Walaubagaimanapun

From the Editor’s Desk

The rebirth of this Newsletter is redemptive in nature. Most members were incredulous when we sat down to work on the publication of our second issue of Walaubagaimanapun … We threw down the gauntlet and set our horizon before the expiration of our current tenure of office.

We kept faith.

We interviewed both our High Court judges, and gained insight into their judicial minds. Their warmth and humility disarmed us.

This Newsletter is unique. It embraces touching eulogies of the late Christopher Fernando by eminent judges and the President of the Malaysian Bar, Dato’ Ambiga Sreenevasan. Christopher Fernando’s daughter, a practising lawyer who grew up in her father’s shadow, has written a poignant account of his greatness not only as a lawyer but as a father and husband. Dato’ Seri Anwar Ibrahim has also planted an iridescent flag on the mountain of achievements of the late Christopher Fernando.

Our local icon on the National Land Code and the Torrens system, Mr. Seah Choon Chye has contributed original articles on grey areas of our land law. They are ornaments that would enrich our understanding of the Torrens system.

Our head, Anthony Soh Lim Chang, ought to be commended for his resilience and perseverance in ensuring that this Newsletter is finally published.

In publishing the second issue of Walaubagaimanapun …, we, the Editorial Board, feel like the naked Archimedes who jumped out of the bathtub, screaming “Eureka!”. We rediscovered our Walaubagaimanapun!

Manian Raju, the Editor

Walaubagaimanapun … is the newsletter of the Negeri Sembilan Bar and is published by the Negeri Sembilan Bar Committee at No 3, Jalan S2 D38, Magistrate’s Square, Seremban 2, 70300 Seremban, Negeri Sembilan.
Telephone : (06) 6013843
Fax : (06) 6013845
Email : nsbar@tm.net.my
For members only

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AN INTERVIEW WITH YANG ARIF DATO' AZHAR BIN HJ MA’AH
(by Peggy Tan, Aisha Jothilingam & Nicole Tan on 29th August 2007)

Yang Arif's Personal Landscape :-
Date of Birth : 28-9-1946
Place of Birth : Rembau, Negeri Sembilan

Kampung : Lubok China, Rembau, Negeri Sembilan
Family : Married to Datin Rashadah Binti Ahmad, with 3 daughters Ainul Azura, Azhani Akmar & Amy Aziana
Professional Qualification : Barrister at Law
Hobby : Golf
Pingat / Anugerah : DSNS; DNS; PPT (mengikut kekananan Pingat)

His Career Landscape

Sept, 1974 - May, 1975 : Magistrate, Kuala Lumpur

May, 1975 - July, 1975 : Senior Assistant Registrar, Kuala Lumpur High Court

July, 1975 - Aug, 1976 : Assistant Director, Legal Aid Bureau, Negeri Sembilan

Aug, 1976 - Jan, 1985 : President of Sessions Court, Klang, Kuala Lumpur and Kuala Terengganu

Jan, 1985 - Sept, 1985 : Senior Federal Counsel, Drafting Department, Attorney General's Chambers

Sept, 1985 - July, 1986: Peguam Jabatan, Bahagian Pinjaman Perumahan, Perbendaharaan Malaysia

July, 1986 - Dec, 1988 : Deputy Public Prosecutor / Senior Federal Counsel, Sabah

Dec, 1988 - Feb, 1992 : Deputy Public Trustee, Malaysia

Feb, 1992 - 1st July, 1996 : Sessions Court Judge, Seremban

1st Aug, 1996 : Judicial Commissioner,
- 14th May, 1998 High Court, Temerloh

15th May, 1998 - 31st Mar, 1999: High Court Judge, Temerloh

1st Apr, 1999 - 30th June, 2000 : High Court Judge, Kota Kinabalu, Sabah

1st July, 2000 - 15th Aug, 2002 : High Court Judge, Johor Bahru

16th Aug, 2002 until present : High Court Judge, Seremban

I. INTRODUCTION

With much trepidation, three of us, fledgling NS Bar reporters, walked along the corridors of justice into the judge’s chambers. ‘So this is how it looks like over here’, I thought to myself. I am reminded of the time I first visited the Federal Court under the auspices of the Commonwealth Law Conference. We were greeted by the amiable secretary, Puan Zalinah. And then the protagonist himself came out immaculately dressed as ever. Yang Arif greeted us with a smile and a firm handshake.

As we were comfortably seated in Yang Arif’s chambers, we began our interview. YA told us that he came from a family of eight siblings, of which YA is number five. YA studied in Sekolah Tinggi Port Dickson. YA quipped that he has never been in practice. YA went on to recount his judicial track record, starting from his first posting in 1974 as a Magistrate in Court Hill, Kuala Lumpur, where the present Maybank building (near Puduraya) stands.

He first became a Sessions Court judge in Klang in 1976. Temerloh holds dear to YA's heart as that was where YA was first made a Judicial Commissioner and High Court Judge in 1996 and 1998, respectively. When asked to pick his favourite posting, YA replied that each posting had its good points. However, being a family man, YA prefers to stay in his home state, Negeri Sembilan. YA had travelled daily to Temerloh from Seremban for three years in order to stay with his family in Seremban.

II. FAMILY

Talking about his family puts a huge smile on YA's face. That speaks volumes of how much a family man he is. YA said that his wife is a graduate teacher, currently, the Assistant Headmistress at the Puteri Secondary School. He said that his wife is outgoing, sporting and vivacious, a Convent trademark. YA does not believe in sending his children to boarding schools as he feels that they should grow up with fulltime guidance from them. His three daughters whom he treats as his friends, are not interested to read law. YA said that he does not impose even though he had tried to coax his youngest daughter, 22, who is currently a second year architectural student in RMIT, Melbourne, Australia to take up law but in vain. His eldest daugher, 28, is an accountant, married with two kids. His second daughter, 24, just graduated with a medical degree from University of London.

Being a liberal father, YA said that his daughters would share their innermost feelings with him and he is not strict with their studies. YA did admit that he was pretty worried about his second daughter at one time. Every time he peeped through the door-hole, she would be either sleeping or playing with the computer. So much so that he confided with his wife “Does that girl ever study?”. His anxiety was quickly put to rest as she came out tops with 11 As despite being the head girl, and active in sports and extracurricular activities.

III. PASTIME

YA is an avid golfer. He plays golf regularly even on weekdays if time permits. YA said that he spends most weekends at home with his family. Even his eldest daughter who is married and works in KL stays with him, together with her husband and two children. Sometimes, the whole family would travel to their hideout in Port Dickson.

IV. WORKING RELATIONSHIP BETWEEN THE BAR AND BENCH

YA said that he has no problems with NS lawyers or lawyers as a whole. YA stressed that it does matter where the lawyers come from as long as there is mutual respect. One should not demand respect as respect has to be earned. We are all learning. Good lawyers assist judges in coming to good decisions or judgments with thorough research. YA said that most of the Negeri lawyers are cooperative.

V. ANY ROOM FOR IMPROVEMENT?

YA advised lawyers to come prepared and do proper research in order to assist him in delivering good judgments. YA admits that he is bogged down with many files and does not have the time to do much research. YA gave credit to Dato’ Sulaiman for being helpful and cooperative. Dato’ Sulaiman was then the second High Court judge and shared Dato’ Azhar’s workload. They had a very good working relationship.

VI. LINCOLN'S INN

YA is a product of Lincoln's Inn, one of the four Inns of Court in London to which barristers of England and Wales belong and where they are called to the Bar. Eminent members of Lincoln's Inn include Sir Thomas More; Oliver Cromwell; Lord Denning; Muhammad Ali Jinnah and Margaret Thatcher; Tee Kim Chan, the former NS Bar Chairman is also an alumnus of Lincoln's Inn. Lincoln's Inn is supposed to be the oldest of the four Inns of Court, dating back to 1422. It is situated in Holborn. The nearest tube station is Chancery Lane. As a student at Lincoln's Inn, YA would spend his time in the library after lectures, in the cold light of winter. On a fateful day (which I ascertained from him to be 4 December, 1972), as he was about to leave for the Chancery Lane tube station, he heard a scream from one of the chambers at Lincoln's Inn. It was Mrs. Ungoed-Thomas shouting for help. Ungoed-Thomas, J had just collapsed after a cardiac arrest. YA was asked to call for the paramedics which he did. After that, YA witnessed with his own eyes, the death of one of the greatest judges in Equity, Mr Justice Ungoed-Thomas.

