Senior lawyer hails Pak Lah’s commitment to judicial independence

by FMT Reporters

Roger Tan praises the former prime minister for his role in passing the Judicial Appointments Commission Act 2009.

Senior lawyer Roger Tan said Abdullah Ahmad Badawi’s actions validated the Malaysian Bar’s efforts in ‘upholding justice without fear or favour’. (Facebook pic)

PETALING JAYA: Former prime minister Abdullah Ahmad Badawi left a lasting legacy in his commitment to judicial independence, says senior lawyer Roger Tan.

In a Facebook post tonight, Tan expressed his condolences to Abdullah’s family over his death.

“Pak Lah was indeed a true gentleman in politics, or rather, he was too good a gentleman to be in politics.

“Unlike many politicians, he was neither vindictive nor ruthless. In fact, on many occasions, he was magnanimous,” he said.

Tan, a former member of the Bar Council, praised Abdullah for having the political will to pass the Judicial Appointments Commission (JAC) Act 2009, demonstrating his commitment to judicial independence.

“He also supported the Malaysian Bar during the infamous VK Lingam video tape controversy by attending the 14th Malaysian Law Conference and hosting a sumptuous dinner for the delegates on Oct 29, 2007.

“This was done despite the then chief justice having directed the judiciary to not attend the conference, of which I was the organising chairman,” he said.

In September 2007, lawyers marched towards the Prime Minister’s Office in a “Walk for Justice” to protest allegations of corruption in the judiciary, following the release of the tape implicating then chief justice Ahmad Fairuz Sheikh Abdul Halim in a judge-fixing scandal.

Anwar can be our Nelson Mandela if… — Roger Tan

The Malay Mail
by Roger Tan

Datuk Seri Anwar Ibrahim began his official duties as Prime Minister by clocking in at his office at the Perdana Putra in Putrajaya November 25, 2022. — Bernama pic

NOVEMBER 27 — When the late Nelson Mandela was released after being imprisoned for 27 years for standing up against South Africa’s apartheid laws, many had expected him to seek revenge on his white captors. He did not. Instead, he forgave them. But many African National Congress (ANC) activists had also suffered under the apartheid regime. So, Mandela led the way because if he could forgive, there was no reason for his ANC acolytes and activists to ask for vengeance. By his act of forgiveness, this had brought healing and reconciliation to his nation.

In the words of Mandela, “As I walked out the door toward the gate that would lead to my freedom, I knew if I didn’t leave my bitterness and hatred behind, I would still be in prison.” He added, “No one is born hating another person because of the colour of his skin, or his background, or his religion. They must learn to hate, and if they can learn to hate, they can be taught to love, for love comes more naturally to the human heart than its opposite.”

When he became the first black president of South Africa, he even allowed some of his erstwhile opponents to join his government. At his inauguration, he even invited one of his white prison guards. Hence, Mandela was not just a leader but a true statesman. In his wise words: “If you want to make peace with your enemy, you have to work with your enemy. Then he becomes your partner.”

For this reason, Malaysians are grateful to Their Majesties the Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah and the Malay Rulers for ending the five-day political stalemate by getting Pakatan Harapan to form a unity government with the other warring parties.

In the case Datuk Seri Anwar Ibrahim, he is perhaps the most persecuted politician in Malaysia.

The role of lawyers in court

The Sunday Star

THE Aug 27 press statement of the Universiti Malaya Law Society on recent court cases caught my attention because it came from students at the best law school in this country whose alumni include the current Prime Minister, Chief Justice and Attorney General. 

They wrote, “As future rule of law bearers perusing the recent incidents, we believe that much is expected from legal luminaries to set a model of respect, courtesy and dignity. However, what is occurring thus far has been the downfall of such expectations even in the soil’s highest avenue of justice – the Federal Court.” 

