Thursday, August 19, 2010

Putik Lada: Importance of making a will

When a non-Muslim dies without making a will, his estate will be distributed according to the law, except in the case of insurance and EPF savings, where the nominees are the beneficiaries.

AS WE are all mortals, and death often comes like a thief in the night, we owe it to our loved ones to make a will during our lifetime. I would like to advise our readers on the importance of making a will, and the consequences of not making one.

By not making a will, you will not be able to distribute the assets according to your wishes after your death. Instead the state will define who will actually benefit from your death.

When a person dies without making a will, he is said to have died intestate. His property is called his “estate”, and his children, his “issue”.

Sunday, August 15, 2010

Leading with an open heart

It remains one of the non-Muslims’ gravamina that they find it increasingly difficult to build their places of worship. But recently, the Johor state government not only approved the building of a church, it also contributed RM200,000 to its construction.

ON Aug 1, the congregation of my church, the Holy Light Church (English), Johor Baru (HLCE), was elated to learn at a special fund-raising service that Johor Mentri Besar Datuk Abdul Ghani Othman had granted a sum of RM200,000 towards the construction of our first church building.

A member of the congregation, Suzie Teo, who shed tears of joy upon hearing the announcement, said: “We are overwhelmed by the Mentri Besar’s kind gesture. What was initially a pipe dream is now a dream come true.

“I am so touched to learn that after waiting for 20 years, the Johor state government has not only approved our application but has also decided to partially contribute towards the construction cost of RM3mil.”

Indeed, the Mentri Besar’s thoughtful gesture in our time of need, which is not given at election time, will go a long way to assure the HLCE congregation that the state government is not just a government of one particular race or religion, but that of all Johoreans.

In fact, as we look back at the last 20 years, the entire journey is one of faith, which is obviously not suitable for the faint-hearted lacking any tenacity to persevere from the application stage to the final approval.

It was in September 1989 that HLCE acquired this piece of agricultural land in Pandan, next to the Ponderosa Golf Resort, measuring 8.925 acres. As the HLCE congregation has been worshipping on rented premises since 1952, it is hoped that a permanent place of worship would be erected on this land.

In 1991, the HLCE applied to the Johor state authority to convert the land use from “agriculture” to “religious use”, but this was turned down in 1993. In August 1993, the HLCE received notice that the land would be compulsorily acquired for a joint-venture project between a state agency and a private developer. The HLCE then filed a suit in 1995 against the state government challenging the validity of the acquisition. At this time, I had already moved from Kuala Lumpur and started worshipping at the HLCE.

When I brought to the attention of then Mentri Besar Tan Sri Muhyiddin Yassin that the land belonged to a church, Muhyiddin immediately instructed that the land acquisition be withdrawn. When Ghani became the Mentri Besar in 1995, he arranged for the withdrawal of the acquisition to be officially gazetted on Sept 3, 1996.

Being only too aware that it would be near impossible for the state authority to convert the land use to religious use over a piece of property measuring about nine acres, the HLCE then had it sub-divided equally into two plots.

Over the years, the HLCE applied for the two plots to be separately converted for institutional and religious purposes. In 2000, the state government approved the piece meant for institutional use. It was not until April 2008, and that also only after the personal intervention of Ghani, that the other piece was converted for religious use.

In June 2010 and early this month, the state security committee and the Johor Baru City Council respectively approved the building plans for the new church sanctuary. Piling work is expected to commence in October.

As shown above, the application and approval process for the erection of non-Muslim places of worship is most cumbersome. As it is almost unheard of that state governments would alienate lands for building non-Muslim places of worship, most lands involved are private lands. Hence, the necessity of having first to convert the land use to religious use before a place of worship can be erected thereon.

Only after the land conversion is approved can one submit the building plan for approval by the local authority. It must be emphasised that when applying for both the land conversion and building plan approvals, the entire approval process is repeated in that the approvals of the district and state security committees are mandatory for both stages. It is also open knowledge that representatives from the Islamic Affairs Department would sit in these committees.

It follows that it is not unusual to take at least five to 10 years from the time the application is submitted until the project finally comes to fruition. Perhaps what creates the most resentment among non-Muslims is the fact that the erection of their places of worship is treated as a security threat.

In the last general election and even today, it remains one of the non-Muslims’ gravamina that they find it increasingly difficult to build their places of worship. They are upset that the approving authorities have scant regard to Articles 3 and 11(3) of the Federal Constitution which guarantee them the right to profess and practise their religions as well as to establish and maintain institutions for religious purposes.

