang (Ee Luang), Othman Samad (Kadir) and an Indian accountant called Joachim who was a devout Roman Catholic and who travelled in every day from Singapore where he lived.

(9) I would like on this special occasion to pay tribute to them and in particular to those who were with us in the early days; many of whom are no longer here. I have already mentioned Lau Teo Chin (Ee Wor) and Kwok Chin Luang (Ee Luang) and Othman Samad (Kadir), there are others like Lean Chye Huat, who is not here today due to failing eyesight, and Yusuf Sharif who passed away in his home country India about one and a half years ago and the late Lee Siew Wah, and others who all gave solid and unstinting support and devotion to the Company. It saddens me that in those early difficult years these pioneers did not enjoy significant and substantial rewards but such is the order of things and a most unfortunate aspect of capitalism. However through our Group and employee Foundations, today we are able to help their descendants whenever there is a need to.

(10) I have learnt that the success of a company must depend on the unity of all its employees. We are all in the same boat rowing against the current and tide and every able person must pull the oars to move the boat forward. Also, we must relentlessly endeavour to maintain and practise the values of integrity and honesty, and eschew and reject greed and arrogance.

(11) A few words of caution to all businessmen and women. I recall the Chinese saying: shibai nai chenggong zhi mu (failure is the mother of success). But in the last thirty years of my business life, I have come to the conclusion that the reverse phrase is even truer of today’s world: chenggong nai shibai zhi mu. Success often breeds failure, because it makes you arrogant, complacent and, therefore, lower your guard.

(12) The way forward for this world is through capitalism. Even China has come to realise it. But it’s equally true that capitalism, if allowed to snowball along unchecked, can in many ways become destructive. Capitalism needs to be inspected under a magnifying glass once a day, a super-magnifying glass once a week, and put through the cleaning machine once a month.

In capitalism, man needs elements of ambition and greed to drive him. But where does ambition end and greed take over? That’s why I say that capitalism, if left to its own devices, will snowball along, roll down the hill and cause a lot of damage. So a sound capitalist system requires very strongly led, enlightened, wise governments. That means politician-statesmen willing to sacrifice their lives for the sake of their people. I don’t mean politicians who are there for fame, glory and to line their pockets.

(13) To my mind the two great challenges are the restoration of education in morals and the establishment of a rule of law. You must begin from the root up, imbuing and infusing moral lessons and morality into youth, both at home and from kindergarten and primary school upward through university. To accept the principle of rule of law; then you have to train upright judges and lawyers to uphold the legal system.

(14) Wealth should be used for two main purposes. One: for the generation of greater wealth; in other words, you continue to invest, creating prosperity and jobs in the country. Two: part of your wealth should be applied to the betterment of mankind, either by acts of pure philanthropy or by investment in research and development along the frontiers of science, space, health care and so forth.

*Tan Sri Robert Kuok Hock Nien (born 6 October 1923, in Johor Bahru, Johor), is an influential Malaysian Chinese businessman. According to Forbes his net worth is estimated to be around $10 billion on May 2008, making him the richest person in Southeast Asia. He is media shy and discreet; most of his businesses are privately held by him or his family. Apart from a multitude of enterprises in Malaysia, his companies have investments in many countries throughout Asia. His business interests range from sugarcane plantations (Perlis Plantations Bhd), sugar refinery, flour milling, animal feed, oil and mining to finance, hotels, properties, trading, freight and publishing.

Friday, October 30, 2009

A-G’s Chambers to amend National Land Code


PUTRAJAYA: The Attorney-General’s Chambers is considering amending the National Land Code to curb fraudulent land transfers, the Federal Court heard Thursday.

This was in the light of the controversial Federal Court ruling in the case of Adorna Properties Sdn Bhd vs Boonsoom Boonyanit @ Sun Yok Eng in 2001 that a land purchaser had bought a good title even if there was forgery involved in the transfer, as he had bought the property in good faith.

Head of the Civil Division in the A-G’s Chambers See Mee Chun said the apex court’s decision in the matter would have an impact on the approach it would take in amending the Code.

In a rare move, all parties in the appeal in a property matter involving Tan Ying Hong and Tan Sian San, Cini Timber Industries Sdn Bhd and United Malayan Banking Corporation Bhd had called on the Federal Court to revisit and overrule the Adorna Properties authority.

The section in question is Section 340 (3) of the Code which deals with the indefeasibility of land titles.

The Federal Court’s binding decision that Adorna had obtained an indefeasible title notwithstanding the forgery because it was a bona fide purchaser, have been severely criticised by lawyers and academics as wrong.

The A-G’s Chambers appeared as amicus curiae while Roger Tan held a watching brief for the Bar Council. Ying Hong was represented by counsel T. Muraju and the defendants by counsel Datuk Bastian Pius Vendargon.

Chief Justice Tun Zaki Azmi who headed the bench reserved decision to a date to be fixed after hearing submissions from all the parties in the appeal.

The other judges were Court of Appeal President Tan Sri Alauddin Mohd Sheriff, Chief Judge of Malaya Tan Sri Arifin Zakaria and Federal Court judges Datuk Zulkefli Ahmad Makinudin and Datuk James Foong Cheng Yuen.

Zaki questioned why it was taking so long to amend the Code, to which See replied that there were many issues to look into, including the issue of compensation.

Vendargon submitted that the Federal Court’s interpretation of Section 340 (3) of the Code in the Adorna Properties case was unconstitutional because it gave no protection to the first party but absolute protection to a similarly placed second party. -- Bernama

Land Code changes in store to tackle fraud

New Straits Times

PUTRAJAYA: The Attorney-General's Chambers is proposing amendments to the National Land Code to stop cases of forgery and fraudulent land transfer, the Federal Court was told yesterday.

Chambers head of civil division See Mee Chun told this to a five-man bench chaired by Chief Justice Tun Zaki Azmi, who heard an appeal involving a land transfer dispute.

"We agree that the 2001 Federal Court ruling in Adorna Properties Sdn Bhd v Boonsom Bunyanit, must be revisited and overruled," she said when addressing the bench as friend of the court.

The chambers was invited to participate in the proceeding as disputing parties in the appeal wanted the Federal Court to depart from the 2001 ruling as it was not in line with Section 340 of the Land Code.

See said the ruling had "created havoc" in land transactions.

Zaki asked See why the chambers took time to propose changes to the law.

She replied: "There are several issues that need to be looked into, including compensation to those who had lost their land."

See said the chambers was now looking forward to the ruling to assist them in making the necessary amendments to the law.

The history of the case could be traced to early 1970 when businessman Tan Ying Hong, in the words of the High Court, "mysteriously", became a registered proprietor of a nine-acre plot of land in Kuantan.

A conman who now could not be located, forged a power of attorney from Tan and got the land charged to United Malayan Banking Corporation (now RHB Bank Bhd) to obtain overdraft and loan facilities amounting to RM300,000 in favour of Cini Timber Industries Sdn Bhd.

Cini Timber defaulted payment and the bank started foreclosure proceedings against Tan, the registered land owner.

Tan, represented by counsel T. Mura Raju, filed an application in the High Court in 1985 to seek a declaration that the charges with the bank were of no effect as they were created by a forged power of attorney.

The High Court in 2003 dismissed Tan's application which was affirmed by the Court of Appeal last year.

In May, Tan obtained leave to appeal and the legal question posed was whether an acquirer of registered charge, title or other interest by way of forgery obtains an immediate indefeasible interest or title.

This question of law paved the way for the apex court to review the Adorna case as the issue was similar.

Lawyer Datuk Bastion Vendargon and Ong Siew Wan appeared for the bank while Roger Tan held a watching brief for the Bar Council.

Judgment was reserved.

Thursday, October 22, 2009

The Itch: Always Honour Your Words

Story sent in by Yeo Yang Poh

Once upon a time, there lived a beautiful Queen with large breasts. Nick the Dragon Slayer obsessed over the Queen for this reason. He knew that the penalty for his desire would be death should he try to touch them, but he had to try.

One day Nick revealed his secret desire to his colleague, Horatio the Physician, the King's chief doctor. Horatio thought about this and said that he could arrange for Nick to more than satisfy his desire, but it would cost him 1,000 gold coins to arrange it. Without pause Nick readily agreed to the scheme.

The next day, Horatio made a batch of itching powder and poured a little bit into the Queen's bra while she bathed. Soon after she dressed, the itching commenced and grew intense. Upon being summoned to the Royal Chambers to address this incident, Horatio informed the King and Queen that only special saliva, if applied for four hours, would cure this type of itch, and that tests had shown that only the saliva of Nick would work as the antidote to cure the itch.

