Federal Court: gives MTUC leave to apply for water deal

The Malaysian Trades Union Congress and 13 others were granted leave to apply for the access to the audit report and water concession agreement involving the federal government, Selangor government and Syarikat Bekalan Air Selangor Sdn Bhd (Syabas), the Federal Court ruled today.

In unanimously granting them leave to do so, the five-member panel headed by Federal Court judge Hashim Yusoff also revisited the case of Lim Kit Siang vs the government in their decision.

Lawyer Malik Imtiaz Sarwar (left) said the question of law with regard to the Lim Kit Siang case was whether the court in judicial review cases should adopt a restrictive approach to locus standi (legal standing of the person filing a case) with regard to cases against the authorities.

The Lim Kit Siang case, Malik said, provided a restriction, compared with the liberal approach where a litigant and the public authority in a public interest matter are required to meet before legal action against the authority can be initiated. 

The other judges sitting with Justice Hashim were Ahmad Maarop, Hasan Lah, Zainun Ali and Jeffrey Tan Kok Wha.

On Feb 25, 2011, the Court of Appeal in a majority judgmentoverturned the decision of the High Court in Kuala Lumpur and ruled that the water agreements involving the federal government, Selangor government and Syabas were confidential and could not be disclosed to the MTUC.

The KL High Court, in its June 28, 2010 landmark ruling by judicial commissioner Hadhariah Syed Ismail, said the government's refusal to disclose the reports and agreementsdid not consider public interest, and that of those adversely affected by the proposed water tariffs hike.

Former MTUC president, Syed Shahir Syed Mohamud and the other plaintiffs, including Klang MP Charles Santiago, wanted the disclosure of the concession agreement between the federal and Selangor governments and Syabas, which was dated Dec 15, 2004.

They also sought the audit report justifying a 15 percent increase in the water tariffs.

The plaintiffs are also seeking:

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

• Alternatively, a declaration that those documents are public documents and are not official secret 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.

Besides Malik, the other lawyers who appeared for MTUC and the other applicants were Aliff Benjamin, Jenine Gill, Joanne Chua and Pavendeet Singh.

Senior federal counsel Suzana Atan and Shamsubol Hassan represented the federal government.

MP hopes for greater transparency

Commenting on today's Federal Court decision, Charles said it was a historic moment for the applicants and he hoped the courts would in future depart from a restrictive meaning in such matters to a liberal approach.

"Previously, you have to be a party in an agreement to initiate a judicial review application and this restrictive approach limited the approach to judicial review applications.

"Hopefully, this decision today marks a departure from the restrictive approach, since governments have to be transparent, accountable and ensure good governance and there should be freedom of information by access to such documents."

Charles (right) said the judicial review application had been a long-standing matter, since January 2007, and it had been an uphill battle ever since the Court of Appeal ruling against the High Court decision in their favour.

He hoped today's decision would lead the judiciary to adopt a more liberal and flexible approach in public interest matters.

It was also a history of sorts today, Charles added, as Karpal Singh, who acted for Lim in the 1988 case, was also present during today's proceedings, though he was there for another matter.