I commend the Tawau Municipal Council (TMC) for admitting that the Sabindo development and encroachment of Tawau open spaces is illegal and invalid and I call on Sabindo developers, Jeramas Sdn Bhd and Aggasf Construction Sdn. Bhd to emulate the example of TMC to reach an amicable “win-win” settlement for the interests of the people of Tawau.
DAP leaders and I had attended several public meetings in Tawau over the scandal of the encroachment and deprivation of the open spaces in Tawau, subordinating the public interests of the people of Tawau to private profit-making in disregard of the law and public policy.
DAP MP for Seputeh Teresa Kok and I had also raised in Parliament the issue of the lack of municipal good governance as illustrated by the Sabindo open space scandal, with the Tawau municipality teeming with “Little Napoleons” defying the Prime Minister and the Sabah State Cabinet in depriving the fundamental right of the people of Tawau to open spaces and recreational grounds.
I was very uplifted when I was informed last night by Jimmy Wong (alias Tiger Wong of Tawau) – who together with nine other public-spirited Tawau ratepayers had taken the TMC to court on the unlawful Sabindo development project and the encroachment of the Tawau open spaces and recreational grounds – that the Tawau people had achieved a classic and landmark breakthrough in their long, arduous and uphill battle to protect the “open spaces” in Tawau not only for the people of Tawau but also for the people Sabah and Malaysia.
Jimmy showed me the Borneo Post report “Surprising twist in Tawau open space devt case – Council agrees joint-venture pact for project is invalid” dated 20th December 2007 which reads:
by Alan Kee
Tawau – In a surprising turn of event at the High Court here yesterday, the ten plaintiffs in the controversial Sabindo open space development case reached an amicable settlement with the Tawau Municipal Council (TMC), which is the second defendant.
What was supposed to be a trial turned out to be a hearing as the plaintiff’s lawyer Datuk Simon K.Y.Shim informed Judicial Commissioner Y.A. Puan Yew Jen Kie that the second defendant had agreed to the plaintiff’s claims as follows:
1. A declaration that the joint venture agreement dated 13th December 1996 between the 1st and 2nd defendants is invalid, illegal and unenforceable, being ultra vires the Local Government Ordinance 1961 and the Tawau Municipal Council Instrument 1983 (G.N.S. 22 of 1983).
2. A declaration that the Development Plan submitted on 12th October 2004 and approved by the 2nd defendant on 27th May 2005 vide DP37/2004 is invalid, illegal and unenforceable.
3. An order that the said Development Plan DP37/2004 be set aside.
TMC is the second defendant. The first defendants, the developers of the Sabindo project, i.e. Jeramas Sdn. Bhd and Aggasif Construction Sdn. Bhd, however objected to the application to enter the terms of consent judgment in court in view of the “surprise turn of events” and their lawyers successfully applied for the adjournment of the case “to allow the first defendant to take stock of the situation to reconsider the pleadings”, including whether to draw in the TMC and join the State Government as third party as the council’s approval must be with the consent of the minister concerned.
The case has now been fixed for 25th January next year for hearing of a third party notice.
Nobody had given Jimmy and the other nine plaintiffs any chance of success in their legal suit to protect the open spaces and recreational grounds for the people of Tawau and future generations, as well as a test case on the sanctity of open spaces in Sabah and Malaysia. In fact, many regard the legal challenge as akin to a Don Quixote exercise in tilting at windmills.
It had not been an easy fight (and Jimmy was even physically assaulted once over the issue), especially as the initial application for an injunction to halt all Sabindo development construction had been dismissed in the first instance in March 2006 on the ground of lack of “locus standi” – but the 10 great Tawau plaintiffs had not been dispirited by these setbacks and had persevered in their battle for justice and good governance.
The Sabindo/Tawau Open Spaces legal suit is no Don Quixote exercise nor just a legalistic matter but concerns the quality of life and good governance in our country.
The controversy had dragged on long enough and I hope that there could be an all-round amicable settlement so that the bold and courageous concession by the TMC that it had acted illegally and unlawfully could be a salutary lesson to all parties concerned not only in Tawau but for the whole of Sabah and Malaysia and would not go to waste because of continuing litigation over the issue.
