OCCUPATIONAL SAFETY AND HEALTH IN THE CONSTRUCTION INDUSTRY (OSHCIM) ANOTHER CONSTRUCTION DESIGN MANAGEMENT (CDM) IN DISGUISE?
OCCUPATIONAL SAFETY AND HEALTH IN THE CONSTRUCTION INDUSTRY (OSHCIM) ANOTHER CONSTRUCTION DESIGN MANAGEMENT (CDM) IN DISGUISE?
I am re-writing this article on Occupational Safety & Health in Construction Industry Management (OSHCIM), after having much clarity as to where it begins. OSHCIM is just another hybrid of Construction Design Management (CDM) UK and Design for Safety (DFS) Singapore and a direct adoption of Construction soon to be enacted, will be another matter to be dealt with by the construction industry. It adds up additional cost, 2% out of the developer's pocket, well much decent compared to the architect's fee.
So to speak, this new regulations will significantly shift the risks upstream back to the architect. Blatantly erred, to say that architect like it or not, has to owned up to their design liabilities and what has this regulation imposed are not much the different. Yet, they forgot negligence has to be proven. As this legislation that foresee to be gazetted 6 months down the road, Singapore took 6 years, imposed a self-declaration of design liabilities, that they called risks, voluntarily into a document called risk-register. This document will be expended as it snowballs downstream right to the occupier.
The question remain to be seen is, how easy would the occupier take this document to find faults with each and every party in the delivery system, since it is already a self-confessed 'sin'? This document has no privileges in evidence law. One may say, just 'simply' do it and make it as ambiguous as possible?
Nay, CIDB will imposed a self-regulatory mechanism with a paid consultant monitoring this processes, full time at your expanse via the weekly OSHCIM meeting. They will not provide solutions to the problem as they would not want a piece of the design liabilities from the architect, they are basically checker to make sure that the architect crosses the T n dots the I, in their self-imposed declarations of liabilities. Least to say, they imposed strict rules for the architect to owned up to their liabilities under the spirit of if you fail to plan you should first plan to fail, in that way you will minimize risks downstream. In reality the architect's risk has not reduced an ounce but has increased significantly as it includes other risks as well particularly from the builders.
It becomes clear that CIDB via this mechanism manage to pass the buck of their conundrum upstream to the architect in a subtle way as the dialogue now imposes that architect is responsible for Contractor's safety on site and the ministry buys it! Given the scenario of below cost acceptable tender sum is taken by foreign contractors and 0.5% dirt cheap architectural fees were forced through our throats, now, plaguing the profession and the construction industry at large, do the architects want to support it?
A PAGE FROM Construction Design Management (CDM) UK:
To critically-evaluate the ‘health and safety’ duties imposed upon contractor, one has to consider what are the common-law and Construction Design Management Regulations 2015 (CDM2015) enforced in the UK? How would Employer’s positions be different if Employer acted as both principal-designer and project-manager?
Historically, Health and Safety at Work Act 1974 (1974 Act) empowers Construction Design Management (CDM) – Regulation 1994 (CDM1994); with employers’ duty ensuring, health, safety and welfare at-work, applied to the other-persons; without-risk. Prior to 1974Act, workers-welfare was governed by Factories Act1961, applied in the construction-industry. Failure to integrate CDM-regulations into ‘non-domestic’ construction-practices are criminal-offences; HSE-inspectors empowered to inspects/take documented-copy/samples. CDM has since been improved/updated from CDM1994, CDM2007 to the current, CDM2015; promotes identification-elimination of Health and Safety risks from ‘project-lifecycle’ commencing, ‘pre-construction-phase’, right-up to post-occupational, i.e. building-decommissioning; with different Health and Safety role/responsibility vested-upon different stakeholders, i.e. principal-designer/Architect/Engineer/Client at ‘pre-construction-phase’; principal-contractor at ‘construction-phase’; QS/Procurement-Managers at ‘procurement’ right-up to Maintenance-managers/End-users at ‘post-occupational’. CDM2015 required the HS-File to be kept, maintained, updated and transferred from one stakeholders to another, throughout the project-lifecycle. In addition, it will be necessary to ensure that right-people appointed-early, have time-to-review materials and involved in setting-up processes. If none-appointed, client obliged to-carry out these-duties.
Rationales are, client is key-role-stakeholder, has overall-control; can properly-managed at all-stages; if insufficient-knowledge/resources, he employs designer/competent-people to-assist; managing-project, i.e. ‘suitable-project-management’. “Suitability”, means work without-risk. He makes-available ‘pre-construction information’ i.e. drawings, Health and Safety-file, surveys, to designer/contractor, ensuring phase-plan completion, where designer/contractor complies with duties, allocation of sufficient-‘time/resources’, continue ‘maintained/reviewed’ Health and Safety risks; and future-appointments; provide facilities such-as sanitary, washing, drinking-water, changing-rooms and rest-facilities.
Traditionally, CDM2007 was meant to stamp-out deficiencies arising from tight-budget, care-less site-cultural/attitudes, and motivates promotion of safe-place on construction-work. A stricter-legislation would influence construction-workers be more-observant to Health and Safety risks. Thus, common-law on man-slaughter since codified, as Corporate-Manslaughter and Homicide Act2007 (The-Act), to address weaknesses of ‘identification-principle’ formerly, only “hands-on” directors were-convicted, instead of ‘main-culprits’. The-Act determines corporate-liability by judging management-adequacy across organisation. Penalties imposed, unlimited-fine; remedial-order; publicity-order; compensation-order; prosecution-costs order; and victim-surcharge, with sentencing not-less than £500,000.
However, CDM2007, issues with interpretation, bureaucracy, and onerous-competency resulted lack-of-coordination in preconstruction-phase; coordinators’ late-appointment, lack of resources and failure to-include coordinators into design-team. Changes/amendment to CDM2007 were logical. CDM2015 devised to address Health and Safety concerns, previously vested-upon ‘competent-person’, now to designers/client whom are influential from the outset; reduce overlapping-trend of multiple-accreditations, by removal of ‘Approved-Code-of-Practice’; embedding CDM2015 into smaller-projects, where majority accidents-occur, by requiring ‘construction-phase plan’. Construction-industry stakeholders have to be aware of duties prescribed to them; when project becomes notifiable to the relevant-authority, i.e. notice be-given, in-writing to HSE prior to construction.