The King, eager to help his Queen, quickly summoned Nick to their chambers. Horatio then slipped Nick the antidote for the itching powder, which he put into his mouth, and for the next four hours, Nick worked passionately on the Queen's large and magnificent breasts. The Queen's itching was eventually relieved, and Nick left satisfied and hailed as a hero. Upon returning to his chamber, Nick found Horatio demanding his payment of 1,000 gold coins. With his obsession now satisfied, Nick couldn't have cared less and, knowing that Horatio could never report this matter to the King and with a laugh told him to get lost.

The next day, Horatio slipped a massive dose of the same itching powder into the King's underwear. The King immediately summoned Nick.

The moral of the story...

Always honour your words...

Sunday, October 4, 2009

Clergymen need to be rewarded on Earth too

It is of no surprise that the first principle of our national philosophy (Rukun Negara) is Belief in God. Religion does play an important part in the lives of many Malaysians. Even if one is an atheist, the issue of religion will still crop up when he dies in deciding which religious last rites should be performed.

Most of all, regardless of whatever religious beliefs we hold, all religions teach us to do good. While the British used religion as a tool to defeat the communists during the Malayan Emergency by building temples and churches in new villages, religion today can be the solution in our battles against crime, corruption, moral decadence, and a rampart against any attack on the institutions of marriage and family.

But, sadly, little is written about the role and societal contributions of the clergy – simple men of God of various religions – who join a profession which often does not bring about worldly wealth or fame. After all, they should store up whatever treasures they have in heaven and not on this earth. Yet many believe that clergymen have an easy life. They do not realise that the majority of them make huge sacrifices both in their personal and family lives and, at one stage or the other, in their ministerial service, some may have even considered calling it quits.

It is a fact that the majority of them are overworked and poorly paid. Of course, we should not compare them with those who serve in mega temples and churches such as the New Creation Church in Singapore which recently revealed in its last financial year report that the church paid its senior pastor S$500,000 (RM1.2mil)! Neither can the majority of the clergy whose work is hardly recognised be compared with the few whose work have been recognised with a Datukship or Tan Sriship.

Hence, it is always a moot point as to what extent should the clergy be remunerated and the level of recognition be accorded to them. Here, the Muslim clergy are remunerated by the State Islamic Religious Department, but the non-Muslim clergy such as Christian ministers still depend mainly on the collections received from the laity. But to say that the clergy should live in poverty and a life as poor as a church mouse is wrong.

This reminds me of a heart-wrenching story narrated by a Christian writer, Toby Awasum, whose conscience was pricked when his young pastor died suddenly from a heart attack.

It was in 1986 that this young and charismatic pastor who was a lawyer joined his church. The pastor not only owned a house, but had his own cars and a PhD. He gave all that up to move to his state to pastor Toby’s church. By the middle of his third year, he had exhausted all his savings, lost the new home he bought, and could barely support his family. Three years later, at the age of 35, he had a heart attack and died instantly.

After his death, his desperate widow and children had no choice but to move back into her parents’ home hundreds of miles away and received little or no support from “her church family”. Ironically, the pastor had left his church financially healthy, and it is pathetic to note that while his church was busy stuffing its bank account, the church had miserably failed in its responsibility to care for the welfare of its pastor and family.

On the other hand, it cannot be gainsaid that the expectation of the clergy to lead an exemplary life according to his faith is high. A clergyman who does not exhibit Godly virtues in the manner in which he speaks and conducts his life can be a huge let-down to the lay believers. But those who have become an inspiration as an encourager and role model to their lay believers and society ought to be overwhelmed with appreciation and love.

It is, therefore, apposite to record my own appreciation to my pastor, Rev Nicholas Yeo, who retired last Thursday after more than 35 years of faithful service. It must be acknowledged that the depth and breadth of Yeo’s impact on the lives of many who came to know him is testimony of the Godly life which he leads and a role model which he plays as an exemplary pastor to his colleagues as well as a religious patriarch to his congregation.

In appreciation of his services, the Church will hold a special retirement service and appreciation dinner for him and wife Lee Swee Keng at New York Hotel, Johor Baru at 5pm this evening.

To this wonderful couple who have been a great inspiration to many, we wish them happy retirement and many, many more years of good health and happiness. May God bless them.

Published in the Sunday Star, 04 October 2009

Friday, July 31, 2009

Fishermen get injunction against firm

The Star

JOHOR BARU: The Johor Fishermen’s Association has obtained an interim injunction preventing Power Corporate Consultant Sdn Bhd from entering its oil palm estate to harvest the fruit.

High Court Justice Vernon Ong Lam Kiat made the order after dismissing a similar application by the company against the association as the company would be adequately compensated should it later succeed in its action filed against the association.

In his affidavit, association chairman Mohamad Dolmat said that in 1995, in order to improve the economic welfare of the 8,000 members of the association, the Johor government alienated the land — measuring about 405ha in Tenang, Segamat — to the association for the purpose of cultivating oil palm trees.

The parties then entered into a harvesting agreement on the land for 15 years.

In return, the association would receive 8% of the net profit from the fourth till the 10th year and 10% from the 11th till the 15th year, but to date, it has not received any payment.

The association had charged the land for a loan of RM2.5mil given to the company to develop the land.

Mohamad said that when the company refused to show the accounts to the association and failed to pay quit rent, it terminated the harvesting agreement and took possession of the land in September 2006.

He claimed that subsequently, the company re-entered the land and sent unidentified persons to threaten the security guards employed by the association by deliberately sharpening their parangs in front of them.

In December 2006 and January 2007, judges Datuk Azahar Mohamed and Datuk Syed Ahamd Helmy Syed Ahmad respectively issued a temporary injunction in favour of the association until the hearing of the application today.

The association was represented by Roger Tan and L.M. Yap while Manian Marappan represented the company.

Sunday, July 5, 2009

One can't be judge and executioner at the same time

ON June 26, Kuala Lumpur Sessions Court judge Zainal Abidin Kamarudin made an unusual order to personally cane 20-year-old Muhammad Syafiq Abd Wahab 10 times in the presence of his parents in the court premises on July 15 for committing gang robbery.

The judge was also reported to have told Syafiq's father, Abdul Wahab Jonit, 65, who was present in court, that this sentence was rarely passed by court but urged him to accept it.

"I know it is not a nice feeling for a father to watch his son being caned but it has to be done by a judge," he said.

If the report is accurate, then the learned judge is obviously wrong to say that the caning had to be done by a judge.

The order, purportedly made under Section 293(1)(c) of the Criminal Procedure Code (CPC) is, however, silent as to who should mete out the punishment.

The section provides that when any youthful offender is convicted before any criminal court of any offence punishable by fine or imprisonment, the court may, in lieu of imposing any term of imprisonment, order the male offender to be whipped with not more than 10 strokes of a light cane or rotan within the court premises and in the presence of his parent or guardian who desires to be present.

The CPC defines a youthful offender as a person convicted of an offence punishable by fine or imprisonment who is of or above 18 but below 21 years of age.

The law also states that whipping for the youthful offender must not exceed 10 strokes. Whipping shall only be inflicted on such part of the person as the home affairs minister may from time to time generally direct, which is often on the naked buttocks of the offender.

Section 288 of CPC then provides that whipping shall be inflicted in the way of school discipline with a light rotan, and the rotan used shall not be more than half an inch in diameter.

In fact, some 20 years ago, it was a common practice for magistrates to personally carry out such caning in their chambers in the presence of some juvenile court advisers, the prosecuting officer and the parents. But such practice has already ceased after the High Court decided to revise a case involving a magistrate who personally caned a juvenile offender eight times when exercising his powers under Section 293 of CPC.

Even though this case of Re A Juvenile 1990 involved a juvenile and not a youth offender, what was said by the late High Court judge Mustapha Hussain is most germane to the case in question.

Mustapha ruled that a judge can never be a judge and executioner at the same time in a case.

This is in line with the doctrine of the separation of powers where powers should not be absolutely vested in one person.

In this case, if judicial and executive powers are exercised by the same person, this will be against the rule of law as the probability of an acquittal of an innocent man will depend on the whims and fancies, caprice and prejudice of the judge.

It is, therefore, apposite to reproduce the succinct words of Mustapha on why a judge should never be the executioner at the same time:

"Even in cases where a youthful offender is convicted before a criminal court and if the magistrate is to carry out the order of caning himself, then he would have a stake in the outcome of the case.

"He would then have an interest in the case. If he has this interest in the outcome of the case, inevitably and invariably there will be a finding of guilt. Invariably and inevitably, there will follow the punishment of caning.

