Man Loses Land Due To Negligence of Land Office

Dear land owners, your may not having an indefeasible title, despite you have conducted land searches and found no encumbrances. 

In a recent case Ishmael Lim bin Abdullah @ Lim Keng Chew v Pesuruhjaya Tanah Persekutuan & Pentadbir Tanah Gombak, the Court of Appeal ruled that the land owner would have to pay for his own price due to negligence committed by the land office. Subsequently, Ishmael Lim attempted to knock the door of Federal Court but failed. The Federal Court rejected his application for leave as his application failed to meet the threshold in persuading the Federal Court that his case is a good case that involving public interest.

I have no liberty to read the relevant cause papers. Subject to the crafting of grounds of appeal, I think the Federal Court has relinquished a good opportunity to make ruling on some important legal principles, leaving the Court of Appeal's judgment as a dangerous precedent in the context of land law especially the question of indefeasible title in Ishmael Lim's case.

Brief Facts of the Case

The First Land Owner ("A") - Transferor

The Second Land Owner ("B") - Transferee

The Third Land Owner ("C") - Son of Transferee

1973, Gombak Land Office issued a notice of acquisition to A, informed him that the government acquired his land for the purpose to construct a military college. A was aware of the proposed acquisition, compensation had been deposited into court at that time.

1975, A transferred the land to B, to which consideration not specified in the judgment. The transfer went through.

1986, the land was realienated by the state government and land office had issued a new title to Pesuruhjaya Tanah Persekutuan, for the purpose to construct the military college.

1992, C inherited the land from B. The transfer of the land managed to go through despite the realienation.

Thereafter, Gombak Land Office issued notice to evict C from the land as the land office claimed that the land had been acquired previously. C tried to claim the current market value of the land amounted to RM1.5 million but failed. According to Court of Appeal, the offer made in 1975 is still valid. As such, C only can get approximately RM6,000 as compensation, instead of RM1.5 million.

What the Court said?

In short, the failure of Gombak Land Office to endorse/register the acquisition would not affect the acquisition, as the Court of Appeal ruled that it was just a mere formality to do so. 

So, if state government acquires your land, and yet the land office fails to endorse a memorial in your title, it is irrelevant. The land could have been sold to many purchasers, but you could still loses your land. 

Due to the omission of land office in endorsing the acquisition in the title, land search would not reflect the memorial of acquisition. You could be purchasing an encumbered land without knowing the encumbrance at the expense of the land office's default.

Brief Analysis

The Court of Appeal addressed the effect of the Notice of Acquisition at the first instance rather than the procurement of indefeasible title of a bona fide purchaser. According to Court of Appeal, the cut off time is quite clear and simple. Once the Notice of Acquisition had been issued, the land owner will no longer holding a good title. This explains why B could not acquired an indefeasible title from A.

This is what I believe. I think the rationale in deciding the endorsement of the acquisition in the title is a mere formality is largely motivated by public policy consideration. Whilst I agree that any land could be acquired by the state government under National Land Code subject to adequate compensation, Ishmael Lim should not be made liable for the mistake done by the land office. I also agree that it is now useless to rely on land search solely.

It would be wise to trace back to the previous transfer records and/or owners in order to secure the defeasibility of the title, should any prospective purchaser wishes to purchase a land.

In my point of view, strictly speaking, the Court of Appeal appeared to be wrong in deciding the requirement to endorse the acquisition of memorial is just a mere formality. It could be used as a tool to abuse the land owners.

In a further note, it must be pointed out that the Federal Court should not reject the leave application as the case involved important legal principles to be addressed by the apex court in the land. The issue of whether the requirement to endorse the acquisition memorial in the title deed is a mere formality or a compulsion remains to be addressed by the apex court, in which to no avail at this moment.

