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Please, protect landowners too

19/11/2007 NST-PROP By Salleh Buang

In about a month's time, it will be exactly seven years since the Federal Court made that "historic" – or "disturbing"– decision as many have described it – in the Boonsom Boonyanit land transaction dispute.

While there are those who maintain the Federal Court decision as correct, others, including a number of people I personally interviewed for their comments, feel it was a bad ruling and an unfortunate personal legacy of the then Lord President.

Moving on, there are two options to consider if we are indeed serious about wanting to protect landowners and uphold the principle of "security of tenure" – a cardinal rule of the Torrens system of land administration.

The first is to continue to place our hope on the judiciary: That somehow, some time in the near future, the august body will correct the grievous error via another decision at its highest level.

Sadly, after waiting seven years, I personally have no hope it will ever happen.

That takes us to the second option: Legislative reform.

Here, my hope is that somehow, some time in the near future, officials from the relevant ministry and the Attorney-General's Chambers will draft the necessary amendments to Section 340 of the National Land Code 1965 and correct the error.

I had, in an earlier column, suggested a simple way to approach the amendment. The present section itself can be left intact. What is required is merely the insertion of an Illustration – very much in the same style of legal drafting we have in the Penal Code and the Evidence Act 1950.

I was therefore extremely delighted when a senior judge of the Court of Appeal told me at a function in Kuala Lumpur recently that he fully agreed with the amendment I had proposed. This judge had, in well-written judgments on numerous occasions in the past, said the Federal Court’s decision was "per incuriam" and therefore had to be followed. However, in one of his latest judgments, he courageously said the Boonsom Boonyanit case had caused "havoc in the law".

Many Malaysians may not be aware, but as recently as July 2007, Deputy Internal Security Minister Datuk Johari Baharum told the Dewan Rakyat that the number of land transfers executed by forged signatures had "been climbing steadily since 2001".

There were 16 such cases in 2001, with the figure rising to 19 cases in 2002 and 22 in 2003.

In 2004, the number jumped to 32 and in the following year, there were 35 cases of fraudulent transfer of land ownership. Last year, there were 40 cases and it will not be long before the figure for this year is released. Will it be higher? Your guess is as good as mine.

What I found extremely interesting in the parliamentary session was the question from a backbencher, the MP for Kota Melaka Wong Nai Chee, who wanted to know whether the government "would be drafting new laws" in the light of that awful court decision.

The Deputy Minister's vague reply left me utterly confused.

Now, let’s look at what recently happened in Alor Star, Kedah, as reported by a Malay language daily.

A resident of Taman Kota Jaya in Kota Sarang Semut on the outskirts of Alor Star, Sufian Yusof, 46, claimed that his 3.71- acre family property in Mukim Sala Kecik had been fraudulently transferred to another person.

According to Sufian, his late father Yusof Yaakob had worked on the land himself before employing another man (a relative, whom I shall call Mr X) to work on it in 1979.

Suffian said he did not collect the rent of RM400 for every planting season from Mr X over the years after his father died. However, he learnt to his dismay recently that the land had now been transferred to Mr X.

Officers of the Kota Setar Land Office told him that the transfer was effected sometime in 2005, with the thumbprints of his late father and siblings. He could not believe it. This could not have been done because his father and the siblings concerned had passed away before 2005.

"I suspect fraud and forgery," the report quoted Suffian. His hope is that the police will look into the matter seriously and urgently.

While this story distressed me, what saddened me further was another story I uncovered which reported a senior official from the Lands and Mines Department as saying that, "Fraudulent land transfers are rare".

The officer also said, "In my personal view, the system in place and the National Land Code offer sufficient protection for property owners."

I beg to differ.


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