SYABAS, MTUC! – Concession Disclosure Judgment

Reproduced below are excerpts from the 28 June 2010 Kuala Lumpur High Court decision that the SYABAS water concession agreement can be made public. The complete grounds of judgment can be read here.

SYABAS!

Disclose or ...

Respondent’s stand

1. Perjanjian Konsesi tersebut dikategorikan sebagai “SULIT” …

2. Pemohon-pemohon tiada hak untuk mendapat akses ke atas perjanjian tersebut kerana Pemohon-pemohon tiada priviti kepada perjanjian.

3. Laporan Audit dikategorikan sebagai “RAHSIA” berdasarkan fakta bahawa ia telah dibentangkan dan diputuskan dalam Mesyuarat Jemaah Menteri … dokumen tersebut merupakan dokumen “RAHSIA” di bawah seksyen 2A Akta Rahsia Rasmi 1972.

4. Pemohon-pemohon juga tidak mempunyai lokus standi untuk mengambil tindakan ini terhadap Responden-Responden.

Applicants took the stand that

1. Peruntukan sulit dalam Perjanjian Konsesi tidak mengenepikan atau menghadkan bidangkuasa Mahkamah ini dalam apa cara pun. Selanjutnya priviti kontrek bukanlah fakta yang relevan untuk dipertimbangkan.

2. Tiada bukti Laporan Audit dibentangkan di hadapan Kabinet pada tarikh berkenaan.

3. Laporan Audit tidak terletak di bawah lingkungan Jadual di bawah Akta Rahsia Rasmi 1972.

4. Penzahiran awam Laporan Audit dan segala maklumat yang terkandung di dalamnya tidak dapat membahayakan sekuriti Negara. Sebaliknya maklumat itu berhak diakses oleh warganegara kerana ia mempengaruhi kepentingan mereka.

5. Pemohon-Pemohon mempunyai locus standi atas alasan:

(a) Pemohon-Pemohon tinggal dalam kawasanyang dibataskan oleh Perjanjian Konsessi.

(b) Pemohon-Pemohon memerlukan dan menggunakan air untuk keperluan asas mereka.

(c) Perjanjian Konsessi meletakkan hak pembekalan air yang dirawat secara eksklusif kepada “SYABAS”.

(d) Pemohon-Pemohon tidak mempunyai akses kepada air yang dirawat kecuali melalui SYABAS untuk keperluan hidup mereka. SYABAS telah memperolehi monopoli ke atas pembekalan air didalam kawasan yang dibataskan. Dengansendirinya, Pemohon-Pemohon adalah pelanggan yang berbayar bagi SYABAS.

Locus standi

….

…, I agree with learned counsel for the applicants’ contention that the applicants are persons “adversely affected” and not “busy bodies, cranks and other mischief makers” with the decision of the 1st respondent. Each and every applicant is a paying water consumer within the area covered by the concession agreement.

With SYABAS now in monopoly over the distribution of treated water in the concession area, the applicants do not have an alternative access to treated water. If the water tariff is increased and they have to pay more money for water, they have no real choice to refuse to pay because there is no alternative supplier of water available. In addition thereto, water being essential for life is part of a constitutional right which can be implied under the Federal Constitution. … I, therefore hold the applicants have established they had a locus standi to bring this action.

Issues to be tried

Essentially there are two issues :

1. Whether the Applicants can be said to be adversely affected by the decision of the 1st Respondent and therefore have a locus standi to bring this action?

2. Whether disclosure of both the documents are detrimental to the national security or public interest?

To sum up, the 1st respondent’s refusal to disclose the Concession Agreement and the Audit Report was made without taking into consideration the legitimate expectation of a member of the public who are affected in the decision making process to be treated fairly. The respondents’ decision to allow privatisation of water service and arbitrary increases to the tariff and at the same time invoking the Official Secret[s] Act is disproportionate not only to the aim of the Official Secret[s] Act but also runs counter to the principle of good governance, accountability, transparency and “the interest of the rakyat should come first”. Failure to comply with these principles will inevitably result in this court giving an order compelling the respondents to do so.(emphasis by LB)

For those reasons, I allowed this application with cost.