It would be a tragedy if these prospective lawyers should feel disillusioned by the alleged conduct of some senior lawyers even before they join the legal profession. As a senior member of the Malaysian Bar, it behoves me to assure these future entrants to the profession that what they have learnt at law school relating to ethics, virtues, values and ideals of the legal profession still apply and will not be easily tossed away. There are still many senior lawyers out there who practise law with the highest standards of professional integrity and honesty, and who possess unblemished character and reputation. 

Dedicated: (From left, anti-clockwise) Lawyers Jaspal Singh, Lee Guan Tong, HR Dipendra, Kevin Wong and Janet Chai with others at the recent extraordinary general meeting of the Malaysian Bar. — Photo provided

These students should also be assured that there is an independent judicial system in this country worth associating with and defending for. Together with an independent Bar, we are in the vanguard of preserving, protecting and defending the Constitution and upholding the rule of law. Otherwise, it is meaningless if at almost every National Day parade, our leaders and citizens raise hands, pledging aloud to uphold the five fundamental principles of Rukunegara which include the supremacy of the Constitution and the rule of law. 

Press freedom in the digital age

The Sunday Star

by Roger Tan

Can press freedom be further advanced when readers are given carte blanche to post whatever they like including unlawful and defamatory comments under the protection of anonymity?

Tomorrow is World Press Freedom Day (WPFD).

It is a day which we Malaysians must remember and pay tribute to those news media and media practitioners for reporting the truth. Many have done so through their sheer courage and perseverance, by standing up for the independence of the press in this country, without fear or favour. 

Needless to say, since Merdeka, some have also in their pursuits for a free press lost their own personal freedom in one way or another. 

In fact, the WPFD came about after the United Nations Educational, Scientific and Cultural Organisation (UNESCO) held a seminar in Windhoek, Namibia on the promotion of an independent and pluralistic African Press some thirty years ago. It culminated in the adoption of the Windhoek declaration for the development of a free, independent and pluralistic press on May 3,1991. May 3 was then chosen as the day to mark WPFD by the UN General Assembly in 1993. 

Regrettably, in the 2021 World Press Freedom Index released by Reporters Without Borders on April 17, Malaysia slipped to 119, falling 18 spots from the previous year. 

On the other hand, if one is to go through the kind of comments being made by readers on the Malaysiakini online news portal, one may draw a conclusion, albeit erroneously, that there is absolute freedom of press in this country. Some of these comment sections, if not all, are accessible to the whole world, that is, to those who are not paid subscribers of the portal. Many of the commenters used a pseudonym when posting their comments. 

But on February 18, Malaysiakini was fined half a million ringgit by the Federal Court for contempt of court over five readers’ comments criticising the judiciary. 

When imposing the fine, Court of Appeal president Justice Rohana Yusuf, who chaired the seven-man panel said in the 6-1 majority decision, that the apex court was mindful that this case would attract world attention as the media had demonstrated their agitation and concern that this case would shackle media freedom and might eventually lead to a clampdown on freedom of the press. 

The apex court ruled that this unfortunate incident should serve as a reminder to the general public that expressing one’s view, especially by making unwarranted and demeaning attacks on the judiciary at one’s whims and fancies, could be tantamount to scandalising the court. 

“Whilst freedom of opinion and expression is guaranteed and protected by our Federal Constitution, it must be done within the bounds permissible by the law”, said Rohana. 

She stressed on the importance of maintaining public confidence in the Judiciary and the need to protect the dignity and integrity of the Judiciary as a whole, considering the nature of the judicial office is one which is defenceless to criticism, that is, judges cannot reply to their criticism and neither can they enter public controversy. 

Rohana also quoted Lord Denning who once said: “We must rely on our conduct itself to be its own vindication.” 

An independent judiciary saves American democracy

The Sunday Star

by Roger Tan

Image: I Got This by Sousa & Machado

CONGRATULATIONS to Joseph Robinette Biden Jr and Kamala Devi Harris for having been successfully inaugurated as the 46th president and vice-president of the United States respectively. It almost did not happen on Jan 20, or at all, if not for the US judiciary. 

