Tighten rules to prevent land scams, govt urged

New Straits Times

KUALA LUMPUR: Businessmen, developers and landowners worried over land title fraud cases have urged the government to impose more stringent regulations.

Concerned representatives from various associations held a Press conference to urge the government to re-look legislation which they feel do not guarantee property ownership.

Associated Chinese Chambers of Commerce and Industry deputy secretary-general Datuk David Chua said the Federal Court, in the case of Adorna Properties Sdn Bhd vs Boonsom Boonyanit in 2001, allowed the party which purchased a land title in good faith to keep the land, regardless of the fact that the title was forged.

Chairman of the Conveyancing Practice Committee of the Bar Council, Roger Tan, said the original owner, clueless about the sale, was not given any compensation.

"So, even if the purchaser bought the land in good faith from a con man, he gets to keep it," he said.

It was suggested at the Press conference that a form of compensation fund or insurance scheme be initiated to protect innocent purchasers.

The MCA Public Complaints Department have received 20 complaints of this nature since 2003.

Its legal adviser, Datuk Theng Book, said last year, the department prevented a RM350,000 landed property from being sold in the nick of time.

He said since the land registry does not carry photographs of the land owners, some use the names of the land owners to get an extract of the land grant before selling the property to unscrupulous people.

He said those targeted are those in the older age group.

Also present at the Press conference were representatives from the Real Estate and Housing Developers’ Association, National House Buyers Association and the Malaysian Chapter of the International Real Estate Federation (Fiabci).

Floods round-up: Picking up the pieces to start new year

New Sunday Times

by Chuah Bee Kim and Siti Nurbaiyah Nadzmi

Malaysian Bar Council member Roger Tan (second from right) distributing a pillow and mattress to Sim Hoi Sing at Kampung Tembioh in Kota Tinggi yesterday. With them are other members of the Sim family and Bar Council representatives.

KOTA TINGGI: Celebrating the Lunar New Year is the last thing on the minds of the Sim family here. Their first priority is to get back on their feet in the aftermath of the recent floods.

"We will make do with what we have for Chinese New Year," said the patriarch of the family, Sim Hoi Sing, 76.

"My sons and grandchildren are helping out with the repairs around the house. We are not thinking about any celebrations. We’ll be happy if we can get our house back in order.

"All our furniture is ruined but our family is still together. That’s more important to us than celebrating Chinese New Year," said his daughter-in-law, 55-year-old Chai Soi Fah.

The extended family lives in a squatter settlement in Kampung Tembioh, which was flooded early this month.

Chai, her husband and three children live in one house, and her father-in-law lives with 10 other family members next door.

The families have no plans to move.

Sim has been here for 40 years. He has a special bond with the place: "All my children and grandchildren were born here. Besides, we have many friends here."

Chai feels the same way. Even though, she says, the whole family is now terrified when the sky turns dark and rain threatens.

The Sim family is one of 187 families in the village who were badly affected by the floods.

Members of the Malaysian Bar Council, led by council member Roger Tan, yesterday gave each household a mattress, pillow and blankets.

The team was assisted by members of the Malaysia St John Ambulance Kota Tinggi division, led by its area commander Pok Kim Chan.

Tan said the Bar Council had raised RM15,000 to help the flood victims, who heaved a sigh of relief that the heavy rains throughout the state over the weekend didn’t cause a third wave of flooding.

District officer Norizan Kulob said the water level in Sungai Johor, the main river which runs through the town, dropped to 0.25 metres below its normal level yesterday.

Kota Tinggi recorded 45mm of rain on Saturday, while Layang-layang, Bukit Besar and Ulu Sebol had only 6mm.

Most flood evacuation centres in the district have been closed but one was opened in Kampung Sungai Berangan near Ulu Tiram due to heavy rains on Saturday.

Only 15 people took shelter as a precaution.

As of yesterday, 40,154 flood victims were still in 93 relief centres, all in the Batu Pahat district.

A spokesperson at the Johor Baru flood operations centre said the water in Batu Pahat was receding and many had returned home.

