It is not fair for Lim Kit Siang to lay the entire blame on Ong Ka Ting and the Housing and Local Government Ministry for homebuyers' woes in relation to the Housing Tribunal's impotency against defaulting or errant developers ('DAP wants minister to explain why housing tribunal failed').

Isn't it strange that no one blames the attorney-general's draftsmen who may be responsible for neglecting to insert the retrospective provision in the recent amendments of recourse to the Housing Tribunal?

There is yet another possibility. There is actually nothing wrong even in the drafting. There may however be something amiss in the premises and reasoning behind the 'landmark ruling'. That is why the attorney-general is making an appeal against the ruling rather than running back to his draftsmen to amend further section 16 N(2) Part VI of Housing Development (Control & Licensing) Act, 1966 to make it expressly retrospective.

Generally, it would be true that it would be unfair to impose criminal sanctions retrospectively, meaning making criminal - by backward application - acts, which were not criminal at the time they were committed.

The important question is whether the making criminal of the developer's non-compliance of the Housing Tribunal's award a retrospective application of law.

The landmark ruling decided on the basis that it was.

I am of the opinion that it might not be.

The Housing Tribunal merely acts faster and with fewer formalities (eg, dispensation of lawyers) than normal courts in redressing grievances of homebuyers. These grievances are often failure of developers to complete construction and deliver vacant possession within time prescribed under the Housing Ministry's standard sale and purchase agreements. Other grievances concern failure to rectify defects of construction and compensate homebuyers from costs of their own rectification.

In all these cases of developers' default, developers are liable to compensate purchasers. It is a civil liability.

The role of Housing Tribunal is to speed up the award of these civil liabilities. Strictly, the amendment instituting the Home Tribunal does not retrospectively substitute civil liability of developers with criminal liability.

It might have been a retrospective provision only if the Housing Tribunal is empowered to immediately commit officers of the developer to jail if the developers fail in their contractual obligation to complete and deliver houses or rectify defects in time for which developers incur civil liability of damages. This however is not the case.

Instead, developers are still made responsible for civil liability for damages for their breaches.

The Housing Tribunal merely takes over the role of civil courts to hear such housing cases in order to give speedier awards of such damages.

It is only when developers do not 'respect' the Housing Tribunal's decision to carry out and pay homebuyers such awards of damages, grounded on civil liability, that criminal penalties are next attracted.

This is inevitable when you view the Housing Tribunal as akin to civil courts. In the parallel situation of civil courts, if one does not respect the will and decision of such civil courts, one can also be imprisoned for contempt of court.

The point I am making here is this - the developers are not punished by criminal law retrospectively for breaches of their obligations in the sale and purchase agreements for which they still incur, now, as in the past, civil liability of damages. The civil liability has not been substituted by criminal sanctions per se.

However, it is when developers refuse to carry out the awards now imposed that they are made subject to criminal prosecution. The latter is to give the awards the teeth for enforcement.

This is not taking away a developer's pre-existing right to civil liability by substitution of criminal liability. It is merely saying that from now on, developers are forewarned that if they do not discharge their civil liability encapsulated in the Housing Tribunal's award, they will face criminal sanctions.

There is nothing wrong with this. For strictly there is no retrospective application of criminal sanctions for developers' breach of the sale and purchase agreement because they have the intervening opportunity to now pay the compensation stated in the award, and it is not the case that they are punished immediately by imprisonment or fines for the breaches per se!

It is fine but real distinction that require closer thinking to divine that section 16N (2) has not been retrospectively applied as a criminal sanction in substitution of civil liability.

Yet politics is not concerned with fine distinctions or the real truths. What is apparent is fair game enough to hurl and organise criticisms and take to task one's political opponent.

DAP Lim Kit Siang's political counterpart is MCA's Ong Ka Ting, head of the political party competing for the same Chinese constituency votes.

That is why it is sought to direct homebuyers' frustrations and ire at the housing and local development minister rather than the defacto law minister, the attorney-general department's draftsmen or the reasoning behind the 'landmark ruling' itself, which by themselves could be as, if not more, responsible for their frustrations and ire.