The recent Court of Appeal decision in the Registrar of Muallafs, Ipoh v Indira Gandhi a/p Mutho has provoked much discussion. Retired Judge NH Chan weighs in with his view.
A mother’s distress and her desperate cry for global support in her quest for justice for her children who had been forced to convert to Islam by a court of law cannot be told in a few words. So please bear with me and I urge you to read through this heart wrenching, though lengthy, article.
In the Malay Mail of January 16, 2016 under the headline “Indira all for film to highlight her struggles“, the article reads:
“IPOH – Kindergarten teacher M. Indira Gandhi is optimistic about a proposal to make a documentary film about her battle with her ex-husband over the conversion and custody of their three children.
She said the production of the documentary, which was proposed by former law minister Datuk Zaid Ibrahim would serve as a lesson and a reminder for local and international audiences on the plight of a single mother who had to fight for her right as a parent to decide on the religious status of her children.
I believe it is a good movie because more people will understand what my family and I went through in the last seven years of our struggle,” she said.
It would be a good idea to screen the documentary online to enable the message to reach a global audience.
. . .
Indira’s seven year struggle to be reunited with her youngest daughter took a turn for the worse when the Court of Appeal, led by judge Datuk Balia Yusuf Wahi, held a majority decision that the validity of the conversion certificates of Indira’s three children by their Muslim convert father could only be determined by a Shariah court.
The panel set aside the Ipoh High Court’s 2014 decision to quash the conversion certificates. The Court of Appeal ruled only a Shariah court could decide whether a person is a Muslim.”
I can appreciate why most of us ordinary folks understood her anxiety and distrust of those who hold high office of influence, like the judiciary. In my book, How to Judge the Judges, is my observation on how religion should be viewed in a multiracial society. This is what I wrote at page xxxvii:
“For a Jew to convert to Christianity is apostasy and a Christian to convert to Islam is apostasy. But apostasy is not a crime in England, so that in Britain, Jewish Jews live side by side with Christian Jews. And the English Christians, be they Anglicans or Roman Catholics, live side by side with each other and with the Muslims and apostate Christians who have converted to Islam. In Britain people are not punished for their religion by the law of the land: apostasy is not a crime. A Briton of any ethnic origin or religion, if he or she is willing to work as hard as the Jews, could even achieve greatness in Britain. The Jews who lived in their adopted country as immigrants or refugees never fought for Jewish rights in England. There is no such political party in England. They have been assimilated into British society as Britons. Perhaps there is a lesson to be learnt here. Politics should not be on racial lines.”
I should say this also applies to the courts of law as well, as they should be secular and apolitical, so that justice could be served.
As for her misgivings of the judges of this country, we could empathize with her as the distrust of the judiciary is a well known public perception. Most people nowadays know how to judge the judges through my book and my articles on the internet. Hence her plea to netizens worldwide to support her cause for justice for the plight of her children who had been forced to convert to Islam without their consent.
In order to appreciate her misgivings, the case of Mrs Boonsom Boonyanit is a startling and shocking example of misbehavior among this country’s most senior judges. This is what it says at page 88 of my book:
“I would like to tell you a very sad true story. It is the tragic case of Mrs Boonsom Boonyanit. She was a Thai national. She owned two pieces of land in Tanjong Bungah, Penang: she was the registered proprietor. Unfortunately for her, some unscrupulous person had forged her signature and sold and transferred her two plots of land to Adorna Properties Sdn Bhd who is now the registered proprietor. She brought an action against Adorna Properties to have the land restored to her as the registered owner of the land. She failed in the High Court before Mr Justice Vincent Ng, but succeeded in the Court of Appeal. Adorna Properties then appealed to the Federal Court and succeeded. The Federal Court held that even if the instrument of transfer was forged, Adorna Properties because they have bought the land in good faith and had paid the price for it, albeit unknowingly to the forger, nevertheless had obtained an indefeasible title to the land. Any reasonable person will say that cannot be right. In truth, the language of the statute shows that the Federal Court is totally wrong. In fact the decision of the Federal Court is perverse. You don’t have to be a lawyer or a judge to know that the Federal Court is plainly wrong. I shall show to you why the Federal Court is wrong.”