VII ASPIRATIONS

YA aspires to dispose of his cases quickly. For example, ten cases a day in open court and thirty to forty cases a day in chambers. YA said that there is a move towards computerisation of the whole system, whereby judges do not have to write down the notes of evidence. YA said that it will work provided that all judges are computer literate, which he said he was not. YA said that the downside of it is that one can get bored and sleepy during the proceedings.


VIII. ADVICE TO LAWYERS

YA reiterated the need for lawyers to assist the judge in giving good judgments by doing proper research; and refreshing his memory whenever possible as he could not remember the facts of every case.

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Land with Nil Condition - Recurring Issues
(by Seah Choon Chye)

The special provisions under Section 53 relating to land without express condition ("Nil" condition) alienated before the commencement of the National Land Code are still being ignored by the State Authority, notwithstanding the judgment of the Privy Council in Garden City Development Bhd. v Collector of Land Revenue, Federal Territory [ 1982] 2 MLJ 98.

In Garden City Development, the Privy Council ruled that it is not mandatory for a proprietor of land with "Nil" condition to apply for the imposition of a category of land use under Section 124(1) ("conversion").

It should be properly understood that only land alienated on or after the commencement of the Code will be subject to one of the three categories of land use as stipulated under Section 52 to wit "agriculture" (Section 115), "building" (Section 116) and "industry" (Section 117).

Land with "Nil" condition alienated before 1.1.66 is not subject to any category of land use but to implied conditions set out in Section 53.

It is provided under Section 53(2) that land with "Nil" conditon which at the commencement of the Code is -

(a) country land, or
(b) town or village land held under Land Office title

shall be subject to an implied condition that it shall be used for agricultural purposes only.

However, it is provided under Section 53(2) that this implied condition shall not prevent-

(i) the use of any part of the land for any purpose for which it could (under Section 115) be used if it were subject instead to the category "agriculture",

or

(ii) the continued use of any part thereof for any industrial purpose for which it was lawfully used immediately before the commencement of the Code.

And it is further provided under Section 53(2) that the implied (agricultural) condition shall not apply to any part of the land which is occupied by or in conjunction with -

(a) any building lawfully erected before the commencement of the Code,

or

(b) any building erected after that commencement, the erection of which would (under Section 115) be lawful if the land were subject instead to the category "agriculture".

Under Section 53(3) it is provided that all other land to which this section applies [i.e. town or village land under Section 51(2)(a) and (b)] shall become subject at the commencement of the Code to an implied condition that it shall be used neither for agricultural nor for industrial purposes i.e. it shall be used for building purposes only (as per the Privy Council in Garden City Development).

A substantially similar proviso to Section 53(3) as that contained in Section 53(2) aforesaid also states that this condition (i.e. that it shall be used neither for agricultural nor for industrial purposes) shall not -

(i) prevent the continued use of any part of the land for any agricultural or industrial purpose for which it was lawfully used immediately before the commencement of the Code; and

(ii) apply to any part of the land which is occupied by or in conjunction with -

(a) any building lawfully erected before that commencement; or

(b) any building ereceted after which would (under Section 116) be lawful if the land were subject instead to the category "building".

Unless and until the State Authority acts in accordance with Section 54 i.e. by notification in the Gazette specifying the land to be subject to a category of land use and to the such express conditions as may be directed under Section 123, land with "Nil" condition shall remain subject to implied conditions as provided under Section 53(2) and (3) aforesaid.

It is therefore noted with dismay that in a recent revision of the quit rent payable w.e.f 1.1.2006 vide N.S. P.U 7 dated 18.8.2005 the Negeri Sembilan State Authority purporting to act under Section 14 and Section 101 has subjected land with "Nil" condition to punitive rates in complete disregard of the impliled conditions as mentioned in Section 53(2) & (3), e.g.,

(a) Land within the District of Seremban – Category "Building". While land under category "building" for residential use will be charged at the rate of 39 sen per. sq. metre, land without category of land use with "Nil" condition used for residential purposes will be charged at the rate of 63 sen per sq. metre (the same rate as land under category building - commercial).

(b) Land within the District of Seremban - Category "Agriculture". Land subject to the above category is charged at the rate varying from RM42/- per hectare to RM2,000/- per hectare but land without category with "Nil" condition is charged at the flat rate of RM3,900/- per hectare (even though it is subject to an implied agricultural condition under Section 53(2) of the Code.

It is hereby submitted that this revision of the quit rent insofar as concerns land with 'Nil" condition alienated before commencement of the Code is fundamentally flawed on the following grounds:-

(1) The revision is purported to be made in accordance with the powers conferred under Section 14 and Section 101 of the Code.

Upon a proper reading of Section 14(e) and Section 101 it would appear that thepowers to revise are only applicable to land alienated under the Code i.e. on or after 1.1.1966 - not to land with "Nil" condition alienated prior to commencement of the Code referred to in Section 53.

(2) The revision of quit rent in respect of land alienated BEFORE the commencement of the Code should be carried out in accordance with the express provisions of Section 102.

(3) The rate payable shall be at the "standard rate" specified in Section 102(1) to be calculated in accordance with Section 102(6)(7) and (8).

(4) It is expressly stipulated under Section 102(4) that the power conferred under Section 102 "shall not be exercised more than once in respect of any class or description of land".

(5) As it cannot be denied that the quit rent in respect of land alienated prior to the Code has been revised at least once. (In 1984 vide N.S. P.U. 6/1983) the State Authority has therefore contravened the express provision of Section 102(4).

The arbitrary and irregular revision of quit rent affecting land with "Nil" condition alienated before the commencement of the Code by the State Authority has caused financial hardship to proprietors who have no plans to redevelop their land but are content to continue using same in accordance with the implied conditions of Section 53(2) and (3) and the proviso thereto.

It is believed that the earlier revision carried out in 1984 adversely affected proprietors of town or village land which is subject to implied building condition under Section 53(3) as they were required to pay quit rent at the rate of 50 sen per sq. ft. and 35 sen per sq. ft. respectively even though they were using the land for agricultural purposes as permissible under the provisos to Section 53(3).

Consequently, proprietors unable to shoulder the financial burden were unjustly compelled to dispose of their land substantially below market value to avoid forfeiture.

The latest revision has severely affected proprietors of country land within the definition of Section 51(2)(c) i.e. outside the boundary of a town or village as the date of commencement of the Code (which is subject to implied agricultural condition under Section 53(2)).

By purporting to exercise the power conferred under Section 11, such country land has been irregularly "converted" into town or village land and subjected to a new revised rate even higher than that payable for land subject to the "building" category, under the classification "Tanah yang tiada kategori dan syarat (Nil condition)" as illustrated above.

Even country land not affected by the exercise carried out under section 11 is subject to a new revised rate that is substantially higher than the rate chargeable for land subject to the "agriculture" category under the classification "Tanah yang diberi milik sebelum Kanun Tanah Negara (Nil condition)", as mentioned above.

It is hereby submitted that land which is "country land" as defined under Section 51(2)(c) and Section 53(2)(a) as at the date of commencement of the Code i.e. 1.1.1966 remains subject to implied agricultural condition notwithstanding any variation or alteration of the boundary of a town or village by the State Authority AFTER the date of commencement of the Code pursuant to powers conferred under Section 11(ca) and the proprietor of such land is entitled to the statutory protection regarding the use or continued use thereof under the provisos to Section 53(2) aforesaid.

It is hereby argued that even if the State Authority were to act pursuant to Section 54 and subject such country land to a category of land use it is provided under Section 54(2)(a) that in the case of land previously subject to the implied agricultural condition specified in Section 53(2), the category would still be "agriculture".

Hence, a proprietor of country land who occupies a dwelling house thereon erected before or after 1.1.1966 ,may continue to do so as it is permissble under Section 115(4)(a).

