Perak sticks by promise to waive fines

New Straits Times

IPOH: Despite criticisms from certain quarters, the state government will keep its promise to cancel compound notices issued by the local councils for parking offences and illegal trading.

Senior state executive councillor Ngeh Koo Ham told the New Straits Times that official letters would be sent to all 15 local government heads in the state advising them to implement the policy announcement issued by Menteri Besar Mohammad Nizar Jamaluddin.

On March 17, a day after he was sworn into office, Nizar declared that all notices of compound issued by local councils would be cancelled.

Ngeh, who is also national DAP legal bureau head, said the letters would be sent soon to the mayor here and the presidents of the 14 other local councils.

"The letters will be an advisory to follow up with the announcement of the menteri besar.

"We (the state government) intend to fulfil that promise," he said here yesterday.

Several quarters, including non-governmental organisations such as Ipoh City Watch and Ipoh Ratepayers and Taxpayers Association, academics like Penang-based Dr Goh Ban Lee and lawyers like Gurbachan Singh and Roger Tan have criticised Nizar's announcement as being out of the ordinary and in contravention of established laws.

Ngeh brushed aside the criticisms.

He said while the state government recognised that local councils were another tier of government, they were subject to the direction of the state government.

He said by virtue of legal provision in the Federal Constitution, which states that local governments came under the purview of the state government, the instruction to the local councils to cancel the notices to compound could not be questioned.

He pointed to Federal Constitution's Schedule 9, List II (State List) item 4(a) which expressly states "the state government has jurisdiction over the local government" as the underlying provision by which the state government could direct the local councils to act according to its wishes.

"It is important to look at the Federal Constitution instead of taking a narrow view by looking only at the Local Government Act 1976.

"The Federal Constitution is the supreme law of the land."

Summons waiver impinges councils' autonomy

THE decision by the Penang and Perak governments waiving all summonses for illegal hawking and traffic offences in the two states prior to March 11 and March 18 respectively, though a politically populist move, has nevertheless raised some concern among legal circles in regard to its legal validity and permissibility.

This is not the first time I am raising such an issue. In "Be you never so high, the law is above you" (NST, Jan 29, 2006), I criticised the police for frequently discounting traffic compounds and the former menteri besar of Perlis, Datuk Seri Shahidan Kassim, for rewarding a teenage traffic offender with a bicycle.

Then, I wrote: "It is a good thing for the government to be seen to be kind, caring and compassionate, but it is quite another to send the wrong message that offenders are above the law because punishment can be postponed or ameliorated. This undermines the rule of law."

In answering this question whether the two chief ministers or state authorities have the power to write off the summonses, one needs to examine first the laws in which the summonses were issued.

Firstly, summonses against illegal hawking are issued under by-laws made by the local authority under Section 73 of the Local Government Act (Act 171) and confirmed by the state authority under Section 103. The offences can be compounded by the local authority pursuant to by-laws made under Section 102(t) of Act 171. (Compounding an offence means offering an offender a chance to settle a specified sum within a stipulated period without being prosecuted in court for the offence.)

On the other hand, a parking summons is issued pursuant to an order made by a local authority under Section 72(1) of the Road Transport Act 1987 (Act 333).

The powers to compound are given to an officer of the local authority specially authorised in writing by the minister of housing and local government under Section 120(1)(e) of Act 333. Such officer is usually the mayor or the president of the local authority.

In fact, an offence under Section 72(7) of Act 333 may also be compounded by police officers under the Road Transport (Compounding Offences) Rules 2003. Section 122 of Act 333 also requires the particulars of offences compounded under Section 120 to be sent to the director-general for road transport.

In this case, a state authority has no jurisdiction over by-laws made under Section 72 of Act 333. While Act 171 does deal with enforcement of by-laws of a local authority, this is however restricted to by-laws made under Act 171, and not under any other written law.

Likewise, the power to prosecute has been given to the officers of local authorities in respect of illegal hawking under Section 120 of Act 171 and illegal parking under Section 377 of the Criminal Procedure Code 1999.

In fact, the compound amounts are a source of revenue for a local authority. The reason why local authorities prefer to collect the monies from the compounds rather than prosecute the offender is because any fines meted out in court belong to the federal government.

Turning now to the lawfulness of the waiver, it is important to appreciate that a local authority is not a state government department.

It is an autonomous body. Under Section 13 of Act 171, a local authority is a body corporate which has perpetual succession and it "may sue and be sued, acquire, hold and sell property and generally do and perform such acts and things as bodies corporate may by law do and perform".

Further, it has power to issue licences under Act 171. It also has wide-ranging powers to issue development orders under the Town and Country Planning Act 1976 and regulate street, drainage and buildings under the Street, Drainage and Building Act 1974.

However, there are three situations under Act 171 where the chief minister and state authority may direct the local authorities.

Firstly, Section 9 allows the state authority to give the local authority from time to time directions of a general character which are not inconsistent with Act 171 on the policy to be followed in the exercise of the powers conferred and the duties imposed on the local authority by Act 171.