A system that breeds misdeeds and corruption

I welcome the statement from the Menteri Besar of Selangor, Datuk Seri Dr Mohd Khir Toyo yesterday (“Khir: Zakaria told to resign before audience” - NST, Oct 31) that the MB wanted more professionals to serve on local councils.

However, he said the Local Government Act 1976 (“Act 171”) had to be first amended.

In my opinion, no amendment to Act 171 is required in order to appoint professionals who are residents of the local authority area as councillors. Section 10(2) of Act 171 is clear, that is, the state authority may appoint persons who in its opinion have achieved “distinction in any profession”.

If the Selangor state authority is unsure of this, then it should consult the National Council for Local Government set up under article 95A of the Federal Constitution.

The Article states that the federal government or any state government may consult the National Council for Local Government in respect of any matter relating to local government and its duty is to advise that government on any such matter.

Article 95A(5) also provides that it is the duty of the National Council for Local Government to formulate from time to time in consultation with the federal government and the state governments a national policy for the promotion, development and control of local government throughout the Federation and for the administration of any laws relating thereto; and the federal and state governments shall follow the formulated policy.

In fact, the National Council for Local Government is no ordinary body as it is chaired by the deputy prime minister and each state is often represented by its Chief Minister. This is the body, in my view, which should immediately sit down and formulate guidelines on the appointment and re-appointment of councillors within the ambit of section 10(2) of Act 171.

As I said in my article on Sunday (“Do laws grind the poor, and rich men rule the law?”), any state government which decides not to comply with the policy formulated by the National Council for Local Government may risk losing financial grants and loans from the federal government.

Further, if state governments cannot get their act together in effectively supervising and managing their local authorities, then the time will come when the federal government may have to assume more power and control over them.

Provisions are provided by removing ‘local government’ matters from the state list under the Ninth Schedule to the Federal Constitution and placing it under the concurrent list.

In any event, appointing professionals such as architects, engineers, surveyors, lawyers and doctors who are free from any political affiliations or personal interest to sit on the council is a step in the right direction.

It will not only form a check and balance on the manner in which powers and duties of local authority are carried out, but it also promotes good governance in local administration. It is akin to appointing independent directors to public listed companies.

Of course, professionals are not free from some of the perils of holding public office – the temptation of succumbing to corruption and self-aggrandisement.

To avoid accusations of favouritism or other sorts of improper conduct in appointing certain professionals, it is always good practice to first get their respective professional organisations to make the recommendations.

Again, the test is that the person to be appointed must have achieved professional distinction – and not those professionals who are already on the advisory panel of the local authority.

But, in practice, many professionals will be unwilling to serve because it means that their firms are prohibited from acting for the local authority, and they may also have to recuse themselves each time a matter handled by their firm arises for deliberation. This is provided for in section 35 of Act 171 which reads: “No councillor shall by himself or his partner or agent act in any professional capacity for or against the local authority of which he is a councillor.”

All said, it is still a good move to allocate two or three seats in each local authority for independent persons, such as professionals, to sit on the councils.

In the case of Datuk Zakaria Mat Deros, I could not agree more with the view of Umno vice-president, Tan Sri Muhyiddin Yassin (‘He may have tainted party’ - NST Oct 31), that elected representatives should not hold the post of municipal councillor. (Zakaria is also the state assemblyman for Port Klang.)

Muhyiddin cited Johor as an example where if one was an assemblyman or Member of Parliament, there was no necessity for him to sit in municipal councils.

He went on to say that by allowing others, such as party leaders, from the lower ranks who are not elected representatives to be local councillors, there would be better division of labour, more focus on responsibilities and no conflict of interest.

Muhyiddin was most spot-on in this issue, which is one of a conflict of interest.

This reminds me of 1980 when the menteri besar and state government of Perak were taken to court by an opposition leader, Lim Cho Hock, because the Perak state authority appointed the menteri besar as president of the Ipoh Municipal Council.

