Court bars public from viewing Syabas documents

A boy helps his mother carry water home, as supplied by a tanker, following a water cut in Puchong, August 31, 2013. — Picture by Choo Choy May
A boy helps his mother carry water home, as supplied by a tanker, following a water cut in Puchong, August 31, 2013. — Picture by Choo Choy May

KUALA LUMPUR, Feb 12 — The Federal Court barred public viewing of secret Syarikat Bekalan Air Selangor Sdn Bhd (Syabas) documents, dismissing an application for a judicial review of  a Court of Appeal decision from several parties.

In the judgement, read by Justice Datuk Hasan Lah, the apex court’s five-man panel upheld the decision of the appellate court barring the Malaysian Trade Union Congress (MTUC), the Coalition against Water Privatisation (CAWP) and 10 other appellants, including two children, from viewing an audit report and concession agreement which were placed under the Official Secrets Act (OSA).

The applicants had named Syabas together with Energy, Green Technology and Water Ministry (KeTTHA) as respondents in their application.

The court ruled that only MTUC has the locus standi, or legal capacity, to call for a review as it was adversely affected by KeTTHA’s refusal to disclose the documents, and it had previously applied to its minister to view the documents.

The judge, however, said that none of the appellants could show or prove that the minister’s decision was unreasonable, illegal or tainted with procedural irregularity.

The grounds cited were that the Syabas’ audit report was deliberated at a Cabinet meeting and that Putrajaya is bound by a confidentiality clause in the concession agreement which was signed between SYABAS, the Selangor state and the federal government.

However, the Selangor state government declared its interest to have the documents made public after Pakatan Rakyat took over the state administration in 2008. 

CAWP coordinator Charles Santiago told The Malay Mail Online that the judgement was “shallow and weak” as it protects the interests of the concessionaire, Syabas.

“The loser is the man on the street.

“We have been clamouring on the streets that concession agreements are heavily biased towards concessionaires and this judgement enhances further protection for cronies,” Charles, who is also the MP for Klang, said.

Charles added that the lawyers are hoping to revisit the case, with the court granting MTUC a locus standi in the matter.

The concession agreement in question detailed Syabas’s right to supply water to Selangor, Kuala Lumpur and Putrajaya and listed the conditions firm must meet in order to raise tariffs.

The judicial review was filed after Syabas raised water rates by 15 per cent in October 2006.

On June 14, 2007, they obtained leave from the High Court to commence the judicial review.

On June 28, 2010, the High Court allowed their application, ruling that the disclosure of the documents would not be detrimental to national or public interest.

However, on February 25, 2011, the Court of Appeal, in a 2-1 majority decision, overruled the High Court’s decision and held that MTUC and the 12 water consumers did not have the legal right of access to the audit report and water concession agreement.