Tuesday, December 23, 2008

Action better than talk

Property Times, New Straits Times
By Ivy Chang

It has been a fortnight since the devastating Bukit Antarabangsa landslide in Ampang, Kuala Lumpur, on Dec 6.

Pending investigations into the incident, certain quarters have claimed that the disaster was an act of God, others alleged it was due to an abandoned housing project, and still others asserted the cause of the landslide is purely the negligence of maintenance.

Bukit Antarabangsa residents have announced they are planning to sue and claim compensation.

Lawyers said that will be an uphill task for the claimants.

House Buyers Association secretary- general Chang Kim Loong, noting the high emotions and a lot of anger in the air at present, urged all parties to "stop the blame game" as "it's premature until the results of whatever findings, which should then be made public for the people to judge".

"The focus now should be on remedial measures to strengthen the slope, seek alternative accommodation for those affected, ensure safety to the existing neighbouring houses and call a moratorium on all hillside developments until the respective local councils are able to review and audit their respective geotechnical report, environment impact assessment report and soil treatment report by the experts," Chang said.

"Don't let the anger get the best of us. The affected owners should not be provoked to sue the related parties until the findings are made known. Suing should always be the last resort," he advised.

In the meantime, the legal fraternity opined that the claimants would have to overcome several hurdles, not least the immunity under section 95(2) of the Street, Drainage and Building Act 1974 (the Act).

The Federal Court unanimously decided on Feb 17, 2006 that the local government council was legally protected against legal action even though they were found to be negligent and partly responsible for the collapse of the Highland Towers on Dec 11, 1993 after a landslide in which 48 people were killed and another 73 affected when the two remaining blocks were later found to be unsafe and condemned.

On residents affected by the Dec 6 incident, lawyer Derek Fernandez advised they can file a negligence case against the local authority provided they can prove that the local authority had been derelict in its duties and had failed to act on the residents' complaints.

The 2006 Federal Court decision, he said, only applied in relation to earthworks and planning approvals.

He said claimants should bring their action outside the Act by arguing that the local authority did not act in good faith while carrying out its duties.

"Evidence of bad faith would be where the local authority wilfully disregarded guidelines, rules and regulations in relation to hillslope development. Furthermore, if dangers were pointed out to them and they did nothing then the immunity cannot apply," he explained.

Fernandez said residents may also have a cause of action against the local authority under nuisance or under the Local Government Act or the Town and Country Planning Act under which there is no similar statutory immunity.

He disclosed that in a 2005 unreported case, Abdul Ghapoor and 82 others successfully sued Majlis Perbandaran Petaling Jaya for improper planning permission and were granted damages.

He reiterated that if the local authority had specific knowledge of the dangers and did nothing to rectify them, then the immunity would not apply.

Meanwhile, the Ampang Jaya Municipal Council refuted claims that it had failed to respond positively to complaints by residents in Bukit Antarabangsa on numerous issues ranging from soil erosion to tree pruning in the area a few days before the tragedy.

Fernandez said residents could seek compensation for loss of use of home, rebuilding of homes, dependency claims, relocation expenses and loss of personal properties, but he cautioned that the residents should ascertain the cause of the tragedy before embarking on a legal suit.

Another lawyer, Roger Tan, also opined it would be difficult for residents to sue the local authority as it enjoyed immunity under Section 95 of the Act.

However, he said it was against public interest to insulate local authorities from any suit if they failed in their statutory duties.

Both Tan and Fernandez are part of the task force set up by the Bar Council to monitor hillslope developments.

Tan and Bar Council president Datuk Ambiga Sreenevasan have both urged for the repeal of the statutory immunity.

Meanwhile, Pahang, Penang and Perak have stopped highland developments following the Bukit Antarabangsa landslide. The state governments said the guidelines on hillslope developments will be stepped up.

Wednesday, December 10, 2008

It'll be a difficult case, say lawyers

New Straits Times

KUALA LUMPUR: Residents affected by the Bukit Antarabangsa landslide can file a negligence suit against the local authority.

Lawyer Derek Fernandez said the residents have a case as long as they could prove that the local authority had been derelict in its duties and had failed to act on the residents' complaints.

He said although the 2006 Federal Court decision on the Highland Towers set a precedent when the Ampang Jaya Municipal Council (MPAJ) was cleared of any wrongdoing, the decision only applied in relation to earthworks and planning approvals.

"Residents can file a negligence suit or a breach of statutory duties as long as they can prove that the local authority had failed to rectify a problem when it was brought to its attention."

He said residents could seek compensation for loss of use of home, death, rebuilding of homes, dependency claims, relocation expenses and loss of personal properties.

However, Fernandez cautioned that the residents should find out the causes of the tragedy before embarking on a legal suit.

