Political Donation in Najib’s Personal Bank Account?

Political Donation in Najib’s Personal Bank Account?

By K.Siladass

            The plethora of excuses that are now offered in regard to the huge amount deposited in the personal account of the Prime Minister Dato Seri Najib Razak do not satiate the troubled Malaysians. These excuses indeed raise far more profound questions which call for acceptable answers.

            Firstly, if it is a political fund as it is now claimed why was it not disclosed earlier? Aside that, why is this childish challenge to the opposition that they disclose their donors before you disclose yours? A leader leads by example. He is a role model to be emulated and the challenge to the opposition is not a prudent move.

            Secondly, it is not the opposition alone to whom Najib is answerable. He is also answerable to all Malaysians and to those who truly and sincerely love Malaysia and have its welfare at heart.

            Thirdly, it is now claimed that the money deposited in Najib’s personal bank account was, in fact, a political donation. Was this fact revealed to the UMNO Supreme Council members? If such a disclosure had been made, then why was Muhyiddin Yassin querying about it after The Edge had published about the huge deposit? If the disclosure had been properly made to the Supreme Council, it was unnecessary for all the accusations and counter-accusations to then surface. This seems to indicate that the Supreme Council members were unaware of the deposit in Najib’s bank account. Even if what now as claimed i.e. the huge deposit in Najib’s account was a political donation, it was unnecessary to call in MACC to investigate the deposit in Najib’s personal account. The explanations and new versions do not help Najib’s cause. 

            Fourthly, was Bank Negara informed of this colossal deposit? If not, why was the omission? On the other hand, if there was any notification to Bank Negara what was its response then? Was the donor identified to Bank Negara? Did Bank Negara accept Najib’s explanation? Was the purpose and objective of this huge donation disclosed to Bank Negara? If there had been proper disclosure then Bank Negara is under a duty to disclose the purpose. On the other hand, if there had been no proper disclosure what action did Bank Negara take against the bank in which the billions were deposited?

            Fifthly, how were the billions in Najib’s personal bank account disbursed and to whom? If the billions were spent during the country’s 13^th General Election as alleged, then would it not be in violation of the country’s election laws because there is a ceiling as far as election expenses are concerned. In such a case what action would the Election Commission take?

            Another point Najib is canvassing is that perception is substituting the truth. This line of argument will not take Najib far. One important thing Najib has to appreciate is that when certain facts are self-evident or are alleged to exist those who are answerable should explain to prevent negative inferences. What is in issue is not the perception of the truth but the omission to disclose the truth. What the Malaysians and the whole world have before them is an explanation from Najib and his supporters which do not help prevent negative inferences.

FOREIGN MUSLIMS & SYARIAH

A foreign Muslim seems to be immune to all the Syariah laws that are applied against Muslims in this Country. For instance, (khalwat) proximity between Muslim and non-Muslim is an offence. Many people, from ordinary to law makers and enforcement officers have had been hauled before Syariah courts for their amorous activity within the four-walls away from the public eye. But, a foreigner, a Muslim, who had lived with a non-Muslim and had a child by such a relation in this country, Syariah seems hesitant to act.

If it was a Malaysian Muslim, the Islamic Religious Department would have acted like speed of wind to haul the Muslim man (or woman) for breaching the Syariah law. It would not end there, for the Islamic Religious Department would try to snatch the baby born out of wedlock between a male Muslim and non-Muslim female as it must be treated as a Muslim, so goes the argument.

Is it the contention of Malaysian Syariah law that its powers only extend to Malaysian Muslims living in this country but not to foreign Muslims? In other words, no action can be taken against foreign Muslims living in this country notwithstanding their flagrant violation of Syariah laws. And the foreign Muslim seeking remedy from his (her) lover whether it be a Muslim or otherwise could do so in the civil court, but which remedy is not available to local Muslims.

K.Siladass

BAT TOWN PROJECT

(speech delivered by K.Siladass to officiate this event on 22^nd December 2013)

I am very delighted that a group of youngsters from Kluang have shown immense creativity in thought and action by organising this Bat Town Project. These youngsters of Kluang have shown that there is always a correct way in life and pursue that course to better and reach greater heights. A very thoughtful attitude and approach at a very young age.

It is not an exaggeration if I were to say that we see youths in great numbers who have lost their way and found themselves in activities which are socially and legally incorrect. The organizers of this event have shown, given a chance their energies individually and jointly could be directed to activities which could benefit the society, and the country as a whole.