Ishmael Lim lost his land on 3 expenses:-

To conclude, I would think that the Gombak Land Office bears 3 counts of charges:-

i. Gombak land office failed and/or omitted to endorse the memorial of acquisition in the title, rendering land search useless at all material time to discover any encumbrances; 

ii. Gombak land office inadvertently allowed the transfer from A to B to be went through, despite the existence of the Notice of Acquisition; and

iii. Gombak land office inadvertently allowed the transfer from B to C to be went through, despite the realienation by state government and issuance of new title.

Unless and until the relevant section of Land Acquisition Act is amended, Ishmael Lim's case would stand as authority for the time being. 

Further, the Selangor State Government should step in to redress Ishmael Lim. In view that the military college would not be erected on his land anymore, the state government should at least provide adequate compensation to Ishmael Lim. Justice must be done.    

See You There, Sedition Act!

Here is some recollection of facts and figures that you need, or might interested to know about our Sedition Act 1948.

Originating Process

Interestingly, the Sedition Act was passed by our colonial master on 1948 to combat communist insurgency. In essence, it was never debated in Malaysia's Parliament and received royal assent from Yang Di-Pertuan Agong. 

Be that as it may, this ancient legislation is still haunting the people's fundamental human rights guaranteed by our highest law in the land, the Federal Constitution - Article 10: Freedom of Speech.

Limitation on Freedom of Speech

Article 10(1)(a) of the Federal Constitution provides, everyone citizen has the right to freedom of speech and expression, but subject to limitation and restriction that could be set by the Parliament via enacted legislation.

The charge launched by the prosecution against UM academician, Dr. Azmi Sharom raised one constitutionality question, where his defence counsel Gobind Singh challenged the Act's constitutionality by arguing the Act is unconstitutional as it was not passed by the Parliament. Therefore, the Sedition Act could not be used against freedom of speech.

The position may stands, but I think the judiciary could award a wide definition on "Enacted by Parliament". Sedition Act was a product from Law Reform Commission. The prosecution argued that by virtue of Article 162 of the Federal Constitution, the Sedition Act could be saved and remained in force until it is repealed by the authority, simply because Article 162 could save pre-Merdeka enacted law.

However, Gobind Singh raised the Act was unconstitutional at the first instance, thus it would not be saved by Article 162. And this question is now lies in the hands of High Court.

Essence of Sedition Act

Skipping the hassles in understanding the wordings, the Sedition Act negates one's mens rea (intention) to commit crime, ie to produce seditious words or acts. Quite similar to our existing Dangerous Drugs Act where for trafficking offence under S39B, the accused is deemed by the law to have intention on the trafficking unless and until he disprove it. This is essentially against the spirit of golden rule in criminal laws, where one is innocent until proven guilty and the prosecution remains a legal duty to prove beyond reasonable doubt.

If you are charged under the Sedition Act, it could be termed as a strict liability. The prosecution would only have to show you have committed the crime, ie uttered the seditious words and tantamount to seditious in the eyes of the court.

Therefore, the court is applying a subjective test in determining whether the accused had uttered seditious words. Subjective test means, the court will see the seditious word(s) in isolation, then will look into the paragraph, then finally will read the statement/article as a whole. Simply speaking, if the judge think this word so uttered is seditious, then it is seditious, vice versa.

How Prosecution Utilised the Act?

Fearly speaking, the prosecution need not to prove one's intention in uttering the seditious words, as I have repeated above. Further, when the prosecution in charging one under the Sedition Act, he does not have to prove the tendency part. In other words, like Dr. Azmi Sharom's case, the prosecution did not point out the tendency part which is 'seditious'. In fact, they do not have to do so. The Court in Mat Suhaimi v PP and Fan Yew Teng v PP have affirmed the same.

It is a 'free charge'. No intention need to be proven, no particular word need to be shown; the moment you uttered any word that came close the the wide definition of 'seditious tendency', you got caught.

I am not against restriction in limiting freedom of speech, and I also agree and respect that it can be limited to certain extent, as spell out in the Federal Constitution. But nonetheless, the wide definition of 'seditious tendency' had seriously and violently defeated the criminal justice system. It can meant to be limited but must with higher degree of tolerance and respect towards the rules of law.

