FACULTY OF LAW SEMESTER 2 SESSION 2011/2012

UUUK 1023 CONSTITUTIONAL & ADMINISTRATIVE LAW

ASSIGNMENT

LECTURER Associate Professor Dr. Faridah Jalil Associate Professor Dr. Che Norlia Mustafa Dr. Haniwarda Yaakob

NAME MATRIC NO. SUBMISSION DATE

: : :

SAW WEI SIANG A 136779 18 MAY 2012

QUESTION In the case of Ng Kim Moi (P) & Ors v Pentadbir Tanah Daerah, Seremban, Negeri Sembilan Darul Khusus (Negeri Sembilan Township Sdn Bhd & Anor, proposed intervenors) [2004] 3 MLJ 301, Gopal Sri Ram JCA wrote a dissenting judgment on the Appellant motion to declare that the acquisition of his land by the State Authority is invalid and contrary to art 13 of the Federal Constitution.

Analyse his grounds of decision and compare with Abdul Aziz Mohamad JCA decision which is the majority decision in this case.

Whose decision are you in favour of? State your reasons.

In answering this question please give your attention to:

i.

How do both judges interpret the procedural requirements provided in the Land Acquisitions Act 1960 (1960 Act)?

ii.

What are the procedures stipulated in the 1960 Act in regards of land acquisition? You will have to read the 1960 Act. How does Gopal Sri Ram JCA interpret the word law in Art 13(1)?

iii.

END OF QUESTION

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ANSWER Introduction This was a case in front of Court of Appeal. The presiding judges were Gopal Sri Ram JCA, Abdul Aziz Mohamad JCA and Azmel J. The learned judges did not dispute on the facts. The appellants alleged the acquisition of his land was unlawful as the Forms A and B prescribed by the Act were never issued and that Forms D, E and F though issued were not served. The consideration of the case was the legality of the acquisition of the land concerned. Procedure of Land Acquisition in Land Acquisition Act 1960 (Act 486)
s.4 (1): Form A - Preliminary Notice where the land is likely to be needed and published in the Gazette

s.5: Form B - May authorized a person power to entry and survey of the land

s.7: Form C - Preparation of plan and the list of lands that needed for public purpose

s.8: Form D - Declaration that the land is needed and published the form in the Gazette

s.10 (1): Form E - Notice of commence proceedings for the acquisition

S. 19: Certificate of Urgency - the land is in urgent need.

s.12: Enquiry for compensation by the Land Administrator

s. 14: Form G - Award of compensation

s.16: Form H - Servive of Award

s. 22: Form K - Formal Possession

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Clashes on the Different Judgments It is worth to note the dissenting judgement written by Gopal Sri Ram J although the appeal is dismissed by the majority judgment. Gopal Sri Ram J first dealt with the legality of the acquisition. Secondly, the leaned judge was considering the remedies available for the appellants if the acquisition was unlawful. The issue regarding the legality was whether the word shall in s.4 (1) was mandatory or mere directory. With regard of this argument, Gopal Sri Ram J was of the opinion that the case sited by the learned state legal adviser provided no help for her argument.i Instead, the learned judge referred the true guide of the interpretation was Everything turns on the context in which it is used: the subject-matter, the purpose and effect of the section which the learned judge found in the same case referred. The learned judge therefore adopted the purposive approach in the statutory interpretation of the word shall. The learned judge had not only once considering the essence of the Land Acquisition Act 1960 (the Act); at para [16], the learned judge said We are here dealing with a statute which is aimed at the prevention of arbitrary escheatment of proprietary rights, the protection of which the supreme law of the Federation guarantees as a fundamental right. ii Gopal Sri Ram further stated that the state authority is required to act strictly in accordance with the terms of the Act as the Act was aimed to deprive the fundamental right of citizens under Article 13 of the Federal Constitution. For the foregoing reasons, the learned judge ruled that the word shall is mandatory and not merely directory in effect. To support his view, the learned judge cited a decision from Indian Supreme Court where they had the similar provision in Indian Land Acquisition Act 1894.iii Following the mandatory nature of the issuance of Form A, the learned judge ruled that the non-issuance was a clear violation of law and thus the acquisition was illegal and void. This judgment was not concurred by Abdul Aziz Mohamad J on the ground that the land still can be validly and legally acquired even there had been no notice of Form A because the market price of the land concerned can be determined at the date of the gazetting of Form D as the para 1 (1) (b) of the First Schedule provided. However
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regrettably, this judgment was mainly based on the interpretation of the phrase the other cases as found in the First Schedule without any supporting authority. Gopal Sri Ram J proceeded further the second alleged violation of law, that is the non-service of Form D, E and F. The failure of the service of the Forms was caused by the misunderstanding of the exact location of the address. The learned judge after considered s. 53(2) and s. 56, give the judgment in favor of the appellants by following the judgment in the case Wong Kee Sing Realty Sdn Bhd v The Collector of Land Revenue, District of Gombak iv , where Mahadev Shanker J distinguished the word due service and the word service. Gopal Sri Ram J in his judgment, at para [30] said: I would respectfully adopt his lordships views. Section 56 is directed at a situation where there was service but not due service, that is to say, service in exact terms as prescribed by s 53. It is has no application to a case as the present, where there was no service at all. This judgment did not get much merit from two other judges in the chamber. In delivering the majority judgment of the Court, Abdul Aziz Mohamad J refused to invalidate the acquisition on the ground that firstly, the failure to serve Form E was not capable to invalidate the acquisition and secondly, even if the mere failure to serve Form E had such consequence, the failure did not prejudice the appellant in anyway.v The learned judge also disapproved the weightage of the word due given by Mahadev Shanker J in Wong Kee Sing.

