Way forward in difficult cases |
Tuesday,
22 January 2008 06:34am |
©The Sun (Used by
permission) Radzuan Halim explores ways of improving our judiciary
and in this second and final part of his column suggests some novel
approaches. (Please click here
to read the first part) Reinforcing common law traditions A major strength of our civil courts, of our justice
system, and of our nation is the adoption of the common law and rules of
equity over the past 120 years or so. There are many senses in which the term ¡°common law¡± is
used. For our purpose here, I refer to the common law approach to justice,
under which our civil judges are bound by English (and Commonwealth) superior
courts¡¯ judgments except for matters specifically excluded by or provided
under our own written (statute) law. Further, the common law approach entails the adoption of
public hearings, issuance of written judgments and many of the practices
first enunciated by the Magna Carta in 1215. Also central to the common law
approach is the need for logical arguments tempered by human experience and
abiding by but not blindly loyal to previous judicial decisions. I believe some of the ¡°difficult¡± cases, which had
caused hardship and inconvenience, to the Malaysian public could have been
resolved by adhering to common law principles. One case is Boonsam Boonyanit v Adorna Properties Sdn
Bhd (Adorna case) in which our highest court decided that a land owner could
lose her land to a direct buyer even though she had not signed any transfers
or had misled the buyer in any way. This unusual decision by the Federal Court, which was
made over an emphatic decision of the Court of Appeal in favour of the land
owner, was justified purely on the wordings of the National Land Code. In my
view the common law principle of ¡°a forgery is a nullity¡± should have easily
disposed of the case in favour of a true owner as against a direct buyer (the
case for subsequent buyers is another matter altogether). The Federal Court
decision in this case had predictably led to all kinds of unwelcome
repercussions. Can you imagine! You, the land owner sitting quietly in
your own home, doing nothing, not talking to anyone and lo and behold! you
have lost your land to someone who had ¡°purchased¡± your land using forged
transfer documents. Sure enough, this decision had led to so many copy-cat
scammers, resulting in losses to others and sleepless nights for land owners.
For my part I wonder why the land owner¡¯s predicament was not treated as a
police case. Then there is the constitutional issue (Article 13,
Federal Constitution) which guarantees a person¡¯s property rights. To take
away her property in this case, through no fault of her own, amounts to an
acquisition (or confiscation) for which there must be adequate compensation. There is another example where a basic common law
concept could be fruitfully applied in order to resolve a prickly problem. This relates to the consequences of religious
conversions upon marriages, spousal rights and property/maintenance issues. A
non-Muslim man in a subsisting marriage converts to Islam and simultaneously
undergoes a Muslim marriage with a Muslim woman. A few of these cases are
weaving their way through the courts and attracting all the media attention,
coffee shop talk, club chatter, and challenging the best minds of the legal
fraternity. There is a pronounced tendency to view such situations
as matters of constitutional law, human rights, religious rights, courts¡¯
jurisdiction and so on. The Islamic law position is that the conversion annuls
the previous marriage while the civil court is hesitant to tread into Syariah
matters, particularly after the removal of ¡°judicial power of the
Federation¡±. My view is that the application of basic common law
principles can still come to the rescue. The concept of scintilla temporis
(split-second moment in time) is handy here. The civil courts should
focus on that crucial moment in time just before the non-Muslim man converts.