In the case of the HLCE, it had to seek the assistance of various high-ranking government officials and politicians in the last 20 years. While I find them most understanding and helpful, the same cannot be said of the junior and local government officers. As the civil service is almost mono-religious and often devoid of multi-religious sensitisation, it is understandable if they feel that it is against their religion to support the erection of other places of worship.

So when applications are so frequently turned down and approvals are so difficult to obtain, it is axiomatic that the only human reaction is, of course, to convert, albeit illegally, houses, shoplots and commercial premises into worship places.

In the true spirit of the Federal Constitu­tion, I wish to reiterate my calls made over the years on the need to establish a non-Muslim Affairs Committee/Department in each state to deal with all matters relating to non-Muslim places of worship.

Thursday, August 12, 2010

Taking the constitution to the rakyat

Edmund Bon
Free Malaysia Today
By Teoh El Sen

FMT INTERVIEW KUALA LUMPUR: Since it was launched in July last year, the first-of-its-kind national campaign to bring the Federal Constituion to the people has "taken on a life of its own".

These were the words of Bar Council president Ragunath Kesavan about the MyConstitution campaign and Edmund Bon couldn't agree more.

Bon, the lawyer-activist who heads the constitutional law committee in the Bar Council and the campaign, said he never expected it to become "so big".

"We started with over 100 members; we now have 200 in just two terms. It was a correct decision to open the Committee to non-lawyers," Bon said.

He said the amazing thing about the project was that in spite of differences in ideology and opinion, everyone seems to agree that the people have to be educated on the Federal Constitution.

"Surprisingly, everyone, liberal or conservative, is committed to the same aim of bringing the constitution to the people."

"People may hold different views, but at the end of the day, we can still sit down and say: 'Let's do this together'. It's something that is quite fantastic and invigorating," Bon said.

In a recent interview with FMT, Bon speaks on how the campaign has gone so far and what he hoped to achieve. Below are excepts:

FMT: One year has passed since the campaign, can you tell us what have you achieved?

Edmund Bon: Since July 2009 till now, it's already a year! We have launched five phases...

I think we have created greater public awareness of the constitution. I don't mean the elite, the people in power who are purposely manipulating the constitution. Our campaign has reached out to a lot of ordinary people through workshops. I believe a lot of people now have a basic knowledge of what the constitution says.

What are you doing to bring the constitution to more people?

The response has been very positive with the English- and BM-speaking Malaysians because we have published our booklets in both these languages. We are quite certain that people in the cities are well-versed in the constitution and our campaign merely strengthens their knowledge. But we have to reach the rural areas and that is very important. We are planning to translate our booklets into Mandarin and Tamil. We currently don't have enough funds for that.
Currently who funds this project?

The Bar Council, and at different stages whoever wants to partner with us. So far, the federal government, and the state governments of Kedah, Selangor, Sarawak have supported us.

What is the ideal vision you have about the outcome of this campaign?

We hope that by the time we launch all nine phases, we will be able to see changes in the way things are being discussed and expressed, especially in the media. So that immediately we can see a situation when people in power say something which is clearly against the constitution, the rakyat are able to say: 'Don't lie to me, don't fool me.'

What do you mean by that?

Okay, this is just an anecdotal example and it made its rounds as a joke; not based on research. But in Sibu, we had a very strong team who had been working very work to enlighten the people on the constitution led by a member Adrian Chew.

Sibu is quite an urbanised area and in the May (parliamentary by-election), everyone thought that the Barisan Nasional would win. Our team members had been doing a marvellous job on the MyConstitution campaign... they were not telling the people who to vote for or who to support but informing them of their constitutional rights.

It was jokingly said this was probably the reason people voted against what they did not like. But of course we can't take credit, or else the DAP will get angry with us (laughs).

I guess you can’t take take the Sibu people as fools and in a way they told off those in power by saying 'you are taking us for a ride'.

We are ‘non-political’ but I think our MyConstitution education campaign gave people the courage to vote when we tell them the constitution is the supreme law of the land.

Do you think the BN government is fearful of what you could achieve with the MyConstitution campaign?

Many in the BN government are supportive, like Ministers in the Prime Minister's Department Nazri Abdul Aziz and Koh Tsu Koon and Deputy Minister in Prime Minister's Department Liew Vui Keong. I believe they know we need such awareness (of our constitutional rights) after 50 years without a formalised education on the constitution.

