Should Khalid Samad be sued for misfeasance?

QUESTION TIME | The sequence of events leading to a revised approval for the RM3 billion Taman Rimba Kiara development shows there are serious questions as to why the new government is going ahead with the project, albeit a project that has been scaled down.

As if that were not controversy enough, prominent lawyer Gopal Sri Ram stepped into the fray when he offered himself pro bono to defend the Kuala Lumpur City Hall (DBKL) in an ongoing court case brought by residents against the private development City Hall questionably approved.

This raises legitimate questions, such as when does the government limit the acceptance of pro bono cases involving itself and its agencies and the further question of how does it ensure whether it is in the public interest to do so.

There is another issue to consider - whether Federal Territories Minister Khalid Samad can be sued for misfeasance, basically, abuse of authority, given a recent ruling by the Federal Court.

The apex court had unambiguously ruled that prime ministers and ministers are public officers, which allows them to be sued for misfeasance. Also, if misfeasance or abuse of authority is proved, then not only is the government liable for damages but it is possible the public officer is too.

It was reported the Taman Rimba Kiara development, a joint-venture owned 49 percent by Yayasan Wilayah Persekutuan (YWP) - the charity arm of DBKL -  and private developer Memang Perkasa Sdn Bhd linked to Pavilion Group’s Desmond Lim Siew Choon, was approved in 2014. Lim and his family are known to be close to former prime minister Najib Razak and his wife Rosmah.

The project involves the construction of luxury service apartments, as well as an apartment block to accommodate the longhouse residents displaced by the development. Subsequently, the new government scaled down the project, a move which is still opposed.

With such a chequered, dubious history, should DBKL have accepted Sri Ram’s offer of pro bono services? Such pro bono services came into public prominence following charges against Najib. Sri Ram was among those procured to prosecute Najib.

The Federal Territories Ministry said in a statement that Sri Ram offered to work for DBKL for free. And it accepted. Sri Ram reportedly said: "It's been 36 years since the longhouse people were promised accommodation and DBKL is doing its best to deliver it to them. DBKL asked me whether I would do it free of charge for them and I said yes."

But not all longhouse residents are for the project, with significant numbers opposing it, while the Taman Tun Dr Ismail Residents’ Association (TTDI-RA) and Friends of Bukit Kiara, oppose the development and have outlined alternatives which would take into account longhouse resident’s needs as well.

The idea of pro bono in the Najib prosecution would have been two-fold - it is a public interest case and it is important to mount a strong case against potentially strong defences. And if the services were free, there can be no accusations of possible private gain - everything is above board.

It would be a stretch to say that if Sri Ram served pro bono in the Taman Rimba case, he would be acting in the public interest. Many of those opposed to the project are residents and there may well be many elements of criminality in the original approval of the massive Taman Rimba Kiara development.

Under such circumstances, it is not prudent of DBKL to accept the services, considering that it is a government agency which is routinely involved in many commercial ventures, such as approving projects undertaken by developers. Besides, DBKL has a direct interest in the project.

Also by engaging a prominent lawyer such as Sri Ram for free, it raises the spectre that this may become a marketing platform for Sri Ram’s services. Sri Ram has routinely done work for many prominent corporate personalities as well as corporates. The outcome of the pending case will have a major bearing on the fortunes of the developer involved in the Taman Rimba project.

The allegations that are being made about the Taman Rimba project are serious and were made into a campaign issue in the last general election, especially by current Segambut MP Hannah Yeoh, who has tirelessly championed the issue.

Yeoh, who is also the deputy women, community and family development minister, said that free legal aid does not make sense as DBKL does not need free legal service from Sri Ram. It is the TTDI residents, who fought against the development of a portion of Taman Rimba Kiara, who deserve free legal aid, she added.

“They (DBKL) don’t need help as they have deep pockets,” she was quoted as saying by The Malaysian Insight. 

"The residents, on the other hand, are passing the hat around and carrying out fundraising on their own to save a neighbourhood park," she said. 

“I hope the federal territories minister realises that Kuala Lumpur residents are informed voters and that his explanation on this pro bono offer simply doesn’t make sense." 

Yeoh and a group of TTDI residents had opposed a scaled-down version of the project in July. The Malay Mail quoted Yeoh as saying: “I have also obtained support from other KL MPs, seven of them.

“They have given me a letter on our proposed resolution which is to revoke the development order given, and number two — if you want to continue to allow them to build, they must build in the current longhouse footprint — 4.4 acres and not go beyond the current footprint."

Yeoh said then that she had requested a meeting with (the then) newly appointed MACC chief Latheefa Koya to discuss the issue, as Federal Territories Minister Khalid Samad's predecessor, Tengku Adnan Tengku Mansor (photo, below) had abused his power in granting the development of the Pavilion Taman Tun project.

“My hope is that MACC will look into all the reports that have been lodged, also the fresh report lodged by TTDI-RA last week (in July),” she said. 

Khalid had said that it was not practical to scrap the Taman Rimba Kiara project as DBKL would have to pay a compensation of over RM200 million. However, legally speaking, a contract can be invalidated if it was procured illegally.

In a report in July, Malaysiakini had reported that the firm allegedly used by former minister Tengku Adnan to allegedly receive bribes from developers is also linked to the controversial Taman Rimba Kiara development, after a search of company shareholdings.

In his ongoing court trial, Tengku Adnan is charged with receiving RM3 million in bribes from two developers through the firm Tadmansori Holdings, of which he is the majority shareholder.

Further, an investigation by anti-corruption watchdog NGO C4 shows that Tadmansori is also linked to the Taman Rimba Kiara development project, thus raising allegations of a conflict of interest as Adnan was federal territories minister when the project was approved, Malaysiakini reported.

All these strongly indicate, at the very least, serious conflicts of interests and probable corruption by those involved in the approval process, particularly Tengku Adnan, which can invalidate the approval process.

Under such circumstances, Sri Ram’s entry into the fray on the side of DBKL, which appears to have had serious lapses in control processes when approving the Taman Rimba Kiara project, cannot be considered to be in the public interest, especially since DBKL’s YWP is itself interested in the project.

And in the unlikely event that the TTDI residents lose the court action to stop the development because of conflicts of interest and corruption, they may yet have further avenues to sue the minister directly because of that Federal Court ruling.

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P GUNASEGARAM is the editor-in-chief of Focus Malaysia. He says the entire process for development approvals needs a major overhaul and a close watch by the MACC. - Mkini