Please, protect landowners too
19/11/2007 NST-PROP By Salleh
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
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.