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.

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