Condo’s ‘African’ ban all bark and no bite, lawyers say
KUALA LUMPUR, Aug 28 — A ban on “African” tenants by Ridzuan Condominium’s management is unenforceable despite the support of most residents, property and civil liberty lawyers said yesterday.
Any landlord dissatisfied with the ban announced last week by the joint management board (JMB) of the condominium in Bandar Sri Subang, which requires tenants from the continent to cancel their rental and move out within three months, can also challenge the house rule.
“This is illegal … it is unenforceable and it can be challenged,” civil liberties lawyer Syahredzan Johan told The Malay Mail Online here.
“The JMB has to file an application in court to enforce a by-law, so owners can resist that. Or, if they (the owners) want, they can file an application to declare the ban unlawful.”
The Malay Mail Online had yesterday reported of the unprecedented occupancy ban imposed last week by the management of Ridzuan Condominium against “African” tenants.
The decision came after the majority of the condominium’s residents voted at an annual general meeting (AGM) held on July 6 against renting their units to foreigners from the continent, whom they allege to have “caused a lot of nuisance”.
Khairul Anuar, a property lawyer of 14 years and author of several books on property, told The Malay Mail Online that the house rule can be challenged since the Strata Titles Act 1985 prevails over it.
Section 44 (5) of the Act states that no by-law can prohibit or restrict the lease of a building, giving the proprietor rights to individual unit owners.
According to Khairul, however, the ban will stand until it is legally challenged, since the Section 44 (2) of the Act states that “the management corporation may by special resolution make additional by-laws … for regulating the control, management, administration, use and enjoyment of the subdivided building.”
“Either the joint management body (JMB) or the management can do whatever by-law or house rule agreed upon in the meeting … as long as it is endorsed.
“How they are going to enforce it, I don’t know,” Khairul conceded, saying the management cannot act on an owner or African tenant who fails to comply.
From the circular distributed by Ridzuan’s JMB that was sighted by The Malay Mail Online, it was also unclear how it plans to enforce the ban as there was just one criterion for the prohibition: “African”.
The circular neglected to specify if this ban will apply along the lines of ethnicity or nationality, nor did it mention who would be the final arbiter should any party dispute the “African” label.
“There is no laws against discrimination in Malaysia, that’s the problem,” conceded Khairul.
However, Syahredzan argued that the ban can be deemed unconstitutional, citing Article 5 of the Federal Constitution that guarantees that “no person shall be deprived of his life or personal liberty”.
The Ridzuan ban may be the first attempt of its kind reported in Malaysia after years of alleged discrimination and hostility towards the oft-maligned African community, including in mainstream media.
Despite being a continent of 54 countries with diverse and distinct ethnicities, cultures, languages and societies, its migrants are commonly pigeonholed using the “African” catchall, while the derogatory label “Awang Hitam” (literally, Black Fellow) is also used by Malay-language dailies in reference to their dominant skin colour.
The negative perception towards African migrants in Malaysia is believed to stem from the frequency of cases of drug smuggling, financial scams, frauds and sex crimes reportedly involving the group.
Malaysia’s Immigration Department reported that a total of 79,352 Africans entered the country last year.
The department also issued 25,467 student visas to Africans in 2012 to study in public or private institutions.
– See more at: http://www.themalaymailonline.com/malaysia/article/condos-african-ban-all-bark-and-no-bite-lawyers-say#sthash.hWigHxkm.dpuf