By dedicating their energy in re-discovering Kluang, I believe it is the first step in right direction to acquire more knowledge and bring it to the notice of the whole Malaysia and the world. History is all about the past. Sometimes history is lost under the weight of ignorance and disinclination to know and understand the past. These children are indeed reminding us of the necessity to understand, appreciate and treasure the past. I am confident that other towns would emulate our young organisers.

When I first came to this town in the mid-fifties I was just
passing by which was forced upon me. The train service between Labis and the south had been interrupted because of derailment caused by terrorist activities. We had to travel in military truck from Labis to Kluang and here I had to take a cab. At that time it was a small town
surrounded with many plantations of rubber trees. When passing by it did not strike me I will return to Kluang one day.

However, a few years later, may be at the end of 1957 I returned to Kluang and not long after that I began to work as clerk in a law firm along Jalan Ismail. I am told by the organisers of this event that they have begun their discovery along Jalan Ismail.

It is in No. 19, Jalan Ismail, I first met the late Chelvasingham McIntyre, who was then the High Commissioner for India. Before entering the diplomatic services, McIntyre was an active lawyer with an office in Kluang and that too at Jalan Ismail. McIntyre would, in later years, become the judge of the High Court in Malaya and the Federal Court. He also served as the head of the Industrial Tribunal.

It is at No. 19, Jalan Ismail, I began my legal career.

Along the same road, just beside the Chinese School there was a law firm of M.P.D. Nair & Co. M.P.D Nair was a prominent politician in Singapore and he had also served as a Minister in the Labour Front Government in the
mid-fifties.

Jalan Ismail is noted for its other important occupant. Dr. Wee Lee Fong, my friend, practised medicine on one of the premises along Jalan Ismail. Dr. Wee Lee Fong, a soft spoken medical practitioner, was the Secretary-General of the Labour Party of Malaya and a very fiery speaker.

I left Kluang in the late fifties and returned in July 1964 and continued as a legal clerk at 12, Jalan Lambak, Kluang. Once again I left Kluang in the early seventies to read law. My law firm began the practice on the same premises in 1987 and continues to be there. The number of premises had changed but not the structure.

Perhaps the youngsters who have boldly ventured into this marvellous project must also give impetus to nature and beautify the town. Nature by itself is beautiful and let us not destroy it. It is nature which gives us the encouragement to see things in better perspective. Nature is a great artist and we all derive our inspiration from it. So let us not destroy it. Gunung Lambak is a natural beauty providing immense rich scenes in the mornings and evenings when lights add further glamour to the town. Another important feature we need to acknowledge is the significant role played by Kluang Rail which had its humble beginning at Kluang Railway Station in 1938, and the aroma of its coffee has spread throughout the country. There are many out of Kluang who express their enthusiasm to visit Kluang just to taste the rail coffee.

One of the direct descendants of the founder of Kluang Railway Station Coffee Shop, Mr. Jack Lim, still holds the family tradition and had indeed spread the aroma of rail coffee to various places in Kluang itself. Kluang Rail has become synonymous with Kluang Town.   

I wish the organisers the best in their endeavour and I am confident they will succeed. And I am also confident that the citizens of Kluang will wholeheartedly support this project and the organisers.

These are the youths with whom the future of Malaysia is destined. And I am confident that these youngsters are the symbol of the future with dynamic mind and dynamic future.

I am glad and honoured to declare open this worthwhile project.

MANDELA A BEACON FOR MALAYSIA

K. Siladass

The sad news that Nelson Mandela had become part of nature would bring sadness to those who had vigorously opposed racism, religious fanaticism and views based on colour of the skin and continue to do so. When the minority white regime in South Africa practised apartheid thus suppressing and oppressing the basic rights and dignity of the majority black race Mandela fought against it and for that he was incarcerated for more than a quarter of a century.

Upon his release from prison, considering the welfare of South Africa and the people he sowed the seed of reconciliation and found oneness in the people and in South Africa.

It is said that at one time when the South African Constitutional court declared that a law approved by Mandela, when he was President was a nullity, he instructed his legal advisers that the court’s decision should be followed. This illustrates the respect he had for justice. He did not condemn those (judges) who nullified his legislation, and his acceptance of the verdict brings out the magnanimity that resided within him. He believed in justice and justice can only mean that it is for all.

Unlike those, who, once having achieved power refused to let it go this Nobel prize la ureate served as President of South Africa only once and retired, spending the rest of his life serving the country and the people. He showed the world that political power is not the only means by which good things can be done.