Moreover, CDM2015, although instituted significant-additions, has weaknesses i.e. ‘domestic-client’ often unaware of such-duties by-default, unlikely to be appointed-to contractor/architect; confusion in appointing principal-designer for ‘pre-construction’, and principal-contractor for ‘construction-phase’; domestic-premises are ‘small-timer’ ignorance of CDM, will typically fall-out from the often-changing threshold-notification to HSE; where 1974-Act are oblivious to most domestic-work; adding-up bureaucratic red-tapes, i.e. HS-File cum Health and Safety Coordination-Meeting; differing-opinions to the absent of CDM-Coordinator; for costs-reduction having architect, double-up as principal-designer with additional-burden/responsibilities; if failing to-appoint, client takes-upon himself, such-extra-burden; even if architect willing, it will not be ‘pro-bono’; obscurity of ‘designer’, a contextual-term devoid of any professionally-linked core-competency but merely Health and Safety administrative role; such principal-designer ‘necessary-skills’ in-lieu of CDM2007’s-‘competence’ are mere-semantic; opportune upon others to-provide ‘training-ground’ as ‘cash-cow’; HSE’s-premise, ‘client, most-influential throughout the-project’ will not-change the fact that ‘client is-king’, often CDM worst-offenders; that takes-account client assuming principal-designer has added vested-duties, include those outside CDM-Coordinator’s scope.
In Contractor’s positions as principal-designer, its role, focus for Health and Safety issues rather than ‘outsourcing’ it; the definition of “designer”, not-exclusive, can also be client/contractor. The term-“Design”, includes drawings, design-details, specification, generally assumed by Architects, Engineers, Surveyors, others; anyone who specifies/alters design, specifies use of particular-method of work/material; who-specifies building-layout; MAP-Engineers; contractors; and temporary-works engineers, but under CDM2015 designers are ‘unique-position’ for-purpose of risks-reduction/hazards-identification with responsibilities, not-confined to construction-phase but to-covers Health and Safety issues, post-completion.
Contractor will resumes Health and Safety duties, to ensures his-awareness(as Client, too), i.e. know client’s-duty, the work-amount; risks-elimination, i.e. take-account of general-principle of prevention, pre-construction information, in place, eliminate-foreseeable risks, maintain/cleaning the-structure, alongside cost, fitness-for-purpose, aesthetics and environmental impact, ensuring other-designers compliance, cooperation, liaise with principal-contractor; providing design-information, delivered-effectively; includes providing other “significant-risks” information; to identify risks-arising from design-integration; with design-reviews scope made-available. Designers do-not have-to, take-account of, unforeseeable-hazards and risks; possible future-uses of structures; to-specify construction-methods; to-exercise any Health and Safety management function over contractors. Principal-designer is not by-qualification but by safety-influences, i.e. in organisational-abilities.
Contractor’s positions as project-manager(PM), under CDM2015, is obliged-to resume principal-contractor’s role covering ‘construction-phase’ under non-domestic, notifiable-project, and to provide relevant-information to HSE, allowing them to monitor projects; accordance to HSE-thresholds; with additional-information, i.e. planned-commencement/duration; time-allocation; workers-number(max); and CDM-compliance declaration. Principal-contractor is person-appointed with specific-duties, in influencing Health and Safety management in ‘construction-phase’, i.e. particular-work on ‘design-technical-organisational’, ‘general-prevention’ of risks, manage other-contractors; consult-engage with workers via, site-induction; unauthorised-access prohibition, facilities; principal-designer liaison; specific-obligations, i.e. competent-workers; work-supervision; information to workers; unauthorised-access prevention; welfare-facilities. Whereas, ‘construction-phase plan’, “set-out Health and Safety arrangements and site-rules” for dangerous-risks; a ‘living-document’; criteria are relevancy; sufficient-detail; proportionate to project-scale/complexity. Health and Safety File made by principal-designer; kept up-to-date.
Concluding, notwithstanding the noble-intention of CDM2015 to document risks-preventions, it is not without its-setbacks; although CDM has been adopted in various-jurisdiction; the same uncertainty-fears permeate among industry-stakeholders. Contractor’s position as both principal-designer and PM, are indifference as of the overarching client’s-duty under CDM2015; applied from ‘preconstruction’ to ‘post-construction’ phases.
 Regulations make distinction between “domestic”, i.e. work-done on their private-home and “nondomestic”, i.e. work in-connection with furtherance of business
 Construction-work includes building/engineering-works; retrofitting, renovations, demolition, etc; also include, preparation-planning; pre-fabs assembly; waste-removal; maintenance-repairs; exclude mining and its related-works. Structure is construe as, building, either temporary/permanent-materials; railways; dock-harbour; tunnel-bridge; etc. include formworks/scaffolds.
 Health and Safety(Enforcing Authority)Regulations1998
 Reg.4 or 8, or in Reg.6.CDM2015:notifibility
 Via ‘client-brief’ stating, main-function and HS-requirements; time-frame and budget; design-direction with “risks-nature”, relevant HS-standards and maintenance; design-team’s expectations/scope in risk-management; identifying commissioning-arrangements of new-building.