The Interpretation of the Word Law When coming to consider the remedies available to the appellants, Gopal Sri Ram J had extensively discussed the correct definition of law. The learned judge by citing the Privy Council decision in Ong Ah Chuan v Public Prosecutor Koh Chai Cheng v Public Prosecutorvi which interpreted the law referred to a system of law which incorporated those fundamental rules of natural justice that had formed part and parcel of the common law made the following remark:

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 These cases make it clear that a court that reads the expression lawin arts 5(1), 8(1) and 13(1) as meaning only written law would fall into serious error for two reasons. First, it would fall foul of the definition of law itself in art 160(2) which includes common law. Second, it would mean that any and all of the fundamental liberties guaranteed under Pt II of the Federal Constitution could be swept away by one ordinary Act of Parliament. This would render illusory the words of art 4(1) of the Federal Constitution at para [52], pp 322. Gopal Sri Ram J interpreted the word law as not only the legislation passed by the parliament no matter how arbitrary and unfair it is, but also had to meets the common law test of fairness of state action, especially dealing with the fundamental right of any human being.

Personal Opinion With great respect, after considering the judgments in this particular case, I am in favor of the dissenting judgment given by the Gopal Sri Ram J. The judgment of the learned judge is much concerned to give effect to the guarantee of the fundamental right in the Federal Constitution. I am much in agreement of with the remark made by the learned judge in his postscript at para 74, pp 328 which reads as follow: To read mandatory provisions in such a statute in a generous and favourable manner towards those whose duty it is to ensure their due observance is to condone and promote maladministration in a matter so important as the deprivation of property. It is a message from the judicial arm of Government to the bureaucrats that due compliance with mandatory provisions of the Act will produce no consequences for them. In the event of facing the strong government, the only alternative the people can seek is the judiciary to give remedy for the damages and misery they suffered. The courts should have always bear in mind the leniency in the interpretation of the due process in administrative law will probably result in an arbitrary government who ignorant of the law. The principle of rule of law should have upheld in whatever circumstances.

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Besides, even though the non-issuance of the Forms did not prejudice the appellant, neither the award of damages prejudiced the government. Gopal Sri Ram J has laid down the guidelines for assessment of damages, inter alia, the loss must be assessed as at the date when that breach occurred. This means the appellant is not getting any advantage from the increment of the market value of the acquired land. Therefore, this is entirely my misfortune that I find myself remained unpersuaded by the judgment of Adbul Aziz Mohamad J which concurred by Azmel J.

Grunwick Processing Laboratories Ltd & Ors v Advisory, Conciliation and Arbitration

Service and another [1978] AC 655

ii iii iv v vi

The learned judge repeatedly expressed the similar view in para [16], para [75] and para [77]. Collector of Allahabad v Raja Ram Jaiswal AIR 1985 SC 1622 [1995] MLJU 187 At para [105] & [106] [1981] 1 MLJ 64

END OF ANSWER

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