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."

'Be you never so high, the law is above you'

Rewarded for breaking the law?  

The concept of the rule of law, which is the fourth guiding principle of our Rukun Negara, can be explained in many ways.

But perhaps it is best explained and summed up in the words of Thomas Fuller, who said more than 300 years ago, "Be you never so high, the law is above you."

Those words were quoted by Lord Denning, the most celebrated English judge of the 20th century.

It was in a case brought by one Mr Gouriet in 1977 when the Attorney-General refused to give him consent to institute relator proceedings to injunct the Union of Post Office Workers from boycotting all postal communications between Britain and South Africa as such actions would constitute criminal offences under the Post Office Act 1953.

When the Attorney-General argued that his discretion was absolute and not subject to judicial review, Lord Denning had this to say, and he said it acerbically:

"What is to be done about it? Are the courts to stand idly by? Is the Attorney-General to be the final arbiter whether the law should be enforced or not?

"It is a matter of great constitutional principle. If the Attorney-General refuses to give his consent to the enforcement of the criminal law, then any citizen in the land can come to the courts and ask that the law be enforced.

"This is an essential safeguard; for were it not so, the Attorney-General could, by his veto, saying 'I do not consent', make the criminal law of no effect.

"Confronted with a powerful subject whom he feared to offend, he could refuse his consent time and time again. Then that subject could disregard the law with impunity.

"It would indeed be above the law. This cannot be permitted.

"To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: 'Be you never so high, the law is above you'."

I quoted too Fuller’s words in my letter to the New Straits Times (Parliament, the law and justice for all, Dec 12, 1992) during the constitutional crisis that Rulers were not above the law and if they were, it was because the law had decreed it so and such law could be changed by Parliament.

This echoed the words of Henry Bracton that "the king is under no man but under God and the law because the law makes the king".

Indeed it sounds really good when one recites Fuller’s words aloud, but just how good is it when you reflect upon your many dealings with our public institutions? I need only to expound on three scenarios.

Have you ever heard anyone say any of these?

- "If you like to get this matter approved or resolved by that government department, you need to approach A."

- "If your case is before that judge, it may be wise to engage lawyer B as others will often get a shelling from the judge."

Or have you ever noticed any of these?

- You queue up for hours for your turn to be served at a counter in a government office when someone who is known to the pengarah just walks into his office and gets his things done in a matter of minutes.

- A so-and-so person can walk in and out of that public official’s office as if it is his second home.

Or have you ever experienced this?

Your application is rejected but after the intervention of an influential friend of yours, it is approved.

One then asks if approval can ultimately be given due to the intervention of a "well-connected" person, is the rejection of your original application not devoid of any good reason?

But this is Malaysia, as many would tell you. They would also tell you that you would not be able to survive here if you want to rely solely on your ideals to make a living.

According to them, we can talk and almost everything is negotiable, and we can even talk our way out of many laws.

But how true are these statements?

Well, I do not think they are spurious as the above non-exhaustive scenarios go to show that the way our laws are administered very much depends on who you know and not what you know.

Hence if a fresh practitioner in any field cannot work through the system unless he first gets to know the official personally, then something is very wrong with our system of public administration.

To my mind, if our public institutions give preferential treatment to those who are rich and powerful who possess "strong connections", then this non-legal route is against the principle of the rule of law which requires everyone to be treated equally.

In other words, all persons who are in a similar position should be treated similarly; otherwise such practices will breed a culture of patronage and encourage corrupt practices in our official dealings with government departments.

Affording equal treatment stems from the principle of equality before the law which is one of the cardinal ingredients of the rule of law.

It is enshrined in Article 8 of the Federal Constitution which also states, inter alia, that no one is to be discriminated on the grounds of religion, race, descent, place of birth or gender unless expressly authorised by the Constitution.

As Sultan Azlan Shah once said in one case involving a prince, "This equality of all in the eyes of law minimises tyranny."

The next ingredient of the rule of law is that enforcement of laws requires decisiveness and finality, unless there are compelling reasons to the contrary.

I have often been embarrassed trying to explain to my foreign friends why our Government is in the habit of extending the moratorium periods for traffic offenders to pay up their fines or illegal immigrants to leave the country.

It has come to such a state that these offenders and immigrants take it lightly when the Government next announces the date when they will mobilise forces to apprehend them, as if another postponement to enforcement date is predictable.

This is actually an affront to all law-abiding citizens who pay their fines promptly and the foreigners who did not overstay.

It has become almost like a joke for an offender to say, "It is still early to pay the fine. I shall wait till they announce that discounts will be given or that I should pay by a certain date to avoid prosecution."