"He therefore cannot be said to be impartial. His findings and judgments in all cases involving juveniles will be obsessed by getting the offence proved at all costs and the sentence will always be caning and he himself carrying it out even in spite of the recommendation of the probation officer, as happened in the instant case which is the subject of this revision."

If so, what troubles me is whether the judge in question was aware of Mustapha's judgment made some two decades ago.

Surely, the junior judges would have been briefed and trained from time to time on the dos and don'ts and guidelines on sentencing, but this has obviously called into question the judicial training and courses available or required for sitting subordinate court judges to improve and update themselves with the changes in law when administering justice. This is serious because the vast bulk of criminal cases are dealt with by the subordinate courts.

The senior High Court judge should now immediately call up the case for revision, and set the record straight that a judge must never be an executioner and judge at the same time, and neither should he behave like a school headmaster handling a school disciplinary matter when exercising his powers under section 293(1)(c) of CPC.

Published in the New Sunday Times, 05 July 2009

Sunday, June 14, 2009

Roger Tan appointed water commissioner

New Sunday Times

KUALA LUMPUR: New Sunday Times columnist and lawyer Roger Tan has been appointed a member of the National Water Service Commission.

Tan confirmed the appointment in his website, saying he had been appointed a commissioner by Energy, Green Technology and Water Minister Datuk Peter Chin Fah Kui for two years, beginning June 1.

Tan was involved in the corporatisation of the Johor Water Supply Department and drafting the Water Supply Enactment 1993 of Johor.

He had also acted as the external legal consultant for the Johor government in various water privatisation projects.

Earlier in March, Tan was appointed a board member of the Solid Waste and Public Cleansing Management Corporation by the Housing and Local Government Ministry.

Tan was also a four-term member of the Malaysian Bar.

The barrister-at-law from Gray's Inn, London, holds a Bachelor of Law (hons) degree from Queen Mary College of London University and a master's of law from the National University of Singapore.

Choosing the best to sit on the Bench

WITH the coming into force of the Judicial Appointments Commission (Selection Process and Method of Appointment of Judges of the Superior Courts) Regulations 2009 on June 1, the Judicial Appointments Commission (JAC) should now be fully operational.

The JAC, a legacy of former prime minister Tun Abdullah Ahmad Badawi, was set up by the Judicial Appointments Commission Act 2009 (Act 695), which came into force on Feb 2.

The main function of the JAC is to select suitably qualified persons who merit appointment as judges for the prime minister's consideration so that the prime minister, if he accepts any of the persons recommended by the JAC, may proceed to tender his advice to the Yang di-Pertuan Agong in accordance with Article 122B of the Federal Constitution, which provides that superior court judges are appointed by the king, acting on the advice of the prime minister, after consulting the Conference of Rulers.

Only persons who are qualified under Article 123 of the Federal Constitution may apply for selection as a High Court judge. Such a person must be a citizen and, for the 10 years preceding his appointment, must have been an advocate of those courts, or any of them, or a member of the judicial and legal service of the federation or of a state, or sometimes one and sometimes another.

In the case of a qualified person who is a serving judicial and legal service officer, the application has to be submitted through the head of department, who will forward the application to the JAC together with the relevant service information and a statement as to whether he supports the application or otherwise.

In relation to vacancies in the Federal Court and the Court of Appeal, the following persons may propose names to the JAC for selection:

(a) the retiring chief justice (CJ), for vacancy in the office of CJ;

(b) the CJ and the retiring president of the Court of Appeal (PCA), for vacancy in the office of PCA;

(c) the CJ and retiring chief judge of Malaya (CJM) and the retiring chief judge of Sabah and Sarawak (CJSS), as the case may be, for vacancy in the office of CJM or CJSS;

(d) the CJ, for vacancy in the office of a Federal Court judge; and,

(e) the CJ and PCA, for vacancy in the office of a Court of Appeal judge.

However, the JAC may also consider names proposed by eminent persons who have knowledge of the legal profession or who have achieved distinction in the legal profession in respect of vacancies in the Federal Court and the Court of Appeal.

The applicants must satisfy the selection criteria set out in section 23 of Act 695, which are:

- integrity, competency and experience;

- objective, impartial, fair and of good moral character;

- decisiveness, ability to make timely judgments and good legal writing skills;

- industriousness and ability to manage cases well; and,

- physical and mental health.

A person who is a serving judge or judicial commissioner must not be appointed if he has three or more pending judgments or unwritten grounds of judgments that are overdue by 60 days or more from the date they are deemed to be due.

In selecting candidates, the JAC must also take into account the need to encourage diversity in the range of legal expertise and knowledge in the judiciary.

The applicants are then subjected to a screening process by the Malaysian Anti-Corruption Commission, Royal Malaysian Police, Companies JAC of Malaysia and Department of Insolvency Malaysia.

Only the applications of those who have passed the screening process will be considered by the selection committee.

In a selection meeting, the JAC shall select no fewer than three persons for each vacancy in the High Court and no fewer than two persons for each vacancy involving either the Federal Court or Court of Appeal judges.

The chairman of JAC shall also be the chairman of the selection meeting but he may nominate a judge from among its members to chair a selection meeting when selecting persons as High Court judges.

The quorum for every selection meeting shall be seven. Any vote taken at the selection meeting must be made by secret ballot and by majority decision. The decision of the JAC is final and conclusive.

Therefore, it is an offence for any person who wilfully gives false or misleading information, or directly or indirectly in any manner whatsoever, attempts to influence any decision or member of the JAC.

After making its selection, the JAC will submit the recommendation to the prime minister, which will contain the reasons for such selection and any other information which is necessary for his knowledge.

The prime minister may, after receiving such a report, request for two more names to be selected and recommended for his consideration with respect to any vacancy to the office of the CJ, PCA, CJM, CJSS, Federal Court and Court of Appeal judges.

In this respect, the JAC has to ensure that reserve candidates are available in order to comply with the prime minister's request.

Meanwhile, judges' salaries and perks have also been revised upwards and backdated to Jan 1 when the prime minister signed the Judges, Remuneration (Amendment of First, Second and Fifth Schedules) Regulations 2009 on May 18.

With this revision, the judges' monthly pensionable salaries (with previous salaries in brackets) are now as follows:

- CJ -- RM25,000 (RM18,367.80);

- PCA -- RM22,000 (RM16,102.44);

- CJM -- RM21,687.06 (RM15,949.37);

- CJSS -- RM21,129.50 (RM15,536.10);

- Federal Court judge -- RM19,186.91 (RM14,108.02);

- Court of Appeal judge -- RM18,470.85 (RM13,581.50); and,

- High Court judge -- RM17,754.76 (RM 13,054.97).

There is also a corresponding increase in the monetary value of the perks.

With that, it is hoped that more qualified aspirants will be encouraged to apply, especially those from the legal profession, but only time will tell whether all the above will bring about a more independent and transparent selection process in the appointment and promotion of judges.

Published in the New Sunday Times, 14 June 2009

Saturday, June 13, 2009

Lawyer now a SPAN member

The Star

KUALA LUMPUR: Lawyer Roger Tan has been appointed a member of the National Water Service Commission (SPAN), according to its website.

Tan confirmed he had been appointed a Commissioner by Energy, Green Technology, and Water Minister Datuk Peter Chin Fah Kui, for two years from June 1.

The barrister-at-law from Gray’s Inn, London, holds a degree in Bachelor of Law (Hons) from Queen Mary College of London University and a Master of Law from the National University of Singapore.

He was also a four-term member of the Malaysian Bar Council.

Being involved in the corporatisation of the Johor Water Supply Department, and drafting the Water Supply Enactment 1993 of Johor, Tan has also acted as the external legal consultant for the Johor state government in various water privatisation projects.

He was appointed a board member of the Solid Waste and Public Cleansing Management Corporation by the Housing and Local Government Ministry in March.

Sunday, May 31, 2009

English can help rather than hinder

LAST Tuesday, Deputy Prime Minister and Education Minister Tan Sri Muhyiddin Yassin met seven Chinese educationist groups who want the teaching of Mathematics and Science in Chinese primary schools to be reverted to the Chinese language.

The Chinese educationists have been rather unhappy since the English for Teaching Mathematics and Science (ETeMS) policy was first announced by the former prime minister, Tun Dr Mahathir Mohamad, on May 10, 2002.

To them, there is no valid reason for the implementation of ETeMS to be extended to Chinese primary schools when the first switch from teaching Maths and Science in English to Bahasa Malaysia in the late 1970s involved only the national schools.

The Chinese educationists have many reasons for opposing ETeMS, but to my mind, their main concern is actually this.

