Sunday, January 25, 2009

Custom-made for happiness

TOMORROW, Chinese around the world, including Malaysian Chinese, will herald in the Year of the Ox.

Chinese New Year is the most important festival that the Chinese celebrate and it is steeped in tradition.

It is also called the Lunar New Year because the Chinese calendar is calculated according to the positions of the moon. A leap year occurs every three years with the addition of a 13th month. That is why it begins on a different day each year, but it is always on the first day of the first moon (month).

This festival is rich with legend and ritual. The Chinese New Year first came about when, once upon a time, there was this huge and hungry animal called Nian or "Year" in Chinese, which would prowl the villages of Shanghai on winter evenings in search of human prey.

Nobody knew how to escape from it. One day, by luck, someone hung a piece of red cloth on a tree. When Nian came and saw the red cloth, it was terrified and fled.

Another version is that the villagers painted the whole village red. When Nian came, firecrackers (at that time explosives were put into hollow bamboo) were exploded amid the beating of gongs. This explosive commotion finally scared Nian away and the villagers never saw Nian again.

That is why red is the most prominent colour during the New Year celebrations. It symbolises good luck and it wards off evil spirits like Nian.

In earlier years, firecrackers were let off throughout the celebration. The other reason being, that the more you spent on firecrackers, the more wealth you would accumulate for the new year. That probably explains why it is so difficult to enforce the ban on firecrackers in Chinese-populated areas in the country.

Next came the legend of Buddha and the 12 animals that bothered to answer his call to his deathbed. He rewarded them by naming a year after each of them, in order of their arrival -- the rat, ox, tiger, rabbit, dragon, snake, horse, sheep, monkey, rooster, dog and lastly the pig.

Hence the Chinese are identified by these animal signs, and they believe the sign under which they were born influences their lives. So the saying, "you possess the characteristics of this animal that hides in your heart".

Preparations would always begin somewhere on the 20th day of the 12th moon (or the last month of the old year) when house cleaning begins and supplies made to last until the celebrations end on the 15th day of the first moon, also known as the "big year" (da nian) or Chap Goh Meh.

On the 23rd day of the 12th moon, the entire house must be cleaned and scrubbed until it is spick and span, especially the hearth because it is the seat of the Kitchen God -- Zao Jun.

I remember the annual house-cleaning was always full of fun for us when we were little because we got to play with water hoses and soap as we scrubbed the wooden walls of our old attap house in Yong Peng.

Like many other Chinese gods, Zao Jun was a human being who had been deified. It was said that when Zao Jun was a mortal, he had been a good and kind man. But he had to give his wife to someone else in marriage because he was too poor to keep her. One day, while out begging, he came to the house where the old wife lived. When he saw her, he was so ashamed that he ran to hide himself in the kitchen hearth and died in that fiery place. Then the Jade Emperor in Heaven made him the god of the kitchen because he was an honest and good man.

Every year on this day, this culinary god would return to the Imperial Palace in Heaven to report to the Jade Emperor on the year's events, especially the state of the family.

For this purpose, a special meal full of sweet things would be prepared for him before he made his heavenly journey so that his lips would be honeyed when he made the report.

And if he ate the sticky cake (nian gao) made of glutinous rice steamed in brown sugar, then his mouth would be stuck on it and his lips sealed so that he could only nod his head to show that the family had been good.

To speed up his celestial journey, firecrackers are set off that night. They are also exploded to scare away demons and spirits of the past year.

The 30th day of the 12th moon, and that is today, is the New Year's Eve. It is also the day the Kitchen God returns from heaven. A traditional reunion dinner, usually with no fewer than 10 courses, is a must for every family. It is always held at the home of the most senior male member of the family, and attended by all generations when young and old return from afar to be reunited around the dining table.

As for me, this day is of particular poignancy. For the last few years now, whenever I sit down for the reunion dinner, I cannot help but pine for my dear father's presence at the table, missing since May 2000. He was such a good cook, and was always the one to cook a sumptuous Foochow dinner for all of us. Celebrating this festival with him had always been a joy as well as an education because he would follow the traditions strictly.

