Fairuz Tape transcript – abolish Common Law

(Transcript of Chief Justice, Tun Ahmad Fairuz Sheikh Abdul Halim media interview on August 21, 2007 after opening the seminar on the thoughts and academic works of the late Tan Sri Ahmad Ibrahim where he advocated the abolition of Common Law and denied that a Federal Court judge had over 30 unwritten grounds of judgement from High Court days)

Q. Judges having outstanding grounds of decision. What steps have you taken so far in this matter…

Ahmad Fairuz (A.F.) – Well I had checked and I find that the news that say that a judge of the Federal Court has got 30 grounds of decision not written, that’s definitely not according to our record. Our record, we do not have such thing. No Federal Court judge has got such big arrears of grounds of decision to write. We don’t have that in our record. It is something wrong there…

… preliminary investigations showed that that particular judge has read his grounds of decision in open court in the year 2002. He had read but I don’t know what happened after that. We got to check. The grounds of decision had been read, yes, the written grounds, he had already written his grounds of decision, he had read it in open court in 2002, so I am still checking on it lah…

We have not completed our investigations. The preliminary investigations showed that the judge had read his grounds of judgment in the year 2002. So the report is not that right. We have got to check first. I think, you know, it is very dangerous when we said something which is not the truth. In Islam it’s called fitnah. It is very bad. You don’t say anything which is not the truth. You check first then you say it.

So now I am investigating. I found that the judge had read his grounds of decision already in 2002. There must be something wrong somewhere. So we are investigating into it now.

Q. What about other judges? Are you looking into overall… …

A.F. – Overall. Overall. We have got records. We have got records with us as to the judges who have not written grounds of decision. In fact, in the past, judges who have not written grounds of decision have not been promoted until they finished their grounds of decision only then they are being promoted. Right?

Q. Common Law…

A.F. … Well, Seksyen 3 dan 5 ini. You see, kita punya undang-undang, sekarang ini sejak kita merdeka, Parlimen yang buat undang-undang kita dan Parlimen ini adalah satu cabang kerajaan, Eksekutif ialah satu lagi cabang kerajaan dan Judiciary adalah satu cabang kerajaan dan peranan Judiciary sebagai satu cabang kerajaan ialah untuk mentafsirkan undang-undang yang dibuat oleh Parlimen. So bila Parlimen dah buat undang-undang, lepas itu bila mari kes depan mahkamah kalau tidak ada undang-undang yang cover that particular kes for instance kita terpaksa rujuk kepada Common Law England pada tahun 1957. So, that’s it lah. That is the situation. Jadi Common Law England itu masih lagi terpakai bila Parlimen tak buat undang-undang. Kalau Parlimen buat undang-undang, Common Law tak pakai.

Cadangan kita, well, I am just suggesting to the seminar, perhaps they can look into this matter, whether you want to still maintain and keep this position ataupun you show to the government that we can put another substitute to this method, why go to Common Law? And pulak tu tahun 1957? Ya Tak?

But we cannot do anything, I mean, we are judiciary, we just interpret the law…

My own opinion I think there is no need for us to go to the Common Law of England now. We have a lot of our pakar undang-undang sekarang ini yang boleh memberi pendapat masing-masing mengenai undang-undang bagaimana cara nak solve undang-undang. Why should we go to Common Law?

Well it is up to the government, badan executive dan juga badan legislature untuk menentukan selama 50 tahun kita sudah hidup begitu kalau tak ada undang-undang yang Parlimen buat, kita rujuk kepada Common Law.

Q. Judicial misconduct …

A.F. – If there is misconduct, there is the procedure set by the Constitution. We go through the tribunal…

Not providing grounds of judgment is one of the factors lah. Misconduct ini, you know, it is interpretation. What is the meaning of misconduct? Is writing grounds of decision alone sufficient to say misconduct of a judge?

A person who has been a judge for 13 years, 15 years and only on one occasion he didn’t write his grounds of decision. Is this misconduct justifying his removal?

I mean it is common sense…

Show to me, show to me, show me, show me that there have been people who have been promoted and yet they have so many grounds to write. Show to me.