It was contended that the appointment would put the menteri besar in a conflict situation when it came to the latter exercising his powers under sections 10(7) and 165(1) of Act 171. Even though Lim failed in the action, the practice of a menteri besar also holding the post of president of municipal council, since that case, has always been frowned upon.

Article 64(1)(b) of the Selangor state constitution provides that a state assemblyman is disqualified if he holds an ‘office of profit’.

Even though an election court had ruled before that holding a position in the local authority did not fall within the meaning of ‘office of profit’ (see Lee Hie Kui @ Eric Lee v Song Swee Guan & Anor, 1998), it is, I am sure, the general view that the practice of vesting too much power in one person should always be discouraged as one should always take heed of the oft-repeated words of Lord Acton: “Power tends to corrupt, and absolute power corrupts absolutely.”

Moreover, the state assemblyman may find himself in a conflict situation if the conduct of the local authority of which he is also a councillor is debated in the State Legislative Assembly. Again, this can be another policy which the National Council for Local Government should formulate.

It is the hope of many that all local authorities will practise good governance when administering the affairs of their local authority area, always asking whether their actions will protect and benefit the local community.

May they always be guided by the definition of good governance enunciated by the United Nations Economic and Social Commission for Asia and the Pacific:

“Good governance has eight major characteristics. It is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. It assures that corruption is minimised, the views of minorities are taken into account and that the voices of the most vulnerable in society are heard in decision-making. It is also responsive to the present and future needs of society.”

Do laws grind the poor, and rich men rule the law?

I have written before that “be you never so high, the law is above you” (NST, Jan 29).

So it is always dispiriting to find out whenever this fundamental principle of the rule of law is disregarded by the influential, rich, well-connected and the powerful with impunity.

The topical case before us is the two councillors of the Klang Municipal Council (MPK) who were reported to be erecting their mansions without any approval.

It was reported that for this contravention of planning and building laws, councillor Datuk Zakaria Mat Deros was only slapped with a fine of RM24,000 which has been described as the maximum fine permitted under the law.

Zakaria, who is also the Port Klang state assemblyman, was reported to have blamed his former architect for not first getting the necessary approval.

It was also reported that Zakaria also owns a restaurant in Port Klang which had recently been found to be unlicensed, and that council enforcement officers actually demolished a rival restaurant for minor infractions but took no action instead against Zakaria’s unlicensed restaurant.

Meanwhile, the other MPK councillor, Mazlynoor Abdul Latiff, openly admitted that he was also building his mansion at Kampung Raja Uda in Jalan Lengkungan without any approval.

He even had the audacity to claim, as reported, that other councillors had also built their mansions, much bigger ones, within the same area without building plans.

Mazlynoor revealed that he had, in fact, submitted a plan to MPK’s planning department in 2005, but it was returned to him as it did not conform to the sewerage infrastructure.

He added that as it involved costs, he went ahead with the construction and that he would submit the plans after Hari Raya.

So the fact remains that the development and construction of his mansion took place without any approval.

At the same time, the Menteri Besar of Selangor Datuk Seri Dr Mohd Khir Toyo had also referred the matter involving the appointments of Zakaria, his son Zainuri and his daughter-in-law Roselinda Abdul Jamil as Klang councillors to the Selangor Umno liaison committee.

This whole affair about the MPK councillors is now not only becoming a farce, but has raised three very troubling issues:

• Is the RM24,000 fine the only punishment MPK can mete out to Zakaria?

• Why do these two councillors have such scant regard for the laws which they are actually entrusted to enforce?

• Is there something wrong with the law, particularly in the manner in which we regulate our system of local government?

In my opinion, a fine of RM24,000 is not the only penalty which can be imposed against Zakaria for contravening the laws especially when it was also reported that no planning permission had been given.

It was therefore surprising that MPK did not take any action against Zakaria either under the Street, Drainage and Building Act 1974 (“Act 133”) or the Town and Country Planning Act 1976 (“Act 172”).

It appeared that, instead, MPK decided to fine Zakaria under paragraph 17 of the First Schedule of the Uniform Building By-Laws 1984, a subsidiary legislation made under Act 133 which reads:

“In all cases where work has been commenced before plans have been approved or a permit obtained a fee equal to ten times that specified in the relevant preceding paragraph may be charged.