The State Authority should realise that under Section 102(4) its power to revise the quit rent of land with "Nil" condition alienated before the date of commencement of the Code "shall not be exercised more than once in respect of any class of description of land".

Further the State Authority should accord due respect for the law as laid down in Garden City Development that it is not mandatory for a proprietor of land with "Nil" conditon to apply for conversion under Section 124(1).

In additon the State Authority should acknowledge that the powers conferred under Section II to vary or alter the boundary of any town or village cannot affect the special status conferred under Section 53 on land with "Nil" condition alienated before the commencement of the Code.

This special status has been corroborated by the identical provisions of Section 53(4) and Section 54(4) which reads as follows:-

"No order under subsection (4) or (5) of Section 129 declaring land forfeit to the State Authority shall have effect with respect to any land for breach of any condition to which it is subject by virtue of this section except upon payment of such compensation as may be agreed or determined under Section 434".

It should be pointed out that in the event the proprietor of the land with "Nil" condition be unable to pay the exorbitant quit rent that has been revised in breach of Section 102 and the State Authority should proceed with forfeiture proceedings, such action by the State Authority may be regarded as unconstitutional as it would appear to infringe the following provisions of the Federal Constitution viz.,

(1) Article 8(1) which states that "all persons are equal before the law and entitled to the equal protection of the law";

(2) Article 13(1) which stipulates that "no person shall be deprived of property save in accordance with the law".

By reason of the premises, the State Authority should concede that a serious error has been made in regard to the revision of quit rent affecting land with "Nil" condition alienated before commencement of the Code pursuant to Section 101 instead of Section 102 which has resulted in a grave injustice to the proprietors of such land.

******

Jokes
Email Message

A Seremban couple decided to go to Perth for holiday and planned to stay at the same hotel where they spent their honeymoon 20 years earlier.

Because of hectic schedules, it was difficult to coordinate their travel schedules. So, the husband left Seremban and flew to Perth a day earlier, with his wife flying down the following day.

The husband checked into the hotel soon after he landed in Perth. There was a computer in his room, so he decided to send an email to his wife. However, he accidentally left out one letter in her email address, and without realizing his error, sent the email to a wrong person!!
Meanwhile, somewhere in Penang, a widow had just returned home from her husband's funeral. The widow decided to check her email expecting messages from relatives and friends.

After reading the first message, she screamed and fainted. The widow's son rushed into the room, found his mother on the floor, and saw the computer screen which read:
To: My Loving Wife
Subject: I've Arrived
Date: January 17, 2008
I know you're surprised to hear from me. They have computers here now and you are allowed to send emails to your loved ones. I've just arrived and have been checked in. I've seen that everything has been prepared for your arrival tomorrow. Looking forward to seeing you then!!!! Hope your journey is as uneventful as mine was.
P.S. Sure is freaking hot down here!!!

******

INTERVIEW WITH YANG ARIF TUAN ABDUL ALIM BIN ABDULLAH
(by Manian Raju)

Yang Arif's Background

Tarikh Lahir : 17-4-1949

Kelulusan : i. Barrister-At-Law, Lincoln's Inn, London

ii FCIS (Fellow Of The Chartered Institute of Secretaries and Administrations)

Jawatan Sekarang : Hakim Mahkamah Tinggi Seremban

Latarbelakang Pendidikan : Maktab Tentera Diraja (Royal Military College) 1965-1968

Penganugerahan :

1986 : Anugerah Khidmat Cemerlang Jabatan Kehakiman Malaysia

1998 : Anugerah Khidmat Cemerlang Kementerian Dalam Negeri

1998 : Dikurniakan Bintang Kesatria Mangku Negara (K.M.N.)

2004 : Dikurniakan Bintang Johan Setia Mahkota (J.S.M.)

Pengalaman

1978 : Dilantik sebagai pegawai undang-undang Jabatan Peguam Negara : Penolong Pengarah, Biro Bantuan Guaman Melaka

1981 : Penolong Kanan Pendaftar Mahkamah Tinggi Kuala Lumpur

1983 : Penolong Kanan Pendaftar, Mahkamah Tinggi Kuala Lumpur

1984 : Ketua Bahagian Biro Terjemahan, Mahkamah Agung Kuala Lumpur

Turut Dilantik/Diwarta sebagai Hakim Mahkamah Sesyen Malaysia, telah berkhidmat sebagai Hakim Litar dan telah mendengar kes-kes di Mahkamah Sesyen Seremban, Klang, Temerloh, Sungai Petani, Kuala Terengganu dan Kota Bharu.

1987 : Timbalan Pendakwaraya, Jabatan Peguam Negara, Kuala Lumpur

1988 : Penasihat Undang-Undang, Jabatan Kastam dan Eksais Diraja, Malaysia.

1990 : Ketua Unit Pendakwaan, Negeri Selangor, Pejabat Penasihat Undang-Undang Negeri Selangor, Shah Alam.

1992 : Penasihat Undang-Undang Negeri Johor.

Semasa menyandang Jawatan PenasihatUndang-Undang Negeri Johor, telah dilantik menjadi ahli Lembaga Pengarah Johor Corporation, YPJ Holdings Sdn. Bhd, Yayasan Pelajaran Johor, Johor Coastal Development Sdn. Bhd. dan Tabung Warisan Negeri Johor.

1996 : Penasihat Undang-Undang Kementerian Dalam Negeri.

2000 : Pengerusi, Mahkamah Perusahaan, Kuala Lumpur

1 April 2002 : Pendaftar Syarikat

16 April 2002 : Ketua Pegawai Eksekutif, Suruhanjaya Syarikat Malaysia
Turut menyandang Jawatan sebagai Pendaftar Syarikat dan Pendaftar Perniagaan

1 Sept 2005 - 4 Sept 2007 : Pesuruhjaya Kehakiman, Mahkamah Tinggi, Kuala Lumpur & Mahkamah Tinggi Johor Baru.

5 Sept 2007 : Dilantik Hakim Mahkamah Tinggi

15 Nov 2007 sehingga sekarang : Hakim Mahkamah Tinggi Seremban

Semasa menyandang jawatan sebagai Ketua Pegawai Eksekutif Suruhanjaya Syarikat Malaysia, telah turut dilantik sebagai Ahli Jawatankuasa Pelaburan Asing (member of Foreign Investment Committee)

Ahli Lembaga Perkhidmatan Kewangan Luar Pesisir Labuan, (member of The Board of Directors, Labuan Offshore Financial Services Authority)

Ahli "High Level Finance Committee on Corporate Governance Malaysia"

Ahli "Financial Reporting Foundation"

Panel Penasihat Ekonomi, Institut Integriti Malaysia

Ahli Lembaga Pengarah, Suruhanjaya Sekuriti 2002-2004


The Interview

1. What or who inspired you to read law?

It was my father’s silent wish I guess. He wanted to read law but his parents could not afford it. We had his collection of old law books, since replaced by religious ones in 1977 when he retired. My father studied under the lamp-post during the Japanese Occupation and could not make it to Raffles College like his contemporaries. He made it to the Johore Civil Service anyway through sheer grit. He writes and speaks very good English.

2. How would you describe your experience as a law student in England?

It was tough. No excuses for failing if one does not study very very hard and failure is never a good experience. I thank Allah for the Judicial Scholarship.

3. Could you describe to us your experience as the Registrar of Companies and as the Chief Executive Officer of the Companies Commission of Malaysia?

I was the last Registrar of Companies (ROC) and the first Chief Executive Officer (CEO) of the Companies Commission of Malaysia (CCM) which was established coincidentally on the eve of my birthday. The CCM is a merger of the entities of the Registry of Companies and Registry of Business. Company Law was not my favourite subject but a fellow senior student (now a retired senior MCA politician) taught and stirred up in me a better liking for the subject. I saw its practical application as the ROC and CEO. It was worthwhile and purposeful to have served in both positions. And perhaps a better understanding of the subject in my present position.

4. Could you describe to us your experience as the head of a Legal Aid Bureau?

It was a very humble beginning for me in the Legal and Judicial Service. I dealt with poor litigants in specified cases as set out in the Legal Aid Act 1971. The Legal Aid Bureau then was a small-time legal firm run by the Government.

