LETTER | How housing tribunal awards can be stolen

Ho Aoi Ling


LETTER | Various tribunals were established by the government to provide a cheaper alternative to the grassroots who could not afford high litigation costs in civil actions.

Central to the idea of having the tribunal is to keep things simple and with no strict rules. It is meant to be friendly to consumers and property owners so they could file their claims without the need to engage a practising lawyer.

The president of the tribunal is normally legally trained, with expertise on the act. He or she is highly proactive in the hearing process and most importantly, sifted through fact-finding to address the case.

It may take from a few months to a few years to reach the final decision of the tribunal award, which contains the decision on the claim.

The award is treated with the same status as a court order and can also be enforced through a court just like any other court order with the same expected compliance by the parties.

There is no appeal process to the civil court, save for a judicial review on the grounds of serious irregularity in the issuance of the award.

Is justice thus secured for the downtrodden? Apparently, not.

Since 2014, the National House Buyers Association (HBA) has highlighted cases of property developers with deep pockets aided by their lawyers to get the High Court to set aside tribunal awards.

As a consequence and unfortunately via the hands of less well-versed judges, the High Courts are being abused as courts of appeal to deny the hard-fought awards to the property owners.

Deterred by the expensive process, property owners just gave up. The Ministry of Housing and Local Government seems not to be aware of this problem nor have they strengthened the relevant laws to curb subversion to the efforts of its hardworking tribunal.

In what may further complicate this issue, the Attorney-General's Chambers (AGC) had on July 23, 2018, issued a media release whereby it proposed to revise Order 53 Rule 3(3) of the Rules of Court 2012.

Under Order 53 Rule 3(3), applicants who have filed an application for judicial review are required to serve the cause papers to the AGC in relation to the application for leave to commence the judicial review.

For the layman, does it mean the AGC now washes its hands off actions that undermine tribunal awards?

To aid deeper understanding, I share with your readers below extracts from a judgement by Gopal Sri Ram JCA (as he then was) in Hazlinda Hamzah v. Kumon Method Of Learning Centre:

"[12] There remains one final matter which requires mention. As already observed, the Tribunal is a specially constituted body to speedily deal with consumer's complaints. Although its awards are final (which means that they are final on the facts but not on the law: R v. Medical Appeal Tribunal, ex p Gilmore [1957] 1 QB 574) they are amenable to judicial review [...]

[13] Being a specialist body, the Tribunal has been conferred with extraordinary powers to do speedy justice for consumers. As such, its awards should not be struck down save in the rarest of cases, where it has misinterpreted some provision of the Act in such a way to produce an injustice. For courts should be ever remindful that certiorari is not a remedy that is available as of right. It is a discretionary remedy. It is not every error of law committed by an inferior Tribunal that entitles the High Court to issue certiorari. It must be demonstrated that the error has occasioned an injustice in a broad and general sense. This principle was laid down by the Federal Court in Hoh Kiang Ngan v. Mahkamah Perusahaan Malaysia & Anor [1996] 4 CLJ 687 and in R Rama Chandran v. The Industrial Court of Malaysia & Anor[1997] 1 CLJ 147 where the following passage in the judgment of Bose J in Sangram Singh v. Election Tribunal AIR [1955] SC 425 was applied with approval.

"That, however, is not to say that the jurisdiction (to issue certiorari) will be exercised whenever there is an error of law. The High Courts do not, and should not, act as courts of appeal under Art 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case. (emphasis added.)"

With due respect and in light of the above judgement, the long-overdue attention from our lawmakers, the government and especially the Attorney-General's Chambers is still awaited to uplift our laws to the new normal.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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