I would call on the Sabindo developers, Jeramas Sdn Bhd and Aggasf Construction Sdn. Bhd, who are the first defendants, to consider their CSR (corporate social responsibility) and to emulate the example of TM C to reach an amicable “win-win” settlement for the interests of the people of Tawau – where the interests of both Jeramas Sdn. Bhd and Aggasf Construction Sdn. Bhd are also taken into consideration.
I am prepared to offer my conciliation and mediation services to Jeramas Sdn. Bhd, Aggasf Construction Sdn. Bhd, the 10 Tawau plaintiffs as well as to all Tawau ratepayers to try to achieve such a “win-win” comprehensive out-of-court settlement of the Sabindo “Open Spaces” litigation in the interests of all parties concerned.
(Media Conference in Kota Kinabalu on Saturday, 29th December 2007 at 11.30 am)
#1 by lakshy on Saturday, 29 December 2007 - 12:40 pm
I hope more Municipal Councils and Local Authorities can emulate TMC and protect these open spaces!
#2 by DarkHorse on Saturday, 29 December 2007 - 12:46 pm
I’m sorry I fail to see how the Don is connected to all this?
#3 by Tickler on Saturday, 29 December 2007 - 1:09 pm
Main Issues
Comic aspect of the story has underlying serious intentions.
Critique of life in a world dominated by greed, pride, and violence.
http://fajardo-acosta.com/worldlit/cervantes/quixote.htm
#4 by HJ Angus on Saturday, 29 December 2007 - 1:11 pm
I remember in the 70s how the Ipoh Municipality took away a large part of the play-ground in the center of town (along Brewster Rd and Anderson Rd) and approved the construction of an office building.
But in those days people were simply too complacent to protest.
#5 by shaolin on Saturday, 29 December 2007 - 2:11 pm
BN’s Big Scandal over Open Spaces at taman taman,
no wonder King Zakaria can live in such big Zack’s
Palace at Klang…!!!
Never mind the past, this time all MUST vote only
Opposition Parties…!!
Click the link below for spr voter’s details check… (1)
1. http://daftarj.spr.gov.my/daftarbi.asp
Click the link below for more spr info details…(2)
2. http://www.spr.gov.my
#6 by mata_kucing on Saturday, 29 December 2007 - 2:35 pm
Illegal grabbing of land by developers with the knowledge and active participation of those in power is happening all over Malaysia. This particular case in Tawau where some brave souls took the council to court is an exception rather than the rule.
In Sarawak, many prime land belonging to the government has been sold for a song to greedy developers closely linked to the CM. In Kuching, many houses built during the colonel period to house government servants have been demolished and the land given to crony developers to build commercial buildings where they fetch a premium price. To ensure that the properties are sold, other deveopers are usually not permitted to put up the same development in the vacinity at the same time.
So what’s new?
#7 by Jeffrey on Saturday, 29 December 2007 - 7:51 pm
From the limited facts here, it is doubtful whether the Tawau Municipal Council (TMC) deserves praises for its conduct in the Sabindo/Tawau Open Spaces legal suit.
Yes, TMC has finally now made things easier for Open Spaces advocates like Jimmy Wong (alias Tiger Wong of Tawau) and 9 other public-spirited Tawau ratepayers by admitting, and likely entering into consent judgment as 2nd defendant for:-
· a declaration that the joint venture agreement dated 13th December 1996 (“JV Agreementâ€) between the developers of the Sabindo project, i.e. Jeramas Sdn. Bhd and Aggasif Construction Sdn. Bhd (“Developersâ€) and TMC is invalid, illegal and unenforceable, being ultra vires the Local Government Ordinance 1961 and the Tawau Municipal Council Instrument 1983 (G.N.S. 22 of 1983);
· a declaration that the Development Plan submitted on 12th October 2004 and approved by TMC on 27th May 2005 vide DP37/2004 is invalid, illegal and unenforceable; and
· an order that the said Development Plan DP37/2004 be set aside.
But this does not explain why TMC had earlier entered into a JV Agreement and pursuant to it approved the Development Plan in the first place when it was then, as it is now, ultra vires the Local Government Ordinance 1961 and the Tawau Municipal Council Instrument 1983 (G.N.S. 22 of 1983.
Fact is TMC could not give to the Developers what TMC itself never had in the first place.
In 1974 open land was initially owned by Sabindo Nusantara Sdn Bhd, which had in its development plan for commercial purposes a provision of about 5 lots I think for the open spaces approved by the then Tawau Town Board (“Open Spacesâ€).
