Real estate law could reach courts: Real estate law could reach courts

Unless an interpretation of what should be regulated through a law or a bylaw is reached, lawmakers could ask the Court of Final Instance for its opinion, Kwan Tsui Hang warned

Lawmakers are threatening to take the draft law on the real estate business to the courts, as a long-brewing dispute with the government over the competences of the Legislative Assembly (AL) reaches a standstill.
Yesterday, the AL first standing committee met with government representatives to discuss a third version of the draft law. Lawmakers were up in arms about the Administration’s decision to go back on the inclusion of penalties, accusing it of acting outside its competence.
“On July 11, after several meetings, the executive accepted several of our opinions and sent a new version, which mostly focused on the issues that would have been in a bylaw, such as penalties,” the committee president recalled.
But, “regrettably”, last month the government sent a third version of the draft law “which basically eliminated all the provisions that had been introduced,” Kwan Tsui Hang explained. She said that, in fact, “this last version was not very different from the original one” and was prepared “without a broad discussion with the committee”.
Asked about the turnaround, the lawmaker tersely said that, “after several studies and analyses, authorities feel that the original option was better, which means these provisions must be left to a bylaw”.
After about two hours of discussion, “we didn’t reach any conclusion,” she conceded.
The real estate sector has called on authorities to speed the introduction of the law, which passed first reading almost a year ago, in February 2011. But the bill is not likely to be approved anytime soon, Kwan conceded. “It will all depend on our joint efforts to solve this issue.”

Political controversy

Lawmakers believe the issue is much broader. “Our legal advisors believe that these issues, namely penalties, are a competence of the [Legislative] Assembly and, as such, should be included in the law,” Kwan said.
“This is not a legal controversy,” she repeated. “This is a political issue on how to interpret law 13/2009.” This piece of legislation tried to define what should be regulated through a law, a bylaw or a Chief Executive dispatch.
“We can’t move forward with the discussion of this draft law before there is a clear stance on how to interpret the 13/2009, in order to prevent further doubts and controversies from popping up in the future,” she emphasised.
The committee members will meet again soon to decide on a common interpretation, while waiting for “a superior response” from the government. “We hope it’s possible to reach a consensus,” Kwan said.
Lawmakers are ready to ask the Court of Final Instance – which is legally in charge “of harmonising jurisprudence” – for its opinion, she stressed. “Unless a standard interpretation is reached, we will have problems every time a law is put forward.”
This is not the first time the AL and the government have disagreed on what should be regulated through a law or a bylaw. Similar doubts were raised in February regarding whether or not the Chief Executive should be able to change the procedures in granting seniority bonuses and housing and family subsidies to civil servants through a dispatch.

Enforcing rules

Government representatives, including Housing Bureau (IH) president Tam Kuong Man, claimed that several provisions could be deleted because they are already stated in Macau’s main legal codes.
The committee disagrees: “This is a legislative option: should we reproduce provisions that already exist in order to make it easier for the public to understand? Or due to mere simplification, should we remove them?” Kwan asked.
“If we focus on allowing people who are not legal experts to better understand our laws, then the government’s option is not reasonable,” she said.
But lawmakers are mostly worried about the lack of “a clear legislative option,” the committee president explained. “Each service takes a different stance. We hope the government can standardise its option.”
The main difference between the original draft and the latest version is that the IH is no longer named as the body in charge of enforcing the law, which, for instance, allows non-resident workers to apply for a real estate agent licence.
“The government told us IH’s competences are constantly being increased and its organic law is under revision. As such in the future the IH might no longer be in charge,” Kwan said.
In addition, the Labour Affairs Bureau (DSAL) is no longer named as the body in charge of organising a compulsory training course that agents will be required to undertake to receive a licence.
Once the law is enacted agents would be required to attend a course for real estate professionals organised by the DSAL in order to renew their licence. Once approved, they will receive a licence valid for three years.
“This is the first time we are regulating this sector,” the lawmaker said. Up to October 2010, 4,280 real estate agencies were registered in Macau, employing 7,902 agents. A total of 100 companies from Hong Kong were among that number, including some 50 agents.
The bill is aimed at improving real estate agent professional skills, in order to better safeguard consumer rights. “The society needs to be sure on who is the institution in charge of enforcing the law,” Kwan added. “Most of the committee members have doubts on this issue,” she said.