Court orders water documents revealed


Malaysiakini
Hafiz Yatim
Jun 28, 10

The federal government has seven days to disclose the contents of the audit report and water concession agreement entered between it, the Selangor government and Syarikat Bekalan Air Selangor (Syabas).

This follows a landmark ruling at the High Court today allowing the documents – which were classified by the government as being under the Official Secrets Act (OSA) – to be made public.

The decision was made by judicial commissioner Hadhariah Syed Ismail, who ruled the government’s refusal to disclose the reports did not consider the expectation of members of the public who are adversely affected by the decision.

“The respondents’ decision to allow the privatisation of water service and arbitrary increase tariff, and at the same time invoking the OSA, is disproportionate to the aims of the Act.

“It is also counter to the principles of good governance, accountability, transparency, and (that) the interests of rakyat should come first,” she said in her judgment.

Hadhariah ruled that since the government has failed to fulfill those principles, the court is compelled to do so.

Hadhariah made the ruling in the judicial review case brought by Malaysian Trade Union Congress (MTUC) president Syed Shahir Syed Mohamud (right) and 13 others against the Energy, Water, and Telecommunications Ministry, the Selangor government and the federal government.

The plaintiffs’ lawyer Ang Hean Leng, said this is a landmark judgment as it recognises the right of the public to have documents revealed out of public interest.
Syed Shahir and the other plaintiffs, which include Klang MP Charles Santiago and parents acting on behalf of their two children not of legal age, filed the application in January 2007.

They wanted the disclosure of the Concession Agreement dated Dec 15, 2004, between the federal and Selangor governments and Syabas.

They also sought the audit report justifying an increase of 15 per cent in the water tariff.

The plaintiffs also sought:

• a declaration that the applicants and general public have access to the audit report and agreement;

• alternatively, a declaration that those documents are public documents and are not official secrets documents;

• an order of certiorari to quash the decision by the respondents in denying access to such documents; and

• a mandamus order to compel the minister to disclose the contents of such documents.

JC not persuaded

Hadhariah in her 19 page-judgment also said she was not convinced such disclosure would be detrimental to national security or public interests.

“In fact, I was of the opinion that the truth is the contrary,” she ruled.

Hadhariah also said there must be a reasonable explanation why a document must be classified as “rahsia” (secret).

She also said she agreed with the applicants’ contention that the fact that the audit report was presented to the cabinet was not sufficient to justify protection under the OSA.

“It also cannot be in the spirit of OSA, to extend protection in cases where the government believes there will be public discussion and criticisms against the government’s action,” said the judicial commissioner.

Hadhariah said having read the audit report herself, she concluded it contains information relevant to the concession agreement, in particular the issue of raising the water tariff.

Saying that she could foresee public discussion and criticism against the government, the concession agreement and audit report should have been released in tandem as the report made certain comments and reference to provisions and concessions in the agreement.

“The disclosure will serve the public interests in keeping the public informed of the working of the government, as well as promote discussion on public affairs,” she said.

“In this era of transparency, accountability, and priority is given to the needs of the rakyat… it is only fair for such documents to be made public. I am of the view the court should lean in favour of the aggrieved party in matters involving public interest,” said Hadhariah.

She also said the concession agreement should be a public document as it was executed with public interest in mind and therefore it is in the public interest also that it should be disclosed.

“What could possibly go wrong if what the public wants to know is whether the deal was a win-win situation or a one sided agreement benefiting one party only?
“Until and unless the agreement is disclosed to the public, it would cause anxiety to the public wanting to know such matters that affect their basic needs.”

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  1. #1 by waterfrontcoolie on Monday, 28 June 2010 - 11:07 pm

    It would certainly appear that the prayer of the nation is answered by a REAL Justuice! how on earth can a contract signed on behalf of the PEOPLE be hiden behind ISA if it is not intended to enslave the raayat?? in the same vein, can the PKFZ fiacos be filed in the court so that the report by the consultants be made public??? it is hoped that the majority of Malaysians are awaken to the sly of those who have designed such practices. Sad to say, many still whore-shipped such characters!! If they still do after all these fiacos are revealed then they truely deserved such Gomen!!

  2. #2 by House Victim on Monday, 28 June 2010 - 11:30 pm

    Hope this will also work on the Toll concession as well on documents on the PKFZ, etc..