Apart from nian gao, there are a few other food items which are most noticeable during this celebration and consumption of which will bring in wealth and good fortune. They are fish, mandarin oranges, groundnuts, melon seeds or guazi and Chinese vermicelli or mee suah.

Fish symbolises abundance as the Chinese phrase goes, nian nian you yu or "there will be fish or surpluses every year".

Here, I must specially thank my clients, the 8,000-member Fishermen's Association of Johor and its president, Mohamad Dolmat, who have been so thoughtful all these years in sending me boxes of very fresh fish representing their best catch of the day for my New Year's Eve reunion dinner.

Mandarin oranges are the most popular fruit for this celebration. Called kam in Cantonese, it also sounds like gold. Like groundnuts, they will bring a fortune of gold and prosperity if consumed.

Taking melon seeds will also make a married couple fruitful according to this Chinese saying, kai hua jie guo or "will bloom and become fruitful".

Uncut mee suah will, of course, bring longevity.

Before midnight, married persons will give each child an ang pow or lucky money in a red packet with golden lettering on it. It is believed that when one gives an ang pow, he is guaranteed another year of life.

Likewise, before midnight, all outstanding debts must be repaid and any quarrels with neighbours or friends must be settled; otherwise all the bad luck would be brought into the new year.

Some also believe that fingernails and toenails cut on this day of the year will get rid of all ailments.

Houses remain lighted until morning. Doors and windows are locked and sealed with red paper to prepare for the ceremony called "Opening the Gate of Fortune" (Kai Cai Men) on the morning of New Year's Day.

When cockerels crow, the master of the home would unlock the doors and remove the seals after uttering a few words of good omen for prosperity. Fragrant incense and joss sticks are burnt and the master takes three bows before the heavenly sky, and the Kitchen God who has returned overnight is also entitled to three such bows.

One tradition which my father left behind, and which we still follow, is to take this drink before breakfast on New Year's Day -- a drink mixed with groundnuts and rock sugar so that our lips will be sweetened and continue to have good manners throughout the new year.

The floor must not be swept on New Year's Day; otherwise all the good luck of the new year is swept away. Married daughters will only visit their parents on the second day. Dog-lovers will love this day as it is also a birthday for all dogs. It is not advisable to visit any relatives and friends on the third and fourth days lest their relationship be fraught with arguments later on.

The fifth day is also the birthday of the God of Prosperity or Cai Shen whose return to earth on this day will be welcomed with firecrackers.

For the Hokkiens, the ninth day is even more important than the first day, and they will pray to the Jade Emperor with offerings of sugar cane.

It was said that during the Ming Dynasty, the Hokkiens hid in sugar cane fields to escape from their enemies. When they emerged from the fields, it was also the ninth day of the new year and the only thing they could offer to the Jade Emperor in thanksgiving was sugar cane.

The celebrations continue until the 15th day of the first moon. The first full moon of the lunar new year appears on this day. Colourful lanterns are displayed, and the dragon and its guardians, the lions, dance to the tune of the gongs and cymbals.

It was said in ancient times that this was the only day the Jade Emperor would watch his earthly subjects from his heavenly throne. So, it was necessary for the lanterns to light up the happy faces of men, women and children as he watched with a contented smile on his face. Hence this day is sometimes known as the Lantern Festival.

It is also a night when damsels would throw oranges into a river from the top of a bridge in the hope that the God of Love would get each of them a good husband in the coming year.

Today, many of the mentioned customs, which are more associated with those who believe in Taoism, may no longer be in practice. But it is still one festival which is celebrated by all Chinese regardless of their educational background or religion.

As Malaysians, we have much to give thanks for because we can celebrate various festivals in peace and harmony. This is also an important occasion in which all other races will come together to celebrate with their Chinese friends in the true spirit of muhibbah.

This article was published in the New Sunday Times on 25 January 2009.

Sunday, January 18, 2009

The vandals must be kept out of our streets

I WAS driving past the Pelangi Utama Apartments in Petaling Jaya two weeks ago when something caught my eye.

It was not this newly-completed high-density condominium project but rather a row of young trees along Jalan Masjid PJU 6A opposite the apartments.

Nailed to these trees were posters and other hoardings advertising various goods and services ranging from food catering, sale and leasing of the apartment units, and plumbing services to moneylending.

