Wednesday, August 5, 2009

Kg Buah Pala: The controversial deal - Anil Netto

Here’s an article that should be essential reading in understanding the background to the Kg Buah Pala issue.

In particular, how did Penang state government sell the land to the Koperasi when the trusteeship is believed to have passed to the Federal Government?

Can you sell something that you don’t own?

How could the Penang state government under the BN sell the Kampong Buah Pala land when “the available evidence seemed to show that the land is still vested in the Federal Lands Commissioner”, wonders a bewildered P Ramakrishnan.

Negative elements - greed, corruption, abuse of power and judicial indifference - have conspired to wipe out part of Penang’s history and destroy its heritage.

History and heritage are assets of a nation and they should be preserved for posterity. All civilised nations take pride in their history and heritage and accord them the rightful place in honouring these assets.

But we in Malaysia do not attach as much affection and concern for our history and heritage. There was a time when we even considered getting rid of the Merdeka Stadium to make way for commercial projects.

Merdeka Stadium is best remembered as the place where our beloved first Prime Minister, Tunku Abdul Rahman, declared this nation’s independence. It represents so many memories and so much history but that meant nothing to human avarice. Thank God it did not take off but the point is we were even prepared to commit this sacrilege!

Then there was an attempt to shift the well-known St Michael’s Institution in Ipoh somewhere else just because it was in the middle of a fast growing township. But St Michael’s was there long before so-called development caught up with it. Thank God it did not take place!

But Bukit Bintang Girls’ School in Kuala Lumpur was not that fortunate. This famous school, which was a landmark in the history of our education, had produced so many brilliant students and leaders but that notable achievement did not spare it. It eventually lost to development and greed. It was demolished to make way for commercial purposes. Though the school was shifted elsewhere, they made sure that its history would not continue. They got rid of that famous name: BBGS. They did not even bother to retain the old name of the school to honour its history and contribution to our education.

I’m sure there are numerous other examples of indifference and sacrilege.

But the latest example to wipe out history and a legacy that goes back nearly 200 years and make way for greed and corruption is taking place in the Pearl of Orient: Penang’s version of High Chaparral is facing extinction within a matter of weeks.

How did the Penang govt acquire the land?

Much has been written about the history of this community that has been occupying this parcel of land which has been home to more than five generations of descendants. Therefore it is unnecessary to dwell on this.

What I’m interested in is how this land was acquired by the Penang Government Officers Cooperative – Koperasi Pegawai Kerajaan Pulau Pinang. How was the cooperative able to obtain this parcel of land below market value? Did the officers who were influential and closely linked to the Barisan Nasional Government and Umno just help themselves to it with the blessings of the Penang state government? After all it was Umno that was effectively running the government and who would have dared to question it or oppose whatever that was done by the Umno Exco Members?

Did the land actually belong to the Penang state for these officers to grab it on behalf of their cooperative?

According to legal circles, this land was under a trusteeship. But this trusteeship was dissolved by an Act of Parliament in 1976. When this took place, we are told, this parcel of land reverted to the federal government. The ownership of this land, it is believed, is still with the federal government.

It is a mystery why the BN government deprived these poor Kampung Buah Pala residents of their land by passing this Act of Parliament. The BN with its majority simply took over this land – nay, it just robbed them of their land.

There is no evidence that the Penang state government had ever paid a premium to buy back this land. There is no evidence when this land reverted back to the state of Penang. In all probability, the land is still vested in the Federal Lands Commissioner.

A repeat of the Nizar case

That being the case, how was this land transferred to the cooperative? There appears to be a fraudulent transfer of land which is a very serious matter. Why did the Court of Appeal and the Federal Court totally ignore this vital point when the residents turned to these courts for justice?

It is significant to note that the High Court Judge had ruled that the villagers and the residents of Kampong Buah Pala have a claim to this land.

In a well-argued judgment, Justice O’ Hara had clearly established that there are points to be tried before the courts and there are issues for the courts to weigh and consider before arriving at the truth as to the ownership of the land.

