So sad when the law denies what is just

19/02/2006 New  Straits Times

ON that quiet Saturday of Dec 11, 1993, now more than 12 years ago, the Highland Towers traumatic saga began. The 12-storey Block 1 collapsed at 1.30pm, caused by a landslide. It killed 48 people.

Over 1,000 residents in the two other blocks were made homeless in a moment.

It was not only grave national news but it attracted the attention and sympathy of the whole world.

Our then Prime Minister and his wife, Tun Dr Mahathir Mohamed and Tun Dr Siti Hasmah Ali, and many government officials and dignitaries came to the scene to extend their sympathies.

It was declared a "national disaster" but, as it turned out later, it was a "man-made" disaster.

It could have been easily avoided if only there had been less greed and greater integrity among the business community and authorities.

The surviving residents of Block 1 and all the residents of the other two blocks got together and formed a committee to seek compensation for their loss. I was asked to head the committee.

The Cabinet ordered a special report on the collapse by a high-profile expert committee.

We were very encouraged when the Cabinet report came out within seven months.

It clearly stated that the collapse of Block 1 was because of deliberate wrongful and negligent acts of several parties, including MPAJ (the local authority, what is now the Ampang Jaya Municipal Council).

We had hoped the Government which had showed so much interest and sympathy would act immediately against the offending parties and see to it that the victims were soon compensated.

But to our utter despair, the Government did not act.

We were left to seek redress through the courts.

The lengthy legal drama began on Dec 5, 1996. Seventy three residents filed a suit against several parties.

In their statement of claim, they contended that all the defendants were jointly or severally liable for causing or contributing to the collapse of Block 1 and the subsequent abandonment of the other two blocks.

We succeeded in 2000 to get a judgment against the offending parties. On Aug 11, 2000, the High Court found Arab Malaysia Finance Berhad and five others liable for the collapse of Block 1.

MPAJ was found negligent of post-collapse events but not liable for the collapse.

The seven defendants appealed but on Dec 3, 2002, the Court of Appeals dismissed the appeals of four, including MPAJ.

Thank God, on June 1, 2004, AmFinance settled out of court, requiring the owners to assign the rights of our properties to them.

But the amount was barely enough to pay 139 owners "the cost of their properties at the time of collapse in 1993" and the legal fees for the protracted court battle.

There was nothing left to compensate for the loss of their income for over 12 years.

Meanwhile, some had to pay up their loan. Most financiers were kind enough to write off their interest; Maybank wrote off all its loans on Block 1.

But our trauma didn’t end there. On June 23, 2004, the MPAJ decided to seek shelter under Section 95(2) of the Street, Drainage and Building Act of 1974 and appealed to the Federal Court.

The 73 plaintiffs cross-appealed

On Feb 17, 2006, the Federal Court by its verdict against us brought us to "our bitter end".

As I told the Press immediately after the verdict at the Federal Court: "I went with great hopes to win because the High Court and the Court of Appeal gave their judgment in our favour and against MPAJ."

I became very hopeful on hearing the first judgment.

The court accepted earlier findings that the MPAJ had created a danger when it required that a stream on the step hillslope be diverted, or approved plans for the move. It also accepted that the MPAJ had failed or neglected to maintain the diversion and ensure it was properly maintained.

But when I heard the next two judgments, my heart sank and I lost hope.

Justice Abdul Hamid Mohamad held, with Justice Datuk Ariffin Zakaria concurring, that public policy and circumstances were taken into account in deciding MPAJ should be shielded from liability.

"It was not ‘fair, just and reasonable’ for taxpayers’ money to be used to pay for such damages.

"I don’t think that in the present circumstances, on the facts of this case, it is fair, just and reasonable to impose such a burden on the local council in this country in similar situations."

Thus, the Federal Court held "that MPAJ was protected against legal action for events leading to the collapse of Block One".

I am not only sad and disappointed for all the victims of the Highland Towers Tragedy but also for all those who may, in the future, suffer a similar fate at the hands of the local authorities.

As for any future action, there are those who feel strongly we should appeal to the present Prime Minister, Datuk Seri Abdullah Ahmad Badawi for his favour.

We may do so, for we know he is very sympathetic towards the common people. Here we are not dealing with a "natural calamity"’ but a case of negligence of a local authority.

* Dr Benjamin George is Highland Towers owners and residents committee chairman.