It is a good thing for the Government to be seen to be kind, caring and compassionate, but it is quite another to send the wrong message that offenders are above the law because punishment can be postponed or ameliorated. This undermines the rule of law.

In fact, enforcing laws is not in any way different from dispensing justice. I am aware of the words of Abraham Lincoln that mercy bears richer fruits than strict justice.

Indeed justice and mercy are two virtues which often conflict with one another. But if the rule of law is compromised, dispensation of justice will not be possible.

One should not make it so excusable for infidelity to law; otherwise as Abraham Lincoln himself admitted:

"He reminds me of the man who murdered both his parents, and then when sentence was about to be pronounced, pleaded for mercy on the grounds that he was an orphan."

During the nude-squat Commission of Inquiry proceedings in December, Chief Inspector Abdul Aziz Abdul Rahman, the officer-in-charge of the Petaling Jaya District Police Headquarters, when asked why accused persons had to do squats in the nude, answered that "this was the tradition or heritage" even though the Lock-Up Rules were silent on ear-squats.

Likewise, civil servants in some government departments interpret internal guidelines as if they have the force of law when such guidelines are not subsidiary legislation.

These are unlawful practices which are unfortunately practised against those who are not conversant with their legal rights thereby permitting the officials to act above the law.

The problem is compounded when such officials do not even know that these administrative practices and guidelines already entrenched in the system, are in fact not laws.

Dear Malaysians, our country is governed by the rule of law and not rule the law.

No one is above the law, and everyone should be treated equally in their dealings with our public institutions.

There is not supposed to be one law for the rich and powerful and another for the poor and oppressed.

So, the next time anyone should come along and say to you, "Do you know who I am?" I hope you would find Fuller’s words useful, "Be you never so high, the law is above you."

Published in the New Sunday Times on 29 January 2006

Officials directed to read letters published in papers

©New Straits Times

JOHOR BARU, Jan 17: State officials have been directed to read letters published in newspapers to gauge public sentiment on government projects and services.

Datuk Abdul Ghani Othman, who gave the directive, said newspapers’ letters pages were an invaluable source of public feedback, and state executive councillors and heads of department should pay attention to the points raised.

"I know many do not even read the newspapers, let alone the letters pages. But they must make it a point to do this every morning," he said after opening the RM600,000 new clubhouse of the South Johor Chinese Press Club (SJCPC) here yesterday.

Ghani commended newspapers such as the New Straits Times for expanding their letters section from one to two pages, as the views expressed were a vital source of public feedback.

He said he told the state exco at a meeting yesterday to scan the newspapers for letters on problems in Johor, and respond to such complaints.

Ghani said the suggestions and views expressed in the op-ed pages of newspapers were also of merit and should be considered by the state exco and departmental heads.

A case in point, he said, was the piece by lawyer Roger Tan headlined "Religious freedom the keystone" in the New Sunday Times on Jan 8.

Tan, Johor’s state representative to the Malaysian Bar Council, had written about the difficulties non-Muslim groups faced in building places of worship and commented that the authorities should be more magnanimous in approving such applications as "a nation which is religious will only produce God-fearing people".

Ghani supported that view, saying such balanced, impartial and thought-provoking articles were eye-openers and should be read by those making decisions on the ground.

On the subject of the "bad Press" Johor had been getting lately in the Singapore media, he said the State Government was not overly concerned as most visitors knew that such reports were an exaggeration.

Regardless, he added, Johor would seek federal assistance to beef up security with an enlarged police presence on the streets here.

Earlier, he announced a RM200,000 State Government allocation to the SJCPC in aid of the clubhouse renovation project.

The 23-year-old club has 300-odd members from six Chinese newspapers in South Johor.

It has an Education Fund for members’ children and regularly gives out contributions in cash and kind in aid of the poor and needy.

Religious freedom the keystone

New Sunday Times
by Roger Tan

Jan 8: The late Tun Abdul Razak once said our enemies are three Cs — communism, corruption and communalism. To fight these enemies, our nation’s greatest weapon is our belief in God — religion, but not religious bigotry.

Religion was one of the tools used by the British to defeat the communist guerillas during the Malayan Emergency.

The resettling of thousands of poor migrant Chinese in the rural areas who were communist sympathisers in "new villages", and building hundreds of temples and churches encouraged them to disassociate themselves from the agnostic guerillas by turning to God.

In combating corruption, Tun Dr Mahathir Mohamad said when he became Prime Minister, that he would put the fear of God in the corrupt. But that would have been useless if those who bribed and were being bribed were not God-fearing people, for no God-fearing person would dare deny that bribery was wrong in the eyes of God.

