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.”