If the two subjects are taught in English, that spells the beginning of the end of Chinese primary schools in this country.

Apart from China, Taiwan and Hong Kong, Malaysia is the only other country which has the Chinese language as the medium of instruction in Chinese primary schools.

They suspect that if the ETeMS policy is implemented, there would come a day when non-Chinese-educated teachers will be roped in to teach Maths and Science in English in Chinese primary schools, thereby changing the character of the schools.

To them, this is an insidious attempt to do away with vernacular Chinese schools in this country.

To a certain extent, such a fear is not unfounded. Before independence, the British administrators in the 1951 Barnes Report had wanted to abolish the vernacular schools.

Then the 1960 Abdul Rahman Talib Report also brought about the new Education Act 1961, which contained the infamous Section 21(2) (now repealed) empowering the minister to convert any national-type vernacular primary school to a national primary school.

To the Chinese, education is the issue most dear to their hearts.

It often evokes strong emotion and passion in the Chinese community, and it is said that any political party which attends to the educational needs of the community will win their hearts and minds.

Likewise, any Chinese- based political party which advocates the closure of these schools will only be committing political suicide.

Today, more than 90 per cent of Chinese pupils study in Chinese primary schools, and close to 90 per cent of them also move on to national secondary schools after their primary education.

But what the educationists and Chinese-based political parties have failed to address since independence is the high drop-out rate among Chinese youths who are unable to cope with the switch to English or Bahasa Malaysia at the national secondary schools.

Hundreds of thousands of them also cease having further education after Form 5 due to their poor academic performance.

As a result, many of them end up with blue-collar jobs.

While it is novel that Chinese children in this country get to learn about their heritage and culture at primary school, it is really a sad thing if later thousands of them are unable to cope with their studies at the national secondary schools.

They must realise that having a good command of the Chinese language is not sufficient in this globalised world. This is evident in China these days where millions of youths are trying all sorts of ways to learn and become proficient in the English language.

In my opinion, learning Maths and Science in English in primary schools will help those pupils who later switch to national secondary schools.

It also increases their proficiency in English because, for example, if the students end up in the Science stream, they will be studying most of the subjects in English as all the Maths and Science subjects -- General Maths, Additional Maths, General Science, Chemistry, Physics and Biology are taught in English.

If they take only Maths and Science subjects in Form 6, they are as good as studying in an English school. This also makes the acquisition of knowledge in these subjects easier.

As I said before in this column, many of our Form Five students will not even be able to answer the English language paper of the Singapore Primary School Leaving Examinations (PSLE).

Today, that is the exact state of English proficiency among our young. Indeed, I have met many young Chinese teenagers who cannot comprehend or read a simple passage in English.

Already, most of them think in Mandarin before they form any sentences in English.

It is therefore not uncommon to hear sentences like, "You eat what?" or Ni chi shen me in Chinese instead of "What are you eating?" or "I never eat until" or Wo hai mei you chi dao instead of "I haven't eaten it yet".

I am not advocating the closure of these schools. But with the government's assurance that these schools will stay, the Chinese educationists should at least consider ETeMS favourably since six years in the vernacular schools will make the pupils proficient in their mother tongue, and this should really be the main purpose of vernacular schools anyway.

Similarly, this policy must be divorced from the implementation problems which I believe are surmountable if we have the will to carry it out.

As a start, with ETeMS, Remove classes should be abolished altogether.

Another way is to shorten the duration of secondary education to allow those who excel in UPSR to sit for SPM when they reach Form 4.

Those who are slower can spend an extra year to take the SPM examination when they reach Form 5.

All in all, our education system must not be allowed to progress at the pace of the slowest learners if we want to be competitive.
Published in the New Sunday Times, 31 May 2009

Friday, May 29, 2009

Giving up hope for change in the law

New Straits Times
by Salleh Buang

I recently heard that the issue of indefeasibility of title, in particular, the amendment of section 340 of the National Land Code 1965 (NLC), is not going to happen any time soon. Maybe never.

But before I say anything more about it, I need to explain a few things.

In March 2008, a workshop on the NLC was organised by the then Director-General of Lands and Mines (KPTG) Datuk Zoal Azha Yusof at the Awana Genting Highlands. Participants included senior officers from the Lands and Mines Department, the Attorney-General's Chambers, Bar Council representatives (Roger Tan and Bernard Kok), the academia (Dr Sharifah Zubaidah), and myself.

Possible amendments of section 340 were discussed in great detail, including a memorandum submitted by the Bar Council to the then Minister of Natural Resources and Environment Datuk Seri Azmi Khalid on July 24, 2007.

Alternative proposals submitted by KPTG, the Attorney-General's Chambers and the academia, which essentially com-plemented each other and did not differ in any fundamental or material sense, were also considered.

I suggested that we plan our work in two phases. In phase one, as an urgent and immediate task, we should resolve the seven-year-old question left behind by the Boonsom Boonyanit decision. Since the judiciary has not corrected the situa-tion, the problem should be resolved by legislative means by amending section 340.

The proposed amendment's principal objective is to show clearly that in this country we practise deferred indefeasibility and not immediate indefeasibility. As to what should go in that proposed amendment, we can all consider the various views and arrive at a consensus.
When phase one is done, we should then proceed to phase two - which is to address the larger problem of how to com-pensate an innocent landowner (or innocent bona fide purchaser for value, as the case may be) who suffers loss at the hands of a fraudulent person, a forger or a conman.

For the second phase, I suggested we study the recent legal developments in Canada which had faced the same prob-lems and had come up with a two-pronged strategy in its solution. I then explained Canada's strategy.

We left Awana Genting with a lot of optimism. Everyone more or less agreed we should carry out our future work in two phases. For phase one, we should work hard so that the proposed amendment of section 340 would be tabled soon in Parliament.

Four months later in July 2008, there was a follow up meeting at Putrajaya chaired by the new Director-General of Lands and Mines (KPTG) Datuk Abdul Halim Ain, who had replaced Zoal. Abdul Halim told the participants he hoped the amendment of section 340 "would be tabled in Parliament" by the end of 2008.

Prospects for an amendment seemed brighter than before.

On April 27 this year, I attended a seminar in Subang Jaya themed "New Approach in Land Development" organised by a group of Universiti Teknologi Malaysia postgraduate students, in collaboration with the Malaysian Institute of Planners (MIP) and Kumpulan Pengurusan Muda Pegawai Tadbir & Diplomatik (KPM). Zoal was scheduled to deliver the keynote address. I had planned to have some serious conversation with him but he could not attend because he had a more pressing engagement elsewhere.

During the coffee break, I was told (by an unofficial source) the promised amendment of section 340 will not be making its way to Parliament any time soon. I asked why and his reply sounded absurd.

After trying to solve the issue for the last eight years, we have no concrete result.

My fear now is that Putrajaya will be too busy and have little time left to sort out section 340.

Not only will phase one fail to make real progress; the prospects of embarking on phase two might be regarded as highly unlikely.

Sunday, May 10, 2009

A case for building laws offering quick remedies

THERE are about three million Malaysians living in sub-divided buildings today. These buildings can range from low-cost apartments to the most luxurious condominium units.

One common but serious problem faced by those who manage such buildings is the difficulty in collecting maintenance charges or contributions from parcel owners.

It is, therefore, not uncommon to hear that there are:

- management corporations (MCs) which have run into deficits involving millions of ringgit because parcel owners refuse to pay contributions for years.

- buildings, especially low and medium-cost apartments, that have become enclaves for drug addicts, migrant workers and illegal immigrants because there are no funds to engage security services. As a result, the owners will not live there and residents living in the surrounding areas face a social problem.

- developers who could not find anyone interested in serving in the first MC and thereafter, or joint management body (JMB) as there is no surplus in the accounts due to a high default rate for non-payment among parcel owners.

Generally, there are two sets of laws which govern the maintenance and management of sub-divided buildings and their common property.

The Strata Titles Act 1985 (Act 318) applies to those buildings where an MC has already been established after the issuance of individual strata titles. After April 12, 2007, the Building and Common Property (Maintenance and Management) Act 2007 (Act 663) applied to those buildings without an MC by setting up a JMB.

Prior to 2004, MCs had resorted to a rather effective way to compel payment of the contributions -- by disconnecting water supply to units of defaulting owners.

But all this stopped after the case of John Denis De Silva v. Crescent Court Management Corporation 2006. In this case, the late De Silva, a retired diplomat, obtained an injunction to restrain the defendant from preventing the entry of his car as well as disconnecting the water supply for not having paid his monthly contributions.