In upholding the decision of the Deputy Registrar (DR), Justice O’ Hara referred to the DR’s ruling, “There is no evidence before this court that the land in question had reverted back to the state under the operation of the old Article 84. The ownership of the land when it was purportedly alienated to the 2nd defendant - Koperasi Pegawai Kerajaan Negeri Pulau Pinang - is an important issue to be considered and for that reason I am not prepared to grant summary judgment as sought by the 2nd and 3rd defendants.”

The Court of Appeal totally ignored the valid points raised by the High Court and, without any legally established basis, ruled in favour of the defendants in setting aside the High Court ruling.

This decision seemed to be a repeat of Nizar’s case in which the High Court in a sound judgment had ruled that Nizar was the legitimate Menteri Besar of Perak at all material times. But the one-man Appeal Court set aside this finding without any written judgment. This scandalous situation was re-enacted in the case of the Kampung Buah Pala case.

In both cases the Federal Court was a total disappointment. In the Buah Pala case, it ruled that the plaintiff had no locus standi. How could this be so when the residents of Buah Pala can trace their ancestry to more than five generations!

It is this vital and critical point that has to be addressed. Whose land is it? Does it belong to Penang? If so, what is the evidence and where is it?

If “the available evidence seemed to show that the land is still vested in the Federal Lands Commissioner, regardless of whether the Commissioner is aware of that fact” as contended by the Deputy Registrar, how could this transaction have taken place?

Can you sell something that you don’t own? Or transfer something that you don’t have? That is the only question that deserves an honest answer.

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Nusmetro Kg Buah Pala

MIC will buy up Kampung Buah Pala

Court deals blow to Kugan's mother - Malaysiakini

Deceased police detainee Kugan Anathan's mother suffered a setback today when the High Court allowed a preliminary objection by the government against returning the post-mortem samples which police had confiscated from the Universiti Malaya Medical Centre (UMMC).

With the preliminary objection allowed, the court decided not to hear the merits of the case but allowed the mother to file a proper fresh application.

Judge Ghazali Cha allowed the preliminary objection by the police on a technicality when he ruled that the application should not have been filed via a notice of motion.

Lawyer N Surendran said they could appeal against today's decision.

"The decision would not stop us in seeking the samples and also seeking justice for Kugan," he added.

N Indra is seeking the return of her son's post-mortem samples, including bodily fluids and tissue samples, photographs, documents and other materials relating to the procedure done by a UMMC pathologist.

Kugan, 22, who was detained in January for alleged involvement in car theft, died after five days in police custody.

His family had rejected the initial post-mortem conducted by Dr Abdul Karim Tajuddin of the Serdang Hospital, which stated that the Kugan had died from "fluid accumulation" in his lungs.

A second autopsy was done at UMMC at the request of the family, after which pathologist Dr Prashant N Sambekar Prashant concluded that Kugan was severely beaten resulting in kidney failure and death.

Indra named four police officers in this action, including inspector-general of police Musa Hassan and criminal investigation department director Mohd Bakri Zinin, as respondents.

The other two are Petaling Jaya district police chief Arjunaidi Mohammed and the officer who raided the pathologist's office, ACP Mohd Marzukhi Mohd Mokhtar.

Application did not state provision

In his decision, Justice Ghazali said Indra's notice of motion did not state under which provision the court had the jurisdiction to hear the application.

"I agree with the respondents (represented by the Attorney General's Chambers) that the applicant should state under which provision this notice was filed. This is to facilitate the court to study the relevant provision.

"Without stating the proper and correct intitulements, it would result in the court to question or be kept guessing on which law provision and Act is being referred to," he added.

He said because the proceeding started with this notice of motion, and an accompanying affidavit, it must follow the provision which supports civil proceedings in nature, by stating the correct and accurate intitulements to prevent confusion.

"Although this may be technical, it is emphasised by the court to ensure a just hearing. Intitulements is not only important for the court but also to the opposing side to prepare its reply or for them to prepare their case," he added.