However, these must relate to matters which "affect the interests of the local authority area". In my view, granting the waiver does not fall within this category,

Secondly, Section 10 (7) provides that where there is a deadlock between the mayor or president and the councillors as to the exercise of any of his powers or of the powers of the local authority, the decision of the chief minister is final and binding. To my mind, neither does this situation apply in the absence of any deadlock between the two parties.

Thirdly, the waiver can be granted by a chief minister if he has taken over the functions of the local authority or the mayor in the public interest under Section 165 of Act 171. This is not the case either.

It follows that the chief ministers and the two state governments are actually using administrative power to compel the mayor/president of the local authorities, who are beholden to the former for their positions, not to take any action on the summonses.

This threatens the independence and autonomy of a local government. In fact, it was for this reason that in 1980 a DAP stalwart, Lim Cho Hock, took the Perak state government and Ipoh municipal council to court when the state authority appointed the menteri besar of Perak to be also the president of the Ipoh Municipality.

In this respect, it is interesting to observe that those people who advocate in one breath for the re-introduction of local government elections are in another wanting to direct and interfere with a local authority to do something to enhance their political popularity.

Administratively, the local authorities can withhold any action on the outstanding summonses but it is still questionable whether existing laws actually permit them to grant a blanket waiver and immunity from prosecution.

It is also not clear whether the waiver decision applies to summonses wherein the period to pay the compounds has expired.

In any event, in order to promote accountability and transparency, the two state governments should now disclose the amount of revenue which will be lost to the local authorities by waiving these summonses.

All in all, a government must be a government of the law, by the law, and for the law.

Undo the acts that hurt others

IN a multi-religious country like ours, religion is one issue which always invokes and provokes strong passions and reactions if not handled carefully.

In the last general election, many non-Muslims turned away from Barisan Nasional and voted for the opposition.

In some cases, church leaders even openly encouraged their Christian congregations to vote for Pas - something hitherto unthinkable, especially when Pas has always been advocating the establishment of an Islamic state.

But why had non-Muslims voted for the opposition so resoundingly this time?

The reason is obvious. The non-Muslims' gravamens are essentially these:

• the authorities were trigger-happy in demolishing illegal places of worship.

• the government's inaction, especially by the non-Muslim component parties in BN, in resolving the conflicts of civil law and syariah arising out of Article 121(1A) of the Federal Constitution. The problem is compounded when non-Muslims could more or less predict the outcome of the decisions of civil courts whenever a remedy was sought there.

• religious polarisation caused by the rivalry between Umno and Pas, each wanting to outdo the other in being more Islamic.

• non-Muslims find it increasingly difficult to build their places of worship.

Of these, I would only like to deal with the last grievance.

Article 3 of the Federal Constitution declares that non-Muslims are entitled to practise their religions in peace and harmony while Islam is the religion of the federation.

This is reinforced by Article 11(1) which provides that every non-Muslim has the right to profess and practise his religion. Article 11(3) also states that every religious group has the right, inter alia, to establish and maintain institutions for religious purposes and to acquire and own property and hold and administer it in accordance with law.

Sadly, in practice, this is not the case. The time taken to obtain approvals to build non-Muslim places of worship is incredibly long. In almost every case, it takes years. The application and approval process is most cumbersome. For a start, it is almost unheard of that state governments would alienate lands for erection of non-Muslim places of worship. Hence, the lands involved are usually private lands and so before it could be used for religious purposes, the land has to be first converted for religious use. So an application will have to be made to the state authority (which is the state executive council), and it will be processed by the land office.

However, because it involves the erection of non-Muslim places of worship, most states require the matter to be first referred to a district security committee. At the district security committee level, the district office will have to obtain comments from various government departments, including the police.

The least palatable aspect of it all is that views from the Religious Affairs Department will also be sought.

Even if the district security committee approves it, the matter would still have to be referred to the state security committee, which is chaired by either the chief minister or state secretary.

In most cases, the process of obtaining comments from the various government departments is repeated.

If the state security committee okays it, it does not mean the application has been approved. It then goes to another committee chaired by the state executive councillor in charge of land matters, a position usually held by the chief minister.

If the committee approves it, the state executive council has to give its final approval.

As the process takes such a long time, it is no surprise that along the way, the file is either misplaced or goes missing. In addition, sometimes there is a delay in submitting the papers for deliberation by some over-zealous junior government officers, who are mono-religious and feel that it is against their religion to support it.

The story does not end there even when the land has been converted for religious use. The next thing is to put up the building.

To do that, an application will now have to be submitted to the local authority for approval of the building plans.

But because it involves a non-Muslim place of worship, the process of going through the district and state security committees has to be repeated.

Even if the final approval is obtained, it still takes a few years for the building to come up. The reason being the costs of financing the construction and completion of these places of worship have to be privately raised and borne. All in all, it is not uncommon for at least 10 years to pass by the time a project comes to fruition.

It follows that because the approval process is so difficult, it is no wonder illegal places of worship mushroom here and there.

What is most insulting to them is the erection of their places of worship is viewed as a security threat. Often, it has to be referred to a security committee whose composition includes representatives from the Religious Affairs Department.

On the other hand, the erection of mosques is efficiently co-ordinated by one body - the state Muslim Council (Majlis Agama Islam).