I also noticed that some of these trees had been damaged with the bark ripped out and long metal nails protruding.

Fortunately, these trees were not the trees in The Lord of The Rings; otherwise they would come alive and exact vengeance on us humans.

Imagine also if the posters were not securely fastened to the trees. Strong winds could turn them into flying objects, posing a danger to road-users.

Sadly, this is not at all an uncommon sight throughout the country with lamp posts, telephone booths and Tenaga Nasional circuit boxes being three other favourite structures for such illegal bunting.

Hence, one may ask where the enforcement is when telephone numbers of these illegal advertisers are so prominently displayed on the posters.

In this instance, the question has to be posed to the Majlis Bandaraya Petaling Jaya because advertisements are regulated by by-laws made by local authorities pursuant to section 102(c) of the Local Government Act 1976 (Act 171).

Unless the penalties are expressly provided for in the relevant by-laws, section 119 of Act 171 provides that any person who is guilty of any offence against any by-law shall on conviction be liable to a fine not exceeding RM2,000 or to a term of imprisonment not exceeding one year, or both.

However, more often than not, these offences are compoundable, and the culprits walk away by just paying a small compound fine.

To my mind, this is, in fact, an act of vandalism not dissimilar to acts like damaging and destroying property such as public phones and cars, and drawing graffiti on the walls and doors of toilets and lifts, both public and private.

In fact, a man was hauled up before a district court in Singapore last Thursday for scribbling words on a display wall outside Parliament House.

Koh Chan Meng, 47, was charged with vandalising the wall twice when he allegedly wrote on the wall, considered public property, the words "Hi Harry Lee I love you" and "Go sue me Lee Kuan Yew Go Gavin Son".

Harry Lee is Singapore's Minister Mentor Lee Kuan Yew.

If convicted, Koh could face mandatory whipping of at least three strokes of the cane on each charge in addition to a fine of up to S$2,000 (RM4,700) or imprisonment for up to three years.

Perhaps many would also not forget the case of an American teenager, Michael Fay, who was given four strokes of the cane in Singapore for car vandalism in 1994.

Both Fay and Koh were charged under Singapore's Vandalism Act, 1966.

The 1966 Act defines an "act of vandalism" as:

(a) in the case of public property, without the written authority of an authorised officer or representative of the government or statutory body or of any foreign government or of any armed force lawfully present in Singapore or in the case of private property, without the written consent of the owner or occupier:

(i) writing, drawing, painting, marking or inscribing on any public property or private property any word, slogan, caricature, drawing, mark, symbol or other thing;

(ii) affixing, posting up or displaying on any public property or private property any poster, placard, advertisement, bill, notice, paper or other document; or

(iii) hanging, suspending, hoisting, affixing or displaying on or from any public property or private property any flag, bunting, standard, banner or the like with any word, slogan, caricature, drawing, mark or symbol; or

(b) stealing, destroying or damaging any public property.

Section 3 of the 1966 Act imposes not only a fine not exceeding S$2,000 or imprisonment for a term not exceeding three years, but mandatory whipping with not less than three strokes and not more than eight strokes of the cane.

However, whipping will not be imposed on a first conviction in respect of any act falling within paragraph (a) unless the act involved is an offence under paragraph (a)(i) above where the writing, drawing, mark or inscription is done with an indelible substance.

The above is indeed a comprehensive definition of an act of vandalism, and it is one legislation which has probably made Singapore such a clean country today.

However, in Malaysia, we do not have specific legislation to deal with vandalism.

Here, any act of damaging or destroying of property is considered as committing mischief under our Penal Code.

Section 426 of the Penal Code provides that anyone who commits mischief shall be punished with imprisonment for a term which may extend to three months, or with a fine, or with both.

If the mischief causes loss or damage to the amount of RM25 or upwards, section 427 then increases the punishment to a term of imprisonment of up to two years.

Hence, the local authority by-laws and current Penal Code provisions are not adequate to come to grips with this anti-social behaviour which is fast becoming a menace.

The time has come for Parliament to introduce a specific legislation to combat vandalism so that our trees can be saved; our public amenities can be protected from damage and destruction and toilets and lifts in both public and private buildings can be kept clean.