 Schedule-3,CDM2015:document identifies risks encountered/managed/mitigated, with processes/arrangements in-place; site-rules and specific-measures to-mitigate, are required for projects with more-than-one contractor, prepared by principal-designer
 P&O European-Ferries93AppR72
 <https://www.shponline.co.uk/legislation-and-guidance/review-cdm-regulations-2015-part-1/>:30-days or 500-person-days to include more than 30-days and have more than 20-workers working simultaneously; or exceed 500-person-days
 <https://www.shponline.co.uk/legislation-and-guidance/review-cdm-regulations-2015-part-1/>:HSE-Impact-Assessment estimated £23-million saving per-annum is overly-optimistic
 <https://www.shponline.co.uk/legislation-and-guidance/review-cdm-regulations-2015-part-2/>:83/69 convictions(April-1999 to May-2014)equals 5/annum
 MWH v WiseEWHC427(Admin)
 Covers forwarding-date; site-address; local-authority; brief-description; contact-details of project-team
 Occupational-Safety-and-Health in Construction-Industry(Management)2017(OSHIM):Malaysia; Design-for-Safety:Singapore, <https://www.wshc.sg/wps/PA_IFWSHCInfoStop/DownloadServlet?infoStopYear=2014&infoStopID=IS2010012500120&folder=IS2010012500120&file=DfS_Guidelines_Revised_July2011.pdf>
CAN THE ARCHITECT CLAIM SCALE OF ‘MAXIMUM’ FEE IN THE FACE OF TERMINATION
The question of law, whether can the Architect charge below its Scale of Minimum Fee (SOMF) Rules? If so, whether can the Architect claim its fee under SOMF Rules when the letter of appointment (LOA) that has been entered upon does not comply with the SOMF? If so, whether ‘letter of release’ (LOR) was obliged to be released without delay even though the Architect holds a lien over the document pending payment of its fee, when the LOA specified in contrast with the provision of the Architects Rules 1996?
The old case of Seniwisma S & O Akitek Planner v Perusahaan Hiaz Sdn Bhd  held that the Architect’s fee was pursued under SOMF but the court was extremely careful in awarding based on SOMF and subsequently set-aside appeal, instead, due to the nexus of facts points toward the approved layout deviates from their proposal, implying that the appellant's layout has not been used as the approved layout. Whereupon the court continues to guide us that Scale of Fee (SOF) without the word minimum is for the purpose of to check recalcitrant consultants who impose exorbitant fees to the public. In the same vein, court is ready to accept the legitimacy of consultant charging below the SOF. As to the question, can the Architect charge below its SOMF Rules, the legal position has always been, ‘yes’ but specifically it remains untested.
A recent appeal case of Ar.Lim Yoke Tiang v Matrix Concepts (Central) Sdn Bhd , posted the following ratio-decidendi, a term in the contract cannot be changed merely by reason of a termination of services; whereupon an agreement that does not conform to SOMF, i.e. on lump-sum, shall not be based upon SOMF as its basis of claim; as SOMF is only binding to the architect but not the contracting party; whereupon LOA is clear that Letter of Release (LOR) was obliged to be released without delay, maintaining the Architects Rules 1996 on a lien over the documents pending to be paid, has no application, when the LOA was prioritised over the Architects Rules 1996.
As for this Ar.Lim Yoke Tiang v Matrix Concepts (Central) Sdn Bhd , we have yet to see if LAM actually takes the trouble to sanction the architect for procuring works below the SOMF and as usual, nobody can have access to Board of Architects (LAM)’s proceeding on issues of professional-misconduct, which may have been conducted in an opaque-manner.
Concluding, just like the saying “unexpected in a case where in a competitive market one has to try to anchor in the work and secure the project”, it is no secret that most Architect has not played by the Architects Rules 1996 in imposing the mandatory SOMF-Rule. The court is ready to accept the reality that SOMF is only binding to the architect but not the contracting party. In response, LAM has since mooted the idea of ‘stakeholder’ to collect fee on behalves of the architects, but that has yet to see the light at the end of the tunnel. In a nutshell, court will not make a contract for the parties when there is none, more so, court will not apply ‘extra-contractual’ concepts when there is a contract binding the parties, that include superseding any rules contradicting the true-intention of the parties in contract.
 2 MLJ 37
 Mott Macdonald (Malaysia) Sdn Bhd v. Hock Der Realty Sdn Bhd  MLJU 342
 Sri Palmar Development & Construction Sdn Bhd V Jurukur Perunding Services Sdn Bhd  6 MLJ 166
 The late Ar. Kington Loo, did mention that there was a test-case on this but it did not survive due to the demise of the architect.
 1 LNS 35 (CA)
 Hughes v Lenny (1839) 5 M. & W. 183: lien to recover its due
 As per studies carried by PAM
THE SUPREMACY OF APPROVED-DRAWINGS
This writing is to guide QS, contractors and graduate-architects into understanding the various drawings…
In the profession of an architect, it is common to know that there are various issuance of drawings, originated from his office such as, Schematic-Drawings (sometimes called sketch-drawing), BP-Drawings, Bomba-Drawings, SPA-Drawings, Tender-Drawings, Construction-Drawings, Shop-Drawings and As-built Drawings. What are these exactly, or rather legally?
There are three-statutory provisions that make a ‘drawing-legal’, means the architect will have to sign on it declaring, ‘certify that […] are in accordance to the UBBL 1984 and […] accept full responsibility’. One, the Uniform Building Bylaws 1984 (UBBL), the Housing Development (Control and Licensing) Act 1966 (HDA) and the Contracts Act 1950. The moment the architect submitted his Schematic-Drawings for the consideration of the local authorities, including the fire-departments, these Schematic-Drawings had been elevated to become BP-Drawings and Bomba-Drawings, respectively. Both are construed as a ‘legal-document’ undertakings of liability by the architect to the public (authorities). Collectively, once ‘approved’ it is known as Approved-Drawings. Since it is an undertaking, it has to conform to every terms of the law, failing which the architect is liable for professional-negligence and misconduct, tantamount to criminal charges. That is the degree and gravity of compliance.
The Approved-Drawings were to be translated into SPA-Drawings. In essence, it is supposed and legally should be an extract of the Approved-Drawings. In a nutshell, it is supposed to be the Approved-Drawings in manageable sizes to be inserted into the Sales and Purchase Agreement SPA between the Vendor and the House-buyer under the provision of the HDA. Therefore, it has no-further undertakings required by law, i.e. the HDA, thus, architect do not need to sign on it.
The same Approved-Drawings were to be expended to include ‘blow-up’ detailing for the contractor to tender and thus, the name Tender-Drawings. As such it is the same Approved-Drawings and any significant changes will rendered the entire tender illegal and voidable-contract, ab-initio. A contract cannot be upheld if the nature of the contract is illegal, i.e. without the Approved-Drawings. On the same note, architect do not need to sign on these drawings.