Corruption here is not just about monetary corruption, it can also be corruption of the mind. Religion can also counter corruption of morality and our mores and fight social decadence, especially among the young in the cyberage.

Hence religion can build within us a strong will against the temptation of corruption.

(The late Tun Razak then went on to say that of the three Cs, the greatest enemy is communalism. I could not agree more with the late Tun’s assessment.)

In a multi-racial, multi-religious and polyglot society like ours, race and religion can easily rear their ugly sides.

They often provoke extreme passions and reactions whenever one community attempts to claim racial and religious superiority.

These are no doubt delicate and touchy issues, but that does not mean that we should not discuss them. Instead of being often the partners that foment communalism, religion can in fact counter it.

So when Prime Minister Datuk Seri Abdullah Ahmad Badawi sent out personal Christmas cards to Christian leaders and churches, many quickly saw the benevolence of Islam in him.

It follows that if our children are brought up to be tolerant of others’ beliefs from their nursery and primary school days, such attitudes can ultimately help fight any virus of racism and even heal it.

I remember, when I was in primary school in rural Yong Peng, my best friends were Tun Zahari, Zainal and Babu. During recess, we would sit at the verandah of the wooden English primary school and indulge in foolish talk. On Fridays, the Malays would be in their baju Melayu and I would play with their songkok, and they would tell me why they had to wear the songkok on a Friday and its significance.

I also remember, shortly after the communal riots of May 13, how I would hold hands during school assemblies with Tun Zahari, Zainal and Babu, singing "Muhibbah" and "Malaysia Berjaya" and reciting loudly and proudly our national philosophy (Rukun Negara) in which we pledged that our nation would be dedicated, inter alia, to achieving "a greater unity for all her peoples". We also pledged our united efforts to attain this end guided by the following principles:

• Belief in God

• Loyalty to King and country

• Supremacy of the Constitution

• The rule of law

• Mutual respect and good social behaviour.

It is, therefore, not surprising to see that of the five guiding principles, religion is placed first.

But what has become a matter of concern is that over the years non-Muslims find it increasingly difficult to build their places of worship. This offends Article 11 of the Federal Constitution, which guarantees non-Muslims the freedom to profess and practise their religion, except for propagating their religion to Muslims.

That explains why the Federal Constitution, being the social contract which binds all Malaysians, is listed as the third guiding principle of our national philosophy.

Of course, Malaysians’ constitutional right to freedom of religion, as expressly stated in Article 11(5) does not "authorise any act contrary to any general law relating to public order, public health or morality".

The Johor State Constitution promulgated during the reign of the fair and just Sultan Abu Bakar, for example, even has an article in it proclaiming as follows: "All the laws and customs of the country shall be carried out and exercised with justice and fairness by all the Courts of Justice and all Officers and Servants of the State between all the people of the country and the aliens who sojourn and reside under its protection, whether for a season or for a lengthened period, that is to say, without their entertaining in the least degree more sympathy or regard to partiality towards those who profess the religion of the country, namely the Muslim religion, or making any difference between those who are the subjects of the State and those who are not."

In this respect, delaying approvals for the construction of places of worship for those who profess the non-Muslim faith is incompatible with Article 11.

The approval process is often long, in some cases years, for the authorities to approve the conversion of land to religious use as well as building plans for these places of worship.

In some states, such applications first have to be referred to the District Security Committee and then to the State Security Committee for deliberation for reasons of "public order".

The composition of these committees usually comprises entirely those who profess the Muslim faith, with representatives from the Religious Affairs Department.

It is disheartening to note that as Malaysians those who profess non-Muslim faiths should be considered a security threat and that applications for establishing their places of worship have to be referred to the Security Committee.

It is hoped that this perceived ethnocentric approach will cease immediately, and that each State Government will set up a non-Muslim Religious Department to look into the religious issues affecting the non-Muslims.

Applications for the erection of places of worship should be automatically dealt with by this department and the local authorities.

Only if there is sufficient evidence that the intended place of worship will pose a threat to "public order" in a particular location should this be referred to the State Security Committee.

I am sure that the majority of our Muslim brethren will sympathise with our predicament and appreciate what is written here.

Having seen how Tun Razak animadverted communalism and the role of religion in coming to grips with the three enemies of state, it is hoped that in 2006, the authorities will be more magnanimous in approving places of worship for non-Muslims because a nation which is religious will produce God-fearing people.

After all, where else can one experience the benevolence of Islam, the enlightenment of Buddha, the love of Christ and the good manifestations of the various Hindu deities than in our beloved Malaysia?

So, let us take pride in our religious diversity, which can be a formidable strength of our multi-religious nation in overcoming communism, corruption and most of all, communalism.