He pointed out that the counsel for the applicant had argued that the court has revisionary powers.

"The court does not deny its revisionary powers to call up papers from the lower courts in exercising this jurisdiction. However, when I studied the prayers sought, its title and the contents in the notice of motion and the affidavit, there was no mention of 'revisionary'.

"It is only when submission was made by the counsel, he mentioned revisionary. It is clear that the absence of the intulement has confused me," he said.

"Following this, I am satisfied with allowing this preliminary objection by the respondents and this notice of motion is hereby struck out with liberty to file afresh," he added.

Commenting the decision, Surendran said they have two options - make a proper revision application or appeal today's decision at the appellate court.

"I will discuss this with my client before deciding on the next course of action," he said.

"We want the samples for a toxicology test to be done to determine what is the cause of Kugan's death. Was he poisoned or anything. That is why Indra is seeking the samples," he added.

Deputy public prosecutor Noorin Badaruddin represented the police.

Kg Buah Pala: Human shield confronts sledgehammers - Malaysiakini

A human chain stood in the way of about 50 members of a demolition team who were supposed to tear down Kampung Buah Pala today.

Both sides stood down after the demolition exercise was subsequently called off following discussions between villagers and developer Nusmetro Ventures (P) Sdn Bhd.

At about 11am, the situation became tensed after a demolition team arrived, armed with hardhats, crowbars and sledgehammers.

Upon noticing their presence, some 300 male villagers formed the human shield and began chanting slogans.

More than 100 police personnel stood watch. The police later brought representatives from the developers and villagers into a police van for discussions.

After a brief negotiation, the workers left and villagers breathed a sigh a relief.

Court hearing

The workers had come despite Deputy Chief Minister P Ramasamy visiting the village earlier this morning and reassuring residents that no demolition would take place.

According to the agreement reached in the police van, developer Nusmetro would not proceed with the destruction of the 23 houses until after a Federal Court hearing on the status of the land.

The villagers have filed an appeal against the Court of Appeal's decision which ruled in favour of the developer.

In the decision, the appellate court overturned an earlier High Court decision, which favoured the villagers, and issued an eviction order effective June 11.

But the state government has since negotiated with the developer to hold off the demolition.

The Federal Court will hear the appeal on Aug 18.

Balik Pulau MP Yusmadi Yusof said since the villagers have obtained a date from the court, the developers have agreed to wait for the hearing to conclude.

"All parties have agreed to respect the court process. The villagers have always used legal and peaceful means," he said.

He said the developer's workers might not have known about this and were about to perform the demolition today. Villagers in tears

As early as 8.30am today, scores of women and children formed a second human barricade at the main entrance to the village.

Ramasamy's appearance at about 9am did not seem to relieve the villagers of their anxiety.

He had told them that the developers would not be taking any action today and the state government would hold a meeting with villagers at 7pm tonight.

Despite this, the villagers, many of whom were in tears, pleaded with Ramasamy to persuade Chief Minister Lim Guan Eng to purchase the land from the developers.

At one point, an elderly villager was so overcome by despair that he knelt in front of Ramasamy, who quickly lifted the man up.

Other than the disgruntled villagers, Ramasamy also had to face several MIC Youth members at the scene who jeered at him.

Kg Buah Pala: The compensation offered - Anil Netto

From a source, I hear that the following compensation was offered to the villagers at tonight’s meeting:

Two-storey cluster houses: upstairs – 600 square feet; downstairs – 600 sq feet; outside porch, etc – 200 sq feet.

The developer would allocate 0.7 acres of the 6.5 acres for the villagers’ houses.

No compensation for temporary rental reimbursement while the project is ongoing.

A few may have agreed; others, who may have a few families living under one roof, are uncertain.

Instead of this 0.7 acres, the residents had asked the state for two acres of adjacent land, but were told that that was state reserve land.

Meanwhile, they have a date with the Federal Court on 18 August on one side, while on the other, the developer has given them until Friday to leave.

Reprieve for Kg Buah Pala!

Photos by a kind soul