Similarly, when the contractor is appointed, the same Tender-Drawings must now, be elevated to be the Contract-Drawings and Construction-Drawings. Constructing a building with Construction-Drawings and contract-binding with Contract-Drawings that were differed from the Approved-Drawings will end up with colossal of contractual issues, not only to the contractor and employer but the vendor and its purchaser as well. Ultimately, to get strata-title, under the Strata Title Act 1985 and Strata Management Act 2013, the architect has to undertake that ‘the parcels constructed in accordance to the approved plans’. As-built Drawings that differed from Approved-Drawings are prima-facie of the architect ‘sleeping on the job’. Thus, you don’t need the architect to sign on the Contract-Drawings, As-built drawings and Construction-Drawings.
Having said that, there is also something called the ‘Shop-Drawings’, and this ‘creature’ is not meant to be used as Construction-Drawings. Only ‘lazy-architect’ will use ‘shop-drawings’ as construction-drawings. It is also, illegal to append the Architect’s title-block in shop-drawings, simply because, it is not-prepared by him. It is prepared by specialist-contractors, manufacturers and generally, contractors. Why on earth must it contain the architect’s title-block? The correct application of shop-drawings is to be incorporated into the architect’s construction-drawings and not the other way around. Legally, contractor must not build based on drawings not specified as construction-drawings.
As such, do you now, see how important is the Approved-Drawings? The only drawings that must be approved, be tendered and be built by it! Nothing else matter…
Postscript: Vincent Tan wrote, ‘We found the contractors does not followed As-built drawing. Meaning what was supposed to be installed was not consistent with the As Built. Can the developer come back and say " we will amend the as built drawings" to make it consistent with actual site installation?’... this question required me to write more about ‘As-Built Drawings’. The meaning of ‘As-Built’ is a prima-facie of what has been built on site, itself an evidence if it does not reflect compliance to ‘Approved-Drawings’, it is entirely illegal and caused ripple across the myriad statutory obligations contravening these legislatures from UBBL 1984, HDA1996, STA 1964 to SMA 2013. It is common for the local authority to request the architect to submit ‘As-Built’ prior to CCC inspection, as a short-cut to amendment of Approved-Drawings. This has since rebuked in the ‘Highland Tower’ Case, where the court held that the practice of ‘As-Built’ is liked ‘holding ransom’ against the authorities compelling them to accept the ‘illegality’ wholesale, to make it legal. Thus, such unhealthy practices are still ‘rampant’. So, the answer to Vincent’s question is ‘Yes’ as developer can use ‘As-built’ to be ‘legalized’ by authorities, since they have the rights under UBBL to amend the ‘Approved-Drawings’ to reflect the ‘As-Built’. Thus, the practical use of the ‘As-Built’ is when an architect really needs to know an existing structure to work on it as renovation or makeover.
 UBBL 1984, 2nd Sch. Form-A; s.6UBBL1984
 S.9(1)(b)(i): certified by professional architect [that] building constructed in accordance with [approved-plans] to which permission was given.
SHOULD I SUE MY ARCHITECT OR REPORT TO THE BOARD?
Two-occasions provided me inspiration for this writing. One, a situation where an-architect is challenging the-Institute over wrongful-removal on the register; two, a-question from my Graduate-Architect, preparing for her part-III (equivalent to RIBA-PartIII), with regard to disciplinary-action taken for Professional-misconduct. The issue may have been similar but the context is different. If ever, it can be a question in the Professional-Examination for LAM-PartIII, ‘Write a note to explain to your colleague, who has been called upon for disciplinary-action by the Board of Architect LAM, as pertaining to his defence, arising from his negligence act of providing a service under the Act’.
I reckoned that it is a little-unfair to pose such a question, aptly to be answered by a lawyer, but knowing the law is fundamental to the practice as an Architect, as the saying goes, the Architect is worth, not just by his drawing but by his ‘statutory-undertakings’ under the law, similar to that of other professions.
The issues here are, whether can the-Board or the-Institute take actions against its member based on its inherent jurisdiction to interfere into its member’s right for livelihood? If so, whether a proper avenue for recourse is accorded to its member to be heard, as the bed-rock of ‘natural-justice’? If so, whether ‘misconduct’ has actually been breached when its member is yet to be found guilty of a crime in the court of competent jurisdiction? Finally, are the members of the committee or council of the-Board or the-Institute have immunity against any-claim by the members?
Foremost, the background. The architect is a profession governs by the-Act and such legislation provided for the setting up of the Board to overlook the profession of Architects and by annexure to the criteria of being a Professional-Architect one has also a corporate-member of the institute, a ‘social-club’ for learned-society, bearing no-statutory power.
Secondly, the Malaysia-law provided for, the constitution as the supreme-law of the land, hereinafter class-A; the-Act, with it provided for its-Rule, hereinafter class-B; the-Board’s discretion as in Order and Circulars, hereinafter class-C; and the-Institute’s Advisory and Rulings, hereinafter class-D.
Thirdly, the Professional-liabilities as in professional-negligence and professional-misconduct. One has to bear in mind, professional-negligence does not equal professional-misconduct. Thus, what constitute professional-negligence and professional-misconduct? Can the-Board or the-Institute administer action pertaining to both?
Whether can the-Board or the-Institute take actions against its member based on its inherent jurisdiction to interfere into its member’s right for livelihood? Legally, the-Board is the creature created by the-Act, within it, stipulated that it can take action against its member, only-its member, via the disciplinary-committee, subject to hearing and right of representation, upon the recommendation of the investigation-officer; limited to only defined-misconducts; including the act of ‘search and seizure’ by an ‘authorised-officer’, except with ‘lawful-authority’; a subject of much-controversy. But when the ‘counter-claim’ was premised on its member’s right for livelihood, it is a ‘whole new-level’ of consideration, beyond the ambit of the-Board. It involves one, the question of conflict of law i.e. class-B versus class-A; two, the question of the ‘right-forum’ to hear the case with regard to an issue of conflict of law i.e. class-B versus class-A, ultimately, answering whether a proper avenue for recourse is accorded to its member to be heard, as the bed-rock of ‘natural-justice’?
