Make public audit and water concession pact, court rules
Judicial Commissioner Hadhariah Syed Ismail said the disclosure of the documents would not be detrimental to national or public interest.
Instead, it would serve the public interest in keeping them informed of the workings of the government and to promote discussion of public affairs, she said.
Hadhariah was ruling in favour of the Malaysian Trades Union Congress (MTUC) and 13 others who had asked for a judicial review after then Energy, Water and Communications Minister Dr Lim Keng Yaik denied their request to make public the documents.
They had written a letter to the minister on Nov 7, 2006, requesting for the audit report and concession agreement be disclosed, but was rejected by the ministry on Dec 4, 2006, on grounds the documents had been classified as confidential and secret.
Since then, the utility now comes under the portfolio of the Energy, Green Technology and Water Ministry.
Hadhariah ordered the first respondent, the Energy, Water and Communications Minister, to submit the documents to MTUC and the other applicants within seven days.
In her judgment, she said even though the concession agreement was not disclosed yet, information on non-revenue water (NRW) and its percentage of reduction, formula for tariff increase, period of review and payment of compensation to Syabas had already been in circulation by the media and third parties.
"In that sense, it can no longer be treated as a confidential document because these are the major issues. In the first place, the concession agreement is not a private agreement. It was executed with public interest in mind," she said.
Public's interest
Hadhariah stated that the public relied on a good concession and governance of the government to protect their interests, therefore, it was in the public's interest also the agreement should be disclosed.
"In this area, where transparency, accountability and priority are given to the needs of the rakyat, it is only fair that the concession agreement be made public. I am of the view that courts should lean in favour of aggrieved parties in matters involving public interest," she said.
As for the audit report, she said it contained information relevant to the concession agreement on the increase of water tariff and if the agreement was to be disclosed, the audit should also be made public as the audit made reference and comments on certain provisions in the agreement.
She said even though the respondents had submitted that the audit report was classified as secret because it was produced for the Cabinet, it was nonsensical to say any document put before the Cabinet was automatically treated as "rahsia" (secret) under Section 2A of the Official Secret Act 1972.
Hadhariah also held that the applicants had locus standi as they were paying water consumers within the area covered by concession agreement and not "busy bodies, cranks and other mischief makers".
If the water tariff was increased, they had no choice but to pay more for water because there was no alternative supplier available.
Water tariff
After their request was refused, MTUC and 13 others including its chairman Syed Sharir Syed Mohamud and two children, aged 10 and 15, obtained leave from the court on June 14, 2007, for judicial review, naming the minister, the government of Malaysia and Selangor government as respondents.
They said that as water consumers in Selangor, Putrajaya and Kuala Lumpur, they had the right to gain access to the audit report and the concession agreement signed on Dec 15, 2004.
They claimed that the audit report formed the basis for the 15% increase in water tariff in the Klang Valley announced on Oct 14, 2006.
They contended that the government was obliged by law to act in a transparent manner and was responsible in the usual enforcement of regulations pertaining to the water market and in a situation which gave rise to suspicion that the water market was being used for profiteering.
The applicants said they had written a letter to the minister on Nov 7, 2006 requesting for the two documents but was rejected by the ministry on Dec 4, 2006, on grounds that the documents had been classified as confidential and government secret.
The applicants were represented by lawyer Ang Hean Leng, senior federal counsel Shamsul Bolhassan appeared for the minister and the Malaysian government while Md Azhari Abu Hanif, the assistant to the Selangor legal adviser, acted on behalf of the Selangor government.
- Bernama
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