At that moment he is still a non-Muslim just about to go into the process of
conversion with consequent annulment of his existing civil marriage. At that moment, he is still obliged to fulfill all his
contractual and legal duties under his civil marriage. The civil court should
be concentrating all its attention on the man¡¯s duties and obligations as at
that moment, and work out all the financial, property and maintenance orders
as appropriate. In other words, the man is free to convert and marry but
all the obligations and financial arrangements would be determined based upon
the pre-conversion position. Taking my approach there is no need to delve
into religious and constitutional jurisdiction issues, thus freeing the civil
court to concentrate on property division, dependents and financial
arrangements. There is a neat question of whether the man would have
committed bigamy or attempted bigamy which is a criminal offence. Well, let¡¯s
leave that issue to the Attorney-General who looks after criminal
prosecutions. The recent Subashini decision of the Federal Court
illustrates the shortcomings to be found in the present approach. First there
is the tendency to view such cases as constitutional ¨C court jurisdictional
matters. There is a failure to view them simply as duties and obligations for
spouses under contract and statute law. Second, the claimant wife is told, after exhausting all
appeals, that she had started her High Court action on the wrong footing,
since she had begun her court proceedings too soon! She should have waited
for the three-month period from conversion as specified. So another court
must now consider her case and decide. Now this is a clear case of form over
substance which is not appropriate to apply so strictly in a family law
situation. Furthermore, what is the prejudice caused to the
opposing party from her starting the case slightly early? It is time that we
start treating such cases as family law problems pure and simple and resort
to the scintilla temporis concept. Judges must judge This is related to the work ethic issue discussed above
but is somewhat distinct. We know from executive, professional, employment or
plain life experience that some people are indecisive, hate to decide or are
incorrigible procrastinators. Some people are just not the deciding type. We
meet them as bosses, subordinates, professionals and relatives. I suspect
this not unusual quality also inflicts some of our judicial brethren, whether
in the civil or Syariah courts or in other tribunals. One area of the law where indecision is rife is in
family law cases. The marriage had irretrievably broken down, the
relationship between spouses is acrimonious, all the property and financial
details had been documented, but the judge refuses to decide on the divorce
and terms. The judge could be wishing that the couple would somehow
make up and begin to live happily ever after. He could not see that his indecision could be preventing
the parties from carrying on with their lives or that the prolonged in
separation could have tragic consequences. Perhaps it is necessary to consider the decisiveness factor
when evaluating candidates for judicial positions. Some individuals might
have the requisite experience and learning, yet shy away from having to
decide. How to help our High Court Judges While this extended column is intended to show
shortcomings on the part of our judges, let us not overlook the difficulties
and limitations they face. First, we need to re-energise and restructure our
magistrate court system to enable it to function more effectively. I cannot
see why our magistrate courts could not be more closely modelled on the
English system, whereby a bench of lay magistrates (selected local residents
with good records) could be empanelled to handle most criminal and local
dispute cases. A bench of lay magistrates, assisted by a qualified
legal officer (the court clerk) would be able to speedily dispose of common
assaults, traffic offences and simple debt claims. With an efficient magistrate court system, we would
release the pressure on our Sessions Court and indirectly on the High Court
as well. Second, we need more courts at the ¡°Deputy High Court
Judge Level¡± to handle specialised cases. At present too many technical cases are coming straight
to the High Court Judge who has to grapple with them in a raw unprocessed
form. It is time that we set up land courts, companies courts
and commercial courts at the Deputy High Court Judge level. These courts can be presided over by land registrars
(land court) or accountants (companies courts), who would be better equipped
to make technical determinations of issues such as ¨C is there a caveatable
interest on the land or is the company financially solvent or what is the
appropriate value to place on the shares of Company X. Of course appeals arising from decisions of the Deputy
High Court Judge would still proceed to the High Court. But in the process,
the issues and evidence would have been properly ¡°processed¡± and organised
and the technical issues thrashed out before hand. What I am proposing here
is nothing new. For income tax cases, we already have in existence the
Special Commissioner of Income Tax which operates at the Deputy High Court
Judge level. Appeals from the commissioners proceed on to the High Court. From my queries, the system seems to be working well for
income tax cases. Conclusion If I get it right, Datuk Abdul Hamid, in his swearing-in
speech as Chief Justice had made an impassioned plea for understanding,
goodwill and cooperation from the general public. A judge¡¯s duties and responsibilities are onerous while
the judiciary¡¯s own standing as an institution in a young country like ours
is always precarious. Let us all try to answer to the Chief Justice¡¯s plea in
the best way we can, so as to enable our judges to do justice, which is ¡°to
do right ... without fear or favour¡±. |