Friday, July 5, 2013

“Adversely affected” parties have a right to water privatisation documents, court told

The Malaysian Trades Union Congress (MTUC) and 13 others are not "busy-bodies" in demanding for documents on the water privatisation from the government, lawyer Malik Imtiaz Sarwar told the Federal Court, adding that his clients were "adversely affected" parties by the refusal to disclose the information.
"They want the Federal Government to reveal the documents on the grounds of public interest," Malik said in his submission before a five-man bench chaired by Chief Justice Tun Arifin Zakaria.
Malik said his clients, who filed a judicial review application in 2007, were adversely affected as the change in legal position from 2000 favoured them.
He cited that former parliamentary opposition leader Lim Kit Siang failed in 1987 to obtain a number of reliefs and an injunction to stop the government from awarding a contract for the privatisation of the North-South Expressway project, based on an old law .

The then Supreme Court, in a majority 3-2 ruling, held that Lim was a busy body and had no standing to bring a legal action.
Malik said following the shift  from a restrictive to a liberal approach, his clients now need not prove the right to information or that their rights had been injured.
"They merely have to show that they are adversely affected persons," he said.  
He said water was a basic right and every citizen was entitled to meaningful access to the natural resource.
Malik said consumers were affected as they were in clutches of a monopoly.
He said information on the price of water and why the rates were going up were relevant to their basic right.
Malik said the government was obliged to reveal the audit report and water concession agreement as it was of public interest.
The MTUC and the rest are appealing a Court of Appeal ruling which has denied them access to the report and to the documents of the agreement involving the federal government, Selangor government and Syarikat Bekalan Air Selangor (Syabas).
In 2011, the Court of Appeal, in a majority judgment, overturned the decision of the High Court and ruled that the water agreement was confidential and could not be disclosed to the appellants.
Meanwhile, the High Court had said the government’s refusal to disclose the reports and agreements did not take into account public interest and those adversely affected by the proposed water tariff hike.
Former MTUC president, Syed Shahir Syed Mohamud and the other plaintiffs, including Klang MP Charles Santiago, wanted the disclosure of the concession agreement dated Dec 15, 2004.
They also sought the audit report justifying a 15 percent increase in the water tariff.
The MTUC in 2006 had written to the Federal Government to provide them a copy of the agreement and the report, but was refused.
Senior Federal Counsel Suzana Atan submitted that the agreement was a confidential document and any disclosure to a third party must be with the consent of those who were privy to the contract.
She said the report was classified under the Official Secrets Act.
"Hence, the minister responsible for water was right in refusing their request," she added.
She said the standing principle as established by the apex court in 1987 was still a good law and this applied to the appellants.
"MTUC has no legal right to access the documents," she said, adding that the appellants were also not party to the contract.
Suzana, who was assisted by Shamsulbol Hassan, said the appellants wanted to get hold of the document following reports that water rates were going up.
She said they were not deprived of water but only the possibility of having to pay more.
Arifin adjourned judgment date as the court needed time to study the documents and submissions. - July 4, 2013.

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