    There must be laws to specify CLEARLY on what should be considered as Public Documents and the type of Penalty if such documents or information are not provided within certain period. Laws must be there to prevent Public Service from being SILENT to duty which they have obligations to fulfill.

    How come the Petaling Land Office refuses to provide document in related to a wrongful conversion of Condo Land into Apartment?

    How come the Ministry of Housing refused to provide copy of Approval for the Wangsa Baiduri Project?

    How come MPSJ refused to provide Copy of Building plan of a condo when problems arises?

    What SHOULD PUBLIC SERVANTS or Public Service meant for in Malaysia when Police/KUP/AG/PCB … can silent on Police reports and Complaints?

    Even when all of these are surely Breach of Duty, but so What?

  3. #3 by Indran on Tuesday, 29 June 2010 - 12:46 am

    We can no longer trust any ruling party to serve with the best interest of the people. All political party will serve their own interest and implement countless devices to perpetuate this self interest. The legal system is one of the checks and balances in a Parliamentary Democracy.
    Don’t take my word for it, lets hear it from the Maverick himself…
    “All the while however the Government was busy on devices to perpetuate itself. These devices were so transparent and so lacking in subtlety that they achieved just the opposite effect. Everyone except the Government saw this….. Until just before and during election, the Ministers were kept busy handing out cheques….But the most damaging thing about these hand-outs was the discrimination in favour of known party supporters or party strongholds.” pg 12-13, The Malay Dilemma (1970).

    P.S. It is good to read books written before one’s date of birth. The longer you look back, the farther you can look forward.

  4. #4 by donplaypuks on Tuesday, 29 June 2010 - 2:18 am

    YB

    Sorry to digress.

    I think as many as possible should act to stop a miscarriage of justice from taking place in the MACC vs lawyer Rosli Dahlan case as reported by Din Merican here.

    It appears some one has manipulated a change of judge in the midst of a trial going badly for the MACC, with ominous implications now for Rosli.

    How can this happen? Why was the presiding judge hastily transfererd to Melaka and a new one appointed when the trial had already reached an advanced stage? What was the urgency of the transfer of a hIgh Court judge?

    How can we expect the new judge to understand the demeanour of MACC witnesses who had testified earlier and really, taken to the cleaners by lawyers acting for Rosli Dahlan?

    Trust you will raise this is in Parliament and demand action from the Law Minister, AG, Bar Council and CJ.

    What’s happening in our courts right in front of our eyes is unbelievable!!

    Thank you.

    dpp
    we are all of 1 race, the Human Race

  5. #5 by Loh on Tuesday, 29 June 2010 - 5:12 am

    There were a few cases whereby the High court judges made the right decision, as far as the citizens are concerned, such as the current Perak state government is illegal and Allah is not exclusive to Muslims. But The court of appeal always defend the UMNO government to allow them to continue ruling as absolute monarch. We will soon hear COA decision that if the government decides that any document is denied public access, the government has the authority to decide.

    It is refreshing to hear the judgement by JC Hadhariah Syed Ismail. We will hear Ibrahim Ali complain that as NEP beneficiary she should not have decided against UMNO government.

  6. #6 by boh-liao on Tuesday, 29 June 2010 - 6:47 am

    Goody, goody n bravo, JC Hadhariah SI
    BUT is her judgement d last say or will there b an appeal plus a transfer of JC HSI
    7 days – a long period lah
    Wait 4 next change lah

  7. #7 by House Victim on Tuesday, 29 June 2010 - 8:51 am

    #4 by donplaypuks on Tuesday, 29 June 2010 – 2:18 am

    Ignoring Justice has long been a Culture in the Malaysian Judiciary System.

    Dragging of Baseless cases, Lawyers with ease to postpone or drag or even not attending courts. Judges helping their beloved lawyers even to bully clients. Chief Judge and Chief of Justice keep their eyes and ears closed. Same with the Bar Council, when they side their members even lawyers got paid and do no job or even assaulting clients after not attending court for over a year or two.

    “Justice” is only logo on which Courts and Judges can float and same for lawyers.

    A judge claimed she has sole discretion power in court when she was reminded of miscarriage of justice after
    -she refused to press the Plaintiff for a categorized Bundle of Document,
    -silent and accepted the issue of Trial to be vague “if the letters are defamatory”
    -trapping the Defendant to take letters from the Bar to the Respondent as same as letters from the Complainant to the Bar.
    -allowing Defendant lawyers not attending court for a year or two and not proceeding with the intended amendment of defense with counterclaim.
    etc..