On Jan 6, the losers fomented mobs to storm the US Capitol to stop the certification of the 2020 US presidential election results. To former President Donald Trump and his acolytes, this was perhaps their last hope to get rid of what they called the “rigged result” after American courts, including the US Supreme Court, twice refused to overturn the results in battleground states. Despite five deaths, the incident could have been a calamity had any elected legislator been taken hostage or killed by the insurrectionists. 

For a moment, the 245-year-old American republic almost became a banana republic devoid of the rule of law. On that day of infamy, democracy as the best form of government almost died in a country which has always prided itself on being the world’s greatest democracy. 

In the words of national youth poet laureate Amanda Gorman – who wowed the world at Biden’s inauguration ceremony with her poem – “This effort very nearly succeeded. But while democracy can be periodically delayed, it can never be permanently defeated.” 

The free world heaved a huge sigh of relief at this irenic victory for democracy, though this embarrassing episode has now diminished America’s moral authority as the keeper or beacon of democracy. 

Before I go on, I need to pause here to say that I have not been watching too much CNN. In fact, I watch the conservative-leaning Fox News Channel too. 

To the world at large, Biden did secure an emphatic victory. The world was just simply astounded to see how Trump, who was unable to accept defeat in an electoral democracy, could lie that the elections were rigged and urge his supporters to “Stop the steal”. It is even more mind boggling to see how some Americans could so easily turn cuckoo overnight, deluded by misinformation into believing in conspiracy theories. 

This reminds me of the tactic employed during World War II by the Nazi minister of propaganda, Joseph Goebbels: Turn a lie into the truth just by repeating it often enough. He reportedly said: “If you tell a lie big enough and keep repeating it, people will eventually come to believe it.... It thus becomes vitally important for the state to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the state.” 

Let us save Malaysia

The Sunday Star

by Roger Tan

Call to action: Raelyn Rachele Chwee (left) and Christina Kow of the Waste Management Association of Malaysia passing on the message to passers-by.

We need to reduce or curb the use of single-use plastic masks in order to save our environment and planet. 

ANSWERING the earlier calls from the Malaysian Association of Tour and Travel Agents (MATTA) to turn to Cuti-Cuti Malaysia to help the local domestic tourism industry, my family and I decided to spend a weekend at Redang Island recently.

Interestingly, I was not alone at all in answering to this call during these febrile times. The island’s long beach was crowded with holidaymakers. We had a great stay at the Laguna Redang Island Resort. The hotel staff there were ever so helpful and courteous. They were in high spirits. 

But sadly, the lives of their counterparts in the Klang Valley especially in those hotels which have remained closed since movement control order in March have been one of despondency. Some of them have to turn to part-time jobs like riders for Grab Food and Foodpanda to make ends meet.  

This Covid-19 pandemic has indeed exacted an untold misery on the human race as well as the environment. But as I undertook snorkelling and enjoyed the rich underwater marine life in Redang, I felt as if God was telling us to be still for a moment and let the marine life heal and rewild itself during this period. 

Then it dawned upon me how acts of men could still harm them and the environment if our oceans are still clogged with more plastic waste, posing a huge threat to the marine ecosystems. Plastic pollution will exacerbate when non-biodegradable face masks made of polypropylene (PP) and gloves made of synthetic polymers such as vinyl find their way into our rivers and oceans. 

Already conservationists have found masks floating like jellyfish in the oceans and latex gloves strewn around seabeds. 

‘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 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. 

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.

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).

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. 

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. 

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.

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. 

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. 

The Star

This letter was originally a Facebook post by Datuk Roger Tan, and is republished here with his permission. 

DURING the Christmas break, I chanced upon this 39-year-old A4-size cardboard mockup (pic) of a report on a student election held at Tunku Abdul Rahman College (TARC). The mockup was given to me by the editorial board of the 1980 magazine of the School of Pre-University Studies at TARC (which is now known as Tunku Abdul Rahman University College). It brought back lots of memories that I would like to share. 