The court held that such unilateral acts were ultra vires sections 53 and 53A of Act 318, which set out the procedures to be followed in recovering the contributions due.

Section 53 provides that if the owner fails to settle the sum due within a period of four weeks after having been served with two notices -- each requiring him to pay within two weeks after service of the notice -- then the MC may sue for the recovery of the said sum in court or, in addition or as an alternative, resort to section 53A.

The section empowers the MC to apply to the Land Administrator for a warrant to attach the movable properties of the owner found in the unit or elsewhere in the state. The properties can then be sold by public auction if the owner still fails to settle the contributions.

One other provision not mentioned by the court in the John Denis case is section 55A, which provides that any owner who has failed to pay the contributions in the manner set out in section 53 commits an offence and shall be liable on conviction to a fine not exceeding RM5,000 and to a further fine not exceeding RM50 for every day during which the contributions remain unpaid after conviction. (In Act 663, the identical provision is section 34.) It appears that to date no one has been prosecuted under this section.

However, in practice, the above methods are hardly effective in recovering the sums due from defaulting owners, especially the contumacious ones, as it takes years to obtain and enforce a judgment. The attachment mode is also ineffective because either the movable properties belong to the tenants or the premises have been stripped bare, and it is also difficult to ascertain their other properties situated elsewhere.

For prosecution under section 55A to take place, the written consent of the Public Prosecutor is required under section 80A. Even if there is prosecution under section 55A, big-time defaulters, like corporations, may still delay in settling the contributions as the daily fine of RM50 may not be a deterrent to them.

Some may then ask what if the right to disconnect water supply is contained in the deed of mutual covenants or house rules or by-laws?

In my opinion, the deed may not even be valid if it is signed simultaneously with the statutory sale and purchase agreement for housing accommodation without the prior approval of the Controller of Housing under Regulation 11 of the Housing Development (Control and Licensing) Regulations 1989.

Secondly, the covenants contained therein can only be considered as house rules in addition to those contained in the Third Schedule of Act 318 if they have first been passed in a general meeting by special resolution under section 44.

Even if the deed is valid or the right to disconnect is contained in the house rules, such power will still be nullified by the John Denis decision.

However, if the owner does not have any proprietary interest in the parking lot allocated by the MC, then additional by-laws may be passed by special resolution to deny the defaulting owner the allocated parking lot or the use of facilities such as the swimming pool or gymnasium.

But this does not prevent the owner from complaining to the Strata Titles Board under section 67H of Act 318 to have such by-laws revoked, and the MC may even be required to pay compensation to him if he is adversely affected by the by-laws.

While the above also applies to stratafied commercial properties, I am of the view that Act 318 and Act 663 ought to be amended to allow the MC or JMB to create a legal charge on the parcel unit belonging to a defaulting owner if the sum due is not settled after the four-week period stated in section 53. This charge should rank in priority over any prior charge created by the owner's financiers.

If the owner or his financier does not settle the sum due including any interest and legal costs within a specified period after publication of the notice of sale, then the MC or JMB can sell the unit by way of public auction if the sale has also been approved by special resolution in a general meeting.

This recovery method, widely used in many countries, has proven to be effective and our authorities should seriously consider introducing it here in the interests of all law-abiding parcel owners and the general public.

Published in the New Sunday Times, 10 May 2009

Sunday, May 3, 2009

No room for double standards

On April 16, the Federal Court ruled that Perak state assembly speaker V. Sivakumar did not have the power to suspend Mentri Besar Datuk Dr Zambry Abdul Kadir and his six executive council members from the state assembly.

One retired Court of Appeal judge, whose views had often been sought by the previous Pakatan Rakyat state administration, was obviously unhappy.

In his various articles on the Internet over the Perak fiasco, Datuk N.H. Chan described the Federal Court's decision as "perverse" as it was made "in blatant defiance" of Article 72(1) of the Federal Constitution which states that "the validity of any proceedings in the Legislative Assembly of any state shall not be questioned in any court".

Chan argued that Article 72(1) is so simple that any member of the public could interpret it as the words mean what they say. He then went on to say that judges who failed to administer justice according to the law were irresponsible, bad and renegade judges.

He had also earlier described the Ipoh High Court judicial commissioner Ridwan Ibrahim as arrogant and inexperienced in constitutional law.

I find his emotional outbursts against the judges totally unnecessary. As a lawyer, his arguments do not come across to me as convincing at all. Article 72(1) may appear simple to some, but as lawyers, we are often reminded by the words of the great British judge, Lord Denning, that the English language is not an instrument of mathematical precision.

As I said in "Speaker's behaviour bizarre" (NST, Feb 22), Article 72(1) does not exclude any decision made by a committee of the state legislature from judicial scrutiny. Had Parliament intended it so, it would have added the words "or any committee thereof" in Article 72(1), similar to Article 63(1) which applies to the Dewan Rakyat.

The decision to suspend Zambry and the other executive councillors was the decision of the Committee of Special Privileges and not the state legislature. Even if the decision had been endorsed by the purported sitting of the legislature under the Tree of Comedy or Democracy (as differently named by opposing sides), it is questionable whether such proceedings are proceedings which fall within Article 72(1) (see Supreme Court decision in Haji Salleh Jafaruddin v Datuk Celestine Ujang & Ors 1986).

To my mind, the Federal Court's decision is a correct one as Article 72(1) does not expressly provide that the decision of a committee is not amenable to the jurisdiction of the courts. Yes, the words mean what they say.

In fact, the court always has the inherent duty to do justice if too strict an adherence to the doctrine of separation of powers can cause injustice or produce perverse results.

This is always the problem whenever unfettered power is vested in one individual alone, and we are helpless because the law seems to say so. But there should always be an exception if justice requires it to be done.

This reminds me of the incident in 1984 when someone inside the Libyan embassy in London fired at the crowds demonstrating outside its premises, killing policewoman Yvonne Fletcher.

The police did not enter the building or arrest anyone on the grounds that the Vienna Convention provides that the premises of the embassy and diplomatic agents are "inviolable".

But Lord Denning asked, if an embassy is on fire and likely to spread to adjoining premises, are not firemen and police entitled to enter the premises to put out the fire and save the adjoining properties?

Indeed, if a foreign diplomat starts to shoot at shoppers and police in a Kuala Lumpur shopping mall, are not our policemen entitled to shoot back at him?

Likewise, if one morning the Dewan Rakyat speaker Tan Sri Pandikar Amin Mulia wakes up and then decides to suspend many Pakatan members of parliament on the most ludicrous grounds so that Barisan Nasional will have two-thirds majority of that house to amend the Federal Constitution, can our courts not intervene?

Is it acceptable if later the speaker defends his actions at a press conference seated together with the BN president?

That is why I have always told my friends in Pakatan that they should practise what they preach. If you say you are for a strict separation of powers, then Puchong MP Gobind Singh Deo should not even have sued Pandikar Amin albeit the applicable laws and facts are poles apart from the Perak fiasco.

It is as good as saying you are against the Internal Security Act and Sedition Act but, at the same time, lodge police reports against those you think have acted against these laws.

Pakatan should not blow hot and cold. They should not quod approbo non reprobo (approbate and reprobate).

Today is Word Press Freedom Day. You cannot say you believe in press freedom and, at the same time, ban certain newspapers critical of you from your press conferences.

If prior to Sept 16 when Pakatan and their legal experts held the view that the king could dismiss the prime minister without a vote of no confidence in the Dewan Rakyat if the king was satisfied through other means that the prime minister had lost the confidence of the majority in the Dewan Rakyat, then these same people should not be so critical of the very same means employed by the Sultan of Perak when he decided to appoint Zambry as menteri besar.

If Pakatan strongly believes in freedom of association, then they should not be using pre-signed letters of resignation to stop their elected representatives from disassociating and crossing over to other parties.

As I have also told my lawyer friends who often act for Pakatan, Amer Hamzah Arshad and Edmund Bon (who is now chairman of the Bar Council's constitutional law committee), Pakatan leaders should behave like gentlemen rather than sour grapes.

Having lost the party-hopping game which they first started, they should learn to accept their defeat gracefully and wait till the next general election or for some other representatives to hop over to their side just like in America, where criss-crossing by the Republicans and Democrats is accepted without any question if one truly believes in freedom of association.

I wonder what Pakatan will say if tomorrow three BN representatives decide to hop over to them and the Sultan of Perak decides to hand over the government to Pakatan without calling for elections. Your guess is as good as mine. But one thing is for sure: my views expressed here will remain.