Foremost, the constituents of the disciplinary-committee go against the fundamental principle of ‘natural-justice’ to be heard in the court of competent jurisdiction. The question, are the constituents of the disciplinary-committee equal to the court of competent jurisdiction, i.e. the High-Court of the country? Whether the disciplinary-committee has the jurisdiction to hear matter pertaining to restriction of a member’s constitutional rights for the preservation of livelihood?
Careful reading of the misconducts is generally and mostly related to the matter of criminality, beyond the term of reference by the disciplinary-committee’s jurisdiction. General reading of the-Act, revealed as though the disciplinary-committee has a wide range of jurisdiction to decide upon its member’s fate. But in fact, the disciplinary-committee has only a very narrow jurisdiction. The correct way, is that the disciplinary-committee is to convict its member, only when the member is found guilty by the court of competent jurisdiction. The-Board cannot take actions against its member based on its inherent jurisdiction to interfere into its member’s right for livelihood, without the conviction from the court of competent jurisdiction. With such, there is an apparent conflict of law i.e. class-B versus class-A.
With regard to the act of ‘search and seizure’ that can only be made lawful, by making a ‘police-report’, obtaining the relevant-warrant, prior to the act of ‘search and seizure’. Imagine if you have a situation of a ‘trigger-happy’ enforcing-officer, by each and every trade or professions, competing with the rest of the ‘law-enforcing’ personnel in the country, wouldn’t we revisit the era of the wild-wild west? Even ‘law-enforcing’ personnel requires a warrant to ‘search and seizure’. So, in reality, it is a provision good in theory, lousy in application. The-Institute with only, class-D jurisdiction, has no jurisdiction on this area.
If so, whether a proper avenue for recourse is accorded to its member to be heard, as the bed-rock of ‘natural-justice’? The correct forum must commence in the court of competent jurisdiction, not the disciplinary-committee. The disciplinary-committee should under the recommendation of the investigation-officer pursue legal proceeding in the court of competent jurisdiction. Thereupon, conviction, shall the disciplinary-committee take remedial-action against the member. Whether ‘misconduct’ has actually been breached when its member is yet to be found guilty of a crime in the court of competent jurisdiction? Thus, in the same vein, the short-answer is no.
Another matter that is unusual is that appeal is only available via the appeal-board only on a narrow matter pertaining to refusal or registration and removal of registration; taking into consideration that these matters interfere into its member’s right for livelihood; warrant that the appeal-board to be presided over by a High-Court Judge. It means to say, any other matter not falling within these refusal or registration and removal of registration are not subject to appeal? As such, contravening ‘natural-justice’? Any difference if the matter of professional-misconduct be heard in the High-Court instead of the disciplinary-committee as it involves interference into its member’s right for livelihood, where the options of further appeal to the Appeal-Court and Federal-Court are available? The drafter of this Act is obviously aware of the gravity it involves and the limitation as to the jurisdiction of the disciplinary-committee.
Finally, are the members of the committee or council of the-Board or the-Institute have immunity against any-claim by the members? Public-servant is accorded immunity against any cross-claims arising from negligence. So, the question is, are the-Board and the disciplinary-committee, public-servants? Public services shall consist of the Federal and State General Public Service, the Joint Public Services, the Education Service, the Judiciary and the Legal Service and the Armed Forces. For all intents and purpose, Statutory Bodies and the Local Authorities are also considered as parts of the Public Services. This is because both these autonomous bodies resemble the Public Services in many respects since they adopt the procedures of the Public Services pertaining to appointments, terms and conditions of service and the remuneration system. Therefore, the-Board is a Statutory Bodies, its constituents including that of the disciplinary-committee can be construed as public-servants, enjoying immunity in the context of ‘good-faith’. However, that cannot be applied to members or councils of the-Institute, as they can sue and be sued, collectively and individually.
However, a point has to be taken of the inherent nature of the ‘possibility of bias’ on account of the members of the-Board, the-Institute and the-disciplinary-committee, as they are appointed among the peers of practising professionals, whom by strictly to the law, are also ‘competitors’ in some cases, serving the same clients whom are limited in the industry and not from members of the public-servant whom are answerable to only the government. This is a domain for challenge in a sense of mala-fide.
Concluding, what constitute professional-negligence and professional-misconduct? Can the-Board or the-Institute administer action pertaining to both? Professional-negligence, as in tort-liability has to be held by the court, not the-Board nor the-Institute. Whereas, professional-misconduct, as outlined by the-Act are illicit-commissions; non-disclosure of conflict of interest, fraud/misrepresentation, any act of disgrace, non-compliance to the-Act, as to conditions of registration, procuring under fraudulent misrepresentation, concealing of facts to the disciplinary-committee, contravention of restriction, causes sufferings prior-registration, or post-registration, criminal-conviction, withdrawal of qualifications, unsound-mind and bankruptcy or incapacity. These have nothing to do with professional-negligence.
So, technically unsatisfied clients should not complaint to the-Board on matters of professional-negligence. Instead, they should just sue the architect in the court of competent jurisdiction. The-Board should only administer action pertaining to professional-misconduct, upon the conviction of the court. Whereas the-institute can only administer action upon the conviction of the-Board.
Postscript: If the question of law is with regard to the matter of the-Institute alone, as a ‘social-club’ there is very little statutory-jurisdiction on the matter of professional-misconduct, especially so with the existence of the-Board. The-Institute shall not eclipse the-Board.
 Architects Act 1963 (Amended 2015)
 Board of Architect Malaysia (LAM)
 S.4(1) Architects Act 1963
 Licensed to practice architecture, carries the title Ar., with post-nominal P.Arch, ALAM.