The report was about the first student representative election held at TARC. In 1980, TARC comprised several schools, including the School of Pre-University Studies (SPUS). Many of the first-year SPUS (Lower Six) students studied outside TARC’s main Jalan Genting Klang campus, Kuala Lumpur, including myself; I attended the Jalan Cheras Secondary School, next to Taman Midah, KL, in 1979. All students, however, would continue their Upper Six studies on the main campus. 

Of course, without TARC, I would not have been able to do any A Level (or Higher School Certificate, HSC, as it was known then) studies at all, as I hailed from the little town of Yong Peng, Johor, and had to survive on an all-in monthly pocket money allowance of M$200. This included travelling daily from my brother’s house near Batu Caves to the Jalan Cheras Secondary School on a journey that usually took about an hour and half, including a 2km walk from the house to the main road to catch a stage bus. That explains why I was then only one third of my current size! 

Upholding the rights of house buyers

Dream house?: A young boy admiring the scale model of a housing project at a property fair in Penang last year. – Filepic

The Sunday Star

by Roger Tan

ON Tuesday , the Federal Court ruled that the housing controller has no power to waive or modify provisions of the contracts of sale as prescribed by regulations 11(1) and (2) of the Housing Development (Control and Licensing) Regulations, 1989 (1989 Regulations).

The 1989 Regulations were made by the housing minister pursuant to section 24 of the parent Act, namely the Housing Development (Control and Licensing) Act, 1966 (Act 118).

These contracts of sale are better known in the housing industry as Schedules G, H, I and J, depending on the types of housing accommodation being developed.

The prescribed contracts of sale include provisions stipulating the time for delivery of vacant possession and they have to be strictly followed; failing which the defaulting party can be liable upon conviction to a fine not exceeding RM50,000 or to a jail term not exceeding five years or to both. Further, any person who aids, abets or counsels the commission of the offence will face similar punishment upon conviction.

Hence, regulation 11(3) which came into force on April 1, 1989 and remained unamended since, allowed the controller to waive or modify the provisions of the contract of sale if he was satisfied that there were special circumstances or hardship or necessity; compliance of which with any of the said provisions was impracticable or unnecessary.

Regulation 12 then provides for any person aggrieved by the controller’s decision to appeal to the minister whose decision is final and shall not be questioned in any court.

One common modification sought by the developers to the contract of sale is to apply, before the expiry of the stipulated date fixed for handing over of vacant possession, for an extension of time (EOT) so that the developers will not be sued for late delivery and face a claim for liquidated damages (LAD) by the house buyers.

On May 14, five questions were posed to the five-member panel of the apex court namely, Chief Justice Tengku Maimun Tuan Mat, Justice Azahar Mohamed, Justice Alizatul Khair Osman Khairuddin (who has since retired), Justice Idrus Harun and Justice Nallini Pathmanathan. In delivering the unanimous decision of the apex court, Justice Tengku Maimun ruled that:

> the controller has no power to waive or modify any provision in the contract of sale;

> section 24 of Act 118 does not confer power on the minister to make regulations for the purpose of delegating his power to waive or modify the contract of sale to the controller; and

> regulation 11(3) is ultra vires (beyond the powers of) Act 118.

The apex court, however, declined to answer the following two questions posed by the developer, BHL Construction Sdn Bhd because the above ruling effectively meant that there was no decision by the minister:-

> whether the letter granting an extension of time after an appeal pursuant to regulation 12 must be signed personally by the minister and whether the minister could delegate his duties (signing of the letter granting the extension of time) to an officer in his ministry; and

> whether the minister having taken into consideration the interest of the purchaser is obliged to afford the purchasers a hearing prior to the minister granting the extension of time albeit there is no such provision or requirement in Act 118 or the 1989 Regulations.