    And, she is still at the Disciplinary Committee of Judges!!
    Can’t she read “Justice” is the on Section 1 of the Rules of the High Court!!

    Court proceedings in Malaysia is to tell the Public they have “Laws” but at the same time telling that they can manipulated!!

    What can we expect from Federal Judge when one of them can be promoted from High Court with silent to Lawyers applying for discharge with False Statement!! He used to say “Life is short” but how many cases he had dragged and practice with BIAS when he was with the High Court!!

  8. #8 by dagen on Tuesday, 29 June 2010 - 8:51 am

    Seems to me like umno is making adaptation to its deceiving ways. In the past the courts used to rule in favour of umno all the time (when it comes to critical issues). People became very unhappy. Some issues are obviously wrong or unfairly decided. So now umno lets the first instance fellows to decide and rule freely. They just make sure that for critical matters the appeal courts (esp Federal Court) would overturn any unfavourable decision. This way umno will not appear too bad. “You win round one and maybe even round two and I win round three (in the Federal Court).” “I did not win all the time.”

  9. #9 by Bigjoe on Tuesday, 29 June 2010 - 9:13 am

    Will go to Appeal Courts first where it will be ‘fixed’. Najib can hardly afford this to be a full-blown scandal after his set back with sports betting.

  10. #10 by Jeffrey on Tuesday, 29 June 2010 - 10:23 am

    A good landmark judicial decision. Now on the basis of this precedent, can road users ask for public disclosure of concessionaire toll agreements between the government and highway concessionaires?

    Of course JC Hadhariah’s decision could be overruled by higher courts upon appeal, and they could keep the JC under close watch.

    The fact remains Malaysians today are better educated and expect accountability as bulwark against abuse of power and corruption that the excuse of official secrecy shields. This does not mean we require the disclosure of everything under the sun.

    Sure there are certain information that government as trustee of people’s collective interest ought not to disclose either for collective well being (such as matter pertaining to national security/defence) or rights and privacy of individuals, such as their personal information including bank accounts (protected by banking legislations under banking secrecy).

    However what is expected is a balance of what the Govt is obliged or an individual is entitled not to disclose as against the right of the public to know. For that balance, we need spelled out a rational differentia – ie a rational criteria spelling out why the attribute of secrecy may be ascribed to one category of information and not another category and the rational basis for distinguishing one species of information from others of the same genus…

    The present is unsatisfactory state of affairs. That which needs to be disclosed cannot be by reason of the Official Secrets Act (“OSA”). The OSA does not spell out any rational differentia. It captures any document classified as “rahsia” (secret) simply because it is labelled such by a minister, the mentri besar or chief minister of a state, or any public officer as “official secret”. In times when the govt itself want to convince the public of its commitment to combat corruption, surely it must admit that the OSA’s provisions, unqualified by exceptions based on rational differentia, will become a shield to protect any corrupt minister or public officer from public accountability.

    At the other end, that which ought not be disclosed – is disclosed in violation of individual privacy simply because there’s no legislation to stop disclosure. Reference is made here to the leak (often sale) of our personal information by people within government and private companies and individuals to other private companies and individuals for commercial profits simply because we don’t have a Data Protection Act (“DPA”) that covers personal information such as tax returns, health records, telephone numbers and addresses. We’re inundated by spam mails, sms and all kinds of advertisements from this access to our contact particulars.

    The upshot is that we end up living in a society that by OSA makes secret that which ought to be publicly disclosed and in absence of DPA makes public that which ought to be kept secret. Such a perverse phenomenon arises because the only ‘rational’ criteria dictating the whole spectrum of public affairs has all along been the basic profit/money making differentia/criteria. This is maybe OK only if majority of Malaysians are at lower parts of Maslow’s Hierarchy looking for only physiological & safety needs but that’s not the case as more educated and urban Malaysians want to satisfy their esteem needs as well based on rights recognition by Govt as well as other companies/individuals.

  11. #11 by son of perpaduan on Tuesday, 29 June 2010 - 11:16 am

    Toll agreement, casino, Number Forecast Agency, Horse racing license too to be make public.

  12. #12 by monsterball on Tuesday, 29 June 2010 - 1:19 pm

    Why be so secretive on matters concerning water..a God gifted for life..unless UMNO B have something to hide.
    At least we know there are judges like Hadhariah that have respect the people more than UMNO B…whims and fancies..that uses every opportunity to think they can do any and everything ..as they like.