 Being Associate of Pertubuhan Arkitek Malaysia APAM
 Institute of Architects Malaysia (PAM)
 The Federal Constitution of Malaysia 1957
 Architect Rules 1996 (Amended 2015)
 LAM Disciplinary-Order
 As in PAM Arbitration-Rules and the sort
 S.3(1) Architects Act 1963
 S.4(1)(c) Architects Act 1963
 S.7 Architects Act 1963
 S.15A(1)(b) Architects Act 1963
 S.6(a)(i) Architects Act 1963
 S.5(a)(ii) Architects Act 1963
 S.15A(5) Architects Act 1963
 S.15A(1)(a) Architects Act 1963
 S.15A(2) Architects Act 1963
 S.34B Architects Act 1963
 S.34B(1) Architects Act 1963
 S.34B(5) Architects Act 1963
 Article 5(1) Federal Constitution of Malaysia 1957
 Woolmington v DPP  UKHL 1: presumption of innocence
 S.28(2) Architects Act 1963
 S.28(1)(a) Architects Act 1963
 S.28(1)(b) Architects Act 1963
 S.29 Architects Act 1963
 S.28(1)(a) Architects Act 1963
 S.28(1)(b) Architects Act 1963
 Articles 132(3) and 160(2) Federal Constitution of Malaysia 1957
 Article 132 Federal Constitution of Malaysia 1957
 S.3(2) Architects Act 1963
 S.15A(2)(a) Architects Act 1963
 S.15A(2)(b) Architects Act 1963
 S.15A(2)(c) Architects Act 1963
 S.15A(2)(d) Architects Act 1963
 S.15A(2)(e) Architects Act 1963
 S.15A(2)(f) Architects Act 1963
 S.15A(2)(g) Architects Act 1963
 S.15A(2)(h) Architects Act 1963
 S.15A(2)(i) Architects Act 1963
 S.15A(2)(j) Architects Act 1963
 S.15A(2)(k) Architects Act 1963
 S.15A(2)(l) Architects Act 1963
 S.15A(2)(m) Architects Act 1963
 S.15A(2)(n) Architects Act 1963
 S.15A(2)(o) Architects Act 1963
 S.15A(2)(p) Architects Act 1963
Food for thought…
A 1988 amendment to Article 121(1) of the Federal Constitution to remove judicial power from judges did not have the desired effect, Chief Justice Tengku Maimun Tuan Mat said.
Constitution must be interpreted in light of its historical and philosophical context, underlying fundamental principles; as in the Westminster’s model, a separation of power among the ‘branches of government’; inherent within, the judiciary role as the ultimate-arbiter corollary to the ‘rules of law’; in no-way inimical to democratic government; but also to interpret statutes, as on par with the ‘sovereignty of Parliament’; thus this ‘basic structure’ cannot be abrogated or removed by a constitutional amendment; thus a feature intrinsic to the constitution itself as the supreme-law; vesting upon the judicial power to review against unconstitutional legislation, whether or not it is expressly stated; bringing about the significance that judicial-power cannot be removed from civil-courts.
Any other courts, i.e. the Syariah Courts, a creature of State Legislative creation, cannot be vested with judicial power as it is unequal to the ‘superior court’ in accordance to the constitutional provisions; repugnant even if the Parliament attempt to amend the constitution to give power to the Syariah Courts.
 Canadian Supreme Court on Reference re Senate Reform 2014 SCC 32
 Mohd Faizal bin Sabtu v Public Prosecutor  SGHC 163
 Pengarah Tanah dan Galian WP v Sri Lempah Enterprise  1 MLJ 135; and R(Miller) v Secretary of State for Exiting the EU  UKSC 5
 Canadian Supreme Court on Reference re Secession of Quebec(supra)
 R(application of Jackson and Ors) v Attorney General  UKHL 56
 Tan Seet Eng v Attorney General & Ors  SGCA 59
 Kesavananda Bharti v State of Kerela AIR 1973 SC 1461
 Art.4 Singapore Constitution; Attorney General v Taylor  NZ CA 215; Semenyih Jaya v Pentadbir Tanah Hulu Langat  3 MLJ 36: judicial power vested in the High Courts by virtue of Art.121(1) Malaysian Constitution
 Lim Kit Siang v Dato Seri Dr Mahathir Mohd  1 MLJ 383
 Hinds v The Queen  AC 195
 Public Prosecutor v Dato Yap Peng  2 MLJ 311
 Art 121 Malaysia Constitution
 Abdul Kahar b. Ahmad v Kerajaan Malaysia and Ors  2 MLJ 617: purport of Art121(1A); Dalip Kaur v Pegawai Polis Bukit Mertajam Anor  1 MLJ 1
WTF! WHO GRAB MY BUDU
Disclaimers: This is absolutely fictitious. If you believe it is true, you must be insane. But if you think it is relevant, please like and share :-)
Yeh, borrowing from the phrase who stole my cheese, but being Malaysian we preferred our Budu more then cheese. Yet, coming from the mouth piece of the architect, it is rather strange? Why am I saying this? Well, architect is in fact a very obscure profession that some may even misunderstood as synonymous to being the oldest profession on earth, yeh I quote Phillip Johnson the patriarch of American Modernist Architect,
"what's wrong if I am a whore?"
Strangely, have you ever reckoned such holistic profession has its own guild? Well, call it professionals. Well, WTF is this?
Being professionals mean you must undergo a lengthy duration of training and must be acknowledged by your peers to have at least gain sufficient skills in discharging your services to the public in return for a descent fee only to be paid by your client and nobody else. Here is the irony, as most corporate client assumed that architect does not need to pay its bill because idea is only value upon the ink and paper it is drawn. So, the most noble thing the professional guild has done is to pass an act in parliament to protect such fee and they proudly proclaimed it as the scale of minimum fee. Ironically, today as it stands, it is the maximum fee. I had the experience of client suing me for charging him beyond the minimum fee rule!
Okay, if that looks normal, the guild made it a point to drill upon young architect wannabe, how important it is to uphold the sanctity of the fee and you break the cardinal rule if you try to undercut your fee to gain commission. Ironically, it is the "oldies" and the "big boys" are doing the same in all forms and manners that is legally allowed. Yeh, I will tell you how that can be done but it is not the subject of this article. Some good souls who believed in this system, made their living better of not being an architect. Even in the market, was told the past president of the guild actually committing the sins when he swapped his T Square for the developer's hat. That is reality!