Because as I have said before, the judiciary goes on meritocracy. Meritocracy means not only the merit of the work but you must remember a judge. Judge ni bukan senang. You must see dia punya socialization, you must see dia punya misconduct-ka, his personal life also, the way how he conducts himself, how he mixes a lot with corporate people, whether he has been biased on so many occasions, whether he is still capable of conducting himself as a good judge, his judicial temperament has declined, so many factors.

As I have said earlier, so many factors are being taken into consideration for a judge to be promoted. Not only the fact that he did not write his grounds of decision, his grounds of decision is one, but whether he has cleared a lot of cases or not, whether his judicial temperament is still maintained very good, he doesn’t shout and yell and shriek at people in public.

So those are the factors. There are some judges who are like that, in the beginning they are very good but later on they turn to be very moody and very highly temperamental. Correct? So that’s the reason why we have the tribunal provision in the Constitution in order to remove such judges. Thank you.

  1. #1 by straight talk on Saturday, 20 October 2007 - 2:09 pm

    Fairuz said:-
    Because as I have said before, the judiciary goes on meritocracy. Meritocracy means not only the merit of the work but you must remember a judge. Judge ni bukan senang. You must see dia punya socialization, you must see dia punya misconduct-ka, his personal life also, the way how he conducts himself, how he mixes a lot with corporate people, whether he has been biased on so many occasions, whether he is still capable of conducting himself as a good judge, his judicial temperament has declined, so many factors

    So Fairuz… by your own admission…you mix a lot with corporate people over the phone fixing your appoinment as POC & later CJ..get people to organise a Tan Sri for you …your decisions have been biased as revealed in tape in case of Wee C K…, Therefoe a tribunal should established as provided in the Constitution to deal with your many allegations of misconduct.

    Mr PM recommend to our DYAM our Yand Di Pertuan Agung to establish a tribunal to deal with all of Fairuz’s misconducts. Take immediate action don’t sleep.

  2. #2 by wits0 on Saturday, 20 October 2007 - 2:18 pm

    It’s tok kok.

    His ruse on going syariah also means that judges would get more unquestioned power. Farfetched FarRuse.

  3. #3 by undergrad2 on Saturday, 20 October 2007 - 9:07 pm

    “But we cannot do anything, I mean, we are judiciary, we just interpret the law…” CJ

    Here he’s showing his condescending attitude – perhaps because he’s talking to a journalist?

    “My own opinion I think there is no need for us to go to the Common Law of England now. We have a lot of our pakar undang-undang sekarang ini yang boleh memberi pendapat masing-masing mengenai undang-undang bagaimana cara nak solve undang-undang. Why should we go to Common Law?”

    Are we to assume that no one understands the role the English Common Law plays in our legal system?

    Fact: We were a British colony.
    Fact: We were part of their legal system with final appeals going to the Privy Council in London.
    Fact: English Common Law? Here’s what it’s all about – in England. It is judge made law where there is no other law to follow. Through the principle of stare decisis, decisions overruled are never followed again and the last decision on the matter takes precedence – precedential decisions which must be followed, until overruled by judges.

    Which part of common law don’t we understand that is not common?

    But isn’t Parliament the highest legislative body that makes all the laws and judges only interpret them? True. Judge made law i.e. common law only applies when legislation fails to provide the answer. In England over the years a body of such laws has grown and judges still rely on it to provide the legal reasoning they need for their judgments – in the absence of legislation passed by Parliament generically referred to as statutory law.

    Why 1957?? Because in that year we became independent and passed our own federal constitution. Any law which is in conflict with our constitutional law is void. So some say that cases grounded on the English Common law “only applies up to 1957”. Expressed that way it could give rise to a misunderstanding. English Common Law applies where there is no legislation to guide judges on the issues and applies so long as it does not contradict our Malaysian Constitution of 1957.

    So which part of the English Common Law that is not common that he thinks we do not understand?

    UMNO politicians have been tinkering with our education system (making a mess of it in the process) and now they want to tinker with our judicial system. The fact is we are only about five decades old and still a toddler in terms of the growth and development of the legal system and jurisprudence. Over time we’ll have our own common law.

    Politics has no role in its development.

  4. #4 by sheriff singh on Saturday, 20 October 2007 - 9:25 pm

    Fairuz : “Abolish Common Law”

    Another Brick In The Wall !!!