5. Could you share with us your experience as Chairman of the Industrial Court?

It was yet another field of experience for me and to acquire knowledge of the Industrial Relations Act 1967 and other related legislations. My first award was upheld by the High Court and last I heard is still pending in the Court of Appeal and don’t know of its fate there. One can only remember the first but not the rest.

6. Could you tell us a little about your family? How did you first meet your wife?

I have a brother and two sisters. My father is 86 and my mother is 80. How I first met my wife – she has a better version of it. You have to ask her.

7. How do you find your life on the Bench?

It suits me fine indeed. My family and I lead very quiet lives. On the Bench, it is knowledge rewarding and has further intensified my understanding of the law.

8. What are the challenges that you face when you sit on the Bench?

There are no challenges as I have to speak the law and make certain that it is seen done.

9. Is there any difference between your tenure as a judge at Kuala Lumpur and in Seremban?

Yes certainly, I was attached to the Commercial Division and shortly in the Criminal Division prior to my transfer to Johor Baru and thenceforth to Seremban. Outside Kuala Lumpur, there is a good mix of cases, both civil and criminal.

10. What is your general impression of us, Negeri Sembilan lawyers?

Honestly, a very good combination in all. The fraternity is felt.

11. What is your view on the quality of lawyers who appear before you in court?

They are a good assemblage and are proficient in the cases they routinely handle. Some have been told to venture and better equip themselves in the other areas of the law.

12. Any funny or memorable incidents while sitting on the Bench that you recall?

As far as I can recall it has always been solemn. But there had been an occasion when counsel appeared with earrings that dangled and shook violently as she submitted convincingly on some weighty arguments. It caused me to lose concentration and I told her so. She was better attired and appeared plain and simple at the next hearing date. In another event in Chambers, counsel, out of habit, had continuously twirled his pen which was then skilfully made to gyrate on his knuckle making a few circles each time. He did it so masterly but only to be told by me not only that the display was distracting and irritating but also that I did not wish to acquire his expertise.

Now, I don’t know whether these two rare occasions were funny nor even memorable. I was not amused.

13. Would you like to name any person whom you would regard as a beacon in your life?

As a Muslim, he is our Prophet Muhammad, peace be upon him.

14. What advice would you give to young lawyers?

By chance, I once read and was reminded of what a writer had said of a guiding thought (which I subscribe to) by a great philosopher Antonio Gramsci - “Pessimism of the intellect, optimism of the will.” His notification is good advice and has to be read in context.

15. What do you look up to in your life?

A happy family, good health and divinely blessed.

16. In your opinion, what are the attributes of a good judge?

To hear courteously,
To answer wisely
To consider soberly, and
To decide impartially

17. What do you do during your leisure?

I gave up golf in 1981. Family time however spent is surely a leisure.

******

PRESENTING DEALINGS WITHOUT TITLES – CAVEAT EMPTOR
(by Seah Choon Chye)

It is permissible (save and except at the Registry of Titles, Selangor, Shah Alam) to present an instrument of dealing WITHOUT the issue document of title pursuant to Sections 292 & 293 of the National Land Code on account of the express provisions of Section 294(4) which stipulate that the fact that any instrument (of dealing) is not accompanied by the documents required under Section 294 e.g. the issue document of title as required under Section 294(2)(a), shall not be a bar to its entry in the Presentation Book (now superseded by the Presentation Record prescribed under paragraph 13 of the Fourteenth Schedule) PROVIDED the issue document has already been deposited with the land registry.

In lieu of the issue document of title one would normally tender a letter of consent from the solicitors who presented the earlier instrument of dealing authorising the use of the same title to effect another dealing.

Prior to the implementation of the Computerised Land Registration System, the land registry would retain the issue document of title on registration of the earlier dealing and would only return the title after completion of the registration of the later dealing to the solicitors concerned.

It is noted with some concern that this may no longer be the case as under the Computerised Land Registration System the land registry would return the computer printed issue document of title to the solicitors who presented the earlier dealing (notwithstanding the letter of consent tendered to the land registry).

Consequently, the later instrument of dealing would be suspended pursuant to Section 298 and if the issue document of title is not produced within fourteen (14) days from the date of suspension, the said instrument may be rejected with dire consequences in the event a caveat or prohibitory order has been entered on the title after presentation of the later dealing and the proceeds of the sale or loan has been disbursed.

It is hereby submitted that this potentially serious situation could readily be averted by taking the following precaution, namely, before returning any issue document of title pursuant to Section 305(1)(e) the land registry should first verify by a computer search on the title whether any dealing has been presented AFTER the first dealing and if so, withhold the title by endorsing a note thereon of the existence of the later dealing and thereafter issue a fresh title on registration of the later dealing.

This would effectively reduce the risk of wrongful rejection of the later dealing on account of the non-production of the title under Section 298.

It should also be pointed out that the land registry has no power to reject the later instrument of dealing under Section 298 as it is under a statutory duty to act under Section 299 to make enquiries with respect to the missing title.

******

JOKES

Married humour

Wife: "What are you doing?" Husband: Nothing. Wife: "Nothing...? You've been reading our marriage certificate for an hour." Husband: "I was looking for the expiration date."

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Wife: "Do you want dinner?" Husband: "Sure! What are my choices?" Wife: "Yes and no."

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Son: "Mom, when I was on the bus with Dad this morning, he told me to give up my seat to a lady." Mom: "Well, you have done the right thing."
Son: "But mom, I was sitting on daddy's lap."

******

Book Review

JUDGING THE JUDGES
Written by : N.H. CHAN, DPCM
Publisher : Alpha Sigma
(Reviewed by: Aisha Jothilingam)

The preface of this book is very impressive. It refers to the role of a judge in ensuring justice. It refers to examples of model judges and that justice must not only be done but must be manifestly seen to be done. It refers to the dictum of Lord Chief Justice Hewart in R v Sussex Justices, ex parte Mc Carthy [1924] 1 KB 256.

“It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

What arrested my interest was when the author mentioned 2 controversial cases i.e. the Ayer Molek case and the Boonsoom Boonyanit case. The author refers to the Boonsoom Boonyanit case and states that an unjust judge had refused to decide the case according to the National Land Code. He gave his own interpretation of S340 of the National Land Code 1965 and ignored the canon of literal interpretation, and the doctrine of stare decisis.

The author further states that the very same judge who was then the Chief Justice was guilty of dereliction of his duty when he did nothing to prevent abuse of the Court process in the Ayer Molek case.

The author of this book, an ex judge himself, bravely and frankly criticizes both these decisions and discusses at length the 2 cases mentioned above in Part Three, page 8 i.e. “Doing Justice According to law includes statute law – The most outrageous injustice”. The criticism levelled by Prof Teo Keang Sood against the Federal Court judgment in Boonsoon Boonyanit is also discussed in Part 6.

The infamous Ayer Molek case is also discussed and criticised severely in Part 5 of the book.

The author further discusses the Anwar Ibrahim Sodomy trial at Part 5 of the book and critizes the trial judge for not applying the correct law on accomplice evidence.
Another interesting area is Part 4 where the author discusses the qualities of a good judge – what it entails to be a judge – he discusses his personal experiences as a judge, Lord Denning's style of writing judgments, other judges' style of writing judgments and of course the author's own style of writing judgments.

Being a litigation lawyer, I found Part Seven “The Art Of The Lawyer In A Court Of Law” very useful as the author gives tips on conducting cases, the art of cross examination etc.

On the whole, the author narrates and describes satisfactorily the legal profession in our country from the late 60s up to the time of his retirement in the year 2000.

My personal opinion of this book is that it is a must read for every member of the Bar and judiciary as I believe that this must be the first book authored by a Malaysian Judge which openly criticises a former Chief Justice. The book is written in simple English and is easy to understand but at the same time I must be honest to say that reading this book is like reading a very lengthy judgment as authorities are quoted at every nook and corner of the book.

In conclusion, I would recommend this book to anyone who wants to satisfy his curiosity on what the author has to say about the Ayer Molek, Boonsoom Boonyanit and Anwar Ibrahim cases.