Asked on their chances, Fernandez said at the moment, it appeared to be tough due to the precedent set by Highland Towers.

"This is why residents should consider legal action against other relevant parties as well."

If filed, he expects the case to take a minimum of five to six years, as the Highland Towers case took almost 10 years to settle.

Another lawyer, Roger Tan, said it would be difficult for residents to sue the local authority as MPAJ enjoyed immunity under Section 95 of the Street, Drainage and Building Act 1974.

"I have been calling for the repeal for Section 95 for 15 years as the section breeds a lackadaisical attitude rather than professionalism in our authorities in the manner they approve building plans and later supervise the progress of the construction works."

He said it was against public interest to insulate local authorities from any suit if they failed in their statutory duties.

"If we expect first-class engineers, surveyors and architects when they perform their professional duties, the public, too, expect a first-class local authority when it comes to the granting of approvals and supervision of development projects," he said.

However, Fernandez said residents stood a better chance in filing their suits either under the Town and Country Planning Act 1976 or the Local Government Act.

Sunday, December 7, 2008

Taking politics out of education

JERLUN member of parliament Datuk Mukhriz Mahathir's suggestion that the government creates a single school system in the country is not new.

Not surprisingly, his statement drew protests from non-Malay politicians and educationists.

Such reaction is expected because since independence, educational issues in this country have always been and sadly looked at from the political rather than the educational point of view.

In fact, the first call to have one educational system based solely on the Malay medium of instruction was made by the British administrators before independence in the 1951 Report of the Committee on Malay Education, Federation of Malaya, or better known as the Barnes Report.

The Barnes Report 1951 recommended this: "Chinese and Indians are being asked to give up gradually their own vernacular schools, and to send their children to schools where Malay is the only Oriental language taught. In principle, we recommend the end of the separate vernacular schools for several racial communities and the replacement by a single type of primary school common to all."

Then came the Abdul Razak Report which was released on May 6, 1956.

The 1956 Report recommended that "the ultimate objective of education policy in this country must be to bring together children of all races under a national education system in which the national language is the main medium of instruction".

Both the Barnes Report 1951 and the Abdul Razak Report 1956 were met with strong protests from various ethnic communities, particularly with the proposal of "the ultimate objective".

As a result, this proposal was dropped and the 1956 Report recommended to establish "a national system of education acceptable to the people of the federation as a whole which will satisfy the needs to promote their cultural, social, economic and political development as a nation, having regard to the intention of making Malay the national language of the country while preserving and sustaining the growth of the language and culture of other communities living in the country".

The same words were incorporated in their entirety into Section 3 of the Education Ordinance 1957 which came into force on June 15, 1957 just as we were about to achieve our Independence.

Hence, the vernacular schools were saved and non-Malay educationists had argued that section 3 therefore represented the original social contract of the communities.

However, when Abdul Rahman Talib became the education minister, he decided to review the education policy as declared before Merdeka in Section 3 of the 1957 Ordinance.

The Rahman Talib Report 1960 reintroduced the "ultimate objective" for the sake of national unity.

Section 3 was accordingly amended to read: "The education policy of the federation is to establish a national system of education which will satisfy the needs to promote the cultural, social, economic and political development as a nation, with the intention of making the Malay language the national language of the country."

On Jan 1, 1962, the new Education Act 1961 also came into force. With this, Chinese schools which did not convert to national-type (Chinese) secondary schools became the Chinese independent high schools which continue to use the Chinese language as the main medium of instruction without any financial aid from the government.

The 1961 Education Act also contained an infamous Section 21(2) which empowered the minister to convert any national-type (Chinese and Tamil) primary school to a national primary school.

Today, the law relating to education in this country is governed by the Education Act 1996.

There is no provision similar to Section 21(2) of the 1961 Act in the 1996 Act, and the non-Malay communities had much to thank the then education minister, Datuk Seri Najib Razak.

Section 17 of the 1996 Act now provides that the national language shall be the main medium of instruction in all educational institutions except for a national-type school or any other educational institution exempted by the minister of education.

There are still some who have argued that without any amendment to Section 17, the switch to teaching Mathematics and Science in English in 2002 has infringed it.

Be that as it may, I feel our education policy requires an overhaul to address racial polarisation among our young today.

Where our children have their primary and secondary school education is nowadays so predictable according to their race.

In the days before the medium of instruction switched from English to Bahasa Malaysia in national schools, the majority of non-Malay parents, especially the Chinese, would send their children to national (English) schools.

As a result, there are Chinese children like me who would grow up not being able to read or write much Mandarin.

Today, the Chinese in this country can best be categorised as those who are English-educated and Chinese-educated.

The manner in which they were educated when they were young would show up later in the way they looked at certain issues and approached a particular problem.

This is evident today in the rivalry between the two groups in Chinese-based political parties.