The Malaysian Bar has appealed to all lawyers and pupils-in-chamber and even public to walk for justice and freedom on this 16 October 2014 at Padang Merbok. 

#MansuhAktaHasutan

#Walk4Justice&Freedom

See you there! 

    

The Seductive Sedition Act

The pressing of charges on Sedition Act 1948 recently had shown the shadow of another draconian law which had been abolished - The Internal Security Act (ISA). 

The then Home Minister told the public that the government arrested a journalist and Teresa Kok (Seputeh MP) under ISA was based on protection offered to them. However, the much debatable Sedition Act is now being utilised to persecute the opposition, and even academician.

Yesterday, an associate law professor from University Malaya, Azmi Sharom was charged under S4(1)(b) of the Sedition Act with S4(1)(c) as alternative charge. Both charges carry a jail term up to three years or maximum RM5,000 or both upon conviction.

(picture taken from Malaysian Insider)

What amounts to Seditious?

Under the said Act, "Seditious" means any act or speech or word or publication qualifies as having "Seditious Tendency".

"Seditious Tendency" is given a wide interpretation under the Act. It covers, inter-alia, to bring hatred or contempt or to excite disaffection against any Ruler or any against government, and also to promote feelings of ill will and hostility between different races or classes of the population in Malaysia.

This could explain why the government may press charges on a student who had "liked" a facebook page entitled "I Love Israel", as the liking act amounted to an act in promoting feelings of ill will among the muslims in Malaysia.

Prosecuting the opposition appears not extraordinary in our political phenomena. However, charging an academician from a well established public higher learning institution is the first time. I have taken the opportunity to read the statements uttered by Prof Azmi Sharom that allegedly seditious enough to promote hatred in the country. 

Prof Azmi Sharom had made the statements below, which had been published in an online news portal's article, entitled "Take Perak Crisis Route For Speedy End To Selangor Impasse, Pakatan Told", when he commented on the perak constitutional crisis after the 308 general election as an constitutional expert.

“You don’t want a repeat of that, where a secret meeting took place,” the University of Malaya lecturer said, referring to the Perak crisis.

“I think what happened in Perak was legally wrong. The best thing to do is do it as legally and transparently as possible.”

Personally, I believe the seditious content lies on the words "where a secret meeting took place", and possibly "I think what happened in Perak was legally wrong." It should be noted that the prosecution did not read out the seditious statements in the court room.

To understand the factor that motivated the prosecution, we should at least understand how Prof Azmi Sharom came to such comment. "A secret meeting took place" essentially refers to a private, or I would rather call it an [Informal Meeting] between the 31 BN/pro-BN assemblyman led by PM and the late HRH Sultan Perak Azlan Shah, after 3 Pakatan ADUN from Perak State Assembly quit PKR and DAP and thereafter pledged their support to Barisan Nasional.

The questions raised in and outside the court room were whether the then Pakatan MB Nizar Jamaluddin would have to lead the executive council (EXCO) to resign after the late HRH refused to dissolve the State Assembly in accordance to the Perak Constitution, and also whether the late HRH possessed executive power to remove Nizar as MB Perak without a vote of no-confidence being moved in the state assembly. I strongly believe this was the "secret meeting" referred by Prof Azmi Sharom.

I adhere to the Attorney General's absolute discretion to initiate prosecution enshrined under the Federal Constitution. However, selective prosecution matters now. We have not seen other extremists like Ridhuan Tee or Ibrahim Ali being charged under the Sedition Act for the time being. Nonetheless, the iron claw of Sedition Act even slipped into learning institution and attack the academic freedom. 

Government officials said, it is now a matter for the court to decide, which in turn the judiciary must shows faith and courage in defending the pillars of rule of law, by acting as guardian of the people. 

True enough, I have not seen how seditious are the academic criticisms made by Prof Azmi Sharom. I agree that the state has liberty to charge anyone as she deems fit and proper, notwithstanding it could be seen as a political move in doing so. However, under major circumstances, the people and civil society will press for a change, resulting in a serious political consequence. 