HAPPY READING!

******

43rd Negeri Sembilan Bar Annual Dinner & Dance
29th August 2008
(by Edoria Ridzmann)

Almost every year, the Negeri Sembilan bar hosts a dinner that boasts of scrumptious food, entertainment fit for a king (literally) and company that has never failed to liven up the night when the lights are dimmed low.

This year, expectations were high as such a dinner was amiss last year. I too was looking forward to an enjoyable night at Allson Klana Resort, the venue of the dinner this year.

Upon my arrival, I saw that everyone was dressed to the occasion. The ladies flaunted their lush and gorgeous gowns whilst the men donned smart and handsome suits. Even the children looked adorable in their outfits. One particular little girl I remember, wore a traditional Korean costume. All in all, the big crowd consisted of lawyers, their spouses, children and guests - a promising family affair.

At about 8.30 pm, guests were ushered into the hall and the night started off with the hosts making a short speech. It was almost comical to listen the speech being conducted in both English and Malay but they managed to pull it off without any lasting damage. Upon the arrival of the honoured guests, we stood to sing the national anthem.

After a few minutes, dinner was served in quite ornate fashion, complete with multi-coloured flashing lights. We were entertained with a live band, belting out songs from a long-forgotten age to which I heard the people at my table reminisce and exclaim, ‘Oh! Remember this song?!’.

Between polite conversation and occasional clapping, we dined on a typical Chinese course dinner. I think everyone would agree that the food was not fantastically delicious. Nonetheless, the atmosphere was lively for most of the night, from where I was sitting, that I doubt the food could put a damper on anyone’s night.

I was personally looking forward to the night’s primary entertainment. Harith Iskandar had performed two years ago and brought the house down with his side splitting jokes. Naturally when Harith Iskandar appeared on stage and delivered an outstanding, hilarious performance, the applause was deafening. The jokes included jabs about the Malaysian way of behaving, the stereotypes of Malaysians and Singaporeans and a CSI sketch, Malaysian style.

After 11:00 pm, the dance floor was opened to those who wanted to let loose for the night. It is safe to say that most of the lawyers there still declared that the party was not yet over.

With cameras flashing and laughter bouncing off the walls, it was clear that this coveted affair succeeded in pleasing and providing an enjoyable occasion for all.

(Editor : The writer Edoria Rizmann is one of the three beautiful daughters of Ridzmann Chee Abdullah and Nor Affiza Baharuddin, our brother and sister at law)

******

Revisiting Stare Decisis
(by Manian Raju)

Adapting Shakespeare’s words, I might be doing a great right but I would be doing a little wrong and as Portia said : ‘Twill be recorded for a precedent, And many an error by the same example will rush into the state. It cannot be.’ per Lawton LJ in Farrell v Alexander (1976) 1 All ER 129 @ 143

1.0. “PRECEDENTS WITHOUT ARGUMENT”

1.1. It was said as long ago as 1661 that precedents sub silentio and without argument are of no moment (see R v Warner 1 Keb.66).

1.2. Cross and Harris in their book, Precedents in English Law have this to say :

“decisions without argument would be viewed as a general exception to stare decisis.”

1.3. The Privy Council in Baker v The Queen [1975] AC 774 held that, although inferior Courts were bound by decisions of the Board even if they were per incuriam, they were not bound by propositions of law incorporated with the ratio decidendi which had merely been assumed to be correct without argument.

2.0. STARE DECISIS AND THE HIERARCHY OF COURTS

2.1. Miliangos v Frank (Textiles) Ltd. [1976] AC 443 House of Lords.

per Lord Simon :-

“A previous decision of the same appellate court is not binding if it is given per incuriam : Young v Bristol Aeroplane Co Ltd (1944) K.B. 718. But this exception to the rule of stare decisis is one which must be most modestly invoked. It is not applicable merely because the authority in question does not mention some relevant rule (judge-made or statutory or regulatory); still less merely because that authority appears to be open to practical or policy objections which have not apparently been envisaged or sufficiently weighed; and least of all, of course, because the judge otherwise bound merely considers the otherwise binding judgment to be wrong. A court should only hold a judgment to have been given per incuriam if it is satisfied, first, that such judgment was given in inadvertence to some authority (judge-made, statutory or regulatory) apparently binding on the court giving such judgment and, secondly, that, if the court giving such judgment had been advertent to such authority, it would have decided otherwise that it did — would, in fact, have applied the authority. Neither of these conditions was satisfied in the instant case. The Court of Appeal in Schorsch Meier was fully advertent to the Havana case, in which all the other relevant authorities were reviewed.

It is the duty of a subordinate court to give credence and effect to the decision of the immediately higher court, notwithstanding it may appear to conflict with the decision of a still higher court. The decision of the still higher court must be assumed to have been correctly distinguished (or otherwise interpreted) in the decision of the immediately higher court. Any other course is not only a path to legal chaos but in effect involves a subordinate court sitting in judgment on a decision of its superior court”.

3.0. THE PER INCURIAM RULE

3.1. Lord Diplock in Baker v The Queen [1975] AC 774, 788

“Strictly speaking the per incuriam rule as such, while it justifies a court which is bound by precedent in refusing to follow one of its own previous decisions (Young v Bristol Aeroplane Co Ltd [1944] K.B. 718) does not apply to decisions of courts of appellate jurisdiction superior to that of the court in which the rule is sought to be invoked : Broome v Cassell [1972] AC 127. To permit this issue of the per incuriam rule would open the door to disregard of precedent by the court of inferior jurisdiction by the simple device of holding that decisions of superior courts with which it disagreed must have been given per incuriam.”

3.2. cf Au Meng Nam & anor v Ung Yak Chew & ors [2007] 4 CLJ 526 Court of Appeal per Gopal Sri Ram JCA @ 537

“It is important to recognize that the Federal Court in Adorna Properties was not laying down any new principle of the common law.

It was merely interpreting a section in a statute. If it can therefore be demonstrated that Adorna Properties was decided per incuriam, no court in this country need follow it. As Sir John Salmond said in his Treatise on Jurisprudence (12th edn) at pp.151-2. “A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute, ie, delegated legislation. This rule was laid down for the House of Lords by Lord Halsbury in the leading case (London Street Tramways v L.C.C. (1898) AC 375) 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). The rule apparently applies even though the earlier Court knew of the statute in question, if it did not refer to, and had not present to its mind, the precise terms of the existence of a statute and yet not appreciate its relevance to the matter in hand; such a mistake is again such incuria as to vitiate the decision. Even a lower Court can impugn a precedent on such grounds.”

4.0. CONCLUSION

4.1. The fulcrums or fulcra of cases cited above upon which the lever of stare decisis turns are high authority from eminent judges of the Commonwealth.

4.2. The substance of it in a nutshell is that a precedent of a higher court does not bind subordinate courts if that precedent is unsupported by argument. By way of a side wind, obiter dicta is not stare decisis.

4.3. An inferior court is not allowed to disparage or disagree with the precedent of a higher court by callously brandishing “the per incuriam rule”.

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LAND WITH NIL CONDITION – RECURRING ISSUES (PART 2)
(by Seah Choon Chye)

The State Authority appears to be still unable to understand the special status of land under the provisions of Section 53 of the National Land Code (“land with Nil condition”).

This is evident from the Circular dated 31.1.08 issued by the Pengarah Tanah dan Galian vide Arahan Pengarah Tanah dan Galian Negeri Sembilan Darul Khusus Bil. 1/2008 entitled “KAEDAH KHAS UNTUK MELETAK KATEGORI DAN/ATAU SYARAT NYATA TANAH ‘NIL CONDITION’ KEPADA KEGUNAAN SEBENAR ATAS TANAH MENGIKUT SYARAT TERSIRAT (IMPLIED CONDITION) BAGI TUJUAN MEMATUHI PERUNTUKAN SEKSYEN 53(1) KANUN TANAH NEGARA 1965” (“the Circular”).

Whilst recognising that such land is not subject to any category of land use or to any express condition, the Circular failed to take into due consideration the landmark ruling of the Privy Council in Garden City Development Bhd. v. Collector of Land Revenue, Federal Territory [1982] 2 MLJ 98 (“Garden City”).