In fact, not all Chinese were in favour of an English education in the 1960s.

I remember that when my father sent us to English schools (in those days they called it tak ang moh chek in Hokkien), he was advised against it by his relatives who said we would grow up embracing Western values and mores, discarding Chinese ones like filial piety.

They were wrong.

Though I may not read or write much in Chinese, I do speak some Mandarin and the Chinese Foochow dialect.

My primary school education in English has not made me feel any less Chinese or fail to love my parents any less than a Chinese-educated person.

However, for those who study in national-type Chinese primary schools, the majority still opt for the national secondary school, probably because education is free and in order to enter local universities. But the sad part is, every year there are thousands of drop-outs among the Chinese students simply because they are not able to cope with the change in the medium of instruction from Chinese to English in the 1960s and 1970s and thereafter to Bahasa Malaysia.

Many ended up as labourers, farmers, plumbers, mechanics, VCD pedlars and unskilled workers.

In this sense, while it may be well and good to preserve one's mother tongue, it remains a social issue whether the current system is in fact in the interests of non-Malay students with such a high drop-out rate among them?

This is a serious problem affecting especially the Chinese in rural areas and those in lower-income groups.

As a temporary teacher in a rural Chinese independent high school for six months before I left to read law in England, it saddened me to see close to 90 per cent of my students drop out after their Senior Middle Three education.

Only a handful managed to further their studies in Taiwan after having sat for the Chinese Unified Examination.

Of course, the students also registered to sit for Sijil Rendah Pelajaran and Sijil Pelajaran Menengah examinations but many did not do well.

Today, the future of the students in Chinese independent high schools is perhaps brighter as the Unified Examination Certificate is now recognised by Universiti Tunku Abdul Rahman and many foreign universities in Singapore, Australia, Britain and the United States.

In fact, the English taught in Chinese independent high schools is even more advanced than the syllabus taught in national secondary schools. But sadly, the standard of the English language among our students is still not good enough according to international standards.

Having associated with many secondary school students in youth activities, my observation is that our secondary school students today may find it difficult even to answer the English language paper in the Singapore Primary School Leaving Examinations (PSLE).

In this respect, we have much to learn from Singapore and its education system is perhaps one of the best in the world.

The Singapore government abolished vernacular schools and the Nanyang University long ago.

The main medium of instruction in all its schools is now English. But every child is required to take up a mother tongue language, be it Malay, Chinese or Tamil as a second language.

Most of them will be promoted to express stream in secondary schools where they will sit for the GCE "O" Levels at Secondary 4 which is equivalent to our Form 4.

Starting from next year, a secondary school student has an option to learn a third language. Hence, a Malaysian Chinese who studies in Singapore will end up being trilingual -- in English, Malay and Chinese.

All in all, the ultimate objective is that Singaporeans of all races get to mix together right from the pre-school stage to their tertiary level.

Here, most of our children only get to mix with other races when they converge in national secondary schools.

The problem is compounded with the rise of religious fervour in national secondary schools.

I fear if our national secondary schools are not run based on a secular concept, one day more Chinese will opt for the Chinese independent high schools because they are producing more competitive students.

This will only worsen racial polarisation among our young people.

In fact, racial polarisation was particularly bad when Datuk Seri Anwar Ibrahim was education minister.

He not only required all schools to call Bahasa Malaysia as Bahasa Melayu, but also sent Malay administrators to national-type primary schools.

The non-Malays should not, therefore, be blamed if they regard Bahasa Malaysia as the mother tongue of the Malays.

We should, therefore, seriously look at the Singapore model.

Of course, not everything is good about Singapore but it cannot be denied that its education system is top class.

Had the Singapore government governed along racial lines and made the Chinese language as the main medium of instruction in its schools, Singapore Chinese today would not have been more competitive than the Chinese in Hong Kong, Taiwan and China due to a poor grasp of the English language.

If English language is the main medium of instruction in our schools, no one can claim that it is the mother tongue of any race in this country because it is the international language.

But we can stipulate a requirement akin to those days when we had English schools whereby students must have at least a credit in Bahasa Malaysia before they can be promoted to Form Six or secure a place in public universities.

Our children must also be required to study their mother tongue in addition to Bahasa Malaysia at the primary and secondary levels.

To those who say that having the English language as the main medium of instruction will threaten national unity, I will say that we actually obtained our independence because of the joint efforts of a united group of English-educated elites.

If this is possible, I am confident more non-Malay and even Malay parents will send their children to national English schools.

Then the issue of abolishing the vernacular schools will not arise because more non-Malays will be attracted to study in English schools.

For this to materialise, this change must be built into the Constitution so that future leaders will not change our education system whenever they like by just amending the Education Act; thereby causing another generation of Malaysians to suffer.

Published in the New Sunday Times, 07 December 2008