The authority seems have gone into a berserk state to utilise the Act. Instead, it is seductive enough to behave so.  

I would be more prepared to see, how the judiciary going to react with these malicious and selective prosecution initiated under an extremely old statute left by the colonial master, where the primary purpose was to combat communist insurgents at that time.

Similar with ISA, the Sedition Act has become a seductive tool for the government to prevent academician from purportedly inciting people to rebel against them, which is wrong. Law must cause justice to be done and seen to be done. Any old laws must be amended to fit and suit the current society progressive development.

The Sedition Act must go now. #MansuhAktaHasutan   

"Khalid-icised" The Lawyers

From Khalid's refusal to step down, initiate legal proceeding against online media, The Malaysian Insider to sacking 5 State EXCO from holding office, the arena has now moved to politicising lawyers by launching baseless personal remark against professionalism of a member of the Bar.

Edmund Bon Tai Soon and New Sin Yew who have represented the independent Menteri Besar Tan Sri Khalid Ibrahim were accused by two politician lawyers, N. Surendran and Latheefa Koya on assaulting freedom of press, after both Bon and New have accepted the brief from TSKI to sue The Malaysian Insider. According to TSKI's claim, Malaysian Insider has uttered defamatory articles/statements against TSKI, including but not limited to the issues of Kidex, revision of MB & EXCO's allowance, etc.

(Picture taken from Malaysiakini)

YB N. Surendran and Latheefa Koya being part and parcel of PKR, criticised Bon and New incompetent and unprincipled in taking the brief, simply because TSKI has been sacked by PKR and no longer a person that the party like anymore. Following such line of argument, due to TSKI's stubbornness to abide by the party's instruction, he is now a bad guy. And lawyers shouldn't help a bad guy.

Both YB Surendran and Latheefa are practising advocates & solicitors. Though they are politician lawyers, they should appreciate the cab-rank rule better than anyone else. 

Rule 2 of Legal Profession (Practice & Etiquette) Rules 1978 observes, an advocate & solicitor shall accept brief except in justifiable circumstances. This is also known as the Cab-Rank Rule. Cab-Rank Rule is a shorthand of professional obligation to accept brief upon instruction of client regardless of any personal dislike.

It is like a cabbie waiting for customer in a taxi waiting station. He cannot refuse to carry passenger except in limited circumstances. 

Likewise, being an advocate & solicitor, professionalism remains, perception aside. I see no cogent reasons why Bon and New should not accept TSKI's brief, merely because TSKI refused to follow PKR's leadership and caused the chaos among the Pakatan Rakyat as well as "malfunctioned" the state government. If Bon and New refused the brief by observing own political agenda and perception - that TSKI is wrong in not stepping down as MB, then they are lack of professionalism.

Put the defamatory suit aside first.

December 2012, a 23 year old student was brutally gang-raped by 6 people and died much later. The Indian Bar then refused to represent the accused, due to the serious gravity of the alleged crime, but also because the solicitors faced hostility when acting for them. To then, the Bar Council (India) urged the Indian Bar to end its refusal as everyone will be presumed innocent until proven guilty, including the 6 gang-rape accused. 

To put further, the presence of an advocate & solicitor is to defend the system. Clients come and go, but system would not vanish. Democracy cannot survive if lawyers who provide legal assistance can be simply condemned and intimidated into boycotting a person's right to be represented because of public criticism.

Emotional, political perception and morality must be differentiated from professional conduct. Read the scenario properly. TSKI gives instruction, lawyers accept the brief and file suit on behalf. Who is the client? TSKI. If you want to allege assault on freedom of press, point your finger to the client but not the lawyers.

This is where political belief overrides professional practice and pride. 

Khalid-icised the lawyers would not uphold own political visions, but personal attack do. 

Know your target well before pulling the trigger.