The most important treasure Mandela had bequeathed to the human race is his ever oozing humane consideration. Although he was deprived of liberty at a young age by forces which implemented racist policies, but upon attaining freedom he did not show any animosity or hatred towards the minority white race which was instrumental to those ignominious laws: instead, he brought them into his fold and showed the world all can live happily as one family. This is a lesson to racists and religious fanatics.

Should Malaysia follow Mandela’s broad minded, meaningful and  useful approach it can achieve national reconciliation. On the world stage Malaysia claims to be a modern country. This is not enough, it must have the political will to declare and implement laws to show that there is no place for racism or religious fanaticism in this land of multiple races, religions and cultures.

It is no use crying over Mandela’s death or giving lip service to racial and religious understanding. Would his sacrifice and devotion to peace and human understanding be respected and his efforts carried on? Looking from that point of view one could say in a multi-racial, and multi-religious and multi-cultural Malaysia Mandela can be a beacon.

                           

Mandela is a time which had merged with nature. Memories remain. His work and his thoughts towards a better human relationship must continue. If the human race could continue that journey of Mandela that would be the greatest respect the human race can show Nelson Mandela.  

Dated: 11.12.2013

FRAUD AND MALINGERING IN THE

DISABILITY - COMPENSATION PROCESS

K.SILADASS

of Lincoln’s Inn Barrister-at-law;

of States of Malaya,

Advocate and Solicitor

Many years ago a person who suffered fractures to his tibia, fibula and femur in an accident called on his solicitor on the eve of the trial. He had recovered well from his injuries. He could walk without the aid of crutches, although there was slight noticeable limp. However, on the day of the trial he arrived in court on crutches. His lawyer was shocked; pulled him aside and asked: “What happened? You were perfectly alright yesterday, you had no use of the crutches: but why today?”

The answer the injured gave was: “The judge must know how painful it is to suffer injuries to the legs!”

Counsel realised that if he were to put his client in the witness box he would damage his own case. Hence began a quick negotiation with the defence counsel, conceded insignificant degree of contributory negligence and settled the matter. After settling the matter counsel for the defence remarked: “Your client was seen playing football without crutches last evening.” 

The word "fraud" means criminal deception, the use of false representation to gain an unjust, advantage, a dishonest artifice or trick; hence the word imports criminal intent. It is not my intention to give the word fraud its meaning as it is understood in the ordinary way, but to look at its function in claims for damages whereby the word ‘fraud” could have a meaning bordering an intent which is avarice with a shade of deception.

The word “fraud” used here does not refer to the “fraud” defined as having criminal intent; but, we must look at that word within the context of personal injury claims where it could acquire a meaning identifying an intent to lie, malinger to enhance one’s claim for damages resulting from accidents. This fraud and malingering, to my mind, are two words with the same intent and that is to magnify the pain and suffering and the resulting physical disability to an extent which is ordinarily unthinkable. If a person does a thing knowing it is wrong yet does it with the intention to deceive, if it is not cheating than what is it?

Needless to say that where the injuries are severe and expert evidence is sought in order to measure the level of pain and suffering: that, I believe is entering into a subjective arena. We are unable to ascertain the extent of the pain an injured person undergoes and the suffering resulting from the pain. The medical experts could carry out various tests to ascertain, verify the extent of the pain and suffering resulting from disabilities, but if the injured person feigns pain which is not there how could the medical expert confirm that a person degree of pain. I am not aware of any equipment that could be used to measure pain and suffering.

In normal parlance the word "pain" is defined as a strongly unpleasant bodily sensation such as is produced by illness, injury, or other harmful physical contact etc., the condition of hurting. Examples are given of a particular kind or instance of pain and that is suffering from stomach pains, mental suffering or distress. Turning to the word "suffering" we find it means undergoing pain, grief, damage. Thus, we can come to the conclusion that pain leads to suffering and suffering emanates from pain and both pain and suffering come from one source and that is injury.

We also know that an injury will cause pain but suffering could be different because of the nature of the injury or injuries the pain could be lingering on with the attendant suffering. Therefore, lawyers and judges decided that pain and suffering should go together. Thus, in law pain and suffering are fused and indivisible[1].  However, when it comes to a person who is paralysed, he no longer experiences pain but would suffer psychological discomfort for being unable to move around. Where it is paralysis, or where the injured person had suffered severe injuries it is possible he or she may have lost the sensation: thus, no pain, but the element of emotional pain and strain cannot be discarded, and we are in a dilemma as to how to assess the emotional pain, yet the law recognizes the fact that the suffering in such cases is inevitable.