In Garden City it has been unequivocally decided that it is not mandatory for a proprietor of land with Nil condition to apply for the imposition of any categoryof land use or endorsement of any express condition (“conversion”) pursuant to Section 124 of the Code.

In view thereof, a proprietor of such land e.g. country land, should not be required to apply in accordance with the procedure set out in the Circular for conversion or endorsement in order to qualify for a substantial reduction of the exhorbitant quit rent imposed by the State Authority w.e.f. 1.1.2006.

It is believed that the fundamental error in computing the quit rent of such land was initially made in 1984 by the State Authority in including a new “category” of land use under “land with Nil condition” without taking into account the following: -

(1) Section 53(2) states that (a) country land or (b) town or village land held under Land Office title (e.g. EMR, QT(M) or GM) are subject to an implied condition that it shall be used for agricultural purposes only with proviso to sanction the continued use for agricultural or industrial purposes.

(2) All other land i.e. town and village held under Registry Title shall be subject to an implied condition that it shall be used for “building” purposes under Section 53(3) with proviso to allow the continued use for agricultural or industrial purposes.

(3) There are only three (3) categories of land use under the Code i.e. “agriculture”, “building” and “industry”.

(4) The new “category” land with Nil condition created by the State Authority does not exist under the Code as such land is not subject to any category of land use but subject to the implied conditions as stipulated under Section 53(2) and (3).

The revision of quit rent in 1984 resulted in a grave injustice to proprietors of town or village lands held under Registry title who used their land for agricultural purposes as their lands (classified under land with Nil condition) were assessed as if they were subject to the “building” category of land use and/or subject to an express “building” condition.

Proprietors unable to pay the exhorbitant quit rent were consequently compelled to dispose of their lands below market value to avoid forfeiture by the State Authority for non-payment of the revised quit rent – an injustice which continues to be perpetrated under the latest revision.

The current revision w.e.f. 1.1.2006 has now adversely affected proprietors of “country land” on account of the action taken over the past few years by the State Authority under Section 11 to vary or alter the boundary of any existing town or village or to create new towns or villages.

As a result of such action, land which is classified as “country land” under Section 53(2)(a) now comes within the municipal boundary of such townships, e.g. Pekan Seremban Jaya, Pekan Ulu Temiang, Pekan Rahang Baru, Pekan Taman Seremban, Pekan Bukit Kepayang etc.

With due respect, it is submitted that notwithstanding the exercise carried out by the State Authority under Section 11, land which is “country land” within the definition of Section 51(2)(c) and Section 53(2)(a) as at 1.1.1966 still remains as such i.e. subject to an implied “agriculture” condition unless and until the State Authority acts pursuant to Section 54 by notification in the Gazette whereby the land shall thereafter be subject to the “agriculture” category of land use and to such express conditions as the State Authority shall think fit to impose under Section 54(2) and (3) respectively.

It is therefore contrary to the Code for the State Authority to classify such “country land” as if it were “building” land in computing the quit rent payable w.e.f. 1.1.2006.

It should also be noted that under Section 102(4) the power to revise quit rent in respect of land coming within the provisions of Section 53 (i.e. land alienated before 1.1.66) should not be exercised more than once.

In view thereof, it is hereby submitted in regard to the revision of quit rent under the Code the State Authority is not empowered to forcibly convert and change the status of country land (including town and village land) subject to “Nil” condition classified under Section 53 save and except in accordance with Section 54 and should not therefore cause further stress to hapless proprietors by subjecting them to superfluous red-tape under the Circular in defiance of the law as spelt out in the Garden City judgment i.e. a proprietor of such land is under no statutory duty to apply for conversion or endorsement under Section 124 of the Code.

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THE TRIPARTITE BAR GAMES 2008 - SELANGOR VS NEGERI SEMBILAN/ MELAKA
17th & 18th October, 2008
(by Nicole Tan Lee Koon)

“It was the best of times, it was the worst of times”, wrote Charles Dickens. That was the sentiments echoed by the participants of the tripartite games. We (the Negeri Sembilan and Melaka Bars) had walkovers for netball and bowling. Yet, we lost to Selangor on the overall. It is quite alarming to note that the host failed to send their respective teams on home ground.

There is not much information about the history of the tripartite games. Maybe the senior and eminent members of the Bar can enlighten us on its inception. The writer participated in the games since 1996, with a ‘marriage break’ from 2002 until recently.

It was nice to see the same familiar faces but it does not augur well for the games. For example, there are no new faces in the NS/Melaka badminton team. One NS/Melaka team member commented that all the players are getting older and not as fit and agile as before.

The dinner was not well attended at all. The Selangor Bar catered for 80 people but hardly 60 people (from all the Bars involved!) turned up. There were ample food and drinks. The Selangor Bar chairman, Rajpal Singh attended the dinner even though he was still on antibiotics. The Selangor Bar Bar Representative, George Varughese and the committee in charge of sports, Ashokvijay J. Sanghrajka also attended. They were the perfect hosts.

The NS/Melaka Bar lost the boat race. That was like rubbing salt on our wounds. Judging from the turnout for the games and dinner alike, it is opined that there is no point in continuing with the games if there are no support from the members of the respective Bars.

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IN FOND MEMORY OF THE LATE MR. CHRISTOPHER FERNANDO

A Dear Friend.

The news of the untimely demise of Aris Rizal Christopher Fernando came as a shock to me. Although I knew that he was admitted into the Institut Jantung Negara for an operation, I was praying that he would make a quick recovery. But that was not to be. Instead I was bereaved with the loss of a dear friend.

I first met "Chris" as he was affectionately known, way back in 1970 when we were both reading law in London. But it was only upon our return to Malaysia and joining the Judicial and Legal Service that I really got to know Chris. He was always pleasant and gentlemanly. During his stint in the Government service, he was quite vocal in the Judicial and Legal Service Officers Association (JALSOA), saying his piece to improve the general welfare of the officers. We established good camaraderie and became close friends. He was always there when you needed him.

Even after he left the Government service to go into private practice, we still maintained close contact. Although there were times when he appeared before me after I became a Judge, he did not let friendship step into his work. I found that he really worked hard in the preparation of his cases and was still pleasant when I ruled against his client. I also know that he was always ready to help people who came to him although they did not have enough money to engage his services. He was an able and fearless advocate in court. It is a pity that he was taken away at the height of his profession. But I am sure that he was taken away to go to a better place where he can rest in peace.

Only fond memories remind me of Chris. It is difficult to realise that he is really gone. But my family and I will always cherish the good times that we shared with him and his family. He was truly a dear friend.And we shall miss him dearly.

by Dato’ Hashim Yusoff, FCJ

***

The late Mr Christopher Fernando was admitted as a barrister of the Bar of England and Wales by the Honourable Society of Lincoln’s Inn on 21 December 1973. On his return to Malaysia, he joined the Judicial and Legal Service and served as Magistrate, Senior Assistant Registrar and President of the Sessions Court. In 1984, realising perhaps that his true talent lay in forensic advocacy and not in adjudication, he resigned from the Service and commenced private practice in Seremban. It did not take long for Christopher, or Chris as he was known to his friends, to prove his success as an advocate. His strength lay in addressing the fulcrum of a case and directing full firepower at it until it gave way so that his opponent’s case lost all balance and collapsed.

Although he was best known for his skill as a forensic advocate at the criminal bar he demonstrated, quite often to the consternation of his opponents, that he was just as good in civil and commercial cases both at first instance and on appeal. Indeed, it was before a Bench of the Court of Appeal that I presided over that he made his last appellate appearance. We started the case against him. But he with the painstaking care that is the hallmark of an appellate advocate, took us through the record to show why his client should succeed in the appeal. His persuasive arguments made us reserve judgment and when we came to deliver our decision with reasons, it was Christopher’s client who won the day. It was tragic that he was not there to receive judgment; for he had passed away a short while earlier.

Christopher’s skill as an adept and skilful cross examiner won him acclaim. He was instructed to appear before courts throughout Malaysia. His fame also led him to be instructed to appear before the courts of Brunei: a rare honour.

