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©Malaysiakini
(Used by permission)
by Fauwaz Abdul Aziz
Former chief justice Eusoff Chin was today the object of
all-round censure when a law conference zoomed in on his landmark - and much
criticised - decision while discussing the issue of property rights.
At the forefront of the attack was retired senior lawyer Lim Kean Chye, 88, who
described the Federal Court's 2000 decision on the Adorna Properties Sdn Bhd v
Boonsom Boonyanit as "stupid".
"To put it in a nutshell, the case made a laughing stock of our judiciary," the
octogenarian ex-lawyer told a forum - entitled 'Property Rights Under the
Malaysian Constitution' - at the three-day 14th Malaysian Law Conference, which
kicked off today at the Kuala Lumpur Convention Centre.
The case had destroyed much of the credibility that the judiciary had enjoyed
among foreign investors in the protection of the rights of property owners, said
the feisty Lim, who had founded the defunct Malayan Democratic Union and had
once been detained in British Singapore.
The name of Eusoff Chin has in recent weeks been resurrected following the
emergence of the infamous Lingam tape.
In the eight-minute video clip released by opposition party PKR, senior lawyer
VK Lingam was seen talking, purportedly to a senior judge, of securing the
appointment of ‘friendly’ judges from Chin's camp.
They don’t understand plain English
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 (2) or (3) of Section 340 of the National Land Code.
Lim said that “plain English” dictates that neither clause can 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 Lim.
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.
In his hard-hitting speech, Lim alluded to Lewis Carroll's book ‘Through the
Looking Glass’ to press home his point. He quoted Carroll from the book:
"When I use a word," Humpty Dumpty said, "it means just what I choose it to
mean."
"The question is," said Alice," whether you can make words mean so many
different things."
"The question is," Humpty Dumpty said, "which is to be the master - that's all."
Lim continued: "The former judge (NS) Chan has said it ... he said of another
court ... they're stupid, they don't understand the English language.”
The ex-lawyer also took the opportunity to lambast the judges, many of whom have
ruled according to Chin's judgment in the Boonsom case.
Legal expert Teo Keang Sood later pointed out in the forum how several court
decisions had followed the precedent set by Chin in 2000, including in Ismail
Mohmad & Anor v Ismail Husin, in Liew Yok Yin v AGS Harta Sdn Bhd and
Mok Yong Chuan v Mok Yong Kong & Anor.
Judges ‘obey the boss’
According to Lim, 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 Lim.
Teo, an internationally renowned scholar from the National University of
Singapore's Faculty of Law, said the Boonsom case had left "an unwanted trail of
uncertainty and insecurity of title for landowners."
On a related matter, Lim 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 rei
judicata. Forget obeying judges. Next time you have a problem, go to the
minister and he will settle it there and then.”
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Circular No 023/2012: Talk on ISO 9001 | 2008 Quality Management System Certification
All of us know that the Federal Court's decision on Adorna Properties was wrong. But then, what should we (the Bar and the Bench) do now?
Ding Chu Teck