Section 340(1) of the National Land Code 1965 says that the title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of subsection (2)(b) be indefeasible (which means, not liable to be annulled or forfeited). And subsection (2)(b) specifically provides that such title or interest of any such person or body shall not be indefeasible -where the registration was obtained by forgery, or by means of an insufficient or void instrument. So that by subsection (3)(a), the title of Adorna Properties which had been obtained by forgery is liable to be set aside by its owner Mrs Boonsom Boonyanit.
However, by subsection (3)(b) any interest subsequently granted thereout shall also be liable to be set aside unless it is covered by the proviso of this subsection which says that this subsection does not apply if the interest in the land has been transferred subsequently to a purchaser in good faith and for valuable consideration. In Mrs Boonyanit’s case, clearly the proviso to subsection (3)(b) did not apply. So I wrote at page 90 of my book:
“The words of s. 340 of the National Land Code is clear enough. The title of Adorna Properties was obtained by forgery and the title is now defeasible. It is liable to be set aside unless it has subsequently been transferred to a purchaser in good faith and for valuable consideration. See the judgment of Gopal Sri Ram JCA in Boonsom Boonyanit v Adorna Properties Sdn Bhd  2 MLJ 62, CA, at pages 85, 86.
. . .
Despite the explicit judgment of the Court of Appeal as to the effect of the proviso to subsection (3) of s 340, and despite the clear language of s 340 of the Code itself, the Federal Court, nevertheless, overruled the Court of Appeal and held in Adorna Properties Sdn Bhd v Boonsom Boonyanit  1 MLJ 241 by Eusoff Chin CJ at p 246, ‘We therefore, agree with the High Court Judge that, on the facts of this case, even if the instrument of transfer was forged, the respondent nevertheless obtained an indefeasible title to the said lands.‘ “
But when the late Mrs Boonsom Boonyanit’s son Kopchai Sosothikul applied under rule 137 of the Federal Court Rules 1995 for a rehearing of the Federal Court case of Adorna Properties Sdn Bhd v Boonsom Boonyanit which I have discussed above, P.S.Gill FCJ in the Federal Court in Adorna Properties Sdn Bhd v Kobchai Sosothikul  1 MLJ 417 supported the untenable decision of Chief Justice Eusoff Chin and dismissed the application. This is what he said, at pages 421, 422:
“Our reasons may be shortly stated. Firstly, although the consequence and effect of the main judgment may be harsh when viewed without the benefit of the relevant statutory provision, we do not think this is a case where ‘grave injustice had occasioned’ due to clear infringement of any principle of law thereby making it permissible for successive application to be made under the said rule.” Then, this sycophantic judge concluded by further sucking up to his master, the Chief Justice Eusoff Chin, by saying, “And even if we are wrong [in] our view it should be left to another occasion to further debate on the issue. For now we are of the opinion that … this is not a proper case for us to proceed to hear the merits or to grant the order as sought for.”
This is as much as saying, in PS Gill’s court, Justice is to be denied to the family of the late Mrs Boonyanit. How can a judge so shamefully and blatantly admit to committing an injustice by singling out the family of the deceased Mrs Boonyanit in open court?
See Dr David Wong’s, Tenure and Land Dealings in the Malay States at page 361:
“It will be realized that ‘forgery’ under the Malaysian provision is a distinct ground on its own. The Singapore Land Titles Act also expressly sets out ‘forgery’ as an exception to indefeasibility, but places ‘forgery’ side by side with ‘fraud’ subject to the limitation, viz., that for a registered title to be vulnerable in either case the proprietor (or his agent) must be a party to or have colluded in the ‘fraud’ or ‘forgery’. This would appear to treat forgery as a species of fraud. Under the Malaysian provision, the very fact of forgery suffices by itself in making a registered title defeasible irrespective of the absence of knowledge or implication on the part of the proprietor. In other words, it affects the immediate proprietor even if he be an innocent purchaser for value.”