Land is easily made available and whenever a new housing development is completed, a place will be reserved for the construction of either a mosque or surau. Financing its construction is not a problem either.

Some two years ago, I suggested in this column ("Religious freedom the keystone" - NST, Jan 8, 2006) that each state government should set up a non-Muslim religious department to look into the religious issues affecting non-Muslims and to co-ordinate applications and funding for non-Muslim places of worship.

I repeat this call and it is hoped that all state governments, whether under BN or Pakatan Rakyat, will consider this.

I am confident that any step taken to expedite the approval process and provide funding for non-Muslim places of worship will, in turn, expedite the healing process among these Malaysians who certainly feel aggrieved by this course of events.

By allowing them to freely and easily exercise their constitutional right to establish their religious sanctuaries will go a long way towards winning their hearts and minds.

In this respect, the Selangor government's decision to waive quit rent and assessment rates for all registered places of worship and schools in the state is laudable. They now only need to pay a token annual fee of RM1.

Likewise, the statement from the Pahang state secretary that it will now adopt a more liberal approach to matters concerning religion and places of worship is most welcome. Similarly, the prime minister has pledged to improve the situation.

But the most assuring of all came from the Sultan of Selangor, who said that although he is the head of Islam in Selangor, he will not hesitate to take action against any extremists and that it is important to ensure that religious freedom is defended by all.

It is hoped that everyone, be he a leader of BN or Pakatan, a Muslim or otherwise, will now take heed of the voice of the people expressed in the last general election.

It is hoped, too, that politicians will be often reminded by what the regent of Perak Raja Dr Nazrin Shah said exactly a year ago at the Young Malaysians' Roundtable Discussion on National Unity and Development in Malaysia that Malaysia belongs to all Malaysians equally, and all have an equal right and responsibility to take ownership of their country and its future.

He added that the sine qua non of building a strong nation is when its citizens feel a sense of belonging and a common destiny and in our case, when Malaysians of all races, religions and origins are bound together in a common purpose.

Therefore, history has always shown that suppression of a person's inherent right to freedom of religion is a recipe for disaster.

Consonantly, our leaders have also much to learn from the fair and just Muslim ruler in Sultan Abu Bakar, who ruled the state of Johor from 1886 to 1895.

Though a Muslim, he was much loved by his non-Muslim subjects. Hailed as the Father of Modern Johor, he granted many plots of land for the erection of churches and temples throughout Johor.

The best testimony of his sense of fairness and justice is reflected in the Johor constitution promulgated during his reign, wherein it still contains an article proclaiming as follows:

"All the laws and customs of the country shall be carried out and exercised with justice and fairness by all the Courts of Justice and all Officers and Servants of the State between all the people of the country and the aliens who sojourn and reside under its protection, whether for a season or for a lengthened period, that is to say, without their entertaining in the least degree more sympathy or regard to partiality towards those who profess the religion of the country, namely the Muslim religion, or making any difference between those who are the subjects of the State and those who are not."

Let us all Malaysians join hands as one people respecting each other's right to practise his religion in peace and harmony.

Let us take pride rather than cringe with shame if this country is filled not only with mosques but also churches and temples. If it is so, it is only because Malaysia is truly Asia.

38,000 land titles unclaimed

The Star

by Chelsea L.Y. Ng

PETALING JAYA: At least 38,000 titles to land worth millions of ringgit remain uncollected in the land office vault here.

“The uncollected titles are open to risk of fraudulent transactions,” warned Land and Mines deputy director-general Abd Halim Ain, who revealed this to The Star yesterday.

He said he could not give an indication of the land area involved but stressed that the plots were spread across Petaling District, covering prime areas like Petaling Jaya and Subang.

“Some of these titles were ready for collection from before 2003 but the owners do not seem interested in collecting them despite repeated reminders,” Abd Halim said.

“We cannot do much except to keep on sending reminders. We also cannot set a time limit for them to collect (the titles).”

He feared that if the titles were left in the vault too long, there may be a possibility of them falling into the wrong hands through unscrupulous means.

“We do not know when these fraudsters will strike and how,” Abd Halim said.

“My advice to the landowners is to come and collect the titles as soon as possible, especially in the light of the Adorna Properties Sdn Bhd vs Boonsom Boonyanit judgment.”

Asked to comment on this, the Bar Council’s Conveyancing Practice Committee chairman Roger Tan expressed concern over the situation.

“It appears that the landowners are comfortable with the qualified titles in their possession. I hope all affected landowners will take immediate steps to collect their titles to prevent any fraudulent transactions,” he said.

“In the light of the Boonsom Boonyanit case, it is best for them to collect their land titles as soon as possible.”

Boonsom Boonyanit, a Thai woman, lost two pieces of prime land in Tanjung Bungah, Penang, to Adorna Properties after unscrupulous parties forged her signature to sell and transfer the land.

The Federal Court handed down a landmark ruling in 2001 stating that Adorna Properties could rightly claim ownership to the two pieces of land worth millions of ringgit because it was an innocent buyer with “an indefeasible title to the land.”

She lost everything in the end as the apex court ruled in favour of Adorna Properties.