Sunday, February 19, 2006

Making class action easie

New Sunday Times by Roger Tan

IN 1988, Opposition leader Lim Kit Siang went to court asking for a declaration that the letter of intent issued by the Government to United Engineers (M) Bhd in respect of the North-South Highway contract was invalid, and for an injunction to restrain UEM from signing the privatisation contract with the Government.

Lim succeeded at the High Court, but upon the appeal of the Government and UEM, the Supreme Court by a majority of three to two (Lord President Tun Salleh Abas, Chief Justice Tan Sri Abdul Hamid Omar and Tan Sri Hashim Yeop Sani) ruled that Lim had no locus standi or legal standing to maintain his suit because he had failed to establish that his private right had been infringed or he had suffered a special damage.

Supreme Court justices Tan Sri Eusoffe Abdoolcader and Datuk George Seah dissented.

In his dissenting judgment, Abdoolcader described the majority decision as "a retrograde step in the present stage of development of administrative law and a retreat into antiquity".

To lawyers, this form of litigation is called public interest litigation (class action lawsuit in the US).

In simple terms, it is a suit filed by a private citizen, who is often motivated by societal interest, to seek redress against public wrongs committed by the Government or public bodies, even though the individual himself may not have suffered any damage.

Abdoolcader’s strong dissent was understandable as the judicial attitude on legal standing was then heading towards a less restrictive one.

That is, the applicant should at least have a sufficient interest in respect of the matter to be litigated as opposed to the stricter test that the applicant had to be the person aggrieved by the wrong committed by the public authority.

Hence, prior to the UEM case, being a ratepayer was sufficient to give him the locus standi to sue.

But the Supreme Court in the UEM case did not buy Lim’s argument that as a taxpayer he was entitled to sue. Unless his private rights were affected or he had suffered a special damage he could not.

The UEM case has since been followed by a number of key public interest litigation cases, including the Bakun case.

The UEM case has sounded the death knell for public interest litigation in Malaysia unless the issue involves an infringement of a citizen’s constitutional right.

While liberalisation of the standing rules has taken place in most common law jurisdictions, including Singapore, here we are still bound by the majority decision of the UEM case which is more than a quarter century old.

To the proponents of liberal standing rules in public interest litigation, this not only shows an absence of judicial activism but the presence of judicial inertia in our country.

To them, the courts should not abdicate from their duties as the constitutional rampart against "departmental aggression", as too rigid a rule will inevitably cause injustice to the citizenry because administrative decisions of government departments are now virtually immunised from curial scrutiny.

This is because as the poor and illiterate often lack the means or stamina to take on the executive whenever administrative decisions affect a larger number of the community, it is now left to socially concerned individuals and bodies such as non-governmental organisations to challenge such administrative decisions.

Such proponents would often argue that justice requires the unfastening of these antiquated bolts and shackles of strict standing criteria.

The judges, as Abdoolcader said, cannot stand there and fold their arms and do nothing, or they might as well "hang their heads in sorrow and perhaps even mortification at not being able to at least entertain for consideration on its merits any legitimate complaint of a public grievance or alleged unconstitutional conduct".

In fact, as Lord Woolf said, judicial intervention is all the more necessary these days when administrative bodies are adopting the practice that anything is permissible unless and until it is stopped by the courts. It is no longer the case that if the legality of a course of action is in doubt, it will not be adopted.

But the common reasons cited in support of a narrow approach to locus standi are:

1. liberalising the rules would open the floodgates to litigation;

2. the judicial process should be protected from abuse by busybodies, cranks and other mischief makers; and

3. judges are mere interpreters of law and should not trespass into the paths of the other two branches of government — the executive and legislature.

As regards the first argument, Abdoolcader said, "In the United States, where standing rules are relatively lax, it has been found that although the gates have been open there has been no flood."

With respect to the second argument, Abdoolcader responded that this would unjustly close the door to the ventilation of a genuine public grievance since our judges are experienced in filtering any "phantom busybody or ghostly intermeddler".

Further, a mere busybody will be penalised in costs if he files frivolous actions.

The popular argument against the third justification is that liberalising the standing rules will keep the administrative bodies on their toes as public interest litigation can promote good governance in public administration.

This is consonant with the principle of rule of law as judicial scrutiny can be an elixir to treat complacency and malaise which often creep into these "judicially insulated" administrative bodies if their decisions, acts and omissions go unchecked.

But is this ideal practicable here? Inspired by the free-for-all public interest or social action litigation and a highly active judiciary in India, many have, of course, egged on Malaysia’s conservative judiciary to take a more activist approach.

While this approach has obvious benefits, the danger is that excessive judicial zeal may actually lead the unelected judges to venture into the domain of the elected Government.

This can bring the business of the Government to a standstill, and it is therefore no surprise to hear some argue that had Lim succeeded in the UEM case, there might not be any North-South Highway today.

The drawbacks of excessive judicial zeal can be witnessed in India, as its judicial activism is said to have now become judicial "populism" or "excessivism".

The Indian Supreme Court as well as many High Courts now not only entertain and act on petitions but letters written by affected persons and NGOs.

Further, it cannot be gainsaid that public interest litigation is often used by the Opposition to embarrass the Government.

So public interest litigation has also been called "publicity interested litigation" or "politically interested/inspired/inclined litigation" as such litigation can be a politically pernicious tool used surreptitiously to bug and mortify governmental departments, stalling genuine government business.

Be that as it may, until the Federal Court departs from the majority decision of the UEM case, it remains the law on locus standi unless Parliament enacts a law to grant citizens the right to sue in certain situations.

I am of the view that the time has come for legislative intervention at least in one area — protecting our environment.

The recent toxic waste dumping incident in Labis, near my hometown Yong Peng in Johor, is worrying.

The pollution of air and water by corporations whose acts often go unnoticed is harmful to our environment.

I believe the enforcement of environmental laws is not just the duty of the Government but also that of every concerned citizen.

Perhaps we should take a look at the Canadian state of Ontario’s Environmental Bill of Rights 1993. The preamble to the Bill declares as follows:

"The people of Ontario recognise the inherent value of the natural environment.

"The people of Ontario have a right to a healthful environment.

"The people of Ontario have as a common goal the protection, conservation and restoration of the natural environment for the benefit of present and future generations.

"While the Government has the primary responsibility for achieving this goal, the people should have means to ensure that it is achieved in an effective, timely, open and fair manner."

Under section 84, any resident in Ontario may bring an action against anyone who has contravened or will imminently contravene any environmental law which has caused or will imminently cause significant harm to the environment, if the authorities fail to respond to his complaint of contravention or the response given is not reasonable.

With this statutory right to sue, I am sure concerned Malaysians can be the eyes and ears of the enforcement agencies in our efforts to protect our environment.

This will indeed be a government-citizen partnership to check pollution of our rivers and air by recalcitrant and habitual offenders.

But without legislative intervention in this area, no one knows when the apex court will depart from the majority decision of the UEM case.

Until then, public-spirited citizens can only find solace in these words quoted by Abdoolcader in his parting paragraph in the UEM case:

"A dissent in a court of last resort, to use his words, is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct, the error into which the dissenting judge believes the court to have been betrayed."

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