雪州大臣风波：严重的法律后果

雪州撤换大臣风波越演越烈，从实权领袖安华于午夜召开记者会宣布大臣替代人选到现在，卡立似乎不愿就范，导致民联伊斯兰党内部开明与保守派的分裂加剧，以及民联三党内异中求同的合作关系也蒙受波及。按照目前的局势看来，决定权并不是落在即将于8月10日召开中委会会议的伊斯兰党手中，而是卡立一人本身。

因此，我们必须对我国奉行的君主立宪制拥有一些法律概念。

西敏寺国会制（Westminster Parliamentary System）

我国引用的国会立法制源自于英国西敏寺，即国会本身被归分成三大部分，分别为最高元首，下议院与上议院。其次，我国各州的立法议会，即州议会也沿用相同的制度。因此，在州立法会内，州苏丹的角色可以在一定的程度上与国会内的最高元首相提并论。

在西敏寺制度底下，或正确来说，君主立宪制底下，最高元首/州苏丹并不能直接干预三权分立，特别以行政权为主。但是，我国的联邦宪法/州宪法却无异的为最高元首/州苏丹赋予特定的权力，而其中包括如何钦点首相/州务大臣。

雪州风波

首先，我们必须明白的是，马来西亚不奉行总统选举制，因此我国的首相/州务大臣是在政党/政治联盟于选举中获得最多席位而被推举的人选，尔后可向最高元首/州苏丹表明他（即他所代表的政党/政治联盟）获得人民的委托并成功赢取多数席位，进而可宣誓成为首相/州务大臣。而这也表示，首相/州务大臣是在政党/政治联盟的内部同意下被推举的。

从民主的角度来看，首相/州务大臣是绝对可以被所委托的政党/政治联盟撤换而不得有异议。因此，公正党在宣布决定撤换卡立的时候，卡立不得不走。这绝对是一个政治决定，也符合我国奉行的民主制。

翻阅雪州宪法，第53（6）条文如是表示，倘若卡立已不再获得多数州立法议员的支持，除非州苏丹在卡立的要求下同意解散州议会，否则卡立必须总辞。（英文为he shall tender the resignation of the State Executive Council）。按照第53（6）条文直译，卡立必须带领州行政议会（State EXCO）呈辞。

然而，纵然雪州宪法如是表示，但是该州宪法却没有具体的阐明该如何推选出新的州务大臣。因此，雪州宪法第51条文阐明，州苏丹必须依据宪法规定的要求委任州务大臣，其中包括他必须是一名马来人以及信奉伊斯兰教。当然，第53（2）（a）条文也阐明州苏丹在委任一名州务大臣之际，该人选必须获得多数州立法议员的支持。

（一）卡立主动呈辞

如上述表示，卡立是关键性人物，倘若卡立主动呈辞，这将能有效的解决所有风波。而民联三党推举的人选也将能成为雪州第二任民联大臣。

（二）解散州立法议会

这项决定可以引起百般涟漪，而又以霹雳州当年宪政危机相似。如果州苏丹同意解散州议会是好，相反的，倘若雪州苏丹和已驾崩的前霹雳州苏丹般的拒绝解散州议会，那么这将引发新一轮的州宪政危机，情况则恰恰与霹雳州相似，因为州苏丹拒绝解散州议会可被诠释为干预三权分立，支持派也可辩驳这是州宪法赋予苏丹的权力。

虽然霹雳州宪政危机已让我们有案例可循，但这将可能引发新一轮的司法拉锯战，届时且看联邦法院的裁决。

（三）不信任动议

不信任动议是民主制下的其中一项重要武器，虽然公正党相关人士连日内炮轰卡立，但相信安华必须等待伊斯兰党的中委会会议后才能决定是否该发动不信任动议的策略，逼使卡立下台。

（四）卡立遭公正党开除

这也是一个变化多端的选项。如果公正党真的采取开除行动，卡立可以循例要求召开州议会并提呈信任动议。如果伊斯兰党与巫统联手（如之前媒体报导），那么卡立是有可能成为一名联合州政府的州务大臣。虽然可能性不大，但还是存在的。

