Monday, 24 March 2008

Constitutional Ambiguities (at least for the layperson!)

A few housekeeping matters first. I must sincerely apologise to everyone about the lack of updates on the blog. Personal matters, illness and now with the date of vacant possession coming up, I've been busy with sorting the eviction from my much cherished home. I'll try to get my a$$ around to updating the Enbloc List soon (I've said that repeatedly, I know!). As some of you may be wondering, CondoSingapore Forum on Enblocs, a hotbed of information as well as arguments/fights, was recently down. They lost a good 7 mths' worth of postings on enbloc matters, apparently due to a hack attempt. The administrator has continued to update the forum with the latest news articles on enblocs, so kudos to him despite the loss of data.

Last week, a series of Straits Times Forum letters appeared regarding enbloc matters. Ms Susan Prior sparked off by talking about the loss of the 'sense of kampung' in our communities, especially our condos, and she pointed out: "... in Singapore, your home is not really your home and can be taken from you by your neighbours". You can read her letter here.

This sparked off two responses on two fronts - one attacking her point on 'kampung' and another by Mr KS Rajah (apparently the Senior Counsel KS Rajah) which argued that "Ms Prior's fears that her home is not really her home and can be taken from her by her neighbours may not be strictly accurate". Again these letters are available here.

Mr Rajah's argument centred around, interestingly enough, the Singapore Constitution, which you can find here. Now I'm a layperson, certainly not a lawyer, and my interpretation of his letter is based on my common understanding (however little that is) of the law. His point was that under the Constitution "the power to acquire, hold and dispose property is a 'liberty' that is protected by law". That got lots of people confused - if this is the case, is the enbloc law unconstitutional?

Let's go back to the start of Mr Rajah's letter - he wrote in response to Ms Prior about neighbours taking away other neighbours' homes. In this point, Mr Rajah was merely stating the obvious. He's not ignoring the enbloc law; rather, he's taking Ms Prior's argument - that a neighbour can force you to lose your home - to its literal sense, and rebutting that via a legal argument. A neighbour can't force you to lose your home, eg by kicking you out of your home, or by causing bodily harm, or by seige, or by enbloc.

His key point is this single sentence: "The acquisition must be through legal means." In other words, the acquisition of your property must be done within the (enbloc) law.

What he seems to 'sidestep' is that it is precisely USING the law that people are LOSING their homes BECAUSE of other people and for rather selfish reasons. He ends the letter with a 'softer' tone: "Ms Prior's fears that her home is not really her home and can be taken from her by her neighbours MAY NOT be strictly accurate" (my emphasis). It's not ".. by her neighbours IS NOT accurate". Indirectly he acknowledges that what Ms Prior is saying is in a way correct, but within a legal framework, what she's saying isn't correct. Lawyers being lawyers, they pick their words very carefully and there's a difference between "MAY" and "IS" (which is a stronger assertion).

Now the point of contention here, the space that is opened up by Mr Rajah's argument, is whether the enbloc law is constitutionally illegal or not. For example, further down in Singapore's Constitution (not mentioned by Mr Rajah) is this: "The Government shall have power to acquire, hold and dispose of property of any kind and to make contracts." (Sect 37(1)) followed by 37(2) " The government may sue and be sued" lol.

Now, let's say I'm damn bloody stubborn. I refuse to sign the CSA or SPA, and refuse to give my title deeds to the SC's lawyers, no matter what. This goes all the way to STB and I superglue the title deeds and any documentation for my property to my butt. I will not "dispose" of my property and I wish to "hold" it. What can the SC do?

In the Land Titles (Strata)Act Sect 84C (found here), the President, Deputy President or Registrar of the Strata Titles Board is authorised to appoint ANY person (typically a representative from the SC, ie a layperson, or sometimes their lawyer) to act on my behalf, to execute the transfer of property. We know that has happened in the past, when someone refuses to sell but has his/her property wrenched away under the LT(S)A. This opens up the following questions:

  • Is the STB "the government"? Given that the members of the STB are often not associated with any governmental body, but are citizens from private firms (often with stakeholder interests in enblocs), is their authority to execute a transfer of property, although allowed by law, illegal under the Constitution?
  • For that matter, given that under the LT(S)A Sect 84C, any person can be authorised by the STB to execute the transfer of property, not a judge, not the government, is this constitutionally legal?
  • I have no issue under the old LT(S)A pre-1999, when a 100% consensus is required to sell an estate. That makes sense under the Constitution - if everyone has a right to acquire, hold a property, they have the individual right to dispose (sell) it too. But the law was changed to 80% majority triggering the sale, subject to STB's approval. This means that some individuals will invariably lose their 'liberty' to hold their property. And in many cases, under enbloc CSAs, many individuals lose their 'liberty' to dispose their property in any way they want it. CSAs often include clauses that restricts how you can sell your property once the enbloc process begins, after all.
There are two ironies to the space opened up by Mr Rajah for constructive debate about the constitutional legality of the enbloc law:

  • It's going to cost a lot of money for any minority owner(s) to bring up this matter to the Supreme Court for discussion. Not a lot of people can do that, which means this matter is likely to disappear into the archives of forum letters.
  • Even if it goes to the highest courts for discussion, how will the impact of the fact that enbloc sales account for a major component of our budget surplus this year, affect such decisions? After all, only approx. 9.4% of Singapore's population live in condos (2005 Dept of Statistics Housing Characteristics), which means the "urban renewal" argument is really quite flimsy. The only reason why enblocs are facilitated by the government is a purely economic one. If the enbloc law is found to be constitutionally illegal, will it be removed, or amended so that it becomes legal (a more likely scenario, I'd think)?
Please feel free to respond, particularly if my reasoning on this matter is incorrect.

1 comment:

Ned Stark said...

Dr Minority:
there is no constitutional right to property in Singapore. Some academics led by Thio Su Mein did propose such a right to be enshrined in the constitution but it was not.