'Review fees for loan documents'

The Bar Council said it is high time for banks to review its practice of imposing fees for loan documents. (Image by Pixabay:  For illustration purposes only)

New Straits Times

Banks' practice against the law, a burden to customers, says Bar Council official 

KUALA LUMPUR: The Bar Council said it is high time for banks to review its practice of imposing fees for loan documents.

Bar Council conveyancing practice committee chairman Datuk Roger Tan said the practice was against the law and has a become a burden which consumers could do without.

He said the fee was imposed on the banks’ loan documents, which borrowers sign when taking, for example, a housing loan.

“These documents are largely standardised documents for each bank.

“The bank’s solicitors will typically download the documents from the bank’s website and, after completing the particulars relating to the borrower and the loan, print for the borrower’s signature,” said Tan.

He said banks currently charge a fee for the ‘purchase’ of these documents ranging from RM100 to RM500, even though the cost of printing the documents is borne by the solicitors.

He said that the document fee is usually passed on to the borrowers as part of the solicitor’s charges. However, Tan said that in some cases, solicitors are compelled by the banks to absorb these costs.

“This results in the borrowers having to pay additional costs when taking a loan from a bank and the solicitors getting peanuts for the professional work done especially purchasers of low- and medium-cost and affordable homes.

Who is Roger Tan, the lawyer in Pastor Koh and Amri’s task force?

Senior lawyer Datuk Roger Tan Kor Mee  is one of

the two latest additions to the  special task force probing

the high-profile enforced disappearances of Pastor

Raymond Koh and social activist Amri Che Mat.

— Picture via RTNP.my

Malay Mail

by Ida Lim

KUALA LUMPUR, July 12 — Senior lawyer Datuk Roger Tan Kor Mee is one of the two latest additions to the special task force probing the high-profile enforced disappearances of Pastor Raymond Koh and social activist Amri Che Mat, but who is he? 

Tan is currently serving as a Bar Council member, but his peers and his long list of achievements can easily attest that his appointment is not mere tokenism for better diversity in the government’s seven-man task force. 

Here’s a quick look by Malay Mail at Tan’s background, based on his law firm’s website and publicly available information: 

Tan, who was born in Yong Peng, Johor and has a law firm in his home state, graduated with a law degree from Queen Mary College, University of London and also holds a master of law from the National University of Singapore.

Trained as a barrister of the UK’s Gray’s Inn, Tan was admitted as a lawyer in peninsular Malaysia in October 1989 and is also qualified to practise as a lawyer in Singapore. 

Throughout his 30-year career, Tan had actively contributed to the legal community, including as Bar Council member for the years 2004 to 2009, during which he was also the webmaster for the Malaysian Bar’s website which he went on to redesign. 

Unconscionable for banks to seek refuge behind exclusion clauses

The Star

by Roger Tan 

Protection needed: It is time for the government to introduce a legislation or extend the protection currently given to consumers under  the Consumer Protection act, 1999  to all types of contracts, including financial dealings and transactions, involving, particularly, purchasers and borrowers of a housing  development.

In April 2008, a British couple living in the United Kingdom obtained a loan facility of RM715,487 to finance the purchase of their property in Malaysia. It was a term of the loan facility that the bank would make progressive payments to the developer against certificates of completion issued by the architect at each progress billing.

In March 2014, the developer sent a notice for a progressive payment to the bank, supported by an architect’s certificate.

The bank’s disbursement department then sent several internal emails to its branch to conduct site visit inspection on the property.

The branch did not do anything, and meanwhile, the due date for payment had also expired on March 25, 2014.

Neither did the bank notify the developer nor the couple that a site visit inspection was an additional condition precedent to drawdown.

The bank also did not request for any extension of time to make the payment pending the completion of the site visit.

On April 10, 2015, the developer terminated the sale and purchase agreement (SPA), after about one year from the issuance of the invoice.

The couple then sued the bank for breach of agreement and/or negligence.