The guild realized such a problem but non has the "ball" to correct the situation as the office bearers are much keen on their very own status quo such as traveling business class in the expanse of the member's funds short of saying the opportunity to lobby for ex-gratia illegitimate sponsorships from suppliers and contractors a liked. See how many of these office bearer having their very own name-card being printed with who's who in the guild's line up? Perhaps it is also an express means to receive your very own Datukship, who knows?
The beauty of such doesn't really stop there. Our more advanced neighbor Singapore has always been the preferred location for international firm to set up their regional office. Even the the Singapore Big 5 has already landed on our shore not as illegitimate Design Firms but legitimate architectural practices spearheaded by the local architects. The guild is not very happy about it but what the F they can do beside dishing it out as an examination question for architect wannabe for a solution? Obviously, the big boys also marketed themselves as local counterpart for these international firms to lobby big project. Wallas! One fine day they also found themselves to be in oblivion when these international firms preferred "in-house" as compared to "out-sourcing" and the government is encouraging it through open competition!
Now the guild's "ball" is really being squeezed hard, almost explode! Yet the office bearer of such guild continues with their merry making and yet has the F face to ask a solution from its member? Especially so it's younger members of what their aspirations are with the onslaught of foreign architect on our land? WTF is the guild is thinking? They can't even resolve our Budu being taken away by another allied profession called town planner. They also cannot do away with the profession being the agent of GST for nothing in return. We can't even collect our mediocre fee in full and yet we are collecting GST on behaves of the government! Irony, irony....
Such forum, as far as a personal opinion is concerned remained another "wayang" or show to at least say, they have done something for the profession. The reason is simple, nobody is going to be heroic enough to guarantee a solution. The office bearer comes and go, there will still be continuous merry making and jet setting with knighthood and commission exchanges, it really doesn't matter if the even larger then reality "big boys" are already here. Wake up gentlemen! You cannot change them, joint them, eh?
The Chinese courtyard house is also known as the SiHeYuan house 四合院 or the combination of four courts, forming a center plaza. A basic SiHeYuan house is considered a module capable to be duplicated and expanded when desired. There are many rules governing the design of the SiHeYuan house. These rules are based on the principles of FengShui.
There are basically 3 sections of a single module.
The frontal portion comprises of the "Main Gate" and a terrace of worker's quarters to the left of the "Main Gate" and the horseman station to the left. Many people assumed that the "Main Gate" as the Main Door but this is not the case. The inhabitant takes the street as public spaces and high walls are desirous to conceal the private spaces within. So the worker's quarters, horseman station and the main gates are barricading the street front. The main gate is always located to the right side, looking from the street. It is in the location of Xun 巽 within the Green Dragon Embrace 青龍.
The Center Portion is the house proper. Aligned to the center is the Main Door. This Main Door opens up to a huge center court. Only VIP and family members can come in from the Main Door to the house proper. Only males can be seen walking pass the center court. Females are not allowed to use the center court. They can only pass through the terraces that link to the western wing also known as the White Tiger Embrace 白虎. Only on special occasions like festivity, marriages and ushering newborns, females are allowed to be seen in the center court.
The western wing is the living abode for the females. The opposite is called the eastern wing also known as the Green Dragon Embrace 青龍. The eastern wing is the living abode for the males. Contrary to FengShui principles that the Green Dragon Embrace 青龍 must be higher than White Tiger Embrace 白虎, the female quarters are higher than the male quarters for practical reason - allowing the female to see and not to be seen from the ground level.
Aligned to the center and opposite of the Main Door, sitting north facing south is the Main Living Hall where official receptions are held. There is no TV room but a large hall comprising of rows of seat with the main feature wall usually heavily decorated with altar and calligraphy. The master room is usually located to the back of the Living Hall. Usually the owner will plant 2 trees at the front of the living hall within the compound of the center court. Whenever the tree wither, it signify bad omens. If it is on the left, it affects the male descendants otherwise if it is on the right, it affects the female descendants.
The last portion of the house comprising the kitchen, toilets and the back of house. It is detached away from the house proper through a court of utilitarian in nature. There is also a back door only serves as the entrance for the female members of the family and as the only mean to allow the disposal of "night soil" or sewer.
Every sections of the SiHeYuan is comprising a number of buildings complete with its 4 walls and a roof above. So technically SiHeYuan is a compound with many individual houses. The courts are open to sunshine and rain water. There is a complete water reticulation system within the SiHeYuan where waters are designed to flow according to a certain direction in accordance to the FengShui principle. Nothing is rarely left for chances.
When the family grows, the extended family require extended place to live. The same module was duplicated to the back, again with a second center court complete with its own left and right wing living quarters with its secondary main hall, yet the secondary module also share the same kitchen.
As the family prosper, they may require their very own Chinese garden. They will not turn their main court into a Chinese garden and instead, they will purchase the neighboring lot and be expended into a standalone Chinese garden with internal access ways. So, technically the SiHeYuan remains intact and whatsoever add-ons are a matter of "plug and play".
Presented by Ar. Ezumi Harzani Ismail (pics credit).
Act 118 - Housing Development Act 1966
An Act to provide for the control and licensing of the business of housing development in Peninsular Malaysia, the protection of the interest of purchasers and for matters connected therewith.
What is ‘Housing Development’? Act 118 : Section 3. Interpretation.
In this Act, unless the context otherwise requires— “housing development” means to develop or construct or cause to be constructed in any manner whatsoever more than four units of housing accommodation and includes the collection of moneys or the carrying on of any building operations for the purpose of erecting housing accommodation in, on, over or under any land; or the sale of more than four lots of land or building lots with the view of constructing more than four units of housing accommodation;
“housing accommodation” includes any building, tenement or message which is wholly or principally constructed, adapted or intended for human habitation or partly for human habitation and partly for business premises and such other type of accommodation as may be prescribed by the Minister from time to time to be a housing accommodation pursuant to section 3A;
Note: Message - term used in law that carries meaning of dwelling house.