Further, the costs expended in undoing acts of vandalism can be better chanelled to improving and upgrading our public amenities.

The new legislation can be modelled upon Singapore's Vandalism Act.

As whipping can be considered as too draconian or cruel a penalty, convicted vandals can instead be required to do mandatory community service in addition to a fine or a jail term.

Whatever it is, if we want a clean Malaysia, then something must be done quickly which can pose as a strong deterrent to acts of vandalism in this country.

Published in the New Sunday Times, 18 January 2009

Sunday, January 4, 2009

KL will have final word on land title

IT was reported that on Dec 30 the Pakatan Rakyat-led Perak government gave out 11 freehold land titles to residents of Kuala Rui new village in Grik.

The 11 are said to be the first batch of 47,000 lot owners in 134 new villages and 102,000 lot owners in 349 planned villages in Perak who are allowed to convert their land titles from leasehold to freehold.

State senior executive councillor Datuk Ngeh Koo Ham reportedly said: "I strongly believe that whatever we do is legal. We have gone through vetting by at least 10 senior lawyers, including a former Court of Appeal judge.

"With due respect to Deputy Prime Minister Datuk Seri Najib Razak, he has erred in his legal opinion as to the right of the state to give freehold titles."

Ngeh was responding to Najib's statement made after chairing the National Land Council meeting on Dec 23 that the Perak government must first obtain the approval of the council before converting leasehold to freehold titles to ensure uniformity in procedures and policies.

Meanwhile, Penang Chief Minister Lim Guan Eng threatened to take the Federal Government to court if the land title conversion issue was not resolved with the council.

Lim added that the council could only "advise and consult" the state government but could not make any decision on its own.

"As such, the state government has the final say in granting the freehold status without going through the council," argued Lim.

Like their decisions to waive all summonses for illegal hawking and traffic offences in Penang and Perak, affording this automatic right to convert from leasehold to freehold is another populist move of these two state governments.

This sentiment is best reflected in the words of former MCA secretary-general and minister of housing and local government Tan Sri Ting Chew Peh who was quoted by a Chinese newspaper as saying: "Upon hearing the good news, my townsmen, relatives and friends applauded till their hands hurt! One who wins the hearts of the people wins the world. Pakatan Rakyat has brought the house down this time."

There is no doubt that this popular move will bring about a windfall to the affected landowners, probably doubling if not tripling the value of their properties after the conversion. The move will also reap huge political gains for the two Pakatan-led state governments.

This is understandable because unlike a leasehold title which reverts to the state when the lease period expires, a holder of a freehold title holds his property as good as in perpetuity.

The freehold title owner will only lose his land if it is subsequently forfeited by the state because the landowner either fails to pay the quit rent or acts in breach of any condition expressed in the title.

Other than this, if later the state wants the land back, it has to compulsorily acquire it by paying compensation to the landowner under the Land Acquisition Act 1960.

However, this move has also raised some interesting legal issues.

Firstly, this conversion process has to be initiated by the landowner applying to surrender the entire land to the state authority. The procedures are set out in sections 195 to 199 of the National Land Code 1965.

Under section 196 of the code, the state director of land and mines (for registry titles) and the land administrator (for land office titles) shall not approve the surrender unless four conditions are fulfilled, which are:

- no item of land revenue is outstanding in respect of the land;

- the land will not create or cause any liabilities to the state authority;

- the land is not under attachment by any court; and,

- consent in writing has been obtained from persons who have an interest or claim over the land such as a chargee, lienholder, lessee, tenant and a caveator, if any.

Once approved, the land is re-vested in the state authority as state land. The state authority will then alienate the land as freehold to the landowner under section 76 of the code.

While the process appears to be simple, it can actually turn out to be an administrative nightmare as once the new freehold title is issued, the aforesaid persons will have to act fast to protect their interests.

Only one type of land cannot be alienated as freehold, that is, land which forms part of the foreshore or seabed.

Of course, if the freehold titles of the alienated lands are not issued by the next general election, it is only natural that the affected landowners will have to continue voting for Pakatan Rakyat for fear of losing their land.

This is because section 78(3) of the code provides very clearly that alienation is only complete upon the registration of a register document of title notwithstanding that the alienation has been approved by the state authority in which case the land shall remain state land until that time.