Christopher did not win all his cases. But he was not a bad loser. He took defeat with the same aplomb as he did victory. He was a true advocate: a gladiator pursuing his client’s cause for what it was and not as his own.

The passing of Christopher marks the end of an era at the criminal Bar – of the fashionable advocate defending in keeping with the finest traditions of the profession; cross examining prosecution witnesses; setting the cat among the pigeons from time to time and sending the prosecutors diving for much needed cover.

All of us who worked with him, who heard him, who were fortunate enough to count him as a friend, will sorely miss him.

by Justice Gopal Sri Ram, Court of Appeal

***

Christopher Fernando was fearless.

“That, together with his strong desire to defend the weak and vulnerable against the strong and mighty, and his tremendous court craft, made him a formidable advocate.

I remember many years ago, slipping into the court room on the day that Christopher Fernando cross-examined a critical prosecution witness in the earlier Datuk Seri Anwar Ibrahim sodomy trial. It was one of the best cross-examinations I have seen. By the time Christopher had asked his 5th question, the testimony of the witness had been all but destroyed. So complete was the annihilation that the witness had to ask for a break as he felt unwell!

That image of Christopher Fernando on his feet standing behind his chair occasionally leaning forward and resting on it and tearing into the witness with a vigour that I rarely see, will remain with me forever.

We miss Christopher Fernando especially today when I have no doubt he would have been there on one of the many defence reams of persons facing charges that they should not be facing. Many may not remember that he was (unsurprisingly) one of the lawyers on the defence team for the Judges in the 1988 judicial crisis. Christopher has always been there for those who are victims of abuse of power.

That was Christopher to the very end.

His family has much to be proud of. He will always be fondly remembered by the Bar for his courage and dedication to the causes that the fought.

by Dato' Ambiga Sreenevasan, President, Malaysian Bar

***

I had the distinct honor and privilege of not only working for one of Malaysia’s best criminal lawyers, but of being his daughter. Thus when people asked me, “What was it like working with your Dad?” I proudly replied, “Great!” because he was a great dad, a great boss, a great lawyer and a great person.

My sister, Rina and I were exposed to the legal profession ever since we were young. I remember vividly the time when my Dad was President of the Sessions Court in Seremban. Our drawings decorated his chambers. We played in his chambers and we were familiar with the Courtroom. When I was older, I would sit in Court whilst he presided. I was told by his colleagues that he was strict, sharp but fair.

Having had that exposure, it seemed natural that my sister and I should choose to study Law with the intention of joining him in his legal firm in Seremban. My Dad and I worked well together. I respected him as my Boss and he was always the protective father. It was comforting to know that my Dad was in the room next to mine and that I could always knock on his door for advice which he readily gave. He would be sitting in his leather chair, deep in thought, how to solve other people’s problems.

The only issue with working for my Dad was that he worked too hard. He was indefatigable. His explanation was simply, “Hard work never killed anyone”. Sometimes I wonder where he got his energy from. Many a time I wished that he would go home early so that I could follow suit, but I always ended up staying back to keep him company. Secretly he liked this! “When you work for your own firm, there shouldn’t be a time limit”, was his advice. His work continued even at home.

My Dad enjoyed being on the Bench but his passion was in his practice. He never looked back after he left the service to start his own firm. The respect and reputation he gained was through sheer hard work and perseverance.

He hardly ever rested. It was always this client or that client, this case or that case. Even if he was sick he would still go to the office as he was always concerned about his clients. He treated his clients with utmost respect regardless of race, rank and stature. He patiently listened to their woes and always gave his clients hope, lifted their spirits and gave them encouragement and direction. As a lawyer, he was fearless and fought for justice. He frequently quoted whilst pointing his finger animatedly in the air as if giving a warning - “Justice should not only be done, but should manifestly and undoubtedly be seen to be done”. He defended all his clients without fear or favor and he always stressed on the importance of honesty and integrity.

My Dad had a remarkable way of making people feel special and making one’s troubles and pain go away. Not only did he act as their lawyer, he was their friend and confidant. To many people, he was their brother, uncle and father. Despite being a senior and well respected lawyer, he remained humble and courteous to everyone.

He was an incorrigible optimist! He was optimistic about everything and everyone. He always looked at the good side of a person and never believed that people were capable of being cruel or could take advantage of his kindness, honesty and selflessness.

My father never ceased to amaze me with his performance in Court. He was in his element in the Court room. He had great charm, charisma and style. His submissions were powerful and moving. Even a simple case would be interesting. In Court he expressed himself impeccably with his flair for the English language and Bahasa. “Cross–examination is an art”, he told me and he mastered the art. He could lure a witness into his web and they would admit everything. Even the most adverse witness could not escape his extraordinary cross-examination skills. The world will remember in one high profile case how he broke the prosecution’s star witness into admitting not once, not twice but three times that the allegations he had made were not true! By being fearless as a lawyer, my Dad paved the way for shocking revelations of the truth in the Courtroom.

Although my Dad was dubbed “Mr. Sting” and “Pit Bull” by the local and international media in reference to his relentless pursuit in extracting the truth from witnesses during cross-examination, in person, he was gentle, kind, compassionate, and generous to a fault.

Worthy of mention is the love that my father and mother shared which was simply amazing and transcended all boundaries. It is a beautiful love story. During the last year of his life, my Dad wore shirts bearing her name on them which he specially tailor made. He insisted that she accompanied him on all his trips outstation and abroad. His life was complete when he was blessed with two grandchildren.

He did not have to say much, yet his actions spoke louder than words. All he had to do was give us a hug or a pat and somehow all our worries and pain would disappear. My Dad protected us from the harsh realities of life. He never wanted us to worry or be unhappy. We never dreamed that he would be gone from us so soon and so sudden. Without him, we are left to face life’s challenges on our own. It is tough but we are grateful for the good life he gave us.

No words can explain our loss. We miss him deeply and wish he were still here with us. The happy memories we shared have kept us going and his passion and drive continue to give us strength.

To honor my late father, I have continued to run his practice together with Rina and a few faithful staff who stayed on to honor him and the firm he built.

To dearest Papa, “If I could get one final glance, one final chance, one final dance with you, I’d play a song that would never ever end, how I’d love, love, love, to dance with my father again…Every night I fall asleep this is all I ever dream.* *excerpt from “Dance with my father by Luther Vandross

by Marisa Fernando

***

Cowards die many times before their deaths;

the valiant never taste of death but once.

Chris would surely have approved of the above quotation, having come from the old school when quoting Shakespeare was not only de rigueur for any claim to a command of the English language but also was a mark of good education.

If I am asked to name two of his most outstanding qualities, I would have to settle for his je ne sais quoi attitude towards things and his absolute ease with the language. He could quote Shakespeare at the drop of a hat without appearing pretentious or patronising. He didn’t have to prove anything. Behind that veil of nonchalance in the daily interaction with people, was a highly successful man with an impressive career as one of the most outstanding lawyers of the country. These exceptional attributes are quite apart from his humility as a person, which conferred on him that deep and profound attitude and respect for others that is a mark of what Confucius calls the Ta Ren that is, a person of great stature and magnanimity as opposed to the Siow Ren, one preoccupied with trivialities, mean of spirit and bereft of the milk of human kindness.

Inevitably no word about Chris will be complete without mention of his truly remarkable abilities as a trial lawyer, in particular his razor sharp wit and his lethal skills in the art of cross examination. Having had the great honour and privilege of being defended by him in my trials and thus seeing him up close in action, I am convinced that lawyering can indeed be a noble profession. Star witnesses of the prosecution would easily end up as chopped liver particularly if the only evidence they had was part of a conspiracy. Those who spoke the truth of course had nothing to worry.

Perhaps above all, Chris was not just my lawyer but a dear and true friend who stood by me and my family particularly in our hour of need. He visited me regularly in prison always bringing cheer and companionship expecting nothing in return.

Obviously I was devastated when I heard the news. I was in Sarawak. So, I took the first flight back to KL and headed straight for the house to offer my condolences to Maria and the children. In keeping with his tradition, let me in closing, dedicate to the memory of our dearly beloved Chris, the following lines from Hamlet:

Now cracks a noble heart. Good night, sweet prince:

And flights of angels sing thee to thy rest!