Professor Visu Sinnadurai in his book, The Sale and Purchase of Real Property in Malaysia, 1984, wrote, see page 301:
“In Malaya, it is submitted that under section 340 of the National Land Code, deferred indefeasibility applies. The registered proprietor who had acquired his title by registration of a void or voidable instrument does not acquire an indefeasible title under section 340(2)(b). The indefeasibility is postponed until the time when a subsequent purchaser acquires the title in good faith and for valuable consideration. In other words, a registered proprietor, the vendor, under a sale and purchase agreement, even though he himself does not possess an indefeasible title, may give an indefeasible title to a bona fide purchaser.”
That being so, “How then could Chief Justice Eusoffe Chin and Federal Court judge PS Gill, both were judges of the highest court in the country, fly in the face of the weighty and unanimous opinion of lawyers and judges who are far more eminent and erudite than they could ever hope to be?“, I wrote in my book at page 96.
Associate Professor Teo Keang Sood of the Faculty of Law, National University of Singapore in an article “Demise of Deferred Indefeasibility Under the Malaysian Torrens System?”: Singapore Journal of Legal Studies, 2002, at pages 403 – 408, wrote:
“Having misconstrued the legislative intent as embodied in section 340, the case of Adorna Properties Sdn Bhd is clearly wrongly decided on the issue of indefeasibility involving forgery and should not be followed. Whatever may be the advantage of immediate indefeasibility, it is for Parliament to change the law, and until that is done, it is for the courts to interpret the law as it stands.”
That is obvious. Any sensible person would know that a law made by Parliament must be obeyed to the letter and the judges have no option but to apply the statute as it stands. Professor Teo Keang Sood in his article even told the courts it is their duty to interpret the law as it stands. If the law is to be changed at all, it is for Parliament to do so, and until that is done, it is for the courts to apply the law as it stands.
So I wrote at page 96 of my book:
“Unfortunately for the country these judges of the Federal Court have refused to apply the statute as it stands. Instead they chose to give the words in section 340(3) the meaning which they want them to mean. They did it in the way of Humpty Dumpty, that is, without any regard for the true meaning of the words in the statute. In effect, what they are saying is that the words in subsection (3) of section 340 of the National Land Code mean what they choose them to mean and not what the words really mean. ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less’.”
The Court of Appeal in State Tailor Sdn Bhd v Nallapan  2 CLJ 167 heeded Professor Teo’s call not to follow Adorna Properties v Boonsom Boonyanit and applied the statute law as it stands. However, that incurred the wrath of the Federal Court in Tan Heng Chew v Tan Kim Hor  2 MLJ 293 at 297 where Chief Justice Steve Shim of Sabah and Sarawak said that “the Court of Appeal is bound by the doctrine of stare decisis … and to the rule of law. It has attained the status of immutability. … Certainty in the law must prevail“. But at what cost? Gopal Sri Ram JCA in his dissenting judgment in the Court of Appeal in Au Meng Nam v Ung Yak Chen  5 MLJ 136 declared that Adorna Properties was decided per incuriam, so no court in the country need follow it. He referred to Sir John Salmond’s Treatise on Jurisprudence (12th edn) at pages 151 – 152 where it said:
“A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of a statute, i.e. delegated legislation. This rule was laid down for the House of Lords by Lord Halsbury in the leading case of London Street Tramways v LCC  AC 375 (HL),and for the Court of Appeal it was given as the leading example of a decision per incuriam which would not be binding on the court (Young v Bristol Aeroplane Co Ltd  KB 718 at 729 (CA)). …Even a lower court can impugn a precedent on such grounds.”
But Chief Justice Ahmad Fairuz of the Federal Court, who was to retire on October 31, 2007, would not allow such impertinence from a judge of the Court of Appeal. The report in the New Straits Times of July 19, 2007, reads:
“The top judge said subordinate courts were bound to follow a superior court ruling in line with the principle of binding precedent. … He said if the binding precedent was not adhered to, the judiciary system would be looked at in a negative light. … It is bad for the judicial system because we must be consistent. If they are not happy, they can express their view but then it’s up to the Federal Court to decide on the ruling or make the necessary corrections.”
But the Federal Court had already decided on the ruling in Adorna Properties when the son of the late Mrs Boonyanit went to the Federal Court to apply for a rehearing of his mother’s case. He was rebuffed and given short shrift by the highest court. Federal Court judge PS Gill took the same view as Chief Justice Eusoff Chin of his unjustifiable judgment in Adorna Properties. That is stare decisis for you. Lord Denning wrote in The Discipline of Law, at page 285:
“In the latter part of the 19th century, the law held firmly to the doctrine of stare decisis, that is, a previous decision on the point was binding even though it was found afterwards to be wrong.”