Sabindo Nusantara, as the owner of the land, then handed the land titles for the Open Spaces to the Land and Surveys Department for sub-division of titles before surrendering the Open Spaces together with their titles to the State Government under Section 38 of the Land Ordinance (Cap 68) and upon registration of such surrender, the Open Spaces vested in the Sabah State Government absolutely.
The Open Spaces belong to the government and not TMC so what rights TMC has got to enter into JV Agreement with the Developers? I would say none. (TMC had applied for the land to be developed on Oct. 10, 2005 but this was rejected by the Land and Surveys Department).
The Developers however said that way back in 1996 they (possibly in conjunction with TMC) had then applied to the State Government for its consent to develop the Open Spaces and that consent had been given by the Minister of Local Government and Housing at the material time for TMC to enter into a joint-venture agreement.
The Developers’ argument is that the present State Government should honour the pledge and commitment of the previous State Government during TDM administration to be bound by and accountable for all agreements (including the JV) that have been entered into with the developers and private sector or else it has no credibility.
Now I don’t know whether the Developers can prove that they have a letter of consent from previous state government but even if they do, we don’t know whether that letter of consent has a definite time frame which has already expired or not.
Whatever it is, the Developers do not now have a legal leg to stand upon : they could not bind the present State Government to a letter of consent issued by the earlier State government because :
1. the approval for development of the Open Spaces proceeds on the assumption that the Developers first acquired rights to Open Spaces directly from either the State Government or TMC, and since the Open Spaces surrendered to and vested in the State Government were never later alienated or transferred to TMC, the Developers could not acquire any legal property rights to development from TMC;
2. also if the present State government is sensitive to public request to keep the Open Spaces for recreational and green lung purposes – on September 11, 2005 about 6,800 of public signed against project – and refuses to honour the so called consent given by the previous state government, that is , in law, the end of the matter for the Developers because public interest overrides any other equitable rights the Developers argue they may have based on the past letter of consent issued by the previous state government.
I express no opinion about Developers’ actions. I see no reason why they should emulate TMC and practise corporate social responsibility (CSR) as some mega conglomerates, by virtue of the scale of their operations and size, should do. Like any other business persons and companies owing a duty to their shareholders to enhance shareholders value, they are profit driven rather than CSR. They should be entitled their legal rights but as I see it they likely have none especialy when TMC acknowledfged the JV Agreement as ultra vire and illegal for exceeding authority.
As I see it, TMC has no merits and deserves no praises for admitting what is the truth that it had earlier entered into an ultra vires JV Agreement with the Developers which it had no right or authority to do so in the first instance.
Praise should go to the present state government for its sensitivities to public’s sentiments, never mind election is around the corner and the DAP will not praise it.
At least it does not ratify what little napoleons in the past tries to do.
Your call should be to other state governments to follow Sabah’s state government’s example of paying attention to the “quality of life and good governance in our countryâ€.
#8 by lakshy on Saturday, 29 December 2007 - 9:19 pm
Angus,
The Ipoh Town Planners are very smart. They have not gazzetted all the open spaces. In fact even polo grounds and DR Park are not gazetted. So it can be developed anytime in the future.
#9 by Tickler on Saturday, 29 December 2007 - 9:57 pm
KUALA LUMPUR (Nov 26, 2007): The development of a buffer zone in Ampang Jaya into a light industrial estate is illegal and a classic example of unsustainable development.
“The very purpose of a buffer is to promote sustainable development by separating conflicting land uses,” said planning expert Derek Fernandez in response to Selangor State Secretary Datuk Ramli Mahmud’s statement in theSun today that buffer zones can be developed.
Fernandez said Ramli’s remarks are against Selangor Government’s own policy in relation to planning and development which are contained in the Selangor Structure Plan as well as the Petaling District Structure Plan and the National Urbanisation Policy – all of which are binding on the State.
“Therefore any statement or policy cannot be made on an ad-hoc basis, but must be in writing and contained in the various structure plans in accordance with the Town and Country planning Act 1976,” he said.
Fernandez said these plans are formulated after public participation and any statement of planning policy and land use which has not gone through these processes can be challenged and cannot be effectuated.
He said the Act will not allow any development on these lands unless it is consistent with the structure plan. By contrast, there are specific provisions in the plan that require the preservation of buffer.
http://www.malaysianbar.org.my/content/view/12526/2/
#10 by Jeffrey on Saturday, 29 December 2007 - 11:28 pm
///In fact, many regard the legal challenge as akin to a Don Quixote exercise in tilting at windmills///- YB Kit.
