The Jesters Lead the March: When Leaders Keep Mum during a Robbery
These poor native NT land owners have absolutely no idea how extensive the acreage owned by them or its location as no admission or information on neither these titles, sublease fees payments nor their own tax returns has ever been disclosed to them.
Selvaraja Somiah
On October of last year (2014), this blog hosted an article I wrote on how several public listed companies from Peninsular Malaysia have gained ”ownership” of Sabah’s Native Title lands through seemingly legal yet downright dishonestly via sublease (See here : Living off the Rape: The Lost Native Titled Lands to the Outlanders). After that very same post, the Director of Sabah Land & Survey Department Datuk Osman Jamal came out with a 14 page press statement -“Sub-lease Bukan Pindahmilik dan Rampasan Tanah Tidak Berlaku” (Sublease is not for Transfer and There is No issue of Land Grab) also found at http://www.freemalaysiatoday.com/category/nation/2014/11/05/no-reports-on-sabah-land-scam-allegations/). I find it strange that Osman Jamal is somehow insinuating that dealing in NT Lands by non-natives, listed companies and foreigners are officially forbidden but is it suppressed?
This is not a case of bogus natives with questionable native certificates dealing in buying or selling NT lands. The dispute is also not about Natives selling to Natives but the constant abuse of Natives as “nominees” by non-natives, listed companies and foreigners in their pursuit to possess and “own” NT lands. It is indeed a cause for concern when the Sabah Law Association (SLA) appears to concur with the Director of Sabah Land & Survey Department on issues fronting the NT lands grab and the law through the Director’s 14 page press statement. What adds insult to injury here is at the time of writing, the SLA has yet to make a stand on the issue. This failure to issue a statement on the allegations of its member’s active role in drafting and attesting such agreements and on the contents of the press release from the Director of Sabah Land & Survey Department is nothing short of dumbfounding considering that the SLA has prided themselves for presumably being the protectors of justice for Sabahan without fear or favour, that they are always on their toes to bark against any such infringements especially against those involving Natives Rights.
In fact, the SLA’s silence on the issue is a clear defiance of the pillar’s of foundation it is founded on – they have to take all reasonable steps to educate the public on the reasons they have remained silent on the NT lands scam as reported in the Daily Express dated 18/10/2014. It is indeed cause for concern as the failure of the SLA shows how selective and biased they are in upholding justice and raises pertinent questions as to whether the association must now be reformed.
“Fraud” is defined as “criminal deception, devious ploy or trick” and therefore relates to any form of cheating. The main point before dealing with this issue is to emphasise that a problem which can generally be described as “assisting fraudulent activity” is not confined to being a party together with someone, abetting or advising someone on how to commit fraud but rather any illegal or improper activity. Professional accountability involves distinguishing how to balance the various duties owed by lawyers to the administration of justice, to the client, to the public and to the legal profession. Turning a blind eye to fraudulent activities often happens through ignorance or unsuccessful efforts to balance the various duties which a lawyer owes either because it is too difficult or it conflicts too much with “commercial realities”.
Sir L.W. Street, the former Chief Justice of the Supreme Court of New South Wales, in New South Wales v Harvey [1976] said of the *fiduciary nature of a solicitor’s duty to clients, “An appreciation of that duty depends not upon some technical construction but upon applying the ordinary concepts of fair dealing between honourable men.” Hence, the Director of Sabah Land & Survey Department and District Officers (as ACLR) should exercise their duties in ‘good faith’, and in the absence of ‘bad faith’. ‘Bad faith’ raises issues both of fact and of law and involves personal fault and improper motive. Acting in bad faith can include dishonesty, fraud or intentional bias, acting in the knowledge of a real or perceived conflict of interests, inappropriate discriminating or an abuse of power, knowingly acting beyond the scope or ambit of the power available to the department or official or other conduct with an improper motive or ulterior purpose.
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