Sunday, September 6, 2020

‘Laws grind the poor, rich men rule the law’

The writer with the legendary Lord Denning during his law student days in London. Denning quoted Fuller that ‘Be you ever so high, the law is above you’.
The writer with the legendary Lord Denning during his law student days in London. Denning quoted Fuller that ‘Be you ever so high, the law is above you’.

The Sunday Star

by Roger Tan

WHEN I was young, I would recite the Rukun Negara every morning during the primary school assembly.

When I was older, I would lead in the taking of this pledge as the head prefect of the secondary school every other week. This pledge-taking commenced in late 1970, a year after the May 13, 1969, incident. So this year is the golden jubilee of the Rukun Negara. 

Raising our right hands, we would say these words aloud in Bahasa Malaysia: 

“We, the citizens of Malaysia, pledge to concentrate all our energy and efforts on achieving these ambitions based on the following principles: Belief in God; Loyalty to the King and Country; Supremacy of the Constitution; Rule of Law; Courtesy and Morality.  

What are these ambitions? They are: 

> Achieving and fostering better unity amongst the society; 

> Preserving a democratic way of life; > Creating a just society where the prosperity of the country can be enjoyed together in a fair and equitable manner; 

> Ensuring a liberal approach towards the rich and varied cultural traditions; and 

> Building a progressive society that will make use of science and modern technology. 

Of course, we would often spend most of our time memorising the five principles, overlooking the importance of the five national ambitions. 

Then, we were also too young to know the significance of these principles, particularly supremacy of the Constitution and rule of law. 

It was only when I began as a lawyer that I realised the true significance of these third and fourth fundamental principles. 

The supremacy of the Constitution means our Parliament is not supreme, unlike the British Parliament, because our Federal Constitution is the supreme law in that even our Parliament cannot make, amend or unmake any law as it pleases. Article 4(1) of the Federal Constitution declares that the Constitution is the supreme law of the land and any law passed which is inconsistent with the Constitution shall be void. 

The principle of the rule of law, in simple terms, means no one is above or immune from the law. Article 8(1) of the Federal Constitution also declares that all persons are equal before the law and entitled to equal protection of the law. As Sultan Azlan Shah once said in a case when sentencing a prince, “This equality of all in the eyes of law minimises tyranny”. 

It then behoves the public prosecutor and the judiciary to ensure that this nation is governed by the rule of law and not rule the law. Hence, the Attorney General is often called the independent guardian of public interest and protector of public rights; and the judiciary, the fountain of justice and the bulwark of our liberties. 

This is obviously the ideal and a grandiloquent optimism. But in practice, a lot depends on the person who sits at these institutions. 

Sunday, August 16, 2020

Is our Covid-19 Bill the panacea?

The Sunday Star

by Roger Tan

   
Hit hard: Covid-19 has left a wide swathe of destruction in its wake in Malaysia too. Banners of property for sale in front of a row of closed shops in Kuala Lumpur.

Hit hard: Covid-19 has left a wide swathe of destruction in its wake in Malaysia too. Banners of property for sale in front of a row of closed shops in Kuala Lumpur.

This Bill does not appear to be fulfilling its real purpose, which is to suspend, for a specified period, enforcement of contractual obligations against a defaulting party, who is usually the weaker party and does not have an equal bargaining strength with the other contractual party.

FINALLY. Malaysia’s much awaited version of the Covid-19 Bill (“the Bill”), entitled the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Bill was tabled for first reading in the Dewan Rakyat on Wednesday.

The Bill comprises 19 parts and 59 clauses. It seeks to modify 16 written laws. The modifications will have retrospective effect with most of the main provisions coming into effect on 18 March 2020, the day when the movement control order first came into operation. If passed, this law will prevail over any other written law in the event of any conflict or inconsistency between them.

The Bill is not expected to come into force until probably after September 2020, that is, after it has been passed by Senate; royal assent has been obtained and it is published in the Gazette. Singapore was able to pass her COVID-19 (Temporary Measures) Act, 2020, all on the same day on April 7,2020, primarily because her Parliament is unicameral.

The following are some of the statutory modifications proposed by the Bill:

> A one-time extension to 31 December 2020 is given to any limitation period which falls between 18 March 2020 to 31 August 2020 under the Limitation Act, 1953, Sabah Limitation Ordinance, Sarawak Limitation Ordinance and the Public Authorities Protection Act, 1948. The limitation period for a homebuyer to file his claim at the Tribunal for Homebuyer Claims is also extended from 4 May 2020 to 31 December 2020 if it has expired during the period from 18 March 2020 to 9 June 2020.

> The monetary threshold to take bankruptcy or insolvency proceedings against individuals is increased to RM100,000 from RM50,000 until 31 August 2021, unless further extended by the Minister.

> An owner’s right to repossess goods under a hire-purchase agreement due to non-payment of instalments during the period from 1 April 2020 to 30 September 2020 is suspended until 31 December 2020, unless further extended by the Minister. However, this does not apply to a case where the owner has already exercised his power of repossession before this law comes into force.

