Is The Statutory Standard Sale And Purchase of Housing Accommodation Agreement (Schedules G, H, I and J) In Peninsular Malaysia Compatible With Islamic Law? Part 4

It is proposed that the agreement which is based on the ‘full build then sell’ system of housing delivery is the most appropriate agreement, it is suggested, tallying with the requirements of Islamic law as it will totally avoid the occasion of gharar al-fahish (abandonment). The contention as highlighted above also is in tally with the legal maxims – ‘repelling an evil is preferable to securing a benefit’ and ‘injury/damage is removed as far as possible’ (Tyser, Demetriades & Effendi, Mejelle, n.d, p. 7). The meaning of ‘full build then sell’ system is that, only the completed constructed housing units with the full CF or CCC obtained and are ready for due transfer to each individual purchasers on full settlement, are allowed to be sold. The vendor developer also is required to obtain an Islamic housing development insurance to cover any losses suffered by the stakeholders, especially the purchasers, due to the defaults of the developers.  Thus, by applying this suggestion, it is opined, the issue of abandonment of housing projects and its consequential losses would not arise at all.

 

If the above could not be implemented, the government can utilize the 10-90 system—‘quasi build then sell’ system, whereby purchasers are only to pay the 10% of the purchase price on the execution of the contract of sale and purchase.  The balance of 90% is only to be paid on the completion of the houses with CF or CCC obtained and the title to the unit purchased shall also be ready for due transfer to purchasers on full settlement.

 

Apart from the above suggestion, a special rehabilitation legal regime is required to be provided in the Housing Development (Control and Licensing) Act 1966 (Act 118), to control and monitor the progress of any rehabilitation, if abandonment is inevitable.

 

To avoid insufficiency of funds for rehabilitation, in respect of the quasi build then sell system, as an addition, it must be made a condition for all applicant developers to get necessary housing development insurance, recognized by Islamic Law, to meet any possibility of losses due to abandonment, its ensuing problems as well as to serve as a support to meet any expenditure to run rehabilitation.

 

Further, effective enforcement, administrative and legal reforms, during the stage of alienation of land, planning permission, building and other plans’ approvals, application for housing developer’s licenses and advertisement and sale permits, and in respect of the housing and rehabilitation law and practices, as far as they are permitted by Islamic Law, for example on ‘ita’ (alienation and grant of land), planning, insurance, damages, compensation and the principles of al-hisbah (enforcement of the law) and the said agreement of Regulations 1989 of Act 118 (Housing Develpment (Control and Licensing) Regulations 1989) should be amended so as to be in harmony with the principles of Islamic Law as suggested and discussed in the previous writing, to avoid many gharar, particularly gharar al-fahish, elements which are detrimental to the interests of the purchasers.

 

Following the above elaborations, the said agreement and the Malaysian statutory provisions in Act 118, Town and Country Planning Act 1976, Street Drainage and Building Act 1974 (Act 133) and the Uniform Building By-Laws 1984 (UBBL 1984), shall also need to be rigorously amended to the effect of avoiding the possibility (ihtimal) of the happening of the gharar and providing certain preventive and curative measures to the effect of fully protecting all the rights and interests of the stakeholders, especially of the purchasers, against any losses due to abandonment and the subsequent grievances (Nuarrual Hilal Md. Dahlan, 2006, “Abandoned Housing Projects in Malaysia: A Legal Perspective”, Malayan Law Journal), (Nuarrual Hilal Md. Dahlan, 2007, “Rehabilitation of Abandoned Housing Project: Experience of an Abandoned Housing Developer Through the Help of A Government Agency”, Malayan Law Journal) and (Nuarrual Hilal Md. Dahlan, 2007a, “Rehabilitation of Abandoned Housing Project in Peninsular Malaysia By a Purchasers’ Voluntary Scheme: A Case Study”, Malayan Law Journal).

 

According to Imam al-Ghazali, any ruling for the preservation of the public interest, and in respect of this writing, on the sale and purchase of houses, must fulfill three conditions. First, the essential necessity (darurah), second – categorical (absolute) (qat’iyyah) and thirdly – consideration of the majority (Imam al-Ghazali, 1902, p. 294—296).  It is contended that the above suggestions for facing and avoiding abandonment of housing projects, will achieve these three requirements – i.e the suggestions are being essential necessity and categorical as they would protect the rights of the stakeholders against the consequential losses due to the abandonment. The suggestions also will be beneficial, affordable to the larger population of public purchasers and their rights and interests (majority) against occurrence of severe losses incidental to the abandonment and not merely benefiting the small portion of them as compared to the sheer solitary capitalistic interests of the vendor developer.

 

The modus operandi of housing purchase in Peninsular Malaysia is open and prone to abandonment unless appropriate steps are taken to curb the problem. The current system, insofar as abandoned housing projects are concerned, it is opined, brings more evil than good. Thus, such a system should be rejected and be replaced with a better system (such as the ‘full build then sell’ system) to the effect of bringing substantial benefits to the public purchasers and stakeholders (Fakhruddin al-Razi, 1992, p. 165 & 166).

 

Otherwise, it is regretted to say, that the sale will be a nullity due to being a void instrument (the said agreement) according to Islamic Law – detrimental to the protection of wealth and justice. Consequently, this would affect the legality of the subsequent transactions such as the loan transactions obtained from the Islamic Banks (for instance, the Bay’ Bithaman al-Ajil-BBA) on the reason that, these loan transactions may be void as the prior house purchase agreement (the said agreement (Schedules G, H, I and J)) entered into by the purchaser and the vendor developer, it is opined, contains gharar al-fahish elements.

 

Because of the application of the said agreement, argued with due respect, may be void according to Islamic Law, pursuant to the above arguments, it follows that, Islamic banks and other Islamic window banks in Malaysia, are practising mode of transactions being contrary to the elements approved by the Religion of Islam, and thus has subtly, ultra vires the very foundational element of its establishment, pursuant to section 2 of the Islamic Banking Act 1983 (Act 276).

 

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s