A shocking decision
By Salleh Buang
The finding of the
High Court to curtail the power of the Housing Tribunal was upsetting ...
but not unforeseeable
Depending upon who
you are, the recent decision by the Kuala Lumpur High Court to disallow the
Tribunal for Home-buyer claims from hearing disputes between two developers
and their buyers arising from Sale and Purchase Agreements signed before Dec
1 2002 must have either shocked you ... or allowed you to heave a sigh of
But lest the judgement
of Datuk Md. Raus Shari be misconstrued, I must point out that the decision,
which can still be subject to appeal, does not mean the developers in question
are absolved of the responsibilities they have towards their respective purchasers.
There is no change to that. What the court only decided is that the purchasers
cannot seek relief from the Tribual (not yet, that is).
To obtain their
remedies against the defaulting developers, the purchasers have to take the
old but painfully long and expensive road to the civil courts (what my friends
use to say the labyrinth to court hill). And herein lies the problem ... how
much more time and money would they have to spend before receiving their just
Just like the purchasers,
their lawyers and the National House Buyers Association, I too felt sad with
the decision. But I wasn't shocked. I had anticipated it from the moment I
heard that the developers applied for a judicial review of the Tribunal's
Strange as it might
sound, I had hoped to be proven wrong in my understanding of the law. To put
it differently, while my head told me the developers would win, my heart was
with the purchasers.
But now that the
decision has been handed down, where do we go from here?
the answer, we might recall that in July 2003, it was reported that the Tribunal
had succeeded in hearing and disposing of claims by some 440 purchasers against
developers totalling RM2.3 million.
If the developers
who had to fork out the amount were to also file applications for judicial
review to the High Court in the near future, I wondered whether their cases
would end the same way.
Based on what was
reported, my impression of what the learned trial Judge said is that substantive
law containing penal provisions (such as the imposition of fines or custodial
punishment on offenders) cannot have retrospective effect unless such intention
is clearly spelt out, essentially because of Article 7 of the Federal Constitution.
This piece of legislation
has two limbs, each dealing with a different matter. In Clause one, it states
that "No person shall be punished for an act or omission which was not punishable
by law when it was done or made, and no person shall suffer greater punishment
for an offence that was prescribed by law at the time it was committed."
Clause two, deals
with the principle of "double jeopardy", but this is not relevant in
the current scenario.
However, it doesn't
mean Parliament cannot make retrospective legislation. It can (and in fact,
had done so several times in the past), but it first has to state such intentions
clearly in the law.
National House Buyers
Association (HBA) secretary-general Chang Kim Loong was clearly distressed
and shocked with the High Court decision, and at this juncture, I must express
my appreciation for all the good work the HBA and he have done for house purchasers.
I am aware that they (like my other good friends in the Housing Ministry)
believed that the Tribunal had jurisdiction to hear cases filed before the
council, and that the law had retrospective effect. I think they too are aware
that I had to take the opposite view since the early days.
Media reports recently
quoted Chang as saying he hoped the Housing Ministry would take immediate
steps to amend the law to make it retrospective, thus putting the question
of the Tribunal's jurisdiction beyond any question or doubt whatsoever.
I support such a
request. I had been saying practically the same thing all this while, except
it had fallen on deaf ears.
I sincerely hope
somebody up there will listen to Chang and the HBA.