    The Star 21.Oct.2007

    Syariah Court grants injunction


    SEREMBAN: Are the receivers of a five-star hotel here duty-bound to obey an injunction from the Syariah High Court?

    This is the question that needs to be addressed following a decision by the Syariah Court here which granted an injunction to three sisters to stop the receivers from continuing to conduct business transactions on their behalf.

    The three – Fatimah, Hanipah and Jamilah Sheikh Dawood – claimed that since their brother and hotel owner Datuk Rahiman Dawood had given them a hibah of 10% each in 2000, they should have a say in its running although it was now under receivership.

    (Under Islamic law, hibah is the practice of giving a gift to one in need or to a well-to-do person. The giving of gifts, including for charity, is praised as it helps develop the spirit of brotherhood).

    The sisters’ counsel Hanif Hassan obtained an injunction from the Syariah High Court on Sept 26 which directed the receivers not to conduct any transaction without the written permission of the three women.

    The Royal Adelphi saga began in 1997 when Rahiman’s Azrahi Hotels Sdn Bhd took a multi-million ringgit loan through a debenture agreement from Affin Bank for the construction of the hotel.

    On Nov 14, 2000, Rahiman created the hibah for his sisters and was recognised and registered by the Kuala Lumpur Syariah High Court in 2005. The sisters then returned to the Syariah High Court here to enforce the order.

    During the same period, the hotel went under receivership when the company was not able to meet its loan obligations and Azrahi Hotels handed over the hotel to new managers as stated under the debenture agreement.

    “The sisters also lodged a caveat against the property to safeguard their interest but nothing changed,” said Hanif.

    Hanif said it was then that the three sisters decided to get the injunction to stop the receivers as well as any third party which included Adelphi Worldwide Sdn Bhd from conducting any transaction at the hotel unless they obtained written permission from them.

    “By right, the receivers should not be on the premises as the Syariah Court order is clear. They must respect the decision of the court.

    “Any transaction, which includes removing cash or hotel property, is a breach of the order,” he said.

    Lawyer Edmund Ponniah, who is acting on behalf of Adelphi Worldwide, said his client had accepted the order from the Syariah Court.

    Hanif claimed that when the receivers began managing the hotel in 2005, they had also failed to issue notices to the three sisters to notify them of the change in management.

    Later in the evening, Rahiman lodged a police report against the receivers.

    The Kuala Lumpur-based receivers, Anuarul, Azizan, Chew and Co, could not be contacted for comment.

  5. #5 by LittleBird on Saturday, 20 October 2007 - 10:11 pm

    sheriff singh Says:

    October 20th, 2007 at 21: 25.54

    Thank you Mahathir!

    And see


  6. #6 by izrafeil on Saturday, 20 October 2007 - 10:42 pm


  7. #7 by wits0 on Saturday, 20 October 2007 - 11:47 pm

    What’s so especially bad about Guantanamo anyway when viewed wrt the type of detainees there?

  8. #8 by undergrad2 on Sunday, 21 October 2007 - 1:07 am

    To continue from where I left off on the suitability of the English “common law to Malaysia. Let’s take a leaf out of the American experience with the English common law.

    A quote from the book “Introduction to the law and legal system of the United States’ by William Burnham will help us understand.

    “English common law was well developed when the North American colonies were being settled primarily by English colonists. Around the time of the Declaration of Independence and thereafter it was formally received from England by the newly independent states. Since then after 200 years of separate existence, common law in the United States has taken on a life of its own. Though common law method is largely the same there numerous differences in substantive common law rules in the United States and England and it is rare that courts in the United States rely on English decisions today.”

    So why the hurry for our legislative body to do away with the English common law??

  9. #9 by undergrad2 on Sunday, 21 October 2007 - 1:09 am

    As in the U.S., common law in Malaysia will take on a life of its own.

  10. #10 by ENDANGERED HORNBILL on Sunday, 21 October 2007 - 1:36 am

    I hate to say this but it’s inevitable: CJ is too stupid for a CJ! Period.

    Did anybody say ‘meritocracy’. Please have yr head checked. Period.

  11. #11 by alaneth on Sunday, 21 October 2007 - 1:38 am

    Religious overzealousness will break apart the country.

    Unfortunately, now everything in Malaysia must be Islamic!
    Common law is NOT related to Christianity.

