Way forward in difficult cases





Tuesday, 22 January 2008 06:34am

Way forward in difficult cases©The Sun (Used by permission)

Radzuan Halim explores ways of improving our judiciary and in this second and final part of his column suggests some novel approaches. (Please click here to read the first part)

Reinforcing common law traditions

A major strength of our civil courts, of our justice system, and of our nation is the adoption of the common law and rules of equity over the past 120 years or so.

There are many senses in which the term ¡°common law¡± is used. For our purpose here, I refer to the common law approach to justice, under which our civil judges are bound by English (and Commonwealth) superior courts¡¯ judgments except for matters specifically excluded by or provided under our own written (statute) law.

Further, the common law approach entails the adoption of public hearings, issuance of written judgments and many of the practices first enunciated by the Magna Carta in 1215. Also central to the common law approach is the need for logical arguments tempered by human experience and abiding by but not blindly loyal to previous judicial decisions.

I believe some of the ¡°difficult¡± cases, which had caused hardship and inconvenience, to the Malaysian public could have been resolved by adhering to common law principles.

One case is Boonsam Boonyanit v Adorna Properties Sdn Bhd (Adorna case) in which our highest court decided that a land owner could lose her land to a direct buyer even though she had not signed any transfers or had misled the buyer in any way.

This unusual decision by the Federal Court, which was made over an emphatic decision of the Court of Appeal in favour of the land owner, was justified purely on the wordings of the National Land Code. In my view the common law principle of ¡°a forgery is a nullity¡± should have easily disposed of the case in favour of a true owner as against a direct buyer (the case for subsequent buyers is another matter altogether). The Federal Court decision in this case had predictably led to all kinds of unwelcome repercussions.

Can you imagine! You, the land owner sitting quietly in your own home, doing nothing, not talking to anyone and lo and behold! you have lost your land to someone who had ¡°purchased¡± your land using forged transfer documents.

Sure enough, this decision had led to so many copy-cat scammers, resulting in losses to others and sleepless nights for land owners. For my part I wonder why the land owner¡¯s predicament was not treated as a police case.

Then there is the constitutional issue (Article 13, Federal Constitution) which guarantees a person¡¯s property rights. To take away her property in this case, through no fault of her own, amounts to an acquisition (or confiscation) for which there must be adequate compensation.

There is another example where a basic common law concept could be fruitfully applied in order to resolve a prickly problem.

This relates to the consequences of religious conversions upon marriages, spousal rights and property/maintenance issues. A non-Muslim man in a subsisting marriage converts to Islam and simultaneously undergoes a Muslim marriage with a Muslim woman. A few of these cases are weaving their way through the courts and attracting all the media attention, coffee shop talk, club chatter, and challenging the best minds of the legal fraternity.

There is a pronounced tendency to view such situations as matters of constitutional law, human rights, religious rights, courts¡¯ jurisdiction and so on.

The Islamic law position is that the conversion annuls the previous marriage while the civil court is hesitant to tread into Syariah matters, particularly after the removal of ¡°judicial power of the Federation¡±.

My view is that the application of basic common law principles can still come to the rescue. The concept of scintilla temporis (split-second moment in time) is handy here. The civil courts should focus on that crucial moment in time just before the non-Muslim man converts. At that moment he is still a non-Muslim just about to go into the process of conversion with consequent annulment of his existing civil marriage.

At that moment, he is still obliged to fulfill all his contractual and legal duties under his civil marriage. The civil court should be concentrating all its attention on the man¡¯s duties and obligations as at that moment, and work out all the financial, property and maintenance orders as appropriate.

In other words, the man is free to convert and marry but all the obligations and financial arrangements would be determined based upon the pre-conversion position. Taking my approach there is no need to delve into religious and constitutional jurisdiction issues, thus freeing the civil court to concentrate on property division, dependents and financial arrangements.