May Allah the Almighty bless his soul.

by Dato’ Seri Anwar Ibrahim

***

The untimely passing away of the late Mr Aris Rizal Christopher Fernando is not only a great loss to his bereaved family, but also to many of his friends on the Bench and the Bar.

I had the honor and privilege of appearing before him when he was on the Bench in the State of Perak between 1978 to 1980. His demeanor and courtesy to members of the Bar were among his many exemplary qualities that endeared him to those who appeared before him.

Later he left the Legal and Judicial Service and practised at the Bar. Our roles were somewhat reversed when he appeared before me in numerous important cases, upon my elevation to the Bench. Suffice to say those qualities on the Bench that he had shown were his hallmark when he appeared at the Bar. The passage of time has not diminished my memory of his sterling character, integrity and charm. He had a great sense of justice and believed in the goodness of man.

I hope members of the Legal and Judicial Service and the Bar will strive to emulate his good qualities. Although he reached commanding heights of the Bar, he never lost the common touch.

His passing away has left a great void, and I consider myself highly privileged to have known him. May his soul rest in peace.

by Dato P.S. Gill, Judge Federal Court (Retired)

***

On 19th January in the year of our Lord 2008, I lost a close and dear friend and contemporary, a former Session Court President and well-known criminal lawyer. He was non other than the one and only Christopher Fernando (“Chris” to his colleagues and friends alike).

I came to know Chris more than three decades and a half ago in London. I was staying in Shepherd’s Bush. Chris stayed, a stone throw away. I also know Maria Kamaruddin (Chris’ charming and lovely wife) when she visited Chris in London.

We became good friends and kept in touch after our return from London from the time Chris served in the Judiciary until he resigned to practise law in (of all places) Seremban, the town, I grew up and started my law practice and where Chris was then the President of the Sessions Court.

At the Bench, Chris was fair to lawyers who appeared before him. Once when I appeared before his court, he dismissed my case - friend or no friend! Had he continued in the Judicial service, he would have followed his brother-in-law YAA Tan Sri Azmi Kamaruddin in the Federal Court.

As a lawyer he was fearless. We need more people like him. We would definitely miss him.

I always remember Chris as a very humble person. He is a friend to all and sundry from lawyers to hawkers. They are all his friends no matter who. He was amicable, approachable and likeable to one and all. He was also a capable husband, father and proud grandfather.

When I paid my last respects to Chris at his wake in Kuala Lumpur, among those present were the top guns in the Judiciary, well known political leaders to the ordinary man in the street. It was a touching scenario.

Chris left behind his wonderful wife, two lovely daughters and two adorable granddaughters.

To, Maria, Marissa and Rina,

I can only say this :- “To live in the hearts of those you leave behind is not to die”

by David Kong Kim Leng

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I first came to know Fernando when he reported for duty as the Seremban Sessions Court judge, at that time referred to as President Sessions Court. I used to appear quite often before him in the course of conducting criminal trials. As a judge he treated both the Prosecutor and the Defence Counsel with respect and cordiality. Often in the midst of a trial he would call both the prosecutor and the Defence Counsel into chambers for tea. He was regardful of the fact that in our system of jurisprudence, all three parties, the Judge, the Prosecutor and the Defence Counsel have a role to play in society.

Whilst he was mindful of his duties and obligations of as a judge, he could still be a friend.
Whilst he was in private practice, he was a friend that you could rely on. Once whilst he was in private practice I had to call upon him in a moment of crisis.

As a lawyer he displayed bravery that few would choose to have and had some of the most prominent personalities in the country as his clients.

by Tony Fernandez

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My most poignant memory of the late Mr. Christopher Fernando perches on a day when I was drowned with problems; my mind was stuck and I couldn’t think straight. So many problems to solve in just one day…. my wife in the Emergency Room, my dad admitted at the IJN, my workload pending, trials and submissions fixed on the same day…etc.

The late Mr. Christopher Fernando asked me, “Raftfizi… what happened to you? You looked so stressed out.”.

I replied, “So sorry Sir, I can’t go to court today, too many things on my mind. I think I want to resign!”.

The late Mr. Christopher Fernando, “Raftfizi… in life you don’t count your difficulties but must always count your blessings from GOD… I never treated you as my LA or even as my son but I always treated you as my brother”. You know the difference between ‘son’ and ‘brother’? If you are my ‘son’ ….. you must obey me. But if you are my ‘brother’, you always have freedom to make your own choice…. So now my ‘brother’ … What’s your problem?”

After that conversation, I managed to solve all my problems and to date I’m proud to say that ‘I have worked under Christopher Fernando and all the experience that I had gained is priceless!!’.

by Raftfizi Zainal Abidin

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PRODUCTION OF ASSESSMENT RECEIPT AT LAND REGISTRY
(by Seah Choon Chye)

The practice adopted by the land registry in Negeri Sembilan of requiring production of a copy of the assessment receipt (or written confirmation of the relevant local authority that no assessment is payable) appears to contradict Section 301A of the National Land Code ("the Code") wherein it is provided that only evidence of payment of the quit rent is required.

It is believed that this practice has been implemented pursuant to a directive of the Executive Committee ("Exco") purportedly made powers conferred under Section 14 of the Code.

With due respect, it is submitted that the directive of the Exco is misconceived and contrary to the Code.

In the preamble to the Code, it is expressly stated that the fundamental objective of the Code is to introduce "a uniform land system" within the States comprised in Peninsular Malaysia (West Malaysia) for the purpose of ensuring uniformity of law and policy to make a law with respect to inter alia "registration of titles relating to land, transfer of land, leases and charges in respect of land, and easements and other rights and interests in land".

Parliament in accordance with the powers conferred under Article 76(4) of the Federal Constitution duly enacted the Code.

The contentin that the Exco may exercise its powers under Section 14 to overrule the express provisions of Section 301A of the Code is fundamentally flawed on the following grounds:-

(a) There is nothing in Section 14 that empowers the Exco or any State Authority to disregard the express provision of Section 301A;

(b) The directive of the Exco requiring the land registry to insist on the production of assessment receipt would undermine the fundamental objective of the Code as set out in the preamble thereto and create confusion and uncertainty in the registration of dealings under the Code in this State.

(c) Article 75 of the Federal COnstitution declares as follows:-

“If any State law is inconsistent with a federal law, the federal alw shall prevail and the State law shall to the extent of the inconsistency, be void”.

As the said directive has contravened Article 75, the Exco should be advised that the current provision of Section 301A is a federal law and only Parliament has the sole and exclusive power to repeal, modify or amend same.

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THE SPORTING EVENTS HELD IN 2008
(by David Khoo, the Sports Sub-Committee Chairman)

The Sports Sub-Committee was designated the task by the Chairman to organize activities which would encourage a greater sense of belonging and the spirit of muhibbah among the member of the legal fraternity but most importantly to create opportunities and occasions for them to participate and “to have fun”. These could not have happened without the assistance of the sports conveners and the generous donations and contributions from the members of the N.S. Bar and friends. To this we wish to convey our heartfelt thanks and appreciations.

It is our ardent hope that the photographs shown here do exhibit such sentiments and that the future of N.S. Bar sports events will continue to remain healthy and enjoyable.

1. Inaugural Seah Choon Chye Chess Tournament (26 April 2008)

Winner : Mohd Nor Hisham
Runner-up : K. Anandaraj

2. Bi-Monthly Bowling Medals

3. Singapore / Malaysia Law Games at Melaka
(3 May 2008)

4. Dato’ Azhar Golf Challenge Trophy
(22 August 2008)

Winner : Puspanathan
Guest winner : Dr Anuar

5. Interstate Games at Clearwater Golf Resort, Perak (21 September 2008)

6. The Tripartite Bar Games, Selangor
vs. N.S./Melaka (17 & 18 October 2008)
(full report above)

7. N.S. Bar Bowling Challenge Trophy
(21 November 2008)

Winner : Asmawi
Guest Winner : Hasnol Wardi