The Malaysian Trades Union Congress (MTUC) and members of the public aggrieved by the proposed hike in water rates should have access to classified documents, since this is of public interest and affects everybody.
Malik Imtiaz Sarwar, the lawyer for MTUC and 13 other water consumers, told the Federal Court in Putrajaya today that water is a basic right for every individual and it must be made available and affordable.
Submitting before a five-member bench headed by Chief Justice Arifin Zakaria in the appeal by MTUC and 13 others, Malik (left) said consumers would be affected as there was a monopoly in water supply and consumers wanted to know whether the reason for price increase is justified.
MTUC and the others, including Klang MP Charles Santiago, want disclosure of the concession agreement between the federal and Selangor governments and Syarikat Bekalan Air Selangor (Syabas), which is dated Dec 15, 2004.
On June 28, 2010, the High Court in Kuala Lumpur in a landmark rulingsaid the government's refusal to disclose the reports and agreements sought by the parties was not in consideration of public interest, and that of those adversely affected by the proposed water tariffs hike.
However, on Feb 25, 2011, the Court of Appeal in a majority judgment overturned the High Court decision and ruled that the water agreements involving the federal government, Selangor government and Syabas were confidential and could not be disclosed to the MTUC.
Malik Imtiaz Sarwar, the lawyer for MTUC and 13 other water consumers, told the Federal Court in Putrajaya today that water is a basic right for every individual and it must be made available and affordable.
Submitting before a five-member bench headed by Chief Justice Arifin Zakaria in the appeal by MTUC and 13 others, Malik (left) said consumers would be affected as there was a monopoly in water supply and consumers wanted to know whether the reason for price increase is justified. MTUC and the others, including Klang MP Charles Santiago, want disclosure of the concession agreement between the federal and Selangor governments and Syarikat Bekalan Air Selangor (Syabas), which is dated Dec 15, 2004.
On June 28, 2010, the High Court in Kuala Lumpur in a landmark rulingsaid the government's refusal to disclose the reports and agreements sought by the parties was not in consideration of public interest, and that of those adversely affected by the proposed water tariffs hike.
However, on Feb 25, 2011, the Court of Appeal in a majority judgment overturned the High Court decision and ruled that the water agreements involving the federal government, Selangor government and Syabas were confidential and could not be disclosed to the MTUC.
Disclosure of deal 'a basic right'
In the plea before the Federal Court today, Malik argued: "For us, the disclosure of the concession agreement between the federal government, the Selangor government and Syabas, and the audit report, is a basic right, for such documents constitute public interest.
"This is because the appellants, who will be adversely affected by the water price hike, have the right to be informed as it is within their right because they will be injured by the price increase."
The lawyer said the audit report and water concession agreement should not be classified under the Official Secrets Act as these documents do not constitute part of the cabinet papers, although they were tabled before the cabinet.
Malik then questioned whether the agenda for a cabinet meeting that is placed on the table should also be deemed classified.
"We are not strangers or troublemakers. We are concerned about having to pay certain tariff rates following the proposed hike. We are a party adversely affected and we cannot just sit down doing nothing," he submitted.
The other judges hearing the appeal are Chief Judge Malaya Zulkefli Ahmad Makinuddin and Federal Court judges Hashim Yusoff, Suriyadi Halim Omar and Hasan Lah.
"This is because the appellants, who will be adversely affected by the water price hike, have the right to be informed as it is within their right because they will be injured by the price increase."
The lawyer said the audit report and water concession agreement should not be classified under the Official Secrets Act as these documents do not constitute part of the cabinet papers, although they were tabled before the cabinet.
Malik then questioned whether the agenda for a cabinet meeting that is placed on the table should also be deemed classified.
"We are not strangers or troublemakers. We are concerned about having to pay certain tariff rates following the proposed hike. We are a party adversely affected and we cannot just sit down doing nothing," he submitted.
The other judges hearing the appeal are Chief Judge Malaya Zulkefli Ahmad Makinuddin and Federal Court judges Hashim Yusoff, Suriyadi Halim Omar and Hasan Lah.
In their action filed in 2007, MTUC and the others named the federal government, the Selangor government and Syabas as respondents in the judicial review application.
However, the Selangor government and Syabas have rescinded and allowed the concession agreement to be viewed. So now, the federal government is the only authority that has not allowed them to do so.
The decision in this case by the Federal Court will have major implications, since Malaysians do not have any law to grant them freedom of information, with the exception of the Freedom of Information Enactment passed by Selangor in 2010.
To question from Justice Suriyadi as to why the appellants could not seek the documents they wanted from the Selangor government, Malik said the Selangor government was hampered by the federal government's refusal to allow access to the documents.
Justice Suriyadi also asked Malik what MTUC and the others wanted to do with the documents when they get them, to which Malik said they would study the contents before deciding on their next course of action.
'They must show they have a legal interest'
Pointing out the Court of Appeal decision that the appellants have no legal standing to initiate the action, senior federal counsel Suzana Atan said, “They must show they have a legal interest and definition to initiate the action.”
Suzana said MTUC was “not a person” and therefore could not be an aggrieved party, to which Malik said the body was a legal entity classified under the Registrar of Societies and should be deemed as a legal party to the suit.
She also argued that MTUC and the 13 others had not been not adversely affected by the decision of then energy, water and communications minister Dr Lim Keng Yaik to deny them access to the two documents.
The concession agreements and the audit report, she argued, should be deemed as official secret documents as they had been tabled before the cabinet.
However, a dispute arose when Justice Arifin and Justice Zulkefli asked when the documents had been classified as “secret”.
The bench reserved judgment on the matter after Justice Arifin asked Malik to submit on whether there were case laws showing countries that do not have a Freedom of Information Act could release such documents.
Outside the court, Charles, who is the MP for Klang, said the situation had come to this stage because the federal government had decided on the policy matters over water in Selangor.
“Now, it is left with the judges to decide otherwise,” he said.
However, the Selangor government and Syabas have rescinded and allowed the concession agreement to be viewed. So now, the federal government is the only authority that has not allowed them to do so.
The decision in this case by the Federal Court will have major implications, since Malaysians do not have any law to grant them freedom of information, with the exception of the Freedom of Information Enactment passed by Selangor in 2010.
To question from Justice Suriyadi as to why the appellants could not seek the documents they wanted from the Selangor government, Malik said the Selangor government was hampered by the federal government's refusal to allow access to the documents.
Justice Suriyadi also asked Malik what MTUC and the others wanted to do with the documents when they get them, to which Malik said they would study the contents before deciding on their next course of action.
'They must show they have a legal interest'
Pointing out the Court of Appeal decision that the appellants have no legal standing to initiate the action, senior federal counsel Suzana Atan said, “They must show they have a legal interest and definition to initiate the action.”
Suzana said MTUC was “not a person” and therefore could not be an aggrieved party, to which Malik said the body was a legal entity classified under the Registrar of Societies and should be deemed as a legal party to the suit.
She also argued that MTUC and the 13 others had not been not adversely affected by the decision of then energy, water and communications minister Dr Lim Keng Yaik to deny them access to the two documents.
The concession agreements and the audit report, she argued, should be deemed as official secret documents as they had been tabled before the cabinet.
However, a dispute arose when Justice Arifin and Justice Zulkefli asked when the documents had been classified as “secret”.
The bench reserved judgment on the matter after Justice Arifin asked Malik to submit on whether there were case laws showing countries that do not have a Freedom of Information Act could release such documents.
Outside the court, Charles, who is the MP for Klang, said the situation had come to this stage because the federal government had decided on the policy matters over water in Selangor.
“Now, it is left with the judges to decide otherwise,” he said.
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