<div>This article first appeared in Forum, <em>The Edge Malaysia Weekly</em>, on March 13 - 19, 2017.<br /><br /> </div>
This is a year destined to be replete with anxiety, confusion and even pain, brought about by global uncertainty in an era marked by Donald Trump’s ascension to the US presidency, and in Malaysia, rising tension over certain religious and racial issues against a background of dysfunctional local politics. In such times, we need inspiring stories to cheer us up in braving the challenges and rising to the occasion with strength and hope.
Then came the High Court’s recent landmark decision, declaring that the Housing Controller has no power to grant an extension of time to developers that delay the completion of housing projects.
High Court (Appellate and Special Powers) judge Justice Hanipah Farikullah made the ruling in allowing an application for judicial review by 71 buyers of the Sri Istana condominiums in Old Klang Road against the Housing Controller and the Urban Well-being, Housing and Local Government minister.
To recap, in their application for judicial review, the buyers stated that they wanted to quash the minister’s decision, allowing BHL Construction Sdn Bhd an extension of time for the delivery of vacant possession from 36 months to 48 months.
They also asked the court for a declaration that Regulation 11(3), which empowers the minister to grant such an extension, was ultra vires the Housing Development (Control and Licensing) Act.
The judge not only held that the minister’s decision to grant the developer an extension of time to complete the project, via a letter dated Nov 17, 2015, was invalid, but also declared that the regulation empowering the Housing Controller to modify the terms of the contract of sale was ultra vires the Housing Development, Control and Licensing Act.
This means the developer has to pay liquidated damages (a predetermined sum) to the affected buyers for delays in the delivery of vacant possession.
This landmark decision serves as a timely and forceful reminder to the executive that there is a limit to the power entrusted to them by the people.
The role of the judiciary in defending the people from the excesses of the government is well recognised. In the case of Pengarah Tanah dan Galian, Wilayah Persekutuan, v Sri Lempah Enterprise Sdn Bhd, arguably one of the most important judgments of the late Sultan Azlan Shah, he very forcefully pronounced:
“… Every legal power must have legal limits, otherwise there is dictatorship … In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene. The courts are the only defence of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizen: so that the courts can see that these great powers and influence are exercised in accordance with law.”
Yet, there are some cynics who say, why state the obvious? They ask: Since when has doing one’s job or discharging one’s duty become something so “exemplary and inspiring”?
Herein lies the fundamental problem now confronting our nation — rightly or wrongly, the people have a trust deficit issue with our national institutions. We no longer assume those in public service or public office will do their jobs as entrusted, let alone expect them to do it well.
These are simple questions but with profound implications. In fact, they pretty much sum up everything that is not right about this country in recent years — one that our forefathers once dreamt of establishing as a “sovereign democratic and independent state founded upon the principles of liberty and justice and ever seeking the welfare and happiness of its people”.
Apart from the usual suspects — political and business interests — many believe that this worrying state of affairs is partly due to the growing culture of political apathy too. Of greater concern is the continued spread of such a culture in our government, judiciary and the media — arguably the three major institutions of a democratic and just Malaysian society as envisioned by our forefathers.
It is certainly not a good sign when the institutions entrusted by the supreme law of the land — the Federal Constitution — and mandated by the people through the electoral process to uphold, defend and realise our forefathers’ vision, have second thoughts about doing what ought to be done out of fear that some interested parties may feel offended or get angry.
Many thinking Malaysians are now concerned, and I think rightly so, that if we continue to allow this disease of political apathy to run rampant, a disturbing trend might emerge slowly but surely. Certain ideas, expressions and behaviour, which are acceptable and even legal in our society now, will be deemed unacceptable, after which some groups will lobby to outlaw them and demand that transgressors be punished. Though such voices may start off as a tiny minority, they may grow in popularity until their uncompromising views are written into law, eventually subjecting this country to the rule of tyranny.
To prevent the disease of political apathy from spreading, it is of paramount importance to safeguard freedom of choice and freedom of speech for these are the best safeguards against the imposition of the tyranny of the majority. That is why any restrictions, or attempt to impose them on the right of freedom of expression and freedom of association by the government, are matters of grave concern.
More importantly, our government, judiciary and the media must work and be seen to be working towards fulfilling their respective duties.
They don’t need to make Malaysia great again, they just need to make Malaysia work again.
Khaw Veon Szu, a former executive director of a local think tank, is a practising lawyer. Opinions expressed in this article are his personal views.
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