In fact, under section 76(aa) of the code, there are only three situations when land can be alienated on freehold or in perpetuity, where:

- the Federal Government requires the state authority to cause a grant in perpetuity to be made to the Federal Government or to a public authority or where the Federal Government and the state government agree to make a grant in perpetuity to the Federal Government;

- the state authority is satisfied that the land is to be used for a public purpose; or,

- the state authority is satisfied that there are special circumstances which render it appropriate to do so.

Hence, both the Penang and Perak governments are relying on the third ground, namely "special circumstances".

Unfortunately, there is no definition of the phrase "special circumstances" in the code, but it is clear that it is the state authority, which is essentially the state executive council, which will decide what are these "special circumstances which render it appropriate to do so".

In Leong Poh Shee v. Ng Kat Chong 1966, judge Raja Azlan Shah (now the Sultan of Perak) judicially considered the phrase "special circumstances" in an application for a stay of proceedings as follows:

"Special circumstances, as the phrase implies, must be special under the circumstances as distinguished from ordinary circumstances. It must be something exceptional in character, something that exceeds or excels in some way that which is usual or common."

Ngeh and some Pakatan leaders have argued that the "special circumstances" of this case involved undoing the injustice caused to the new villagers when they were uprooted and relocated to new villages during the Emergency with a 30-year lease.

When the lease expired, it was extended again for another 30 years by the previous government.

The Pakatan leaders explained that because the land would revert to the state after the expiration of the leasehold period, this uncertainty should be removed.

In addition, Article 8 of the Federal Constitution has not been infringed because there is no discrimination on the ground of religion, race, descent, place of birth or gender.

While there may be some merit in this argument, it is difficult to ascertain the "special circumstances" which render the Penang government to convert leasehold titles of residential properties to freehold in the land-strapped state.

In any event, the legality of this move now appears to be challenged by the decision of the National Land Council that its approval must first be sought.

In this respect, the Penang chief minister's statement that the council could only "advise and consult" the state government is not entirely correct.

It is clear from Article 91(5) of the Federal Constitution that Federal and state governments shall follow any national policy formulated by the council for the promotion and control of the utilisation of land and administration of any laws related thereto.

Further, it can be inferred from section 9 of the code that any policy formulated by the council is to be followed by state governments.

However, it is silent in Article 91 as regards the consequences of not following the formulated policy.

At first, it may appear that the Federal Government can do nothing much about it but, legally, there may be two options available.

Firstly, the Federal Government can take the two state governments to court.

As the Government Proceedings Act 1956 prohibits any injunction to be obtained against a government, the Federal Government can only obtain a declaratory order to the effect that this conversion exercise is unlawful as it goes against the formulated policy of the council under Article 91.

But this may take years, and is, therefore, not the most effective way to secure compliance.

Hence, the Federal Government can invoke a little clause in Article 71 of the Federal Constitution to secure compliance with Article 91.

Article 71(3) provides that: "If it appears to Parliament that in any state any provision of this Constitution or of the constitution of that state is being habitually disregarded, Parliament may, notwithstanding anything in this Constitution, by law make provision for securing compliance with those provisions."

This is indeed a very powerful provision and our founding fathers must have seen it coming by inserting this clause to ensure that the supreme law of the land is not disregarded.

This clause has never been invoked before but if invoked, the Federal Government can make law or amend Article 91 to expressly provide that any act or decision which is inconsistent with the formulated policy of the council is null and void.

There is also nothing to prevent the amendment from having retrospective effect.

This is because Article 71(3) allows such power to legislate, notwithstanding anything contained in the Constitution.

In other words, the amendment to Article 91 can also be passed by way of a simple majority as the requirement of meeting a two-thirds majority is dispensed with under Article 159(4)(b) of the Constitution.

Of course, Article 71(3) can only be invoked if there is a "habitual disregard" of the Constitution, but surely converting leasehold titles in batches and in the thousands is a habitual disregard of Article 91 of the Constitution.

That said, at the end of the day, political considerations may just outweigh legal ones, and everyone knows that this also has very much to do with politicking than anything else.

Published in the New Sunday Times, 04 January 2009