> Before 31 December 2020, a landlord cannot recover the arrears of rent by a warrant of distress for the period from 18 March 2020 to 31 August 2020 unless the warrant has already been executed before coming into force of this law.

> The calculation of the period for according recognition of a trade union or otherwise making of a report or filing of representation on dismissal under the Industrial Relations Act, 1967 shall exclude the period from 18 March 2020 to 9 June 2020.

However, I am more concerned with two main parts: Part 2 which deals with inability by parties in performing contractual obligations and Part 11 which deals with modifications to the Housing Development (Control and Licensing Act, 1966 (Act 118).

Sunday, August 2, 2020

Of the Bench and the Bar

The Sunday Star

by Roger Tan

Allyna Ng with her proud parents, Datuk & Datin Ng Kong Peng at the 2015 JPA Presentation Ceremony.

Malaysia’s rule of law can only be upheld if these twin pillars remain independent and fearless. And for that to happen, we need to eradicate one of their main threats — the mass production of lawyers who are ill-equipped and incompetent due to poor legal training and education. 

IT is always a proud moment for the nation whenever we learn of our young Malaysian students excelling in their legal studies overseas. 

On July 21, Allyna Ng Ming Yi obtained a first class honours in BA Jurisprudence (Law) from Oxford University. She was also the recipient of the Crystal Prize for best overall performance in Law; the Farthing Prize for best performance in Constitutional Law and the Monk Prize for best performance in Criminal Law. 

Allyna, the younger daughter of lawyer couple, Datuk Ng Kong Peng and Datin Amy Yeo of Melaka (pic), is a Public Services Department (JPA) scholar. An alumna from SMK Infant Jesus Convent, she was also in the top 20 of 2014 SPM candidates in Malaysia. 

In fact, this is not the first time a Malaysian youngster has done our country proud with their law studies overseas. In October 2010, an ex-Muar High School boy, Tan Zhongshan emerged as the overall best law student in the entire Cambridge University – an academic feat said to have surpassed even that of the university’s luminary alumni, Singapore’s former Prime Minister, the late Lee Kuan Yew and his wife. 

A son of a retired Federal Court judge and a holder of Singapore’s Asean scholarship, Zhongshan later graduated with a Master of Law degree from the prestigious Harvard Law School and is now reportedly a deputy public prosecutor in Singapore. 

I always marvel at such academic achievements by others, wondering how they could have done it with such ease. I have nothing much to boast about my own academic achievement, except perhaps being in the top 15 among Commonwealth students in the 1988 English Bar Finals. I must unashamedly confess that I chose law because I was hopeless in Mathematics and Science, having failed both in my Form 5 Malaysian Certificate of Education examinations! 

But it must be stressed that having a good academic result will not guarantee a successful career at the Bar in this dog-eat-dog world meant only for the survival of the fittest. Take for example, the late Karpal Singh only obtained a third-class honours law degree from the University of Singapore but he later became one of the most outstanding criminal lawyers this country has ever produced. 

On a more serious note, more than 1000 law graduates enter the legal profession every year, but there is no common system to evaluate, ascertain and ensure their levels of competence. Today, there are about 21,000 lawyers practising in Peninsular Malaysia, and the number of lawyers in Klang Valley alone will exceed the total number of lawyers in Singapore. 

Sunday, July 19, 2020

Let justice be seen to be done

The Sunday Star
by Roger Tan
Cousins Piya (left) and Prithep Sosothikul with a picture of their late grandmother Boonsom Boonyanit. — Filepic
I JUST recently learnt from an international arbitration news site that the Malaysian government had reached an amicable settlement with the estate of Boonsom Boonyanit, a Thai national, some time in October 2018. 

This news hitherto is not known to the Malaysian public. Neither is there any information available to the public on the exact settlement sum and whether the same has been paid. 

Be that as it may, the Malaysian taxpayers have obviously ended up once again having to fork out a sum probably in millions of ringgit to compensate for the criminal acts of the perpetrators who are still at large. There may be a requirement for confidentiality in the settlement agreement, hence the non-disclosure. 

Apparently, the October 2018 settlement had been reached with the Pakatan government after the estate issued a notice on July 31,2017 addressed to the then Prime Minister, Foreign Affairs Minister and Attorney General, accusing Malaysia of contravening her treaty obligations under the 1987 Asean Agreement for the Promotion and Protection of Investments in not according fair and equitable treatment and providing full protection for Boonsom’s investments. 

The treaty has been signed by Brunei, Indonesia, Malaysia, Philippines, Singapore and Thailand. Under the treaty, if any dispute cannot be settled within six months after its being raised, then the affected party can choose to submit the same for conciliation or arbitration. 

But has justice been done or rather has justice been seen to be done to Boonsom? To quote the oft-repeated 100-year-old words of Lord Chief Justice Hewart in R v Sussex Justices, ex parte McCarthy [1924] that “it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” 

Sadly, Boonsom had already passed away on May 23,2000. She was a victim of land scam in 1989. All in, three generations of her family had carried on with this fight for justice with sheer grit and tenacity. But this long and arduous journey has also taken them some 30 years. 

