Sunday, July 4, 2010

Function of law put to the test

The three legal issues that arose last week showed how pivotal it is to ensure our laws are enacted, interpreted and enforced accurately and efficiently. If not, these laws will be transformed into an ass.

Three interesting legal issues arose in the last two weeks. First, the Kuala Lumpur High Court (Appellate And Special Powers 4) last Monday ruled that the water concession agreement entered into by the Federal Government, the Selangor state government and Syarikat Bekalan Air Sdn Bhd (Syabas) could be made public, including an audit report which was said to have been presented to the Cabinet.

Second, the proposal by the Domestic Trade, Cooperatives and Consumerism Ministry to amend the Copyright Act, 1987 (Act 332) to hold landlords liable if their tenants have infringed intellectual property and copyright rights on the premises was greeted by an outcry from real estate owners.

Third, the Law Reform Committee headed by the Deputy Minister in the Prime Minister’s Department Datuk V.K. Liew proposed to amend the Statutory Declarations Act, 1960 (Act 13) to forbid Commissioners for Oaths (COs) to attest the execution of any statutory declaration (SD) which is contentious or criminal in nature.

Disclosure of Water Concession Agreement and Audit Report

Last Monday, Judicial Commissioner Hadhariah Syed Ismail allowed the disclosure of the documents to the Malaysian Trades Union Congress (MTUC) and 13 others on two grounds:

> The applicants were adversely affected by the decision of former Energy, Water and Communications Minister Tun Dr Lim Keng Yaik not to make public the documents and thereby they had the locus standi or legal standing to sue; and

> The disclosure would not be detrimental to national security or public interest.

The judge added that the applicants had locus standi because they were paying consumers within the water concession area. As Syabas has monopoly over the distribution of treated water in that area, the applicants would have no choice but to pay for any increase in water tariff as there is no other alternative water distributor there.

She added that as water is essential to life, the applicants’ implied constitutional right to life has also been infringed.

As regards the disclosure of the two documents, the judge said she had read through them and found no information detrimental to national security or public interest. She also took note that the Selangor government and Syabas had indicated no objection to the disclosure, and some of the information relating to the water tariff increase was already known to the media and public.

She also ruled that it was nonsensical to say that any document put before the Cabinet is automatically “RAHSIA” under section 2A of the Official Secrets Act 1972 (Act 88).

This is indeed a landmark judgment for the following reasons:

> Cabinet papers are now not automatically protected by Act 88; and

> The judge had taken a liberal approach in affording legal standing to the applicants.

Based on existing legal authorities, the applicants in this action, known to lawyers as public interest litigation, ought to have first shown they had suffered damage peculiar to them or over and above the remaining water consumers in the area, and that their rights had been “substantially” affected.

If the applicants’ position is no different from the other water consumers, then they could not have been said to have been “adversely affected”. There is a ruling from the apex court which requires this to be a stringent test.

In any event, last Friday the Federal Government had obtained a stay on the disclosure of the documents. It will be interesting to see how our appellate courts deal with the issue of locus standi when the matter goes on appeal.

This decision differs from a 1994 Johor Baru High Court decision which held that the late politician-cum-lawyer Abdul Razak Ahmad was not entitled to examine the privatisation agreement between the Johor state government and the company developing the Johor Baru “floating city” project.

Justice Haidar Mohamed Nor ruled that as there was no legal duty imposed on the Government under the Government Contracts Act, 1949 to consult taxpayers like the applicant in respect of contracts made by the Government, the applicant had no legal right to examine the said agreement.

In fact, there are both good arguments for and against the relaxation on standing rules.

The Government’s most common fear is, of course, that public interest litigation can be turned into a “publicity interested litigation” or “politically interested/inspired/inclined litigation” with the purpose being to embarrass them and stall genuine government business.

But to social activists, too rigid an approach will cause injustice and immunise government decisions from curial scrutiny.

Proposal to amend Copyright Act

I believe the proposed amendment is to hold owners of commercial premises like shopping complexes liable if their tenants have used the premises to sell pirated DVDs and VCDs. If this is not the case, and it extends to private premises, then such amendment is totally unjustified.

As I understand, the proposed amendment will also make it a crime for those who purchase even a single pirated copy of DVD or VCD. It follows that a landlord can technically be liable if the tenant of his residential property is caught having in his possession even a pirated DVD or VCD!

To my mind, the Government cannot expect landlords of private premises to police the activities of their tenants. Already, the law as it stands, is not in favour of landlords. The landlord is helpless if a defaulting tenant refuses to vacate the premises because Section 7 of the Specific Relief Act 1950 (Act 137) does not allow a landlord to recover possession of the tenanted property without first having obtained a court order.

Hence, this section has been much abused by recalcitrant and defaulting tenants. In this respect, an amendment to Act 137 is perhaps more urgent.

Proposal to amend Statutory Declarations Act

The debate between Liew and Bar Council chairman Ragunath Kesavan about amending Act 13 is, in fact, much ado about nothing. Some of the duties which Liew had wanted to impose on the COs have in fact already been provided for by law – not under Act 13, but under the Commissioner for Oaths Rules 1993, made under the Courts of Judicature Act, 1964.

Under Rule 13 of the 1993 Rules, a CO is required, among other things:

> To read over and explain the contents of the documents and the exhibits to the maker of the document;

> Not to affix his seal to any document unless the maker of the document signs or affixes his thumbprint before the CO; and

> To refuse to attest to any document if he suspects that the person before him is engaging in deception, fraud, duress, or any other illegal conduct.

If a CO is found guilty of acting in breach of Rule 13, he can be liable to a fine not exceeding RM1,000, imprisonment for a term not exceeding six months, or both.

Hence, it all boils down to enforcement. It is open knowledge that many makers of documents, particularly SDs and affidavits prepared by law firms, do not sign before the COs and these COs would affix their seals and sign the documents when they are brought to them by the clerks from various law firms.

In this regard, Liew’s concern that fraudulent land transactions can occur is not unfounded if a CO affixes his seal on a power of attorney when the makers are not before him.

In conclusion, the above issues go to show how pivotal it is the manner in which our laws are enacted, interpreted and enforced. If their enactment, interpretation and enforcement are not accurate and efficient, then these laws will be transformed into an ass.

Published in The Sunday Star on 04 July 2010.