    We must fight this together. Vote for Lim Kit Siang!!!

  12. #12 by Jeffrey on Sunday, 21 October 2007 - 2:23 am

    Thanks Sheriff, don’t know the real story but just basing on what may be surmised from your highlight of The Star’s Sarban Singh’s report, the Royal Adelphi saga is ultimately about our Constitution Article 121(1)A case of which is superior – civil courts’ jurisdiction enforcing civil law based on common law’s debenture and receivers appointed under it or syariah courts’ jurisdiction enforcing injunction based on syariah law on hibah….

    This would be a foregone conclusion if it had been one of those convert cases.

    Here it concerns Affin Bank, immediately owned by Affin Holdings and ultimately owned by LTAT which is custodian of trust monies of Armed Forces under DPM’s portfolio. Affin Bank is regulated by Bank Negara Malaysia (BNM) which is regulator and in a way protector of public funds in form of deposits by public in Affin Bank.

    Affin Bank has apparently lent loans to Royal Adelphi Hotel which are secured against a debenture which, under common law, normally imposes a charge/mortgage on all of the Hotel’s assets and properties with a proviso that if the hotel, which is the borrower and chargor, defaults in its loan obligations, Affin Bank as the chargee and debenture holder has the right to enforce the debenture by appointment of receivers, Anuarul, Azizan, Chew and Co to take over the management of the hotel, get in/collect together all its assets for sale to third parties to recover the full loan and indebtedness to the bank’s benefit.

    It would be normal for Affin Bank at the time of taking the debenture as security to check on the background of Royal Adelphi from the records in the Registry of Companies to establish that there was no earlier obstacle to its taking or enforcement of the security of debenture over the hotel’s assets. Apparently the bank is not at fault as it was not put to notice that there was a “hiba”, which though issued by Syariah court was not required to be registered with the Registry of Companies for public notice.

    If existing 121(1)A cases were a guide, Islamic law on injunction issued by Syariah court based on hiba will prevail, civil courts and common law on security taking by debenture will take a back seat (subordinated to the Hiba), the bank’s security will be immediately imperiled, the recovery of the loan monies, which are public funds that BNM and the Bank are supposed to protect – and more important the safeguard of Affin’s capital made up of Armed forces Fund Board’s moneys – will all be jeopardized and threatened with loss!

    Tun Ahmad Fairuz Sheikh Abdul Halim would come out and say, “now you all know why I suggest we must look into whether the common law should be replaced!” – meaning the present state of affairs where importance is given to Syariah’s premier position, as is appropriate in an Islamic state declared by previous premier and present DPM, and yet common law is allowed to exist side by side are inherently unsatisfactory, fraught with tension and occasions for potential confusion and conflict, as the Royal Adelphi saga proves, not to mention the Moorthy, Rayappan, Subashini, Marimuthu, Revathi, Shamala Sathiyaseelan v Dr. Jeyaganesh C. Mogarajah and Lina Joy cases.

    The dilemma of Royal Adelphi is that if Syariah takes precedence over civil law in banking cases like this, it will lay down the principle that may jeopardize the banks’ position. Every Muslim borrower that takes a normal commercial loan from and provides security for it to the banks based on English commercial law can, when cash flow is tight, seek to defeat the bank’s interest by the simple expedience of creating some Islamic instrument like Hiba to their wives, sisters or any related proxy to defeat the bank’s legitimate security interest based on argument of Article 121(1) A. Just like (say) a hindu husband married a hindu wide based on ground rules of civil/common law (under Law Reform Act) can when the husband seeks to opt out and flout the commitments entered into under civil law opt to convert and apply Syariah against the other spouse!

    Applied in the banking context, the banks will be the “spouse” played out in the end by such a clever manipulation of the other stream of law politically supported over the traditional one that everyone else is used to, and the defaulting party has earlier based his solemn commitments on.

    But this is not an ordinary convert case of a muslim versus non muslim. 90% of our banking industry is controlled by Malay corporate and political interest! There is also the other implication : if this is the sort of game the borrowers are going to play, the banks, the majority of whom are owned by Malay/Muslim interest will be worried to lend to muslim borrowers, whether natural persons or corporation – as evidently the risks of a non muslim borrower using the excuse of creating a hiba to defeat the unwary bank’s security interest are less.

