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Current meeting of Parliament should urgently amend the Housing Developers (Control and Licensing) Act to rectify  the colossal blunder of parliamentary failure  to spell out clearly  the jurisdiction of the Tribunal for Homebuyers Claims to hear disputes transacted before  Dec. 1 last year

Speech
-  DAP Public Forum on “The Great Housing Tribunal Blunder”  
 by Lim Kit Siang

(Kuala Lumpur, Tuesday): It is some three weeks since the Kuala Lumpur High Court judgment on September 4, 2003 striking down the jurisdiction of the Tribunal for Homebuyers Claims to hear disputes transacted before its establishment on December 1 last year, bringing the Tribunal to a grinding halt, depriving its 26-strong staff of all work and function  and denying tens of thousands of homebuyers their right to cheap and swift justice with regard to their grievances  and complaints against unscrupulous housing developers. 

This was why when DAP leaders, including DAP MPs, Chong Eng (Bukit Mertajam), Fong Kui Loon (Bukit Bintang), Teresa Kok (Seputeh) and Fong Po Kuan (Batu Gajah), DAP National Publicity Secretary Ronnie Liu and DAPSY National Secretary Anthony Loke and I visited the Tribunal at Bukit Damansara on 9th September, we were confronted with a totally abandoned and suspended Tribunal, with only the following notice to the public: “NOTIS. SEMUA URUSAN PENDENGARAN/KES-KES TUNTUTAN DI TRIBUNAL INI DI TANGGUHKAN HINGGA DIBERITAHU KELAK. Terima Kasih.” 

My first comment tonight is that there is not enough outrage in the country at the ministerial and parliamentary scandal where the social legislation and protection intended for tens of thousands of homebuyers by the establishment of the Tribunal had  proved to be completely illusory because of bad draftsmanship coupled with colossal Ministerial and Parliamentary  failure of responsibility. 

In other countries where there is a mature democracy and vibrant civil society, there would have been demonstrations against the Housing Minister up and down the country as well as inside and outside Parliament to demand for his “head”, for  such a colossal blunder as to nullify the entire purpose of the legislative provision to set up the Tribunal for Homebuyers Claims  is simply mind-boggling and inexcusable when it  could have been easily anticipated and resolved with  one sentence  spelling   out clearly and simply the jurisdiction of the Tribunal to hear disputes transacted before its establishment on Dec. 1 last year.    

There would also have been demonstrations  in such countries against MPs for their incompetence and ineptitude in passing such legislation with such ambiguity, defeating the very purpose of setting up the Tribunal, especially after DAP MPs Teresa Kok and Chong Eng had pointed out during the debate on the bill in Parliament in October 2001 on the need to ensure that the Tribunal would have retrospective jurisdiction to adjudicate disputes transacted before its establishment. 

The irresponsible attitude of the Housing Minister, Datuk Seri Ong Ka Ting since the High Court judgment three weeks ago is most  deplorable – as he had not made any Ministerial statement, whether in or out of Parliament, on what the government proposes to do to help the tens of thousands of small-time housebuyers who are now stranded with regard to claims to the Tribunal – whether those who had  already submitted claims or  those who had intended to submit claims to   the Tribunal. 

The only thing Ka Ting had done was to announce after the Kuala Lumpur High Court judgment that the Attorney-General Tan Sri Abdul Gani Patail will appeal against the High Court decision, that the AG will ask for an early date for the appeal hearing and that the AG  would appear  personally in the case.  All this would have come about without any intervention by Ka Ting,  as the appeal by the Attorney-General  would be an automatic matter of course,  for  the Senior Federal Counsel Umi Kalthum Abdul Majid had represented the Attorney-General as counsel at the High Court hearing on behalf of  the Tribunal, which was one of the parties in the suit. 

The High Court judgment striking down the jurisdiction of the Tribunal for Homebuyers Claims must rank as the nation’s worst example of Ministerial negligence and incompetence  in shepherding legislation  through  Parliament.  Ka Ting  should be required not only to give a full and proper accounting as to how such a colossal blunder could have been made despite clear warnings by DAP MPs, but also what urgent contingency plans he has in hand to help the tens of thousands of homebuyers who are now stranded with regard to claims to the Tribunal. 

The tens of thousands of homebuyers who have been stranded with regard to claims to the Tribunal can be grouped into three categories: 

  • Firstly, the 50-odd homebuyers who are direct parties to the cases filed by housing developer Puncakdana Sdn. Bhd for an order to quash the awards given by the Tribunal on  claims of late delivery of their houses and failure to complete the common facilities, and who are awaiting the outcome of their appeal to the Court of Appeal – and subsequent appeal to the Federal Court.
  • Secondly, the 5,000-odd homebuyers who have submitted claims to the Tribunal before it suspended operations, whether those who have already received awards or waiting for Tribunal adjudication.
  • Thirdly, the tens of thousands of homebuyers who have not yet filed claims with the Tribunal but may wish to do so.       

The solution for  the third group is very clear – Ong Ka Ting should swing into action to present an amendment bill  for enactment by  the current meeting of Parliament before it adjourns in  November  to spell out very clearly that  the Tribunal for Homebuyers Claims has jurisdiction to hear disputes transacted before  Dec. 1 last year.

The problem is with the first two groups, in particular the 50-odd housebuyers who are direct parties to the appeal to the Court of Appeal, and later to the Federal Court – whether Parliament could amend a law affecting  the respective rights of parties with litigation pending appellate decision. 

The second group of the 5,000-odd homebuyers who had filed claims with the Tribunal  - whether disposed off or awaiting award - are also afflicted  by the same conundrum. This is why I had written to the Attorney-General to ask for a meeting to discuss these complex issues, but my office has been informed that Gani Patail is currently overseas. 

The Chief Justice Tan Sri Ahmad Fairuz Sheikh Abdul Halim should intervene in the matter, not to interfere with any  judgment, but to ensure the earliest  dates for  the Court of Appeal and later by the Federal Court (as there would be further appeal whatever the initial appeal outcome) in view of the social legislation and social justice implications of the case. 

The legal issues for the third group are more clear-cut and less complex – that the lacuna in a social legislation meant to give social protection to small-time  house buyers by establishing a Housing Tribunal with jurisdiction to adjudicate disputes transacted before its establishment on Dec. 1 should be urgently rectified by Parliament as further delays would adversely affect the rights and interests of the house-buyers, which will be a grave social injustice perpetrated by both the Housing Minister and Paliament. 

(23/9/2003)

* Lim Kit Siang, DAP National Chairman