Of course, there are some other ministers who are fearful I guess. We have approached a number of ministers'. For example, we have written to the Higher Education Minister (Mohamed Khaled Nordin) but he didn't reply. When our president Ragunath (Kesavan) met with Najib (Tun Razak), he said the prime minister expressed support. But we have not got any funding from him (Najib) directly though.

I am not really bothered whether it is supported by the government or opposition. Even if we don't have the money, we will go ahead and bring it to the people. However I think this is something everyone supports regardless of political ideology.

How does this campaign relate to the law and legal industry?

Many lawyers themselves have not even read the constitution, I don't blame them. Because it is a document that is very legalistic and very hard to read. With our campaign, we are hoping to educate lawyers too.

Why is the Bar Council taking this up?

We are doing this because under the Legal Profession Act, lawyers must uphold justice without fear or favour, and also to educate and assist the public, especially the poor. So in a way we are 'legally bound' to do it. This is something the government is supposed to do. But never mind, let us do it.

What are the most frequently asked questions by the people on the ground?

It depends on the particular issue at the moment, the week or the day. For instance, when we were in Perak, everyone was asking questions about the powers of the Election Commission, the speaker and rulers (in the wake of the Perak constitutional crisis). So the issue was all about the separation of powers...

The constitutional law committee is the biggest committee in the Bar Council -- with more than 200 members. How did this happen?

The formation of the constitutional law committee represented a great achievement for the Bar Council. In 2009, we set up the committee on the suggestion of a former council member Roger Tan. The unique thing about this committee is that it is not meant for lawyers only as the constitution is meant to be understood by the 28 million rakyat. The Bar Council agreed to allow anyone who is keen to give their views and share their expertise to join the committee. Even journalists and activists can be members. You don't need to be a lawyer or a council member. We have students as young as 16 years old, social activists, academics, law lecturers, and local councillors, among others. So this is really something by the Bar Council.

Sunday, August 8, 2010

Your land can land in the wrong hands

by Shaila Koshy

Crime syndicates are able to cheat people of their land through fraud and forgery because of weaknesses in the conveyancing process. It’s time to clean it up.

LANDOWNERS beware – especially those whose lands are vacant and idle, who are based overseas or are elderly.

Your title to that property can easily be stolen because any one of the key players in the conveyancing process – the Land Office, legal profession or the lending bank – may lack integrity or don’t observe the proper verification procedures.

According to police statistics on fraud and forgery cases involving land since 2005, there were 34 cases in 2005, 66 in 2006, 74 in 2007, 113 in 2008, 111 in 2009 and 37 in the first quarter of this year alone.

For almost a decade, the rise in the number of cases was blamed on the change in the legal position of whether it is the original land owner or the innocent buyer who has a better title under the National Land Code (NLC).

In 2001, the Federal Court in Adorna Properties held that the NLC supports the concept of immediate indefeasibility and not the previously accepted one of deferred indefeasibility. (See definition)

But in January this year, a different Federal Court decided in Tan Ying Hong to restore the position to deferred indefeasibility.

But are land owners and banks more secure now from fraud?

Based on fraud cases in Malaysia, the syndicates like to target vacant and idle lands, land owners based overseas and those who are elderly.

All an enterprising crook needs are loopholes in the law – unsuspecting landowners; corruptible people; commissioners for oaths, lawyers, bank officers who take a lax attitude in the verification of identities, signatures and original documents; and Land Office staff who register dealings relying on court orders without verifying their validity because they are not required to do so.

Include a land registration system that doesn’t require Land Office staff to verify information from an applicant to register a transfer of ownership, and what we have is the perfect set of circumstances for fraud and forgery to thrive.

National University of Singapore Assoc Prof Dr Tang Hang Wu does not think the Adorna decision was responsible for the rise in fraud.

“Singapore is a jurisdiction which subscribes to immediate indefeasibility (as in the Adorna case) and the instances of fraud are far fewer than in Malaysia,” he states.

While the concept of deferred indefeasibility may make it harder to commit fraud, the practical and mundane aspects of the conveyancing process are more crucial to preventing it, he adds.

Dr Tang, who was here for the 15th Malaysian Law Conference (MLC) recently, attributes the low incidence of fraud in Singapore to its “more rigorous conveyancing process.”

The higher incidence here, he says, is due to the presence of “sophisticated and organised crime syndicates” that engage in identity theft.

Malaysian lawyer Andrew Wong adds that in most of the cases here forgers assume the identity of the land owner, create fake identity cards and forge signatures.

Highlighting the modus operandi of fraudsters in Singapore, Dr Tang says that they “frequently feature conveyancing lawyers or their law clerks.”

