Charles Santiago

Ruling on Syabas papers pushed to Feb 25

Posted: 09 Feb 2011 08:49 PM PST

Source: The Malaysianinsider

By Yow Hong Chieh

February 10, 2011

Santiago described the delay as "anti-climatic". — file pic

PUTRAJAYA, Feb 10 — The Appeals Court here has said it needed more time to decide on the federal government's appeal against an earlier order to disclose its concession agreement with and audit of Syarikat Bekalan Air Selangor (Syabas).The three-man panel comprising Datin Paduka Zaleha Zahari, Datuk Seri Abu Samah Nordin and Datuk Mohd Hishamudin Mohd Yunus said its case workload this week meant it had not been able to give sufficient attention to the case.

"The issues in this case require further deliberation on our part… and we'd like time for a more mature decision," Zaleha said.

The Appeals Court will now deliver its decision on the appeal at 10.00am on February 25.

Charles Santiago, co-ordinator for the Coalition Against Water Privatisation (CAWP) which filed for the judicial review to compel Putrajaya to make public the documents, said the move to put off the decision was "anti-climactic".

However, he commended the judges for wanting to spend more time deliberating on the arguments put forth by both CAWP and the federal government.

"The fact that they want to think about it… is actually a good sign that they're really pushing to rethink about the key questions about the way this country is being run or not run," the Klang MP said.

On Tuesday, senior federal counsel Datin Azizah Nawawi challenged the locus standi of CAWP on the grounds that the latter had no legal right to the documents as there was no law in Malaysia guaranteeing a right to information.

She had argued that an individual could only apply for judicial review if a specific right was infringed upon, as determined in the Government of Malaysia v Lim Kit Siang 1987.

A right to information was implied by the federal constitution, said Malik.

Malik Imtiaz Sarwar, representing CAWP, however, pointed out that the Kuala Lumpur High Court had subsequently ruled in QSR Brands v Securities Commission 2006 that an applicant could apply for judicial review if "adversely affected".He later told reporters outside the courtroom that a right to information was implicit in the Federal Constitution because Malaysians lived in a democratic society such a right was necessary for an informed vote.

CAWP filed for a judicial review in 2007 seeking to declare the audit report and the 2004 concession agreement signed between Syabas, the Selangor government and the federal government public documents.

The coalition argued that the audit report formed the basis for the 15 per cent increase in water tariffs in the Klang Valley announced on October 14, 2006 by then-energy, water and communications minister Tun Dr Lim Keng Yaik and should therefore be made public.

Syabas was allowed to raise tariffs after the company said it had complied with the requirement to reduce non-revenue water by five per cent.

Non-revenue water is the difference between water produced and water lost through leakages, faulty meters and theft.

The energy, water and communications minister had earlier rejected the coalition's request on the grounds that the concession agreement was confidential and the audit report, an official secret.

However, in a landmark judgement, the Kuala Lumpur High Court on June 28 last year ordered the contents of the documents to be disclosed, as requested by CAWP.

Judicial commissioner Hadhariah Syed Ismail had stated in her 19-page judgement that she was not convinced such a disclosure would be harmful to national security or public interest, as claimed by Syabas and the ministry.

CAWP comprises the Malaysian Trade Union Congress (MTUC) and 13 others from Selangor, Kuala Lumpur and Putrajaya, including Santiago himself.

Syabas provides water for Selangor and both the Federal Territories of Kuala Lumpur and Putrajaya.