Still crying out for justice
Tuesday, 11 June 2013

The Star
by Siserro, Batu Pahat

ROGER Tan’s article on Boonsom Boonyanit (The Star, June 9) draws me back to my law school days when I accidentally came across the Boonsom Boonyanit v Adorna Properties Sdn Bhd case while leafing through a volume of the Malayan Law Journal (MLJ).

I was in my first year and land law was a second year subject. What attracted me was the un-Malaysian name and I read the case through the various levels of courts it went through. The decision of some courts piqued me, but I refused to be pickled.

Being a first year law student, some of the terms and concepts baffled me.

Terms like “immediate indefeasibility” and “deferred indefeasibility”, “good faith and consideration”, “balance of probabilities and preponderance of probability”, “civil fraud” and “criminal fraud” all sounded pretty heavy on my ears. I struggled through the maze of legal jargons and reasoning, which sounded Greek to me then.

After a few years of immersion in law, I realised that the English crafted their language and laws with nuances and shades of meanings and it is a premium to master their language.

The more I read about the case, the more I realised that it would become a goldmine of legal controversies. Comments about the case began to appear in newspapers and academic journals.

I read articles by Salleh Buang, David Wong, Teo Keang Sood, Roger Tan, P.K. Nathan and others. All but one argued that the Federal Court decision under Chief Justice Eusoff Chin had made a wrong decision and interpreted Section 340 and its subsections of the National Land Code wrongly.

Is the title to one’s land indefeasible? I began to wonder. All commentators pointed out that ours is “deferred indefeasibility” and not “immediate indefeasibility”, because it can be challenged.

Because of this doubt, I paid a monthly visit to the local land office just to make sure no David Copperfield makes my small piece of land in a kampung vanish into thin air. I had to spend quite a sum for this monthly confirmation.

Finally, I decided to dispose of the land and was able to sleep more soundly. This was because there were so many fraud and forgery land cases appearing in the papers, the latest being the Federal Court decision in Tan Yin Hong v Tan Siang Sang (2010).

One article I read even suggests that the Federal Court judgement in the Boonsom case was that of the former Chief Justice and not of the other two judges, the late Chief Judge Wan Adnan Ismail and Federal Court Judge Abu Mansor. Very convincing reasons were given for this rather startling conclusion.

·The Federal Court judgment is dated Dec 13, 2000.

·Then Chief Justice Eusoff Chin retired on Dec 18 that year.

·The judgment was read out on Dec 22 by the Deputy Registrar

·The then Chief Justice had six days before retirement to read out the judgment in court or to call upon one of the other two judges to read the judgment. This was not done.

·The counsel for Boonsom Boonyanit, the late Lim Kean Siew, had requested for “salinan-salinan surat-surat daripada Wan Adnan Ismail HBM dan Abu Mansor HMP yang mengatakan bahawa mereka bersetuju dengan Penghakiman bertarikh 13.12.200 yang di tulis oleh Mohd. Eusoff bin Chin KHN, ini kerana Wan Adnan Ismail HBM dan Abu Mansor HMP tidak menandatangani Penghakiman tersebut.”

·The request was turned down by the Deputy Registrar.

Do the two letters from the two judges come under the Official Secrets Act? Court judgments are supposed to be public documents.

Although the Federal Court reviewed its decision under a different set of judges on appeal by Boonsom’s son, Kobchai Sosothikul, the new Federal Court with P.S. Gill FCJ and two others found that the judgment of the Federal Court under Eusoff Chin was not “patently wrong”.

Now, we all know that the decision of the Federal Court under Eusoff Chin was “patently wrong” and that the decision was a “blatant and obvious” mistake. It would be appropriate for the case to be reviewed one more time. The reason is obvious.

In Roopa Ashok Hurra v Ashok Hurra 2002 4 SCC 388, the Supreme Court of India said: “Judges of the highest court do their best subject of course to the limitations of human fallibility, yet situations may arise, in the rarest of cases, which would require reconsideration of a final judgment to set the miscarriage of justice complained of. In such a situation, it would not only be proper but also obligatory both legally and morally to rectify the error… there may be circumstances where declining to reconsider the judgment would be oppressive to judicial conscience and would cause perpetuation of irremediable justice… the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment.”

The case of Boonsom Boonyanit qualifies to be the rarest of rare cases and the Federal Court would be doing great justice in reviewing the case one more time to correct the “blatant and obvious” mistake of the two judgments of the Federal Court so that the late Boonsom Boonyanit can rest in peace. She cries for justice from beyond the grave.