Probably he is thinking, fools rush in where angels fear to thread. He is wondering what to say after the Sultan of Perak, Sultan Azlan Shah has first addressed the importance of upholding the Federal Constitution and independence of the Judiciary, and after him, conference speakers address issues like “Freedom of Religion”, “Role of the Bar in Upholding the Constitution” (Judicial crisis?) and “Dealing with Electronic Evidence” (Video clip?) and finally his de facto minister of law is expected to close the conference with the summation to all distinguished legal luminaries (including from other countries),“Where got crisis of the judiciary?”

Why is the most important person in law here not invited – our CJ Tun Ahmad Fairuz Sheikh Abdul Halim – for such a high powered conference on matters of law & constitution or was he invited but declined to come?

The Bar Council conference will score a “triple first” if they could get the CJ to speak on “Role of the Judiciary in Upholding the Constitution” or “Dealing with Electronic Evidence”! :)

As expected De facto law minister Nazri Abdul Aziz is at the 14th Malaysian Law Conference to argue the government’s case.

The following is update from Malaysiakini’s report under caption “Nazri shoots down Bar’s views at law confab” by
Soon Li Tsin Oct 29, 07 2:16pm

Excerpts:

The Bar Council President S Ambiga said the Judicial crisis in 1988 had eroded public confidence in the judiciary. Sultan Azlan Shah of Perak said public perception of the judiciary mattered. “The principal quality that the judiciary must possess is impartiality. It means that judges are not only free from influence of external forces but also of one another,” he added.

However, Nazri told reporters later that the erosion of public confidence in the judiciary is a matter of perception.

“That’s their perception which may not necessary be mine. What is (meant by) ‘public’? Does it mean 1,000 to 2,000 people or the whole nation? We respect opinions but the government has its own perception so we agree to disagree,” he said.

“They (Bar Council) are talking from a legal point of view (but) we (the government) run a country. We’re looking from the summit of the mountain and they are looking (from) their eye level.”

The Bar president also called for the abolition of laws allowing for detention without trial, and revocation of emergency proclamations and emergency ordinances.

Ambiga also called for the repeal of the Printing Presses and Publications Act 1984 and Sedition Act 1948 as they have “outlived their use”.

Responding, Nazri maintained that these laws were still needed to keep peace and stability in the country.

“There are laws that seem to be outdated but the peace and stability that you experience now is very much because of the fact that we have to stop some of the people raising emotional, racial issues,” he countered. It is not without a cost you experience the stability now. I still maintain that we still need these laws.”

There are hackeyed arguments from Nazri (used since TDM’s time). Thought he would come with something new. So far the engagement seems to be at cross purposes.

Aiyo, in light of the Postscript, we have to take back what we said about him not daring to officiate the conference of legal luminaries. :)

Your readers may be interested in what Lim Kean Chye (LKC) said 14th Malaysian Law Conference.

[LKC is a retired senior lawyer considered one of the finest advocate in court Malaysia ever had. His late father was Lim Cheng Ean, a Cambridge-trained lawyer and a legislative councillor in the 1930s, his brother Lim Kean Siew (MCA chieftain in Penang), another distinguished lawyer in Penang recently passed away; his sister PG Lim also a famous lawyer and former diplomat. Contempt of court for LKC was not the usual contempt of court adjudged by the judge of a lawyer; to LKC, it is his contempt of the judge – he would throw his tantrums and books and walk away from the court leaving the judge terrified – and get away with it!]

The following was reported in Malaysiakini by Fauwaz Abdul Aziz on
Oct 29, 07 7:52pm, which I have condensed & given excerpts here for the benefit of readers who are not subscribers and hence could not access to the link directly – http://www.malaysiakini.com/news/74127

Former chief justice Eusoff Chin was immediately attacked for much criticised 2000 decision on the Adorna Properties Sdn Bhd v Boonsom Boonyanit (which YB had once highlighted in this blog).

At 88 years old, LKC just let fly. He called the Federal Court’s decision led by Eusoffe Chin on Adorna Properties as “stupid”. “To put it in a nutshell, the case made a laughing stock of our judiciary. The case had destroyed much of the credibility that the judiciary had enjoyed among foreign investors in the protection of the rights of property own,” he said.

In 2000, then-CJ Chin had controversially overruled the Court of Appeal and awarded a piece of land to Adorna Properties despite it being fraudulently gotten from Boonsom – the registered landowner – through forgery.

At the heart of the trial was whether Adorna case was to be categorised under clauses sub sections (2) or (3) of Section 340 of the National Land Code.

LKC said that “plain English” dictated that neither clause could be mistaken for the other.

“Section 340 (2) says you have no title if you bought from a forger. That’s the end of it. “But if A buys from a forger, and sells to B – an innocent man – sub-section (3) protects you. The second buyer (B) is protected,” said LKC.

He argued that the Adorna decision – which involved a buyer getting the property directly from a forger – should be come under sub-section 2 of the land code instead of sub-section 3.

[Jeffrey: Coming under subsection 2 means the buyer who buys direct from a forger does not get a good title unlike the second buyer from such a first buyer from the forger. Eusoffe Chin interpreted such the other way around to say first buyer got the protection of god title even though he directly bought from the forger].

LKC said that “plain English” dictated that neither sub-clause could be mistaken for the other.

