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A shocking decision
20/09/2003
NST-PROP
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 relief.
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 deserve?
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 powers.
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?
While pondering 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.
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