LB: SYABAS!


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8 Responses to SYABAS, MTUC! – Concession Disclosure Judgment

  1. Loyar Bangkok

    LN,

    looks like u still didn't get 'it'…

    "It’s water la, not non-performing submarines and ciplak kevlar m16 they might be buying from some dodgy middleman, that bugs me. I may not like the idea that my taxes are sitting in some fake company account but at least I won’t die from it."

    see, this is EXACTLY what u r not fit to ask, question or think about. when it comes to NATIONAL SECURITY, we cant just let any ordinary citizens draw the line. thanks for your opinion but no thanks, the government knows how to run the country better than liberals like u.

    if for some reason the government wanted to make the water contaminated so that some of u die from it, SO BE IT. u must trust that such deaths (if occurred) r the intended consequences of the government's policies. who knows, the government was using the water to fight domestic terrorists (such as those involved in radical, communist insurgencies like Suqiu)??

    chill man… just leave it to the government, and stop being such a busybody.

  2. LN

    Gosh, you need to chillax. So I'm a liberal Numbnut but I still want to know things that affect my life. If you think Malaysians can't handle the truth, it might simply mean you're watching too many reruns of that movie with Tom Cruise and Jack Nicholson. I for one would rather gag at the truth than not know it till I'm in my deathbed and the doctor says I've got too much h.pylori in my gut from drinking contaminated water. WHAT? I paid for all that effing filtering!!! And I paid for the hike willingly!!!!

    It's water la, not non-performing submarines and ciplak kevlar m16 they might be buying from some dodgy middleman, that bugs me. I may not like the idea that my taxes are sitting in some fake company account but at least I won't die from it.

    And no, I don't want anyone on the NEP. God forbid, it would be just too cruel.

  3. Loyar Bangkok

    LN,

    Governance is a serious n complex business. it's not for any tom, dick or harry (especially those from PR). so, u cant expect the government to explain EVERYTHING to u, from water treatment to economic policies.

    do u expect the government to account to u about how the Special Branch or Military Intelligence spent their budget??

    dont u think it will pose a danger to our military personnel and national defence if the government has to justify to the court why the f**k our submarines cant drive?? dont u think the philippinos n indonesians would b MOST encouraged to know about all these sensitive info?? (not forgetting the Zionists…)

    'KD Tunku Abdul Rahman' moored as more problems crop up
    http://www.malaysia-today.net/index.php?option=co…

    it's irresponsible liberals like u (LN = Liberal Numbnuts) n those in PR who will weaken the backbone of our country!!

    u have a 'right' to know??? i'm sorry but WHO THE H*LL DID U THINK U R??!!

    "Prime Minister (on behalf of the entire Cabinet) to Liberal Numbnuts: You want answers?

    LN: I think I'm entitled to them.

    PM: You want answers?

    LN: I want the truth!

    PM: You can't handle the truth!

    Son, we live in a country that has rich resources. And those resources have to be distributed to men working for UMNO.

    Who's gonna do it? You?

    You, Anwar Ibrahim?!

    You, Lim Guan Eng?!

    I have a greater responsibility than you can possibly fathom.

    You weep for SYABAS and you curse the UMNO cronies. You have that luxury. You have the luxury of not knowing what I know: that SYABAS's privatization, while corrupt, probably saved UMNO. And UMNO's existence, while grotesque and incomprehensible to you, saves Ketuanan Melayu…

    You don't want the truth. Because deep down, in places you don't talk about at parties, you want us on that NEP. You need us on that NEP.

    We use words like Project, Subcontractor, Direct Negotiation… we use these words as the backbone to a life spent defending Bangsa dan Agama. You use 'em as a punchline!

    We have neither the time nor the inclination to explain myself to a bunch of liberals who rises and sleeps under the blanket of the very economic stability and racial harmony we provide, then questions the manner in which we provide it! We'd rather you just said thank you and went on your way.