    “So why the hurry for our legislative body to do away with the English common law??” Undergrad2 asked.

    Well CJ Fairuz will say it is problems like that involving Royal Adelphi and Affin Bank, for starters. :)

  13. #13 by Jeffrey on Sunday, 21 October 2007 - 2:28 am

    Typo error – 5th para from below : “hindu husband married a hindu wife” not wide.

  14. #14 by undergrad2 on Sunday, 21 October 2007 - 7:23 am

    “Affin Bank has apparently lent loans to Royal Adelphi Hotel which are secured against a debenture which, under common law..” Jeffrey

    Under Company law and the National Land Code – therefore statutory.

    Lending against the security of a debenture which gives a fixed and floating charge on the assets of the borrowing company is a weak form of security. When the borrowing company is in financial trouble the security is not going to help – because then its current assets like trade debtors and account receivables are not going to be worth much. As for the fixed charge over its fixed assets like machinery and even land may not be worth much. Its land is likely to be charged to more than one lending bank – first, second and third charges ranking pari passu (hope spelling is correct).

    Even the appointment of a receiver is not going to help much.

    Adelphi obviously raises jurisdictional issues. All I can say is that it does not have to be a conflict over jurisdictional issues. There is common ground somewhere.

  15. #15 by undergrad2 on Sunday, 21 October 2007 - 7:26 am

    …and I think the sisters will lose out.

  16. #16 by sotong on Sunday, 21 October 2007 - 9:52 am

    BN UMNO had lost its plot long ago.

    You cannnot rely on their leadership for a fair future…..every politician is himself/herself.

  17. #17 by k1980 on Sunday, 21 October 2007 - 12:37 pm

    OMG, 15 more years for the Sleeping Buddha… he won’t quit till he’s 85
    “I cannot possibly implement it within the four-year period of my premiership.”

  18. #18 by Jeffrey on Sunday, 21 October 2007 - 5:02 pm

    He has always said that he intended to carry on for at least 3 terms……(15 years) but the question is always can the warlords wait, will they allow this. According to RPK, if he is to be believed, one of them already made it known that his state was bigger than Malaysia, “that he and not the Prime Minister makes the decisions” and regards the Prime Minister pengecut, the Perak Menteri Besar kaki bodek while the Pahang Menteri Besar, gila, said that “ even God Himself can’t sink UMNO!”, took it upon himself to tell BN component party PPP that it was not going to be given any seat in his state “and to demonstrate that he meant business he asked PPP to leave Barisan Nasional”, all the while repeating numerous times, “I was with Najib yesterday,” as if to send the message to all and sundry that he has Najib’s blessing in what he said.
    See link to RPK’s Malaysia Today – http://malaysia-today.net/blog2006/corridors.php?itemid=9193
    What do you think this signals?

  19. #19 by Jeffrey on Sunday, 21 October 2007 - 5:12 pm

    The PM stand is however different (from the Warlord’s).

    According to Malaysiakini’s report by Bede Hong (21st Oct) :

    · he gave this assurance and vowed that the ruling coalition would consider the People’s Progressive Party’s long standing request for more representation;
    · the PM assured that, “He (Kayveas) said he has sent the request (for more seats) to the central committee (of BN). I say, since he has sent the request, then we would consider it”, to the loud cheers of over 2,000 delegates present.

    (At present PPP’s only elected representative is its president and Taiping MP M Kayveas, who is also a Deputy Minister in the Prime Minister’s Department).

  20. #20 by bystander on Sunday, 21 October 2007 - 7:55 pm

    You gentlemen are quite right. How can Syariah laws take precedence over contract/company and NLC? Common law based on common sense will tell you that if this decision is allowed to stay, then it will make a mockery of all statutory laws. Then which banks esp foreign will lend to muslims? Muslims will then be perceived to have no honour, credibility and financial integrity. With a slightest problem muslims will then seek protection from the syariah courts. Then the whole business environment and industry will collapse. But then again, the syariah courts just like our judiciary are based on networking rather than merotocracy. Where got quality and common sense. Thats why even the CJ wants to abolish common law due to lack of common sense.