Published in the New Sunday Times, 03 May 2009

Saturday, May 2, 2009

Testing the limits on changes to conversion laws

by Alan Ting

KUALA LUMPUR, May 2 — The Court of Appeal’s decision to refer the case involving the custody and conversion of the sons of S. Shamala and Muhamad Ridzwan (Dr Jeyaganesh C. Mogarajah) to the Federal Court last Tuesday has given rise to some interesting issues.

Chiefly, it is going to be one of the biggest tests for the government as well as the judiciary system after the Cabinet made a courageous decision that children of divorced parents should be raised in the religion of the time of their marriage should one of them later convert to another religion.

The Cabinet’s landmark decision two weeks ago is thus set to be tested by the highest court of the land if the current laws and enactments are not amended to provide a clear interpretation on matters related to such conversion cases, according to those in the legal circle.

The Cabinet’s decision is seen by many as a move to alleviate the frustration of parents when their children are converted to another religion without their knowledge, consent or against their will.

The move is in line with the spirit of 1 Malaysia, a concept espoused by Prime Minister Datuk Seri Najib Razak who has called on Malaysians to refrain from viewing matters from narrow ethnic perspectives or from their “ethnic silos” as he had once described.

Malaysia has a dual-track legal system, with civil courts and syariah courts operating side by side.

The Court of Appeal has decided to refer five constitutional questions to the apex court before hearing the appeals as it wanted the Federal Court to adjudicate on conflicting Islamic and civil laws governing conversion and the freedom of the practice of religion.

For example, there will be this question of whether the Administration of Islamic Law (Federal Territories) Act 1993, which gave the right to a converted parent to convert his or her children from a civil marriage without the knowledge and consent of the other parent, is inconsistent with the Guardianship of Infants Act 1961. This is because the amended Guardianship of Infants Act gives equal rights to a mother and father on the upbringing and custody of their children.

Then there will also be the issue of whether the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505) is in conflict with the Federal Constitution and a federal law relating to the issue of converting a minor by a parent.

The Federal Court also has to decide whether there is jurisdiction for the High Court or syariah court to make conflicting orders and if there had been a conversion of the children from a civil marriage into Islam by one parent without the consent of the other parent, where then would the non-Muslim parent seek remedy.

In the Shamala-Muhamad Ridzwan case, both relied on both sets of laws, with Muhamad on syariah law and Shamala on the Law Reform (Marriage and Divorce) Act 1976.

Under the two different systems of law, both were granted custody over the two boys who were born during their 11 years of marriage, and seven years later, they still do not have closure on the case.

The same also happened in the case of Indira Ghandi and K. Patmanathan (Mohd Ridzuan Abdullah), where the syariah court had earlier granted interim custody of the children to Mohd Ridzuan and two weeks later, the Ipoh High Court granted interim custody to Indira.

In layman’s terms, it is a matter of concern if the Federal Court has to make an interpretation of whether the civil court has jurisdiction over the syariah court if the marriage was first registered under civil law.

However, some quarters are concerned that without any amendment to the existing and related laws, the Cabinet’s decision may not be helpful to those who seek remedies or solutions to their plight.

As pointed out by Bar Council president Ragunath Kesavan, the Cabinet directive was a policy statement that required amendments to existing laws for their full realisation.

“The relevant legislation must be immediately amended in order to fully implement this directive without further delay,” he said.

For Senator Datuk Gooi Hoe Hin, he said in the spirit of 1 Malaysia, the government of the day should go on a fast-track mode to amend various laws to avoid further apprehension that the fundamental rights of non-Muslims enshrined in the federal constitution were not violated.

The laws that need to be amended involve Article 12(4) and Article 121 (1A) of the Federal Constitution, Guardianship of Infants Act, 1961 (revised 1988) and The Law Reform (Marriage and Divorce) Act 1976.

Such amendments are to ensure that the basic principles of a socially just system were further enhanced, thereby enabling the people to greater confidence in the government, Gooi said.

However, some still argue that asking the government to make the related changes as soon as possible is easy but the reality is that it will take some time to effect them. This is especially so on such crucial and important matters related to amendments in Islamic law which needed the consent of the Malay rulers and Islamic bodies.

A number of Muslim organisations have been reported to be against the Cabinet directive and this has posed a question mark on whether such amendments could be carried out.

Perak Mufti Datuk Seri Harussani Zakaria pointed out that the government needed to get views from the Malaysian Mufti Council as he stressed that “in Islam when the father or mother is a Muslim, the child automatically becomes a Muslim unless the child is above 15 years of age and can choose his own religion.”

For many syariah lawyers, they felt that the Cabinet decision had denied the rights of people who converted to Islam.

Senior lawyer Roger Tan said the Federal Court can decide either way or it might not make any decision on the matter and would ask the legislature to clear out the conflicting or overlapping jurisdiction.

“The Federal Court can decide and work both ways. It can depart from normal decisions. Nobody knows for sure,” he said.

Whatever it is, the government will need the support of the majority in Parliament to make the necessary changes for the benefit of all in the courageous spirit of 1 Malaysia.

Sunday, April 26, 2009

Cabinet puts interest of the child first

THE cabinet of Prime Minister Datuk Seri Najib Razak should be commended for having the gumption to tackle the longstanding, highly emotive issue of the effect of one partner's conversion to Islam after a civil marriage.

On Thursday, Minister in the Prime Minister's Department Datuk Seri Mohamed Nazri Abdul Aziz made a surprise announcement that the cabinet had decided that a child's religion must be in accordance with the common religion at the time of marriage between the parents in the event that one of them opts to convert.

This decision to maintain the status quo as regards the child's religion is also in accordance with the well-established principle that the interest of the child of marriage is of paramount importance.

Nazri also stressed that conversion must not be used as a ground to automatically dissolve a marriage or to get custody of children.

He added that the cabinet also decided that a marriage solemnised under civil law could only be dissolved in the civil court.

This is indeed a landmark decision which reflects the voice of moderation and reason, something which could best be described initially as almost unbelievable.

It is reassuring to know that after so many years, it now takes a new prime minister to make it look as if resolution to this problem can be rather simple if only our leaders have the political will to do it.

By making this decision, our leaders have set a fine example to their countrymen of the importance of exercising mutual tolerance in our multi-religious country. It also lends credence to Najib's 1Malaysia concept.

The government's decision is, in fact, in line with the 1994 decision of the Supreme Court in Tan Sung Mooi (F) v Too Miew Kim, where judge Mohamed Dzaiddin, in delivering the decision of the court which also comprised Lord President Abdul Hamid Omar, Chief Justice Gunn Chit Tuan, judge Edgar Joseph Jr and judge Mohd Eusoff Chin, said trenchantly:

"Under s.51 (Law Reform (Marriage and Divorce) Act 1976), where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce and the court, upon dissolving the marriage, may make provision for the wife or husband and for the support, care and custody of the children of the marriage and may attach any condition to the decree of dissolution.

"The legislature, by enacting s.51, clearly envisaged a situation that where one party to a non-Muslim marriage converted to Islam, the other party who has not converted may petition to the High Court for divorce and seek ancillary reliefs...

"Further, it would seem to us that Parliament, in enacting sub-section 51(2), must have had in mind to give protection to non-Muslim spouses and children of the marriage against a Muslim convert...

"It would result in grave injustice to non-Muslim spouses and children whose only remedy would be in the civil courts if the High Court no longer has jurisdiction, since the syariah courts do not have jurisdiction over non-Muslims."

While the above dictum was later adopted by the Federal Court in the celebrated case of Subashini Rajasingam v Saravanan Thangathoray 2007, judges Datuk Nik Hashim Nik Ab Rahman and Datuk Azmel Maamor, who formed the majority, also ruled, rather confusingly, that the converted husband could still seek divorce in the syariah court albeit the rulings made by the syariah court would not bind the civil court.

The Federal Court went further to rule that any parent had a right to convert the child of marriage to Islam.

It held that the word "parent" in article 12(4) of the Federal Constitution which states that the religion of a person under the age of 18 shall be decided by his parent or guardian, means a single parent.

Further, reliance could not be placed on s.5 of the Guardianship of Infants Act 1961 which gives the mother equal parental rights over the child as the 1961 Act does not apply to Muslims, including the converted father.

It follows that unless a new Federal Court panel departs from the Subashini Rajasingam decision in a future case, intervention from Parliament will be necessary to give effect to the latest decision of the cabinet that any change in the child's religion must require the consent of both parents in addition to removing any overlapping jurisdictions of the civil and syariah courts.

It is hoped that the government will amend the relevant federal laws as well as to cause the state governments to make changes to their state Islamic enactments.