“Another recurrent pattern of land fraud in the reported cases and news is clients who are defrauded by lawyers that they engage to act in land transactions.”

To reform the conveyancing process, Dr Tang and Wong say the following need to be addressed: the integrity and professionalism of the Land Office and the legal profession; attestation clause; identification and verification procedures; rules regarding the holding of conveyancing monies; and procedures relating to replacement of lost certificates of title.

Referring to a 2004 news report about some Selangor Lands and Mines Department staff being implicated in fraud involving land worth RM130mil, Dr Tang says the Land Office must purge itself of criminal elements as it is the principal bulwark against fraud.

He stresses the importance of training Land Office staff to detect any red flags.

In applications for replacement certificates of title, he suggests that the officer insists the applicant turn up in person for an interview and provide a thumbprint and photograph so that it would help with evidence-gathering if fraud occurs later.

“Otherwise, like in the case of Adorna, we are left none the wiser of the true identity of the rogues who perpetrated the forgeries.”

Wong, who was also at the MLC, says it is no secret that many solicitors here do not require the person executing an instrument of dealing to sign in his presence, even though this may make it “insufficient or void under Section 340(2)(b) of the NLC.”

He points out that attestation in New South Wales, Australia, and authentication of documents in Botswana require the person attesting a signature to “personally know the person signing”.

Wong adds that in Singapore the registrar may reject any instrument unless a Certificate of Correctness is included. This certificate, signed by a solicitor employed by a party to the instrument, implies, among others, the instrument is made in good faith and the matters set forth are substantially correct.

Former Bar Council Conveyancing Practice chairman Roger Tan, however, doubts whether introducing such a certificate here would reduce fraud.

“A certificate would impose personal liability on the lawyer but the crooks can still forge the lawyer’s signature and the certificate itself,” he says, adding that in many cases the crook had the help of a lawyer or Land Office staff.

He reckons that making it mandatory to use thumbprints on transfer forms and creation of charges is a better way to reduce fraud.

As for how to prevent lawyers from absconding with money (meant for buying a property) deposited in the client’s account, Dr Tang says there is currently a proposal in Singapore for all such monies to be held by its Academy of Law or commercial banks for safekeeping.

With regards to reducing risks to lending institutions, Wong says they should be required to take reasonable steps to confirm the identity of the borrower or the security party, and to maintain records of such steps for at least seven years.

Wong and Dr Tang also suggest that an Assurance Fund be set up to compensate victims of land scams.

However, Dr Tang admits that, unlike in Australia, defrauded land owners in Singapore face difficulties in claiming successfully because the law requires the land owner to have been deprived of his land through the “omission, mistake or misfeasance of the registrar or any member of his staff.”

Wong thinks that title insurance – a no-fault indemnity insurance which exists in several Commonwealth countries and throughout Europe – should also be introduced here.

No reform should be rushed into but they should address all the current weaknesses. It should be remembered that criminals are not encumbered by bureaucracy and that they adapt very quickly to whatever the authorities come up with.

In the mean time, all the stakeholders can work on improving their personal integrity and shoring up incorruptibility.


IMMEDIATE indefeasibility is a situation where a transferred title is valid, regardless of any element of fraud or forgery involved.

Countries such as Australia or Canada practise this, and their respective governments have in place a fund that compensates victims of such cases.

Deferred indefeasibility, on the other hand, only protects a subsequent purchaser to a title that is defeasible. Therefore, if one party obtains a title where fraud or forgery is involved, this title can be defeated.

However, if this same party sells it to another purchaser who buys it on good faith, that title is considered to be indefeasible. The indefeasibility therefore “defers” across one transfer of title (the one where fraud or forgery is involved) to the next purchaser who buys it in good faith.

(Internet source:

Prime Targets: Based on fraud cases in Malaysia, the syndicates like to target vacant and idle lands of land owners based overseas and those who are elderly.

A cautionary tale
By Shaila Koshy

IMAGINE looking through the “land for sale section” of the classifieds in your newspaper and finding an insert put up by someone else offering your property for sale. Then imagine seeing the same insert week after week.

This is what has happened to businessman M. A. and two others who are co-owners of five parcels of freehold land in Cheras, Kuala Lumpur.

In January, they went to the Land Office and put a caveat on the titles to warn prospective buyers that the parcels, measuring 17.35ha, were not for sale.

That, however, did not stop property agents from advertising the parcels, zoned as agricultural land, for sale.

