OCTOBER 6 — Former Umno information chief Shahril Hamdan has reportedly questioned whether an April 19 proclamation on the removal of Tuanku Muhriz Tuanku Munawir as the Yang Dipertuan Besar of Negeri Sembilan could be considered valid after it was signed by Menteri Besar Datuk Ismail Lasim months later.
“It’s like backdating it,” he said on the latest episode of the Keluar Sekejap podcast.
Acknowledging that he was unsure of the legal position, Sharil however said there could be grounds to argue that such a process was not permissible.
It reminds me of pronouncements by Judicial Commissioner Lee Swee Seng (now Federal Court Judge) in two cases, the latter being fourteen years ago in 2012.
In that case, FKJV (M) Sdn Bhd (formerly known as Ardenmax Cosmetic Sdn Bhd) v Mode Circle Sdn Bhd and ors suit, the learned judicial commissioner had occasion to consider another case of backdated documents where he said:
“Whenever a document is backdated, one must ask whether it serves merely and simply to memorialise what had been agreed upon earlier though reduced into writing later or that there is a more sinister reason behind the backdating…
“I am inclined to agree … that where the backdating is done for the purpose of reaping an undeserved benefit at the expense of the authorities or other third parties, such backdating is improper and the backdated document is void. For example in Trengganu Forest Products Sdn Bhd v Cosco Container Lines Company Ltd & Anor [2009] 7 CLJ 573 at 591 where a backdated bill of lading was treated as a nullity.
“As such any document that is backdated calls for careful curial scrutiny …. I had occasion when dealing with a backdated share transfer form in Bina Puri Ventures Sdn Bhd v Lee Poh Heng & Anor Case [2012] 2 CLJ 417 reminded myself of the strict approach taken in Inter Heritage (M) Sdn Bhd v Asa Sports Sdn Bhd [2009] 2 CLJ 221; [2008] 1 LNS 567 where his Lordship Abdul Malik Ishak J (as he then was) observed in the context of a backdated certificate of occupation as follows:
“With respect, I must categorically state that any backdating is and should be construed as contrary to law.
“In my judgment, a certificate for occupation cannot, in law, have retrospective effect notwithstanding that the difference may only be one day or four days, for that matter.
“[T]he law does not countenance the back dating of the certificate for occupation – be it partial or temporary.
“Back dating is taboo, in law. Pure and simple, it is prohibited.”
The learned judicial commissioner heard six cases together, which stretched over 30 days of trial. In the course of his expectedly lengthy judgment, he said that no lawyers would agree to allow parties to backdate an agreement on the ground that that was the date that the terms were agreed upon.
So, backdating is, rightly, taboo in law.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