“The payment of this enhanced fee will not exempt any person from being prosecuted by the local authority should it decide to do so.”

The paragraph says that the payment does not prevent MPK from prosecuting Zakaria.

The law governing the development of land and erection of buildings is contained in Acts 133 and 172.

Generally, before anyone develops his land, he is required to obtain a planning permission under Act 172.

The planning permission is usually valid for a period of 12 months during which time the landowner is required to fulfil the conditions attached to the approval, unless it is extended.

Having obtained the planning permission does not entitle the landowner to commence construction of his building. He is also required to obtain approval to the building plans and specifications under Act 133.

Section 26(1) of Act 172 provides that any person who commences, undertakes or carries out any development or permits the same to be done without any planning permission commits an offence and is liable, on conviction, to a fine not exceeding RM500,000 or to imprisonment for a term not exceeding two years or both.

In the case of a continuing offence, a further fine may extend to RM5,000 for each day during which the offence continues after the first conviction for the offence.

Sub-section (2) also states that “unless the contrary is proved, the owner of the land in respect of which any act that constitutes an offence under subsection (1) is done shall be deemed to have permitted the doing of that act.”

Act 172 also allows the local authority which is the local planning authority to require the land to be restored as far as possible to the condition it was in before the development was commenced.

Section 72 of Act 133 also provides that where the local authority is satisfied that a building has been erected or is in the course of erection without the building plans and specifications being approved by the local authority, the local authority may require the landowner to do any one or more of the following acts:

(a) to stop work;

(b) to demolish such building within such time as the local authority may specify; and

(c) to take steps as may be ordered by the local authority.

It follows that MPK obviously owes the public an explanation as to why it has not invoked the above-mentioned sections of Acts 133 and 172.

I am sure the public would like to know whether a stop work order or demolition order has been issued; and what steps MPK has ordered these two councillors to take.

Without a satisfactory explanation, it will not stop the public from asking whether MPK is practising double standards when it comes to enforcing these two pieces of legislation against a public perception that local authorities have no qualms whatsoever to tear down buildings and extensions of ordinary folk and even places of worship if they have been erected without prior building plan approval.

Is this another case of what Oliver Goldsmith would describe: “Laws grind the poor, and rich men rule the law”?

Why do these two councillors have such scant regard for the laws which they are actually entrusted to enforce?

Mazlynoor’s response is rather disturbing. This law enforcer seemed to be saying that there is nothing wrong with what he did when there are so many other VIPs also doing it.

Such a response is indeed unbecoming of a councillor who has been entrusted to enforce the very same law which he showed no regret whatsoever to have breached.

There just cannot be one law for the rich and connected, and another for the poor and unconnected.

Everyone is entitled to be treated equally in his dealings with the public authorities.

If this persists, this case will remove any deterrence against anyone who disobeys the law.

This whole affair now reminds me of the words of Shamsul Hoque, the director of Legal Education and Training Institute of the Bangladeshi Bar Council who once described law as a scarecrow. This was what he wrote in 2003:

“The scarecrow is put in a cornfield to frighten birds away. The innocent, simple birds are really scared and they don’t dare to come near the field. But some birds strong and greedy do not get frightened. They are often found not only to come near the scarecrow, but also to perch on its arms and head to rest after eating the grain to their hearts’ content. Seeing these birds enjoying food and security, some other birds ask themselves, ‘They are having good meals. The scarecrow does not scare them. Why should we be fools and starve?’ So all the birds join in the feast.

“A law is made with the express intent to help people in getting justice through a legal system, thereby aiming to achieve the ‘greatest happiness of the greatest number’. But very often the law fails to serve this purpose.

The innocent, simple, illiterate and the poor cannot access legal procedure because it is highly expensive, complicated and time-consuming to them.

So they look upon law from a distance as a frightening scarecrow.

