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Rahman Talib Report also brought about the new Education Act 1961, which contained the infamous Section 21(2) (now repealed) empowering the minister to convert any national-type vernacular primary school to a national primary school.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