Atkinson Tower: Duo win right to ‘secret’ documents

An unprecedented ruling by the Kota Kinabalu High Court has given conservationists hope.

KOTA KINABALU: A housewife and a local heritage activist have won the first round in a legal battle to save a century old clock tower in the city from being swamped by a development project.

The two, who applied for a judicial review of the proposed building comprising a 16-storey integrated complex on the land adjoining the Atkinson Clock Tower here, struck a blow against the government when they won the right to obtain documents necessary to pursue their case.

The High Court here today, in what appeared to be a rare decision, granted Judy Lim and Jeffrey Chang, two concerned city dwellers, leave to examine the minutes of the meetings undertaken by government authorities regarding the development project.

In a circuitous bid to obtain a judicial review of the project, the two had needed an Order of Mandamus to compel KK City Hall and the Central Board to provide them with the minutes of all meetings in respect of the proposed development surrounding the iconic clock tower.

They hit a stumbling block on July 7 and 8, when City Hall wrote to Chang to reject his application for minutes pertaining to the project citing them as classified under the Official Secret Act 1972.

The letter was produced in court by the applicants’ counsel Marcel Jude Joseph at the open court hearing of his clients’ application on Tuesday.

Justice David Wong however disagreed and granted leave to the applicants.

Joseph had said the minutes are crucial to discover whether City Hall had complied with all the requirements of the town and country laws and local government laws.

The application was argued vigorously by both sides, with State Attorney-General Roderic Fernandez appearing for City Hall and Central Board, while federal counsel Steve Ritikos represented the Federal Attorney General Chambers, before Wong gave his ruling.

“This is probably the first time ordinary citizens such as Lim and Chang have successfully challenged the decisions of the state government calling for transparency and protection of the environment,” said Joseph.

Court to interpret

Lim and Chang filed an affidavit on July 8 in support of their application.

In their affidavit they asked the court to clearly interpret the jurisdiction of local authorities, the Central Board and the State cabinet with regards to town and country planning, protection of sites and buildings possessing heritage significance and the alienation of state land.

Their affidavit was in response to an affidavit submitted earlier by the director of the Town Planning Department and the Chief Executive Officer and Technical Advisor to the Central Town and Country Planning Board, Mursidi @ Dinin bin Sapi.

Murshidi’s affidavit stated that the development is being reviewed and pending approval from the state cabinet, after receiving feedback from the relevant authorities.

Lim and Chang, however, contended that this was ultra vires the Town and Country Planning Ordinance (Sabah Cap. 14) because under Section 28 G only the local authority may decide to revoke or to modify a planning approval.

They said that even if this was made possible only with the approval of the Central Board, it does not allow the Central Board to be the instigator of such a move nor does it allow the State cabinet to get involved.

“What is very clear is the fact that once an approval is granted by the local authority, no other state authority has the power to interfere in the local authority’s decision to honour that approval or to influence the local authority to reverse its approval by modifying or revoking the approval,” Lim and Chang’s affidavit noted.

They also contended that Mursidi’s affidavit submitted did not disclose that the development project was approved by City Hall (the first respondent in the judicial review) on Sept 2, 2010, following the approval of the state cabinet in July 2009.

It also failed to note the proceedings of a Central Board meeting on Sept 30, 2010 when it had decided to submit the project for approval by the state cabinet after it had received feedback from the relevant authorities.

The court was told in the affidavit (by Mursidi) that the project was on hold pending review by the Cabinet when in fact the Cabinet has already met and given its approval and agreement to the project.

Cloak of secrecy

But Lim and Chang added that based on the facts of the matter, it would be unfair to the applicants and the citizens of Sabah for the court to allow the defendants to continue to hide behind the cloak of secrecy erected around Cabinet, the Central Board, and now the local authority’s planning processes and procedures.

According to sources from the town planning sector, the minutes of the meeting would be crucial in demonstrating whether the Central Town and Country Planning Board had consistently addressed the concerns of the development project, as required under the Local Government Ordinance.

The source, who requested anonymity, also said that the minutes would also reveal who were present at the meetings and whether there was a conflict of interest of those who approved the development on the local authority level and Central Board level.

“Out of the 15 (members of the Central Board), 12 are government directors or departments.

“They are the same people who have given their views at the local authority level (DBKK).

“If they were to review it at the Central Board level, are they able or would they give a different response?

“So the whole purpose of minutes are to reassure the members of the public and that is why Local Government Ordinance exist and has that clause that minutes are available to public,” he said.