I pray, too, that the sultans, being the heads of Islam in the states, will give their royal assent to the legislative amendments as non-Muslims are also their subjects who look up to their royal highnesses to protect their interests.

I believe that this latest move by the Najib administration is good for the country because history has proven over and over again that moderation and fairness are vital in achieving national cohesion in a multi-racial and multi-religious society.

Hence, it is rather unacceptable for Parti Keadilan Rakyat member of parliament Zulkifli Noordin to move, though unsuccessfully, in the March parliamentary sitting to amend the Federal Constitution to state that any law which is inconsistent with the Constitution shall be deemed void, except for Islamic legislation; thereby making Islamic law the supreme law of the land.

Published in the New Sunday Times, 26 April 2009

Sunday, April 19, 2009

Living in limbo

The Sunday Star
by Rouwen Lin

Nobody’s child: Amin Ulli, four, said to be the son of a Filipino  beggar, waiting to be claimed at a detention camp near Kota Kinabalu. –  File photo
Nobody’s child: Amin Ulli, four, said to be the son of a Filipino beggar, waiting to be claimed at a detention camp near Kota Kinabalu. – File photo
The threat of action from the authorities aside, stateless people are not eligible for employment, healthcare and education.

CITIZENSHIP is a man’s basic right, for it is nothing less than the right to have rights,” wrote United States Supreme Court Chief Justice Earl Warren in 1958. Despite this lofty pronouncement from one of America’s most important and influential jurists, statelessness is a growing problem in our modern world.

The United Nations High Commissioner for Refugees (UNHCR) believes that there may be as many as 15 million stateless people in at least 49 countries in the world. In Malaysia alone, there are an estimated 30,000 stateless persons who do not have access to education and healthcare and are unable to be legally employed. They do not have the right to hold travel documents and are barred from voting and running for political office.

Stateless persons struggle with numerous limitations on a daily basis, but perhaps the most horrifying is the thought of being caught by the authorities. Should this happen, they will be treated as illegal immigrants.

In effect, this means that they are liable to a fine not exceeding RM10,000 or imprisonment not exceeding five years, or both, under Section 6(3) of the Immigration Act 1959/63. They are also liable to whipping of not more than six strokes.

Bar Council member Roger Tan points out that under Part V of the Act, such a person can also be detained or deported. However, in practice, detention is more likely.

“They will continue to be detained because, if they are stateless, which country should they be deported to?” Tan says.

Different countries offer stateless persons varying degrees of protection, depending on their laws and policies. However, Malaysia has no effective mechanism to protect stateless persons, he adds. “At an international level, the UNHCR is mandated to help and protect stateless persons. But Malaysia is not a signatory to two important conventions - the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.

“We are signatories to the Convention on the Rights of the Child 1989 (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women 1979 (Cedaw). But implementation will remain sketchy unless these international obligations are incorporated into domestic laws.”

Many repercussions

Tan says although there are numerous reasons for statelessness (see In no man’s land), most people without citizenship in Malaysia fall under the category of those born in the country but who failed to register their births under Malaysian law,

“The majority of stateless persons in the country come from the Indian community and the failure to register is often due to illiteracy, poverty or social stigma,” he adds.

Yayasan Strategik Social (YSS) assistant director Karrupiah Palaniandy explains that most of the stateless persons from the Indian community find themselves in this quandary because they are not registered with the National Registration Department (NRD).

“Many cases of non-registration happen because parents are not fully aware of the repercussions of growing up without a birth certificate. Although there are some parents who (unequivocally) do not bother about registering their children, there are others who attempt to, but they give up when complications arise,” he says.

As these parents do not grasp the magnitude of the problems this will lead to, there seems no necessity to get it done. Under these circumstances, the hassle associated with attempting to register their children is sufficient justification to abort the mission.

YSS assistant director Vanita Ramany elaborates: “For example, when a child is born out of wedlock, his parents may find it too inconvenient or are too embarrassed to go through the registration. There may be additional paperwork and questions to deal with. It seems easier then to leave the child stateless.

“Also, when a marriage is not legally registered – as in the case of a traditional ceremonial wedding or a second relationship while the first legally-registered marriage still exists – the child can be registered as a Malaysian citizen, but his father’s name will not be stated on the birth certificate.

“In such a case, the parents may simply not register the child because they feel it is shameful to not have his father’s name on the document. The child will then grow up stateless,” Vanita says.

She agrees that while parental negligence is a factor that cannot be overlooked, looking for a scapegoat to pin the blame on will not help put things right.

“What we need here is action. Pointing fingers will not help,” she says, lamenting that the consequences of not registering a child are usually only felt several years down the road.

In turn, this delay often makes the problem of non-registration more difficult to rectify.

The NRD lists on their website the documents required to be submitted with delayed registration of birth (considered as such if registration is made more that 42 days after birth). The parents’ marriage certificate is included as one of them (see

“As it stands now, I’ve seen so many cases in which they insist that the mother has to come forward to vouch for the child if the relevant documents required for delayed registration are not in order,” says Vanita.

What if the mother is no longer alive by then, she asks. “I think the government has to make changes to the current policy as there are lots of such cases.

“My recommendation is that the child should be given citizenship as long as there is a letter from the area penghulu (headman) or from any political party vouching that he has grown up in the country for so many years without a criminal record.

For children in orphanages without documents, the government should consider giving them at least PR status, she suggests.

“At the end of the day, they are going to grow up here. With no education and no job, they end up in illegal activities. What’s going to happen to them, or to the country, then?” she asks.

Indigenous dilemma

Often, all it takes is one instance of non-registration of birth - particularly, but not limited to the cases that remain unresolved - to render the subsequent generations stateless.

Given the sheer number of cases and the nature of the problem, the spotlight in Malaysia has been on the Indian community. But this problem also affects thousands of indigenous people in Sabah and Sarawak, particularly those residing in the interiors, who have no citizenship papers.

Adrian Lasimbang, president of the Indigenous People Network of Malaysia (JOAS), says that without such documents, these people cannot stake a claim to their land. They are, in effect, stateless on their own land. Additionally, farmers who are unable to produce documentation are not eligible for subsidy or any form of assistance from the government.

It can be said that the indigenous people are worse off than illegal immigrants in certain aspects. As Lasimbang put it, indignantly, “they do not even have access to healthcare! Illegal immigrants are better off in this regard because they are at least entitled to healthcare under IMM-13 (a pass issued by the Immigration Department which legalises the stay of holders in the country and allows them to gain lawful employment and access to education and healthcare).

“It is also very difficult for children without documents to go to school. Those in school are forced to stop early because if you don’t have an identification card (IC) you cannot sit for the public exams (the first of which, the UPSR, is taken in Primary Six), what more go to university. “Everyone says there are lots of dropouts in rural schools due to the lack of technology or infrastructure. But I think the other factor that accounts for the high dropout rate is the lack of citizenship documents. And what happens to these people? They have to go back to the kampung to tanam jagung (plant corn) that is the istilah (phrase) we use here.

“I call this the snowball effect because generation after generation will suffer from the same thing. Their children will be without documents, too. This is what is happening now. It’s a big problem and I think the NRD should be serious about finding a solution to this or the problem will remain,” Lasimbang says. But this is easier said than done, and he makes a reference to a syndicate in Sabah a few years back that used faked national certificates to successfully obtain Malaysian ICs for thousands of illegal immigrants, effectively turning them into citizens overnight.

“They only came to Malaysia a few years ago, and now they are all bumiputras, complete with privileges. I know of people in my neighbourhood who hold an IC even though we all know that they are not genuine citizens,” Lasimbang says.

“Since that syndicate (was exposed), NRD has stopped recognising the native certificate issued by the native chief as a supporting document for citizenship application.

“There must be other means of checking whether someone is a citizen, but the problem is that the NRD works autonomously without any check and balance from the state and no coordination with any department.”

His concerns are valid: Between 1970 and 2000, Sabah’s population increased by 285%, against Sarawak’s 106% and Peninsular Malaysia’s 113%, leading to a call for a Royal Commission of Inquiry on ICs issued in Sabah.

Even now, entire groups of Indonesian immigrants can obtain Malaysian citizenship, allege NGOs familiar with the situation.

“I know of entire kampungs of Indonesian immigrants who have ICs! Why are they able to get citizenship so readily when people born in the country have their citizenship applications rejected repeatedly?” Vanita asks. Overall, it appears easier for children of Indonesians who hold a permanent resident (PR) status to become citizens of Malaysia, Tan observes.

“We really do not know how many thousands or hundreds of thousands of Indonesians have been made PRs in this country,” he says, pointing out that Article 14(1)(b) and section 1(a) of Part II of the Second Schedule of the Constitution state that persons born in Malaysia will be deemed a citizen if at least one parent is, at the time of birth, a citizen or a permanent resident.