    Otherwise, I suggest you come up with a different Mega Project and distribute to our supporters. Either way, we don't give a damn what you think you're entitled to!

    LN: Did you order the SYABAS privatization in order to benefit UMNO cronies??

    PM: (quietly) We did the job Ketuanan Melayu sent me to do.

    LN: Did you order the SYABAS privatization in order to benefit UMNO cronies?

    PM: You're goddamn right we did!!"

    (the above exchange is covered by OSA, and is inspired by:

    http://www.youtube.com/watch?v=5j2F4VcBmeo http://stonestreetadvisors.com/2010/04/23/guest-p…

  4. Loyar Bangkok

    what the f**k?!?!

    "I agree entirely with the applicants contention simply because the evidence thus far adduced in the respondents' affidavit merely says the Audit Report was "RAHSIA" because it was presented before the cabinet. That reasoning alone is not convincing enough to justify protection under the… OSA. To accede to [the arguments of the Minister for Energy, Water and Communications and the Government of Malaysia] is akin of saying any document labelled as "RAHSIA" can claim protection and that is the end of the mattter. I believe there must be an explanation or purpose as to why any particular document is classified as "RAHSIA". *****It also cannot be the spirit of OSA to extend protectio ni ncases where the government believed there will be public discussion and criticism against the government's action.*****" (page 18)

    "spirit of the Official Secrets Act"??? r u f**king kidding me?!?! "spirit" my ASS!!

    our country ABSOLUTELY CANNOT afford to have judges who forgot about their constitutional duties but instead, playing 'bomoh' and 'oracles' in court, claiming to be in touch with the 'SPIRITUAL' realm instead of just applying the god damn letters of the temporal LAW like they r appointed to!!

    u r not supposed to THINK, god damn it!!

  5. Loyar Bangkok

    all hell is gonna break lose!!!!

    it's a SECRET!!! "RAHSIAH"!!!! r u illiterate?!?!

    see, this is the sort of nonsense u get from appointing activist, free-spirited judges who have absolutely NO concern for the public, national, state and religious interests!!! (demi agama, bangsa dan negara…)

    guess who is the next judicial commissioner carrying eggs in BTN camp?!?!

    Y.A. Hadhariah – u gonna ROT in high court till u retire!!!!!

    damn u, "judicial appointment commission"!!

    f**king assh#%e s*n of a b$%ch!!! Q#$%#!$%O#!($U!!!

  6. Loyar Bangkok

    (p/s: sorry, the “stonestreetadvisors.com” link doesnt work. if u really want to know, u can just google this article, then u’ll know what i mean:
    Guest Post: Quote From Colonel L. Blankfein Jessup Before a Commission of Inquiry, From 1-2 aka @onetwoko)

  7. LN

    I don’t understand legal jibber jabber. But as a regular Malaysian consuming water here, it disturbs me enough that I cannot be be reassured that the water I consume which is provided by ONE company is both safe and affordable to drink.

    If I want to know how they treat the water I should be able to visit the treatment plant if I want to. Because I pay for it and I don’t want to die from it.

    If I want to know what the agreement contains I should be able to visit the PUBLIC RECORDS online (if such a thing even exists) or its physical equivalent (if such a thing even really exists) and check it out for myself.

    I especially want to know now compared to 10 or 20 years ago because now, today, there’s so much suspicion surrounding how taxpayers’ money is being used. And nobody can blame me for that.

    How is it so easy to cite the OSA? It’s secret because err, the public is not involved in the agreement? How literal is that? The public has vested interest in it la. We are drinking the stuff hoping it’s properly treated and that the price of water won’t increase just because the country’s economy is not doing well and a few GLCs are bankrupting.

    You keep something as vital and basic as water and all matters pertaining to it secret, and it’ll automatically become questionable and controversial. And you dare to ask why we are ungrateful, why we question this and that, why we cannot just look at the positive. Give us some assurance by opening up your dusty closets, then we’ll talk.

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