  21. #21 by sheriff singh on Sunday, 21 October 2007 - 8:47 pm

    With regards to the Royal Adelphi case which I highlighted, consider the facts as reported:

    The “hibah” in favour of the 3 sisters was created on 14th November 2000. It was only registered at the Syariah Court in 2005.

    Coincidentally, this was the same time (2005) that Affin Bank appointed the Receivers and Managers who took over the running and management of the company. (The company went into financial difficulties between 2000 and 2005).

    One would also note that the parties that previously owned and ran the company till insolvency are in favour of the sisters having a say in the running of the company now in receivership based on Islamic law and practice.

    Affin Bank had relied on civil law and jurisdiction and is now facing a new set of laws and jurisdiction i.e. the Syariah Courts. There could clearly be a conflict of laws now and of jurisdiction as well.

    Would the civil courts now kow-tow to the Syariah Courts because it now involves some muslims who claims and recognises Islamic law and jusrisdiction?

    Where will it all end? Will and can Muslims now usurp the civil courts and bring their cases before the Syariah Courts to decide or intervene in their cases? If non-Muslims are involved, will they have to or forced to now appear before the Syariah Courts and accept their jurisdiction and authority? If they do not, then where will the non-muslims stand?

    Is this case opening another floodgate in favour of the Syariah Courts? Will the civil courts now surrender more of their powers and jurisdiction because it involves Islamic law and muslims?

    Will Muslims use Islamic laws and jurisdiction to circumvent the rights of non-Muslims? Or to gain advantage over non-Muslims? Will there be abuse of this process?

    Another brick in the wall !!!????

  22. #22 by k1980 on Sunday, 21 October 2007 - 9:38 pm

    Malaysia should follow Poland and “Steal your grandmother’s ID,”
    Without their identity cards, the grandmothers would not be able to vote. If they did not vote, the government could be driven out of office….

  23. #23 by Jeffrey on Sunday, 21 October 2007 - 10:42 pm

    The right way to do it (ie grapple the jurisdictional problems of article 121(1)A of the Federal Constitution introduced by TDM’s administration), and avoid injustice and confusion, is to accept three principles (as it appears to me). It does not matter if these three principles are enunciated by some judge to solve the article 121(1)A conundrum or our legislature passes an amendment to clear the way.

    The first principle is, where there are two parties involved in a dispute, one of whom a muslim claiming syariah jurisdiction and the other claiming civil jurisdiction, a court – whether syariah and civil – has to be the arbiter (“Arbiter”) to have the superior jurisdictional right to decide whether the matter should properly fall wholly under jurisdiction of a syariah court or under the civil court or partly in relation to certain issues, the syariah court and other issues the civil court. I would say that between the 3 principles, the biggest obstacle lies with this first one. Islamic lobby will contend that we’re an Islamic state and that the Arbiter shall be Syariah court. This is the biggest divisive issue of which contending stakeholders in this country are in vehement disagreement. I argue that the Arbiter should be a civil court because our constitution is the basic law from which powers of both civil courts and syariah courts are derived, and whatever the character of the constitution is, whether secular or hybrid, it is certainly not Islamic in the context of our multiracial/cultural society. The social contract in 1957 started on the premise and agreement of all communities that civil/common law – and by extension civil courts – should be accorded primacy!

    The second principle is that laws to be applied shall always be the laws (whether civil or syriah) by which the parties originally entered into either the contract or whatever legal arrangements. Once entered into, neither party should be allowed whether by conversion or other means introduce the other system of law to vary and upset that which was first entered into. In other words, there should be no changing of horses in midstream! If both parties whether in a banking or a marital relationship have entered into arrangements based on (say) civil law, neither should be allowed by conversion by mere expedience of convenience introduce another set of law to disadvantage the other who has relied on the earlier set of laws to structure their mutual relations. Hence Dr. Jeyaganesh C. Mogarajah having married Shamala Sathiyaseelan under Hindu rites under civil law should not be allowed half way when marriage turned sour to rely on his conversion to seek conversion of their two children in order to have the benefit of custody over the wife. The principle is based on the importance of upholding solemn mutual promises and expectations based on laws first made where the second system of law cannot be allowed to intervene and alter them subsequently. It would be unfair otherwise and, if entertained, would encourage an unscrupulous party to circumvent his solemn commitment to the other which neither Civil Law or Islam would condone!