Let us take the case of a person who is paralyzed from waist downwards. There is no sensation and he experiences no physical pain; but when he thinks of his disability the emotional stress is a terrible pain which needs to be compensated and that is the best the law could do.

On the other hand a person would have suffered serious compound fracture to his femur and tibia and fibula, they may have healed with the bones united but the patient could continue to complain that he experiences pain on and off. The doctor believes him and prescribes some pain killer. Today, with the advancement of physiotherapy, the patient could be advised that he should go for some simple exercise which could eventually alleviate the pain. Would the patient go for physiotherapy or would he be contented by taking pain killer retaining the pain so that he could get better compensation?

We all know that doctors will give their opinion based on the patient's injuries, how well the wounds have healed satisfactorily and when he should be fit to resume his duties.

Can doctors go wrong in their findings? The quick answer should be: No. Doctors only record the findings of the injuries to the body. What about the damage to the mind? I believe this may take some time to evaluate with constant observations on the behaviour of the patient. But, there have been cases where doctors too had gone made incorrect findings. There was a case when a young man of eighteen years old suffered fracture to his leg tibia, fibula and femur. They were very bad. The orthopedic surgeon who examined him noticed that the young man spoke with a stammer, and strangely he concluded that the stammer was a result of the injuries he had sustained. When checked with the young man’s father he confirmed that his son had the stammer since childhood.

So what do we so? We could go back to the surgeon and point out that the stammer was there before the accident, and this would embarrass the doctor. Since this expert opinion had already been forwarded to the insurer’s solicitors what would be their opinion if we were to hold on to the report and go to court. It was obvious the whole of the surgeon’s report would have been subjected to critical scrutiny and the chances of it being totally discarded were staring at us. A quick conversation with the insurer’s solicitors was had and a compromise reached. The stammer would not be taken into account and the matter was settled on the basis of the injuries to the fractures.

The patient is gainfully employed. Because of the accident his income is not reduced, as he is paid; but will not the subjective element of pain and suffering lead him to mislead everyone and feign pain. This kind of situation arises where the patient's doctor gives one opinion and which opinion is doubted (or challenged) by the insurers' doctors. Perhaps we should find a median course to have specialist appointed by the court to assess the extent of the disabilities, in case the parties themselves cannot come to decision on the selection of a neutral expert. This is the recommendation made at the convention of a similar seminar a few months ago.

The present problem is that those who have suffered injuries in an accident do not see the situation as a misfortune. They think it is a God sent or windfall. Perhaps a lottery.

The rational underscoring the concept of damages is to compensate the victims which would help to rehabilitate them and return to society with hope to continue to enjoy life as before. Compensation is meant to help recover from a hopeless situation into a hopeful future.

I would say that when an injured person exaggerates, or feign continuous pain and suffering that is in fact malingering, and to some extent committing a fraud they go hand in hand.

It is true that accident victims tend to imagine incapabilities and illness thinking that the state of affair would increase the amount of damage. Partly this is due to the fact that solicitors themselves who are acting for injured persons in order to retain their clients’ confidence give false hopes and they in turn become a source of infinite irritation.

As I have pointed out earlier the compensation for injuries are meant to help the victims to return to society; although they may have suffered serious incapacities. Incapacities could be either transients or permanent. What is happening is that transient disabilities turn out to be permanent disabilities and this could only happen when the injured person with a view to increase his chances of better compensation feign his physical disabilities. This has been said to be a sort of compensation neurosis, meaning, because of the compensation he is expecting the injured person is unable to accept the fact that he has been cured but imagines that his disabilities are continuing and are severe. You can send him to the very best physician or surgeon in the country but the psychological compensation neurosis is hard to be cured. It can only  cured with the compensation and that too with huge compensation. I believe he should be the best candidate for few visits for psychiatric evaluation. 

Pure malingering is a situation when the injured person anticipating compensation would stay away from work. But, look at a situation where a person falls off at his home and fractures his leg. He cannot go to work, and since the accident happened outside the place of employment and not during the course of employment he will not get any compensation. He would not be entitled to social security benefits. Perhaps, social security should also consider claims of this nature. But, let us see the victim’s right as it is. He has no personal accident insurance coverage, no hospitalization benefits. He has a family to support. What would he do? He will want to get back to work as quickly as possible. That is the position, I believe, when one is in real distress. Compare his position with an injured person in a road accident involving a motor vehicle you can see the different mental attitude.