Working together for a cleaner world

The Sunday Star 
by Roger Tan

Not wasting time: Pushing for sustainable waste management, the writer (centre) standing beside Ho, who is leading the organising committee of ISWA 2018.

Malaysians still have a lot to learn about solid waste management.

FROM Oct 22 to Oct 24, an important world event, which took place at Kuala Lumpur Convention Centre, almost went unnoticed by the general public. 

The event was the congregation of the best in the waste management industry at the World Congress of the International Solid Waste Association (ISWA). Some 1700 over participants from 64 countries took part. 

Four years ago, the Waste Management Association of Malaysia (WMAM), the national member of the ISWA, led by its Chairman, Ho De Leong, had gone to great lengths to bid successfully for this most important annual event of ISWA to be held here. 

Regrettably, when it came to the big day, the Housing and Local Government Minister, Zuraida Kamaruddin was not able to officiate it due to her parliamentary obligations. She was represented by her deputy, Datuk Raja Kamarul Bahrin Shah Raja Ahmad. However, the Secretary General of the ministry, Datuk Seri Mohammad Mentek, was most supportive by making an effort to be present at several sessions. The Secretary General of the Water, Land and Natural Resources Ministry Datuk Dr Tan Yew Chong was equally supportive. And what is most gratifying to note is that 99% of the participants who were surveyed said they were most satisfied with our beautiful Malaysia being the destination for this year’s world congress. 

But then again, what is most alarming is Malaysians are generally ignorant about solid waste management. Most will immediately ask what is actually “solid waste”. In simple terms, it is any unwanted material or substance which is required to be disposed of, but does not include sewage, hazardous and radioactive wastes. The most common types are household and commercial solid wastes, that is, solid waste generated from a household or any commercial activity. 

Malaysians too have little knowledge about or regard for generation, collection, transportation, recovery, treatment and disposal of solid waste. This explains why our drains and rivers are always clogged up by solid waste, and every day workers have to clear the litter trapped in floating booms installed in rivers throughout the country in order to prevent and minimise pollution and flood. 

The situation is exacerbated by us generating more waste over the years. Three years ago, Malaysians generated about 19,000 tonnes of solid waste daily (TPD). Today, the figure has reached two-fold, 38,000 TPD. Out of this amount, waste separation and recycling rates only account for 24%. The remaining 76% goes to 160 landfills, of which about 15 of them are sanitary landfills. A sanitary landfill, unlike dumpsites, is a properly engineered landfill where solid waste is safely isolated from the environment with lining materials and designs to prevent leakage of leachate and contamination of groundwater and surrounding soils as well as making it possible for landfill gas to be captured and converted into a renewable energy resource. So, in developed countries, it is quite a common sight for golf courses and public parks to be built and landscaped on sanitary landfills that have been closed. 

Senior lawyer: Shake-up a welcome change for now

The Star
by Royce Tan

PETALING JAYA: The rationalisation proposal to make nine agencies independent entities and which reports directly to Parliament is seen as a welcome change by many. 

However, several concerns have been raised, especially in the event of an elective “dictatorship”.

Senior lawyer Datuk Roger Tan said if there was an absolute majority in Parliament one day, the issue of an Executive dominance would arise. 

He called for the Committee of Institutional Reforms to look into how to prevent this from happening. 

“It is a good move to preserve the independence of institutions, such as the Malaysian Anti-Corruption Commission (MACC) and the Election Commission, but it may not necessarily be good if one day the Government has an absolute majority in Parliament. 

“We must have necessary safeguards against any abuse, especially by the Government of the day that controls Parliament. 

“If one day we have an elective dictatorship, the Government will then be able to take control of these institutions,” he said. 

Tan said that posts such as the MACC chief commissioner or the Human Rights Commission of Malaysia (Suhakam) commissioners should be elected by a bipartisan committee, comprising MPs from both divides. 

He said there was also a need to amend the Acts of the respective commissions for them to be appointed by the committee.