The only effect is that many have written to M. A. saying they have prospective buyers lined up either for individual parcels or the whole lot.

Last month, the owners approached the Bar Council with their problem.

On July 12, council secretary George Varughese issued a circular to all members of the Bar informing them of the situation and to advise them to exercise caution if they were approached to handle any transaction involving the properties.

M. A., who has declined to be identified, says his discovery of the attempts to defraud him and the two other owners of the land last year happened by chance.

“A family friend who is an estate agent had seen an ‘Option for Sale’ document with my name indicating the lots were for sale and called me,” he relates.

“I told him that we had not authorised anyone to sell our property. They had copies of our MyKad and all our particulars were correct. How did they get them?”

How indeed, especially since he says he only got his MyKad five years ago and the only time he used it was at the Immigration Department.

“They also had certified true copies of the titles,” says the perplexed and angry M.A.

“How is that possible when the titles are with us?

“What did the Commissioner for Oaths base his certification on?”

The fraudsters were interested in the parcels – of which four are adjoined and the smallest, a short distance away – because of their development potential. Interest was especially high just before the 2010 Budget in October which re-introduced the real property gains tax.

The interest is still there as they found a man surveying the land earlier this year. Before they ejected him, they managed to get the information that a “Datuk Tan” had sent him to survey the land.

M.A. says he is getting more and more concerned, especially since he’s been told that the caveat they had put on their titles was of no use.

All it takes, he was told, was for someone to get a Commissioner for Oaths to witness a statutory declaration and the caveat could be removed!

Furthermore, the response to the council’s circular was disturbing, to say the least. Two lawyers have said they had clients who had been approached to buy the property.

According to M.A., one reported that the “vendor” had a power attorney – attested by a Commissioner of Oaths – that authorises him to sell the land.

The second lawyer reported that her client had deposited two per cent earnest money with her.

The interesting thing is that no lawyer has come forward to say he or she has acted as counsel for the purported vendor.

“Look at this!” M.A. says, pointing to the classified section of a newspaper dated Aug 4. Another agent – unauthorised by the owners – was offering their property for sale.

The owners have put a caveat on their property titles; M. A. has lodged a police report, reported the matter to the Bar Council, chased off a surveyor who entered the property without permission, and pulled down “For Sale” signs posted on the site by unknown persons. How much more diligent can an owner be?

Published in The Sunday Star on 08 August 2010.

Wednesday, August 4, 2010

37 land fraud cases in Q1

By Shaila Koshy

KUALA LUMPUR: If the syndicates keep their game up, they would have committed over 140 cases of fraud and forgery involving land dealings by the end of this year.

In the first quarter alone, the police recorded 37 cases.

According to Mohd Shukri Ismail, the Research and Development Section director at the Land and Mines Department (Federal), the process of administration of land dealings under the National Land Code did not appear to make it easy to commit fraud.

However, he acknowledged there were weaknesses within the land registration offices and the conveyancing system as well as problems in detecting forgery that needed to be addressed.

If not, the enterprising fraudsters will keep raking in millions of ringgit by selling or mortgaging someone else’s land.

“Between 2005 and April this year, the only state where no police report was lodged on fraud and forgery was Perlis,” said Mohd Shukri in his paper on ‘Measures undertaken to safeguard against fraud in land dealings’, presented during the recent 15th Malaysian Law Conference.

According to Commercial Crime Department statistics, the highest number of cases occurred in Sabah (86), followed by Selangor (56), Penang (47) and Kuala Lumpur (35).

While land owners, banks and conveyancing lawyers have been preoccupied with the changing interpretation of an indefeasible (secure) title under the land code in cases of forgery, syndicates focused on adapting their operations to the legal position of the day.

Mohd Shukri said based on police investigations, the majority of fraud occurred before the registration of the title.

Noting that all the cases in the table involved a dramatic increase in the use of false and forged documentation and fictitious identities, he said the rise in fraud had serious implications for conveyancers.

Listing the various measures put in place by the Natural Resources and Environment Ministry through the Lands and Mines Department, Mohd Shukri said a review of the land code was currently under way and the introduction of the several measures were being considered, among them:

● Torrens Insurance principle – compensation to innocent parties in consequence of fraudulent title;

● New provisions for electronic land dealing and electronic submission of applications;

● Establishing a “Land Court” to resolve land disputes; and

● Certificate of Correctness – a guarantee by a lawyer or real estate agent that the Registrar of Land Titles may accept an instrument at its face value.

Published in The Star on 04 August 2010.