He took the opportunity to lambast judges, many of whom have ruled according to Eusoffe Chin’s judgment in the Adorna Boonsom case.

LKC continued: “The former judge (NS) Chan had said it … he said of another court … they’re stupid, they don’t understand the English language.”

According to LKC, the judges had failed to realise the true spirit and intentions behind the principle stare decisis and instead followed blindly the precedent dictated by peer or higher courts.

“To them, stare decisis means ‘obey the boss’ even though you are of the same rank but you’re slightly older and appointed earlier than you.

“Stare decisis doesn’t mean that. Stare decisis came about out of respect – you like the judgment written by a judge or by three or four judges, (which are) full of learning and of wisdom, and full of justice.

“But if that court doesn’t deserve your respect, how does the principle of stare decisis apply? To me, it’s very clear. If there is an injustice, you don’t follow it,” said LKC.

On a related matter, LKC also expressed disappointment at de facto law minister Nazri Abdul Aziz who had said he was the minister for current Chief Justice Ahmad Fairuz Sheikh Abdul Halim in denying on his behalf that the latter was involved in the Lingam tape controversy.

“Does it not make explicit that the chief justice is under him? Forget res judicata. Forget obeying judges. Next time you have a problem, go to the minister and he will settle it there and then”, he said.

Our National Land Code (“NLC”) is based on Australian Torren’s system of property registration. Central to it is the concept of “indefeasibility” of property rights once they are registered, to which section 340 relates….. “Indefeasibility” means “cannot be defeated” once registered.

Once a fraudster or forger enters the scene, there are always two innocent parties – the original owner and a 3rd party buyer fighting over one property – after the fraud/forger has long left the scene with the fruits of his successful deception. And the question is who gets the property. Adorna Properties Sdn Bhd was the immediate 1st buyer from the forger of title, Boonsom Boonyanit, the original registered owner not aware of his title being transferred away to Adorna due to forgery. Both claimed rights too property registration.

But back to the question : who gets property in the fall out, where do the chips fall, so to speak??

If one falls back on common law, both the new bona fide buyer for value and the owner are both cheated and hence innocent but to resolve the problem, the property goes to the one more innocent of the two : the less innocent takes the loss. This necessarily implies that the circumstances must be investigated as to who is more or less innocent.

But common law does not apply once the NLC applies in case the property is governed by it. It is so governed if a title subsists in relation to the property, registrability of title/property rights being prime eligibility of NLC applicablility. & governance.

Section 340 of the NLC cuts the Gordian knot. It says you don’t have to investigate. It draws the line. It presumes between that the 1st buyer (from the fraudster/forger) and the owner, the latter is always more innocent and the former less for failing to check the title properly before he buys from the frauster/forger.

Such a buyer comes under sub section 2 of 340 (an exception to indefeasibility). Even though such a so called “bona fide purchaser for value” gets his property rights registered – even though registration under Torrens based NLC confers “indefeasibility” as an incidence of registration – in this instance indefeasibility does not, as an exception, immediately kick in but is “deferred” under sub section 3 to another subsequent innocent 2nd buyer from such a first buyer (buying from the frauster/forger), if any!

Lim Kean Chye says one cannot possibly mix up the language of sub section 2 and 3 which properly delineates how indefeasibility of registration does not apply in first instance but deferred to the second, and how our courts had always accepted this position/interpretation until Eusoffe Chin who, in his infinite wisdom, had interpreted the other way around to decide that immediate buyer from fraudster/forger Adorna Properties enjoyed superior indefeasibility of registration rights over original owner Boonsom Boonyanit, thus taking a wrong course in law, which all the ‘machai’ judges coming after also followed blindly based on the doctrine of precedent (stare decisis).

When in relation to such judgment, Kean Chye said one making it must be either bereft of understanding of plain English or stupid, now what is the third possibility which he has deliberately left opened for interpretation without mention?

And what is the common factor between then CJ Eusoffe Chin & present one? Its public controversies and what again is the common link in two public controversies beleaguering 2 CJs separated by time and space?

You are entitled to draw your own conclusion. But somebody supposedly erudite in legal system still maintains that there is no judicial crisis.

Sultan Azlan Shah said in the conference that “nothing destroys more the confidence of the general public or the business community has in the judiciary than the belief that the judge was biasd when he decided a case, or that the judge would not be independent where powerful individuals or corporations are the litigants before him… The Bar and its leadership must ensure there is a high standard of integrity and ethics among its members. There have been allegations against some lawyers that ….they have attempted to choose the judges or courts for their cases to be heard so as to obtain a favourable decision in their client’s favour. This is a serious interference with the administration of justice and process of law”. (se trodays front page report in The Sun).

I say we clean up the judiciary first. If we have judges that cannot be bought, such black sheep lawyers will desist from trying to choose the judges or courts for their cases.

To use an unfortunate analogy, a society cannot complain about there being too many customers looking for commercial sex and services of prostitutes if it does nothing to discourage people from becoming prostitutes and openly advertising their trade without sanctions.

In our world there are more people who are prostituting the value to do right and just for the blandishment of money. Once they “made it” I suppose they care little their names are mentioned everyday in papers or blogs associated with calumny and ignominy and disgrace.

These people – you will know them – are very silent. They slink in the hole somewhere where the only solace is the enjoyment of the fruits of their ill-gotten gains.