当然，也许许多人不知的是，假如雪州陷入社会动荡，中央政府是有权力介入并接管州政府，而戒严也可是其中一项后果最严重的选项。

（照片取自辣手新闻网）

卡立从安华召开的记者会后已明确的表明，他并不是不同意下台，而是一切必须按照法律程序进行。要一州之长下台也不是一朝一夕的事。直至截稿为止，媒体在卡立出席一项法庭案件审讯后报导，卡立仍希望所有撤换大臣的事务能按照原有的次序和法律进行安排。

一切且看卡立，这句话一点也没错。

日落洞之虎：卡巴星

阔别抒写部落已有一段时间，这次选择以介绍一本书籍作为开端，它是Tiger of Jelutong, Karpal Singh。作者是Tim Donoghue，一名因机缘巧合而结识了这名日落洞之虎的新西兰媒体工作者。

相信令许多在政坛和法律界的人士感到惊讶和伤心的是，卡巴星于2014年4月17日从吉隆坡驱车前往北部时因一起致命车祸而不幸丧命，陪伴他的还有一直默默在他身边服务的好朋友，Michael。这本书籍也因此成了其中一本记载卡巴星生前在法律与司法界所作出的贡献和点滴，内容主要围绕在卡巴星处理过的案件，包括那些曾经在1950年内安法令（Internal Security Act 1950）（已被现任首相废除）底下被逮捕的人士。

卡巴星生前家境贫困，只身前往新加坡就读法律系已展现出其卓越的敏锐度，更因发动与参与学生联合会而在李光耀的指示下遭大学停学。大学毕业后，卡巴星回马并在亚罗士打的一间律师事务所实习后，开始执业生涯。其间，卡巴星在实习完毕后，在欲向高庭申请宣誓成为律师之际更遭到一位资深律师的反对，原因为害怕卡巴星在将来会比他更出色。然而，高庭法官Justice Ong Hock Sim在聆听卡巴星的陈词后命令卡巴星宣誓成为律师。

卡巴星在执业的生涯初段为马来西亚的法律作出了巨大的贡献，包括为那些在内安法令低下被检察署提控的人士，分别有共产党党羽嫌犯和拥有枪械的人士担当起辩护的角色。

也许你会质疑为何一名律师会为犯罪人士辩护，因为法律存在的其中一个意义就是要惩罚罪犯，特别是在那个时候的共产党党羽。作为一名法律体系维护者，律师的辩护工作主要在于维护司法公正，而不是绞尽脑汁如何替嫌犯洗脱嫌疑。当然，在维护司法体系的当儿，律师铁定会从多方角度出发，包括质疑和挑战法令的合法性，执法当局是否有按照法律程序行事等。通常也可称技术性胜诉。

书籍其中一部令人感觉到津津有味的是，卡巴星在处理一名在内安法令底下被提控的嫌犯之际，虽然Essential (Security Cases) Regulations 1975的其中一条条文阐明嫌犯不可上诉至英国蓲密法院（Privy Council-共和联邦体制下最高上诉法院，现已被马来西亚Courts of Judicature Act撤除），但卡巴星却成功从联邦法院取得上诉准令，并将案件带至伦敦蓲密法院，促成他成为其中一名拥有在英国蓲密法院辩护案件经验的律师。

卡巴星了解到，虽然他获得英国蓲密法院众法官们的支持，以致推翻了联邦法院的裁决（意即嫌犯不被处死），但时任的联邦政府却能轻易的在国会内通过法案推翻蓲密法院的裁决。于是，卡巴星认为在法庭内并不能最有效的维护法律公正，因此才展开了他在行动党的政治生涯，通过社会运动与政治动力进行改革。当中包括联合英国与国际社运组织推动废除死刑与恶法运动。

若要详细阅读其余内容，可前往各大书局或现在正于KL Convention Centre举行的书展购买。