Standard Sale and Purchase Agreement
HOUSING DEVELOPMENT (CONTROL AND LICENSING) REGULATIONS 1989
Sub-regulation 11. Contract of sale.
(1) Every contract of sale for the sale and purchase of a housing accommodation together with the subdivisional portion of land appurtenant thereto shall be in the form prescribed in Schedule G and where the contract of sale is for the sale and purchase of a housing accommodation in a subdivided building, it shall be in the form prescribed in Schedule H.
Schedule G: SALE AND PURCHASE AGREEMENT (LAND AND BUILDING)
Schedule H: SALE AND PURCHASE AGREEMENT (BUILDING OR LAND INTENDED FOR SUBDIVISION INTO PARCELS)
Schedule G: SALE AND PURCHASE AGREEMENT (LAND AND BUILDING)
Clause 4. Schedule of Payments
(1) The purchase price shall be paid by the Purchaser to the Vendor by installment and at the time and in the manner as prescribed in the Third Schedule. The Vendor is not bound to commence or complete the works in the order referred to in Third Schedule and the Purchaser shall pay the installments according to the stage of works completed by the Vendor…
(2) Every notice referred to in the Third Schedule requesting for payment shall be supported by a certificate signed by the Developer's Architect or engineer in charge of the housing development and every such certificate so signed shall be proof of the fact that the works therein referred to have been completed.
LAM CERTIFYING GUIDELINES
Rules on Certifications
Certificate of Completion and Compliance
Act 118 : Section 3.
Interpretation. In this Act, unless the context otherwise requires--
“certificate of completion and compliance” means the certificate of completion and compliance given or granted under the Street, Drainage and Building Act 1974 [Act 133] and any by-laws made under that Act certifying that the housing accommodation has been completed and is safe and fit for occupation but does not include partial certificate of completion and compliance;
Certification for Release of Money
Act 118 : Section 22E.
Release of moneys by a stakeholder.
(1) Any stakeholder who releases any money to a housing developer or to any other person knowing that such an act is contrary to the provisions of the sale and purchase agreement shall be guilty of an offence and shall, on conviction, be liable to a fine which shall not be less than ten thousand ringgit but which shall not exceed one hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.
(2) Any person who knowingly and wilfully aids, abets, counsels, procures or commands the commission of an offence against subsection (1) shall be liable to be punished with the punishment provided for the offence.
Certification for Progress Payment
Act 118 : Section 22F.
(1) Any architect or engineer, as the case may be, who issues a progress certification knowing that the works therein referred to have not been completed in accordance with the provisions of the sale and purchase agreement shall be guilty of an offence and shall, on conviction, be liable to a fine which shall not be less than ten thousand ringgit but which shall not exceed one hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.
(2) Any person who knowingly and willfully aids, abets, counsels, procures or commands the commission of an offence under subsection (1) shall be liable to be punished with the punishment provided for the offence.
“Maslow's hierarchy of needs is a theory in psychology proposed by Abraham Maslow in his 1943 paper "A Theory of Human Motivation" in Psychological Review. Maslow subsequently extended the idea to include his observations of humans' innate curiosity. His theories parallel many other theories of human developmental psychology, some of which focus on describing the stages of growth in humans. Maslow used the terms "physiological", "safety", "belongingness" and "love", "esteem", "self-actualization" and "self-transcendence" to describe the pattern that human motivations generally move through.”, - Wikipedia.
What do you want? This is one “bloody” honest question one must answer. Maslow said if you are damn poor, you only one to be fed but when you are damn successful, you want to be “self-actualization”. Meaning, your wants change according to time. You must have a reasonable want that you may think you can achieve within your means. You cannot possible have wants that is beyond your means. List out this wants in a list.
What do you don’t want? If you cannot list your wants, at least list what you do not want. It is much simpler and it is the boundary that you do not wish to cross. By completing this task, you will be able to know for sure of what you want…
I don’t know what I don’t want? This is drastic. If you don’t know what you don’t want or by the same token don’t know what you want, just stay put with what you are doing right now, currently and vow to do it better. That is the minimum consciousness you need to have.
These wants when it is structured, organized and listed or itemized form the basis of needs. The architect calls it as the Client’s Brief. It is therefore the very intention of any model of production. It is a component of the trilogy of Intention – Action – Production.
Have you ever wonder how a top Architect closes deal? Here are some nuggets: -
1. When a Client gives you a near impossible dateline such as completing a Building in 2.5 months’ time without a design, construction approval and so forth, this is how you would like to say to him – “Well, we can take up your challenge but there are some technicalities and risks you must prepare to take. This is to help yourself as no one want his construction to stop mid-way? Worse the authority may want you to demolish them but let just see what can be done about it…”. The fact is in the local context, you submit the drawings (even if it is half-cooked) while waiting for approval, get an early commencement or prepare to opt for the “denial syndrome” and say – “Well, we aren’t aware that the contractor has commenced work and we shall put things right and come back to you”. Yeah! The favorite escape clause.
2. With regard to item (1) and to save your own interest, this is how you can put it – “Well… you know we are now embarking on something unconventional, it is our obligations to advise you accordingly but, anyway, it is not going to be of much concerned, just file it and keep it aside”. It is nicely put that the Client don’t feel pressure for doing things “illegally”.
3. With regard to FEE – “Alright we have covered most grounds and there is this little thing about our FEES that I really hope you can agreed. Well, to be honest… I really don’t know how much I should charge… but given the situation of time constraint with many unknowns I think we should just agree upon a percentage like say 10-12% or what figure do you have in mind?”. Let’s assume the client says, “Well, that is what I have in mind”, you just close the sale by saying, “Yup, lets agreed on 10-12% and when we have solids quotation from the contractor we can always translate it to Lump-Sum”.
I am sharing these information with a caveat that these information is for educational purpose only and shall not be taken as an advice be it legal or otherwise. You should seek proper advice to your case with the relevant professionals. The author cannot guarantee the accuracy of the information so provided here.