Another common area where insurance claim fraud could be very prevalent but gone undetected is the damage to vehicle. I have in one of my essays titled: “Accident victims and Their Plight” highlighted the problems that haunt the legal profession [and fortunately here the doctors are spared of their opinion] and the insurance companies.

In his keynote address at a similar seminar held recently Tun Hamid Mohamad, the former Chief Justice of Malaysia pointed out that:

“The claim ratios for the third-party bodily injury and death have exceeded 200% since 2006. For the year 2012, the premium received by the insurance and takaful industry for third party bodily injury is RM832.6 million while claims amounted to RM2.02 billion which gave the claim ratio of 242.1%.[2]”

This is a daunting figure and we must ask the question who is at fault? In personal injury cases one judge canvases magnanimity in awarding damages without realizing accidents are facts of life and in a world imbued in science and technology accidents have become part of the natural hazards and perfect compensation is not the answer. Equating damages for personal injury with defamation, that is to say, injury to one’s reputation is wide off the mark. Physical damage to the body and injury to reputation are poles apart. Bodily injury would heal but the injury to one’s reputation inflicted by word of mouth or by writing can never be equaled; for defamatory injury is deliberate whereas bodily injury is accidental. This distinction should not be lost sight of.

Returning to the manner repairs to damages vehicles I would relate a couple of cases which have been brought to my notice.

In one instance there was an accident and the front part of the car was damaged. The insurers decided to write off. Paid off the insured. As far as the insured was concerned the matter ended there; but it did not. A few years later a letter comes stating that road tax and insurance had been renewed and that too under his name who had transferred away all his interests in the car. The insured wrote to the Road Transport Department and placed it on record that he is no longer the owner having signed away ownership some years ago. No response. Letters to the insurance company too produced total silence.

After another few years arrives another letter indicating the renewal of the insurance and road tax under the name who had parted with his interest. He decided to go to court and get a declaration that he is no longer the owner of the vehicle. The insurance company appeared and finally settled the matter on paying costs. The consent order was sent to the Road Transport Department. Some years later arrived a letter from the Road Transport Department and the insurance about the renewal of insurance and the road tax. Once again the Road Transport Department was reminded of the sequence of events and the order of the court that had been obtained. I leave the entire matter to your imagination.

The second case is where there was an accident and the coverage had excess clause. The repairer ensured that the insured need not pay the excess, he would take care.

I could not think of any better examples but to show how deep fraudulent activities have seeped into the area of damage to vehicles and the cost of repairs. How do you think this sad state of affair could be avoided?

Would it be appropriate that anti-corruption legislation should be extended to private sectors too?

I would conclude my presentation with two cases: One was a lady of about thirty odd years. She met with an accident when she was about twenty eight years old. She was married and had children. Her main injuries were to her leg which had healed without any residual disability. The other injuries were, according to the medical reports to her forehead. She was offered a sum of thirty thousand ringgit, and this is in the mid-eighties and the offer was fair; but the client was not happy and she came to me. She complained about the injuries to her face. I took a closer look but could not trace any scar. She was still with her husband and they were living happily. I brought out a file on a girl of less than eighteen years old a victim of hit-and-run. Her two legs had to be amputated. MIB offered an ex-gratis payment of ten thousand ringgit. I showed this young lady sitting in front of me of the agony the little girl is going through and having  lost her two legs she is only offered ten thousand ringgit whereas you should be more that satisfied with the offer made compared to the girl’s injuries yours were indeed insignificant. She said she will accept.

In another case a young man from Singapore was injured very severely in an accident. Completely paralyzed from the waist below. Although he was awarded a substantial sum he donated the entire proceeds to charitable organizations.

I started off by telling you about a Claimant who had suffered injuries to his lower limbs. I will conclude with an anecdote of a person who had injuries to his upper limb.

A plaintiff whose hand was injured in an accident was giving evidence in court on his claim for damages. His counsel asked him: “After the accident how high can you raise your arm?” The plaintiff with great difficulty and grimace on his face raised his arm upto shoulder high. In cross-examination he was asked: “Before the accident how high could you have raised your arm?” He raised his arm to the fullest.

Ladies and Gentlemen that is the inherent hazard in legal profession.

---

[1]   See H. West & Son Ltd v. Shephard [1963] 2 All ER 625 at 633

[2]  Infoline January, 2011