Need for coordination

The consequence of Sabah’s unusual population demographics has yet to be felt in Peninsular Malaysia, but Lasimbang predicts that in a decade or two, the authorities will be forced to faced the music when the number of overnight citizens there becomes a significant issue.

“I’ve noticed that they’re afraid to stay in Sabah because we all know by now that they are immigrants. They are afraid that if anything happens, they will have a problem, so they go over to semenanjung (the peninsula) to work,” says Lasimbang.

Commenting that there seems to be a lack of coordination between the federal and the governments, Lasimbang suggests that the locals should be appointed to deal with the issue of who gets citizenship, and how. At present, officals from Peninsular Malaysia hold all the top posts.

“There should be a special commission in every district that includes the district officers and native chief because who else knows more about this than them?

“NRD, at least at the district level, should have participation from the local leaders, who understand the situation and know everybody living in the district. If an illegal immigrant attempts to apply for citizenship, it will be easy for them to check his claim of being from a particular kampung.”

Lasimbang adds that it has been suggested that the indigenous people should give birth in hospitals instead of going to traditional midwives. This will prevent further generations from being rendered stateless as those born in hospitals can be registered much more easily.

But, as with many a suggestion, there is a hitch: the villages are located so deep in the interior that this is not a very viable option.

“How can you expect them to afford to travel (out) a week before the baby is due and stay in the hospital in town?”

To its credit, the NRD has been attempting to resolve the issue of late birth registration or non-registration among the rural folks by deploying mobile registration units into the interior. But such efforts fall short.

Explains Lasimbang: “NRD officers come in their vehicle, take thumb-prints and photos and so on, and the people are given a slip with their name and a reference number. NRD then expects them to travel to its nearest office with supporting documents before the application can be processed. The problem here is that it sometimes takes them days to travel. It’s not something they do every day, the way we hop into a car and drive to town.

“Although I do commend the NRD’s efforts in getting these people registered through the programme, it will continue to be ineffective if there are no follow-up visits. It’s not just about going there and taking photos and putting the burden on the community to do the follow-up.

“I believe the NRD has the resources to return in a few months for the required documents and to inform the people of the outcome of their application.

“How can the country progress if your citizens are not educated and do not even have access to good healthcare? They talk about negara maju and vision 2020 and your citizens don’t even have citizenship documents? Malulah,” Lasimbang says.

> Several attempts were made to get comments from the NRD. But the only response we received from department public relations officer Jainisah Mohd Noor via e-mail was: ‘The NRD regrets to inform you that the NRD could not state any comment regarding the inquiries made.’

Many cases pending

SANDRA Monteiro, an adopted child, had her birth certificate confiscated when she applied for an identity card at 12 because the word “adopted” was missing from the document. She was issued a temporary identity chit and thereafter, a green card (which denoted permanent resident status). When the government cancelled all green cards, she was made stateless and has remained so for over a decade now.

ABDUL Rahim Ariff was born in Kubang Kerian, Kelantan, a few months before Merdeka, but only received his citizenship at the age of 52, after being deemed “a genuine case” following “an extensive interview and screening for several years”.

The problem was that his name was not listed on his birth certificate when it was issued.

When Abdul Rahim received his citizenship in January this year, the father of six said: “Now I am legally a Malaysian. It is a wonderful feeling as I had been living here my entire life.”

YONG Lee Hua @ Piang Lin (pic), a 78-year-old Sino-Kadazan native in Sabah had her identification card (IC) stolen. She applied for a replacement but was issued a red IC (denoting PR status) instead. The National Registration Department (NRD) officer informed her that this was the usual procedure for senior citizens who had lost their ICs.

When Yong returned to the NRD pursue hre case, she was told to put in an application for Malaysian citizenship. Pending that, her bank accounts were frozen, but she was able to vote in last year’s March 8 election by using her driving licence as identification.

Interestingly, while her records on the polling list were still intact, that at the Immigration Department had disappeared. It took almost two years, during which the media highlighted her plight, before Yong got her citizenship back.

TWO Indian brothers had their IC applications denied in 1999 because a “technical error” in their birth certificates showed that they were born to the same parents just one month apart. In May 2008, they had their citizenship “restored” after the Malaysian government corrected the “technical error”.

T. GOMATHY had to stop school when she was 12 because her birth certificate identified her as a boy. The mistake was detected when the Malaysian Indian went to apply for her IC. The authorities wanted her biological mother to testify, but she had disappeared when Gomathy was 11 and could not be contacted.

Gomathy spent the next six years appealing to the NRD to have her records changed, but in vain. She was finally issued a new certificate at a camp set up under the Birth Certificate Registration Programme organised by the Ministry of Women, Family and Community Development last July.

LAM Khoi Tong, 72, was born before independence and has pre-independence identity papers. Although she was eligible for citizenship, she was issued a red identity card when she registered for an IC. Her subsequent application for a passport has been denied, and she has been applying for citizenship since then.

ADOPTED child Thee Hin Yee, 19, had her birth certificate confiscated by the NRD when she went to collect her IC seven years ago.

They Department officials told that her birth certificate was not legitimate, and also retained her IC. Her application was submitted in 2002, but there had no progress as of November 2008.

BORN and raised in Alor Setar, S. Chelaiya was granted citizenship at the age of 84, after a 35-year battle. He had been denied citizenship earlier because he did not have the proper documentation.

In no man’s land

THERE are various reasons why statelessness occurs but the United Nations High Commissioner for Refugees (UNHCR) lists the most common as follows: faulty administrative practices, conflicts in the nationality laws of different countries, and the failure or refusal of a state to ensure the registration of births.

In The State of the World’s Refugees: A Humanitarian Agenda, UNHCR reports that children born to stateless persons or refugees, or born out of wedlock, are often denied citizenship despite it being the fundamental right of every child to acquire a nationality.

Citizens may find themselves stateless or with a disputed claim to citizenship if decolonisation occurs, or if a government amends its citizenship laws.

A citizen may also be rendered stateless if he loses his nationality and fails to acquire a new one as a result of an extended stay abroad or through marriage (and subsequent divorce from) a person of a different nationality. This is a problem that affects a disproportionate number of women.

Large-scale statelessness may arise in the context of mass expulsions and refugee movements, especially when the population concerned has lived in exile for many years without acquiring the citizenship of its asylum country.

Interestingly, the UNHCR also reports that in recent years, asylum seekers have become or remained stateless by choice, to enhance their prospects for admission into one of the more prosperous countries.

A long, long wait

TWENTY-six years. That’s how long I’ve been waiting for news about my status,” says Paula (not her real name), a Singaporean married to a Malaysian.

Each time she enquires about her application for citizenship, the immigration officer would tell her to “tunggu” (wait) and “sabar” (be patient), she says.

“Now that it has been over two decades, they have taken to telling me that I should appeal my case. But, what is there to appeal against where no decision has been made?”

“They constantly remind me that citizenship is a privilege, not a right, but even my permanent resident application has not yet been processed,” laments the mother of three school-going children.

Paula’s is one of an estimated 60,000 problem cases concerning citizenship application.

MCA Citizenship Task Force national coordinator Dr Jeffrey Goh says: “There are so many cases out there and the reason for this is that we do not have a standard application procedure and there is no transparency.

“We are sick and tired of dealing with them on a case-by-case basis because we are always told ‘tunggu’ or ‘sabar’. Therefore, we have set up a task force to compile these cases and analyse whether there is a pattern to them”.

Goh adds that the first batch of cases will be compiled after a month and sent to the relevant parties,

The task force has adopted a holistic approach to the study, Goh adds, and among the things it is interested in are: what percentage of applicants are foreign spouses or are children born out of wedlock; how many people have been waiting for over 10 years for a response from the National Registration Department; how many are above 40 years old; how many have had their applications rejected, and on what grounds.

It is also interested in why Indonesians can obtain citizenship so easily while genuine Malaysians are not.

Goh suggests that the government should come up with a standard procedure for applications, with a time line, and state clearly the criteria required to qualify for citizenship.

“The criteria should be made clear from day one and it should be relevant and transparent. In that way, people will know what to expect and there will be no queries if an application is rejected. Applicants should be informed on the spot if their documents are not in order, not years later.

“They should be also be told when they can expect to be called in for the interview and when they will be informed of the outcome of their application. At present, they are just told to wait. Some of them have told me that they’ve been waiting for up to 40 years. I think that’s just ridiculous,” he says.

>Visit for a listing of MCA citizenship task force service centres and contact persons.