“THIS is the era of special courts and tribunals,” a retired judge said to me recently. I had asked whether it was necessary for us to have a Land Court.
He said we have several special courts, such as the Construction Court, despite the fact that the Kuala Lumpur Regional Centre for Arbitration has been revamped. The Construction Court is housed in a spanking new building and has a battery of competent and experienced arbitrators to handle construction disputes. We also have an Environmental Court, established in September 2012. In addition, there is a long list of specialised tribunals and appeal boards.
One specialised court that comes to mind is our Industrial Court, which has a long history. When the Federation of Malaya was formed in 1948, the Industrial Courts Ordinance 1948 was enacted and earlier statutes were repealed. The Industrial Court system is now governed by the Industrial Relations Act 1967.
In matters relating to income tax, the government has set up an independent tribunal, known as the Special Commissioners of Income Tax, comprising panel members appointed by the Yang di-Pertuan Agong to handle tax appeals. The governing law is the Income Tax Act 1967.
To resolve consumer disputes, the government set up the Consumer Claims Tribunal. Established under Section 85 of the Consumer Protection Act 1999 and operating under the auspices of the Domestic Trade, Cooperatives and Consumerism Ministry, its objective is to provide an alternative forum for consumers to file claims in a simple, inexpensive and speedy manner.
To resolve disputes between housebuyers and developers, the government established the Tribunal for Homebuyer Claims (Tribunal Tuntutan Pembeli Rumah, TTPR) in December 2002. Lately, it also established the Strata Management Tribunal. The former was established under the Housing Development (Control & Licensing) Act 1966, while the latter was established under the Strata Management Act 2013.
When developers are unhappy with the decisions of the local planning authority, they do not go directly to the courts because there is an internal mechanism of appeal to the State Planning Appeal Board under the Town and Country Planning Act 1976. If any party is unhappy with the decision of the appeal board, there is always a judicial review by the High Court.
Justice Michael Barker (Judge, Supreme Court of Western Australia and President, State Administrative Tribunal, Western Australia) said: “Tribunals are currently undergoing a period of reassessment and renewal or reinvigoration in both Australia and New Zealand, and indeed in Britain.”
He said there are two main reasons for this phenomenon. First, the public believes that the decision-making process will be improved; and, second, decisions can be made more quickly and at a reduced cost.
In an 89-page document (Consultation Paper) titled “Review of the National Land Code 1965” issued by the office of the director-general of the Putrajaya Lands and Mines Department dated February 1, 2012, it is stated (on page 23) that land administration is an “interplay of various aspects, such as land use, development, conservation and preservation”.
In Malaysia, separate laws regulate land use, land tenure, administration, land development, land acquisition and environmental matters, such as the National Land Code 1965; Strata Titles Act 1985; Town and Country Planning Act 1976; Street, Drainage and Building Act 1974; Local Government Act 1976; Public Authorities Protection Act 1948; and, Environmental Quality Act 1976. Many of these statutes contain their own provisions for appeal against decisions handed down by the relevant parties.
The document, therefore, recommended (on page 24) that: “It is essential to consider the establishment of a specialised Land Court.”
Unfortunately, while many other recommendations contained in this document were considered and amendments were made to implement them, such as the recently enforced National Land Code (Amendment) Act 2016, that important proposal for the establishment of the Land Court was sadly rejected.
Is the proposal feasible and should it be implemented? I think it is long overdue. The following paragraphs show clearly that Land Courts or Land Tribunals have long existed in many jurisdictions. There is the Land Court in Queensland, Australia, originally established as a Land Board in 1884. Considered by many as a “user-friendly court”, it hears cases relating to valuation and natural resource issues, including claims for compensation for compulsory acquisition of land; appeals against valuations for rating, rental and conversion to freehold purposes; appeals against decisions concerning water licences; recommendations for the grant of mining tenures and the determination of compensation; cultural heritage issues, including the grant of injunctions and approval of cultural heritage management plans; and, appeals against a wide range of ministerial decisions concerning state land and interests.
In New South Wales, its Land and Environment Court has been in operation for the last 30 years. Northern Ireland has a Lands Tribunal, established under the Lands Tribunal and Compensation Act (North Ireland) 1964. It hears cases relating to restrictive covenants affecting land; disputes between landlords and tenants; rating valuations appealed from the Commissioner of Valuation or the Northern Ireland Valuation Tribunal; compensation claims arising from land being compulsorily acquired; and, rents and values of business properties.
England and Wales have established Environmental Courts under the Tribunal Courts and Enforcement Act 2007. These specialised courts have six chambers, the fifth chamber dealing with land and the sixth dealing with property and housing.
New Zealand has many specialised tribunals, including Tenancy Tribunal, settling disputes between tenants and landlords, and disputes about unit titles; Real Estate Agents Tribunal, dealing with the licensing and disciplining of licensed real estate agents; and, Land Valuation Tribunal, dealing with objections to property valuations.
Hong Kong has a Lands Tribunal, established under the Lands Tribunal Ordinance (Cap. 17). It hears cases relating to possession of land, under the Landlord and Tenant (Consolidation) Ordinance, or under common law, building management, compulsory acquisition and compensation claims. The tribunal can also hear appeals brought by aggrieved parties under the Rating Ordinance Cap. 116, Government Rent (Assessment and Collection) Ordinance Cap. 515 and the Housing Ordinance, Cap 283.
I hope Putrajaya can revisit this issue when the National Land Code comes up for review the next time.
Salleh Buang formerly served the Attorney-General’s Chambers before he left for private practice, the corporate sector and then, academia