I feel constrained to write this letter after reading the latest statement by the Federal Territories Minister Khalid Samad concerning the Taman Rimba Kiara development.
The minister was quoted as saying there were only two options left: terminate and pay RM150 million in damages or continue with the development but on a smaller scale.
Khalid was also quoted as saying that the Cabinet would be asked to select one of the two options.
My grouse is over the repeated statement by Khalid that the joint venture agreement is valid and, consequently, must be honoured.
My first question for the minister is whether he considered the validity of the alienation of the land to Yayasan Wilayah Persekutuan ( YWP) in 2014, in the first place.
Based on reports concerning the serious conflict of interest on the part of the then minister, Tengku Adnan Mansor, when the alienation took place and his alleged indirect interest in the developer appointed by the joint venture company, in my view, the possibility of challenging the validity of the alienation to YWP should be examined in detail by Khalid.
The relevance of this challenge under Section 340 of the National Code is that, if successful, it would render the Development Order (DO) invalid since the DO would have been granted on the application of YWP as the registered proprietor at the material time.
Incidentally, I should mention that Section 340 is a provision which enables a previous registered proprietor of land to seek to set aside the title of the current registered proprietor.
Admittedly, invalidating the DO may have financial consequences upon YWP and indirectly upon the mayor since YWP is the welfare arm of the ministry.
However, in my view, this should not unduly worry Khalid for three reasons.
First, his primary duty is to the public and not YWP.
Secondly, the circumstances surrounding the joint-venture agreement – the alleged indirect interest of the then minister in the JV and the developer appointed by the JV company (subject to the outcome of MACC investigations) provides a reasonable basis to challenge the validity of the JV and the contract appointing the developer.
With due respect to Khalid, the mere absence of duress does not render the contract to be valid and binding, in law. The fact of the matter is that YWP is a foundation. Accordingly, as a trust corporation, its powers are necessarily circumscribed by law.
For this reason, it is imperative that the minister take independent legal advice on the powers of YWP and the validity of the JV and the contract appointing the developer.
Thirdly, damages payable to the developer, if any, should arguably be recoverable from the former minister and the trustees of YWP. The law enables an action for damages for any malfeasance on the part of trustees.
Accordingly, I urge Khalid to reconsider his decision on the available options, particularly, since the MACC is still investigating the circumstances surrounding the transfer of this land and presumably the manner in which YWP conducts its “commercial” affairs.
In conclusion, I wish to disclose that although I live in Taman Tun Dr Ismail and am consequently impacted in a distant way by the proposed Kiara development, my decision to write this short note is primarily influenced by a desire to influence the honourable minister to consider other options before he presents a paper to the Cabinet.
K Anantham is a former Court of Appeal judge.
The views expressed are those of the writer and do not necessarily reflect those of FMT.