    Following the above, is the third principle that if two parties have entered into a primary relationship (a loan & security relationship) based on (say) civil/common law as Royal Adelphi and Affin Bank did, then a third party like the 3 sisters of hotel owner Datuk Rahiman Dawood should not be allowed to use another stream of law (Syariah) to assert their third party rights under ‘hibah’ in disruption of the primary relationship structured earlier on basis of Civil & Common or statute law or defeat the rights of any of the parties in this case Affin Bank involved in that primary relationship.

    The third party (3 sisters) are entitled to assert their rights only if based on same system of law (Civil/common law/statute) they have better rights (say under some kind of caveat) over the bank but definitely not in the case of something uncontemplated by the main parties in the beginning like “hibah” under syariah laws!

    I would reiterate that Affin Bank is not exactly a so-called “non muslim”. Neither is it important. It may be an Islamic banking institution like for examples, Affin Islamic Bank Berhad, Bank Islam Malaysia Berhad, Al Rajhi Investment Bank or Bank Muamalat Malaysia Berhad – that is not the point – the point is what set of laws they entered into the borrower or any party in that first relationship! What has been entered into should not be altered because the priciple to be upheld here in the sanctity and integrity of commitment.

  24. #24 by Jeffrey on Sunday, 21 October 2007 - 10:50 pm

    Sorry typo – should be “because the priNciple to be upheld here iS the sanctity and integrity of commitment…”

  25. #25 by undergrad2 on Monday, 22 October 2007 - 12:26 am

    Don’t know about ‘hiba’ as Islamic concept which seems to be grounded in equity – and involves individuals.

    But the borrower is not an individual but an artificial legal entity incorporated under the Company’s Act. The rights of the Receiver appointed under the debenture, have to take precedence over the rights of any individual.

    The ex parte injunction is issued in the absence of the other party and will not stand.

  26. #26 by undergrad2 on Monday, 22 October 2007 - 12:45 am

    You need to understand how the Receiver works. The Receiver usually an accounting firm steps in the shoes of the management and will try to manage the company as a going concern, collect whatever trade debts due and account receivable etc. Then seeing that it can no longer operate as a commercial venture, as a going concern it will try to liquidate the assets both fixed and current valued at slightly more than book value first to try and meet its financial obligations to the financial institutions. It will distribute the proceeds according to the registered interests like fixed charges on its landed properties, machinery etc according to the ranking i.e. secured lenders first and unsecured lenders get to take what is left after the obligations to secured lenders have been discharged.

    Usually there is nothing left to the unsecured lenders and secured lenders would be lucky to have their loans repaid at all.

    Where do you think the financial interests of the sisters stand in all this?

  27. #27 by burn1984 on Sunday, 13 January 2008 - 1:23 am

    I would like to comment re: sheriff singh’s post; re: Syariah Court Injunction, dated 20th Oct 2007.

    Certain parts of your reports are true but we have information, that will shed some light regarding above matter.

    Azrahi Hotels Sdn Bhd, was charged to the then BSN Commercial Bank (M) Bhd in 1996 in August 2006, BSN Commercial Bank merged with Perwira Affin Bank Bhd to become Affin Bank which started operations in January 2001.

    As security to the loan, BSN Commercial Bank accepted the shares of NS Water Sdn Bhd as security.

    In March 1998, NS Water Konsortium Sdn Bhd in which Abdul Rahiman had an interest secured a concession to undertake Negeri Sembilan Water privatisation project for 30 years. However despite undertaking several studies and work related to the privatisation program in 2003/2004, NS Water Konsortium was unable to sign the concession agreement with the State Govt. Its inability to formalise the deal was due to “the change in state govt’s leadership and the change in Federal Govt’s policy”, a court document showed. Finally in May 2006, NS Water Konsortium was told the privatisation project had been canceled. subsequently in April this year, NS Water Konsortium sued the Negeri Sembilan State Govt claiming it would have been able to generate earnings of sum RM$3billion during the 30 year tenure of the concession if the contract was not cancelled.

    11 May 2006, in a meeting chaired by the State Secretary, the plaintiff was told that the privatisation was cancelled and the State Govt would like to solve this matter by awarding several projects to NS Water Konsortium under JBANS as compensation.

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