In this country, the mindset of our top judges in the Federal Court seems to be buried in the late 19th century.
On May 21, 1959, Lord Denning delivered the Romanes Lecture at his own University of Oxford in which he said, see page 293 of his book, the Discipline of Law:
“Just as the propositions of the scientist fall to be modified when shown not to fit all instances, or even discarded when shown to be in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice.
Many a lawyer will dispute this analogy with science. ‘I am only concerned‘, he will say, ‘with the law as it is, not with what it ought to be‘. For him the rule is the thing. Right or wrong does not matter. … But it is not good enough for the lawyer who is concerned with his responsibility to the community at large. He should ever seek to do his part to see that the principles of the law are consonant with justice. If he should fail to do this, he will forfeit the confidence of the people. The law will fall into disrepute; and if that happens the stability of the country will be shaken. The law must be certain. Yes, as certain as may be. But it must be just too.”
Dr Shad Saleem Faruqi, Professor of Law at University Teknologi Mara, holds the same view. In the Star newspaper, Wednesday July 25, 2007, he said:
“Stability, certainty and predictability in the law are good. But justice is better. It will be good, therefore, if the Federal Court agrees with the Court of Appeal’s interpretation of the law and correct its 2001 error in order to advance justice and maintain its authority.”
So now we all know, in order to advance justice there are no two ways about it. When it comes to choosing between right and wrong; between justice and injustice, there is only one choice or nothing at all. To all right thinking people, lawyers and judges alike, right or wrong does matter; justice or injustice matters. When it comes to the fundamental principles of truth and justice, there is no choice at all but to take the side of what are just and right because injustice must never be the alternative. This is about doing justice according to law where there can be no place for injustice. Injustice is not an option here because the judges and the lawyers are all responsible to the community at large. They must seek to do their part “to see that the principles of the law are consonant with justice“. They must not fail in their endeavor to do justice, for failure will forfeit the confidence of the people. As said by Lord Denning, “The law will fall into disrepute; and if that happens the stability of the country will be shaken“. As Professor Faruqi had said, we need “to advance justice and maintain its authority“. For “no one can calculate the aggregate amount of evil inflicted on the community“: see Pannick’s, Judges, at page 63.
Parliament is supreme (only our written Constitution is higher than Parliament, even so its Articles could be changed by a two thirds majority in Parliament). All the judges of the land, even the judges of the Federal Court – even the Chief Justice himself – are subordinate to Parliament. They are under the law. If any of the higher courts’ judges had ignored a statute enacted by Parliament, then no lesser court in this country need follow it. This is because, in our written constitution, Parliament is supreme and every law enacted by Parliament must be obeyed to the letter. And no court of law, no matter how high, nor judge, not even the Chief Justice himself, can supersede the sovereignty of Parliament. The judges of the highest court cannot, on the pretext of applying the doctrine of precedent, use the the doctrine under false pretenses to overawe other judges who are subordinate to them. As Lord Denning put it in his book, The Family Story, albeit he was referring to the English Parliament, but the principle is the same ( at page 191):
“In our constitutional theory, Parliament is supreme. Every law enacted by Parliament must be obeyed … Parliament can pass a Bill of Rights. But it can also repeal it or any clause in it. By a simple majority … No matter that a law may be unreasonable or unjust, nevertheless if it is clear on the point, the judges have no option. They must apply the statute as it stands.”
Section 340(2)(b) and the proviso to subsection (3) is clear on the point. Still the rogue judges of the Federal Court had refused to do so. They had defied Parliament. They were renegade judges. You do not have to be a lawyer or a judge to know who is right. This is what Lord Denning says about those unprincipled judges in What Next in the Law at page 330:
“May not the judges themselves sometimes abuse or misuse their power? It is their duty to administer and apply the law of the land. If they should divert it or depart from it – and do so knowingly – they themselves would be guilty of a misuse of power.”
And we know what that power of the judges is. It is the absolute power that corrupts absolutely.