  13. #13 by ENDANGERED HORNBILL on Tuesday, 29 June 2010 - 1:30 pm

    “KTMB land deal: Did S’pore threaten Najib with Altantuya? ”

    Terms of land deal also to be made public, ok?!

    Singapore would be nuts not to know that agreements made under duress are unenforceable. Somewhat differently, but Temasek have had a bad experinece once and should have learnt from their Shinawatra deal in Bangkok, shouldn’t they? I mean you don’t do business with rogues-lah, man.

  14. #14 by Jeffrey on Tuesday, 29 June 2010 - 3:07 pm

    Although JC Hadhariah Syed Ismail’s decision is one small step forcing transparency of the water concession agreement entered between Federal Govt, the Selangor state government and Syarikat Bekalan Air Selangor (Syabas), it is however one giant leap, in terms of implications, to end political corruption and for many politicians/bureaucrats the end as well of their reason to be in politics/bureaucracy, ie (to make money from your political/public positions).
    The reason is because the JC’s decision strikes at the heart of Public Procurement by government/public agencies – and therefore at the very heart of the Patronage System around which the whole system of governance or rather mis-governance has been constructed.

    It is through such a Patronage System that corruption breeds, funds are raised from those awarded public contracts/licences to enrich the powerful and the connected as well as finance elections/by elections as well as buy over ‘kataks’ for money or induce them to cross under the threat of the charge of Official Secrets Act – all for the preservation of power by the ruling parties and elites.

    In that sense the decision stirs the hornet’s nest. I mean if Syabas Water Concession Agreement may be disclosed, why not other toll concessions agreement and the whole gamut of privatization agreements and all other “commercial” agreements (whether or not involving issuance of whatsoever licences) entered into whether between Federal or State Governments with commercial entities in both East & West Malaysia, whenever the Public/Citizen’s pockets are affected?????

    The public and the stakeholders and civil society combating scourge of corruption will use this decision to shift the onus over to the government to explain (rationally) why if it were committed to combating corruption (with institution of MACC etc), it is not equally prepared to go another fundamental step further – which is to take out from the purview of the ‘colonial’ legislation OSA all concessionaire, privatization and other commercial agreements affecting Rakyat’s pocket or which for reason of their being awarded to cronies without merits has resulted in (i) shoddy roads, hospital and other public facilities, (ii) cost overruns and (iii) a shield from exposure corrupt acts, if any, implicated in the procurement process…

    It will be asked further why if colonialism is eschewed by an independent state, archaic colonial legislations like OSA and the Sedition Act and their most draconian provisions are nevertheless retained (selectively)? Aren’t they there for purpose only of preserving power of the ruling elites and keeping opposition in line, in complete refutation of any pretentious claims to upholding Democracy or the Rule of Law??

    For these various reasons – including that the decision strikes at the very heart of the Patronage Procurement System and the raison de etre why some people want to enter into politics in the first place – it is inconceivable that the Powers-That-be will allow this decision to stand as law for long.

  15. #15 by on cheng on Tuesday, 29 June 2010 - 3:23 pm

    she may remain JC for a long time, before (if any ) promote to full high court judge, if bn continue to rule after GE13

  16. #16 by habis on Wednesday, 30 June 2010 - 7:54 am

    Although JC Hadhariah judgement is one giant step forward But lets us not celebrate for her decision will surely be overruled on appeal to the higher courts knowing too well how our Malaysian Judiciary System operates with the monkey puppet higher rung judges around.The BN govt is clearly misusing the OSA to cover up all their corrupt practices in violation of National interest which is security only and not agreements to concessionaires like toll,waterworks etc which directly affects the rakyat interest.Time to review the OSA but it will only be attainable if we stand together with one voice to kick out this BN govt in the coming 13GE

  17. #17 by House Victim on Wednesday, 30 June 2010 - 2:23 pm

    In Simple Words = What is termed “Public” should be accessible by the Public!!
    Be it be based on Public money, such as Tax-payer’s money, shareholder money, etc.
    Or, it related to the livelihood, security, interest of the Public.

    There should not be Either Or!! Unless as implicated by the Judgement that “such disclosure would be detrimental to national security or public interests.”

    Besides, the People has the Rights to be informed and the Government has the Obligations to inform!!

    Law is law!1 and not Political Talks which could be “Either, Or”.

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