It all started when Boonsom’s two beachfront lots in Tanjung Bungah, Penang (the said lands) were fraudulently transferred by an impostor claiming to be Boonsom to Adorna Properties Sdn Bhd, then known as Calget Sdn Bhd (‘Adorna”), on May 24,1989 for RM1,865,798. 

Sunday, May 10, 2020

Tribute to my mum on this Mother's Day

NEVER FORGOTTEN, ETERNALLY GRATEFUL: On this Mother’s Day, let me pay tribute to this woman I have the privilege of calling Mum (1925-2015). Though forever missed, we will never forget what she had gone through in her mortal life - a lot of suffering and trials; living in poverty; but always standing by her husband our dad throughout who later went missing in May 2000, at the same time looking after all of us. This video resonates with us how bad life was in the 1960s and 1970s, but never forgetting for a single moment one of the most important values of Chinese culture - our filial piety towards our parents.

In fact, mum had a miscarriage during her first pregnancy when she was 18. When her first child, a girl, was finally born, mum was a weak and frail 19-year-old girl herself. It was also in this year (1943) that our paternal grandmum in her 40s died. Believing that the newly born girl had brought bad luck to the family, maternal grandmum then decided to let the poor baby girl die in the cold outside.

She came over to Malaya with Dad in March 1947. They first settled down in Sepang, Selangor and toiled hard as pig-farmers there. A son was shortly born but died a few days later, again. Still childless at this time, they decided to adopt a girl in 1948 in the belief that later pregnancies would be smooth going. In November 1949, their own child, a girl, was born and this was followed by a son in October 1951. Much to their dismay, one more miscarriage happened in 1952. In June 1955, they were blessed with another daughter. But life then was still bad, and they lived in poverty and under the constant fear of the communist insurgents which Malaya was fighting at this time. As the pig farm was located far away from home, their livelihood was severely affected by the many curfews imposed by the security forces. When another girl was born in 1957, like so many other Sepang residents then, they had no choice but to give the child up for adoption by the Christian missionaries in now known as the Convent High School, Seremban. Years later, it was discovered from the records kept at the Seremban Convent High School and confirmed by the National Registration Department that the baby girl named Mary Agatha Tan Ah Siew had died 3 months after her admission from pneumonia.

Wednesday, April 29, 2020

MPs urged to pass Covid-19 bill


The Star

PETALING JAYA: The Bar Council’s Conveyancing Practice Committee has called politicians to put aside their differences for the sake of the country to pass a Covid-19 bill in the coming May 18 Parliamentary sitting. 

At a webinar meeting yesterday “Adequacy of our laws on stratified properties during and post-MCO”, president and panellist Datuk Roger Tan said without this bill, there would be massive litigation, done on a piecemeal basis, for failure to perform contractual obligations after the lifting of the MCO. 

To avoid that situation, the enactment of such a bill would at once cover all contractual obligations to be performed on or before a certain time. 

“Singapore, the United Kingdom, Australia, Ireland, Scotland and even Hungary have done it, ” Tan said. 

“This bill would provide ‘a legal shield’ to all businesses big and small, and across all sectors of the economy. 

Tan said these measures were temporary and should be in place for a prescribed period. 

“In other words, the non-performing party’s liabilities will be suspended and non-enforceable during the prescribed period, ” he said. 

The enactment of such a bill is to “safeguard” against any unfair outcomes, Tan said. 

Monday, April 6, 2020

Malaysia too needs a Covid-19 Bill

The Star Biz

by Roger Tan


MALAYSIA should enact a law similar to the one proposed by the Singapore government to offer temporary relief to businesses, in particular SMEs and individuals who are unable to perform their contractual obligations because of the movement control order (MCO) brought about by the Covid-19 pandemic. 

On April 1, the Singapore Ministry of Law announced that it intended to introduce the Covid-19 (Temporary Measures) Bill this week. 

The Bill will have a retrospective effect and cover contractual obligations that are to be performed on or after Feb 1,2020 and contracts that were entered into or renewed before March 25,2020. 

According to its statement, Feb 1 was used as the approximate date when the impact of Covid-19 started to be significantly felt in Singapore’s economy. 

These measures will be in place for a prescribed period, which will be six months from the commencement of the new law, expected to come into force this month itself, and may be further extended for up to a year from the commencement of the new law. 

In other words, the non-performing party’s liabilities will be suspended and non-enforceable during the prescribed period. 

Contracts covered by the Bill are: 

> Non-residential leases and licences in that if the commercial tenants or licensees are unable to pay rent for February and/or March, they may seek relief; 

> Construction and supply contracts in that the contractors will not have to pay damages for late delivery or non-performance of contractual obligations; 

> Contracts for the provision of goods and services (eg, venue, catering) for events (eg, the cancellation of weddings, business meetings) and for visitors to Singapore, domestic tourists or outbound tourists, or promotion of tourism (eg, the cancellation of cruises, hotel accommodation bookings), for example, there shall be no forfeiture of booking fees or deposits; and 

> Certain loan facilities granted by a bank or a finance company to SMEs with turnover of not more than S$100mil in the latest financial year.