There is a neat question of whether the man would have committed bigamy or attempted bigamy which is a criminal offence. Well, let¡¯s leave that issue to the Attorney-General who looks after criminal prosecutions.

The recent Subashini decision of the Federal Court illustrates the shortcomings to be found in the present approach. First there is the tendency to view such cases as constitutional ¨C court jurisdictional matters. There is a failure to view them simply as duties and obligations for spouses under contract and statute law.

Second, the claimant wife is told, after exhausting all appeals, that she had started her High Court action on the wrong footing, since she had begun her court proceedings too soon! She should have waited for the three-month period from conversion as specified. So another court must now consider her case and decide. Now this is a clear case of form over substance which is not appropriate to apply so strictly in a family law situation.

Furthermore, what is the prejudice caused to the opposing party from her starting the case slightly early? It is time that we start treating such cases as family law problems pure and simple and resort to the scintilla temporis concept.

Judges must judge

This is related to the work ethic issue discussed above but is somewhat distinct. We know from executive, professional, employment or plain life experience that some people are indecisive, hate to decide or are incorrigible procrastinators. Some people are just not the deciding type. We meet them as bosses, subordinates, professionals and relatives. I suspect this not unusual quality also inflicts some of our judicial brethren, whether in the civil or Syariah courts or in other tribunals.

One area of the law where indecision is rife is in family law cases. The marriage had irretrievably broken down, the relationship between spouses is acrimonious, all the property and financial details had been documented, but the judge refuses to decide on the divorce and terms.

The judge could be wishing that the couple would somehow make up and begin to live happily ever after.

He could not see that his indecision could be preventing the parties from carrying on with their lives or that the prolonged in separation could have tragic consequences.

Perhaps it is necessary to consider the decisiveness factor when evaluating candidates for judicial positions. Some individuals might have the requisite experience and learning, yet shy away from having to decide.

How to help our High Court Judges

While this extended column is intended to show shortcomings on the part of our judges, let us not overlook the difficulties and limitations they face.

First, we need to re-energise and restructure our magistrate court system to enable it to function more effectively. I cannot see why our magistrate courts could not be more closely modelled on the English system, whereby a bench of lay magistrates (selected local residents with good records) could be empanelled to handle most criminal and local dispute cases.

A bench of lay magistrates, assisted by a qualified legal officer (the court clerk) would be able to speedily dispose of common assaults, traffic offences and simple debt claims.

With an efficient magistrate court system, we would release the pressure on our Sessions Court and indirectly on the High Court as well.

Second, we need more courts at the ¡°Deputy High Court Judge Level¡± to handle specialised cases.

At present too many technical cases are coming straight to the High Court Judge who has to grapple with them in a raw unprocessed form.

It is time that we set up land courts, companies courts and commercial courts at the Deputy High Court Judge level.

These courts can be presided over by land registrars (land court) or accountants (companies courts), who would be better equipped to make technical determinations of issues such as ¨C is there a caveatable interest on the land or is the company financially solvent or what is the appropriate value to place on the shares of Company X.

Of course appeals arising from decisions of the Deputy High Court Judge would still proceed to the High Court. But in the process, the issues and evidence would have been properly ¡°processed¡± and organised and the technical issues thrashed out before hand. What I am proposing here is nothing new. For income tax cases, we already have in existence the Special Commissioner of Income Tax which operates at the Deputy High Court Judge level. Appeals from the commissioners proceed on to the High Court.

From my queries, the system seems to be working well for income tax cases.


If I get it right, Datuk Abdul Hamid, in his swearing-in speech as Chief Justice had made an impassioned plea for understanding, goodwill and cooperation from the general public.

A judge¡¯s duties and responsibilities are onerous while the judiciary¡¯s own standing as an institution in a young country like ours is always precarious. Let us all try to answer to the Chief Justice¡¯s plea in the best way we can, so as to enable our judges to do justice, which is ¡°to do right ... without fear or favour¡±.