“On the other hand, some people in society like those strong, greedy birds, tame, twist or tarnish a law and use it for their own benefits. Some others follow suit and seize the opportunity, too.

Thus the law is made into a no-more frightening, rather a tattered scarecrow.

“It is this second group that is mainly responsible for making many laws ineffective. Not only that, they make law an accomplice in fulfilling their greed for power and possessions.”

Is there something wrong with the law, particularly in the manner in which we regulate our system of local government?

A councillor is indeed a very important person. He forms part of the local authority which exercises its powers and performs its duties under the Local Government Act 1976 (“Act 171”). As the local authority is also the approving authority for planning permission under Act 172 and building plans and specifications under Act 133, he is therefore a member of the decision making body.

In discharging his duties, he is well protected by law. Section 125 of Act 171 and section 95 of Act 133 grant him general immunity against any personal action, liability, claim or demand whatsoever.

However, it is the state government and not the federal government, that is, the Ministry of Housing and Local Government, that has supervisory control over the local authority.

Under Act 171, the federal minister is only required to be consulted by the state authority under eight situations:

(1) declare any area in such state to be a local authority area;

(2) assign a name to such local authority area;

(3) define the boundaries of such local authority area;

(4) determine the status of the local authority for such local authority area and such status shall be that of a municipal council or a district council;

(5) change the name of any local authority area;

(6) change the status of a local authority area;

(7) alter the boundaries of any local authority area; and

(8) merge two or more local authorities into one local authority.

But the main reason why state governments and local authorities do take into account any advice given by the federal government is simply because of financial consideration as financial grants and loans are provided by the federal government to the local authorities.

Also, the federal government and the state governments form the National Council for Local Government set up under Article 95A of the Federal Constitution and which is chaired by a federal minister.

It follows that it is the state authority, which is essentially the state executive council, that has control over local authorities, and the Menetri Besar, being its head, actually calls the shots.

Section 9 of Act 171 provides that the state authority may from time to time give the local authority policy directions of a general character relating to matters which appear to the state authority to affect the interests of the local authority area, and the local authority has to give effect to all such directions as soon as possible.

Section 10(7) of Act 171 then provides that if the mayor or president of the local authority does not agree with the other councillors as to the exercise of any of his powers or of the powers of the local authority, he shall refer the matter to the Menteri Besar whose decision shall be final and binding on the local authority.

As regards the appointment of the the Zakaria family members as MPK councillors, section 10(2) of Act 171 provides that councillors of the local authority shall be appointed from among persons who are ordinarily resident in the local authority area and who in the opinion of the state authority:

(a) have wide experience in local government affairs or;

(b) who have achieved distinction in any profession, commerce or industry; or

(c) are otherwise capable of representing the interests of their communities in the local authority area.

Therefore, even though councillors are political appointees, the state authority must adhere to these criteria when appointing them.

The interests of the local community is of paramount importance and the most important criterion is whether the appointees are capable of representing the interests of the local community.

The government must be mindful of this; otherwise there is nothing to prevent a ratepayer later from challenging any appointment.

It follows that Dr Khir should have perhaps first referred the matter to the state executive council instead of his party.

While politically this may make sense as councillors are usually local political leaders who wield considerable grassroots support, legally it is the state executive council which should decide who should be appointed and re-appointed.

However, so long as we continue to read about these unhealthy antics of local councillors, the calls of bringing back local elections will grow louder. But is this a solution?

It is said that while elections may bring about transparency and accountability at local politics, a local authority controlled by the opposition may find it difficult to run its local authority area as many local authorities cannot survive without financial grants from the covernment as revenue collected from the local assessments is just not enough.

I am of the view that the time has come for the government to look again at Act 171 to address the many weaknesses in the Act so that the system of local government can meet up with the ever-demanding needs and expectations of our citizenry today.

The last time a Royal Commission was set up to study the system of local government was in 1965 which produced the Athi Nahappan Report in 1969 that led to Act 171.

Perhaps, as a start, section 10(2) can be amended to require the state authority to consult either the minister or the National Council for Local Government in the appointment and re-appointment of local councillors.