///I’m sorry I fail to see how the Don is connected to all this?/// – DarkHorse.
The Don lives a rich imaginary – you can also say delusional – life. He even fights windmills. In his mind’s eye, they are giants and the windmill blades are giant’s arms. His tilting their blades – even to extent of injuring himself in the process – is likened to wrestling with the Giant’s arms.
Don Quixote exercise in tilting at windmills is, by way of figure of speech, a reference to perservering in a hopeless and unproductive activity that is not expected to produce any concrete or meaningful result. :)
#11 by harrisonbinhansome on Saturday, 29 December 2007 - 11:39 pm
Minda enquire?
Upon logging unto Uncle Kit’s blog, my login handle was readily available but now I’ll have to login by typing name and password. Anyone has any idea…Just askin…
#12 by Anba on Sunday, 30 December 2007 - 12:23 am
I’m proud of the 10 Malaysians from Tawau who presevered and showed to the whole Malaysia that unjust activities must be fought. It’s not easy, but when people don’t buckle under pressure and continue fighting ( non-violently) till a just solution is met. These ‘Bravehearts’ needs to be applauded.
Similarly, if every race thats been marginalized bring their discontent and fight for their right, we will suddenly realize that the whole nation will awake. The current Hindraf march is another example of a good rise against the discrimination.
All Malaysians who are marginalized, please show defiance towards injustice and fight in your own way without resorting to violence.
May God bless Malaysia.
#13 by shaolin on Sunday, 30 December 2007 - 6:24 pm
The Conversion and Development of any Buffer Zone
of Residential Area is strictly ILLEGAL and PROHIBITED!!
It is The ‘Green Lungs’ Zone for us to breath in Fresh
Air in the living vicinity.
We strongly object to any kind of land abuse and land
rape over the virgin/secondary jungles…!!!
#14 by zack on Sunday, 30 December 2007 - 10:03 pm
Malaysia reverses Allah paper ban
By Robin Brant
BBC News, Kuala Lumpur
Muslims take part in Friday prayer at the National Mosque in Kuala Lumpur
Religious freedom is guaranteed under Malaysian law
The Malaysian government has reversed a decision to ban a Christian newspaper using the word Allah to refer to God.
The government had threatened to refuse to give the Weekly Herald a publishing permit if it continued to use the word.
The paper’s editor said the word had long been used by Christians to refer to God in the Malay language.
The ruling was immediately condemned by civil rights and Christian groups in Malaysia, who said it infringed their right to practice their religion.
But Malaysia’s internal security department demanded the word be removed, saying only Muslims could use it.
‘Over-zealous ministers’
Now the government has back-tracked.
In a fax to the Herald’s editor, the government says it will get its 2008 permit, with no conditions attached.
Father Andrew Lawrence told the BBC he was delighted, saying prayers had been answered.
He blamed politics and a general election expected here in 2008 year for what he said were the actions of a few over-zealous ministers in the Muslim-dominated Malay government.
Religious issues are highly sensitive in Malaysia, which has a 60% Muslim population.
Religious freedom is guaranteed in the law but minority groups have accused the Muslim Malay majority of trying to increase the role of Islam in the country.
#15 by cheng on soo on Sunday, 30 December 2007 - 10:27 pm
Sad news, somebody said uncle Kit elder sister had just passed away, is it true? My apology if NOT TRUE, My deepest condolence if true.
#16 by Colonel on Sunday, 30 December 2007 - 11:11 pm
“The current Hindraf march is another example of a good rise against the discrimination.” anbar
The hindraf march is a public indictment of the MIC under Samy Vellu as much as it is a public indictment of the DAP under YB Kit for failing to make the issue of Indian marginalization part of its rallying call.
Didn’t Uthaya say that the Chinese and the DAP are fighting their own battles and the Indians are left to fight theirs? Perhaps not in those same exact terms but essentially so?
#17 by Bigjoe on Monday, 31 December 2007 - 11:58 am
I believe the biggest agenda for the coming 2008 election is for the opposition to get the PM and DPM to engage in a public televised debate with Anwar, Lim Kit Siang and someone from PAS.
Its no longer about policy which is rudderless, but about the character of the leadership that has backed off from the tough decisions that needed to be made last year and will need to be made this year and the following…