The Malaysian Trades Union Congress (MTUC) and 13 others do not have the legal right to have access to the audit report and water concession agreement signed between the Federal Government, the Selangor state government and Syarikat Bekalan Air Selangor Sdn Bhd (Syabas), the Court of Appeal here heard Tuesday.
This argument was forwarded to the three-man appellate court panel by senior federal counsel Datin Azizah Nawawi who is representing the Federal Government in its appeal to reverse a High Court ruling ordering it (federal government) to make public those documents.
The federal government had on July 2 last year obtained a stay on the High Court ruling pending this appeal.
Azizah submitted that the application by MTUC and 13 water consumers for a judicial review of the decision of the then Energy, Water and Communications Minister Datuk Seri Dr Lim Keng Yaik in denying their request to make public those documents, was misconceived.
She said this was because they did not have the legal right to gain access to the documents and therefore did not have the locus standi (legal standing) to file the judicial review application.
"There is no federal law which allows the respondents to have access to the audit report and the concession agreement," she said.
Azizah said since the documents were classified confidential under the Official Secret Act 1972 (OSA), the minister was bound under the same act from divulging on official secret and it was an offence to do so.
She said the High Court erred in law when she granted a mandamus order to the respondents without ascertaining whether the minister had a legal duty to give the documents to the respondents as well as ascertaining whether the respondents had legal right to the documents.
She said the respondents were not adversely affected by the minister's rejection to grant them access to the documents because the respondents did not have any legal right to the documents.
"As such the minister had not breached the legal rights of the respondents when he refused to grant MTUC access to both sets of documents," she said.
Azizah, however, said parties to an agreement may by mutual agreement disclose the agreement to a third party.
The panel comprising Justices Datin Paduka Zaleha Zahari, Datuk Wira Abu Samah Nordin and Datuk Mohd Hishamudin Mohd Yunus have deferred their decision to Thursday as they indicated that they required time to deliberate on the issues raised in the appeal.
MTUC and 13 others including its former chairman Syed Sharir Syed Mohamud and two children, aged 10 and 15, obtained leave from the court on June 14, 2007, to initiate a judicial review against the minister's refusal to grant them access to the documents.
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 Dec 15, 2004.
They claimed that the audit report formed the basis for the 15 per cent 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.
Earlier, their counsel Malik Imtiaz Sarwar had submitted that his clients had the right to gain access to the documents because access to water was a basic human right and that water supply was monopolised by Syabas in Kuala Lumpur, Putrajaya and Selangor.
He said the audit report was not "secret" under OSA merely because it was part of the documents deliberated by the Cabinet for the calculation of non-revenue water in the cabinet meeting on Oct 11 2006.
Malik said in fact both the Government of Selangor and Syabas did not have any objection to the documents being made public - BERNAMA
This argument was forwarded to the three-man appellate court panel by senior federal counsel Datin Azizah Nawawi who is representing the Federal Government in its appeal to reverse a High Court ruling ordering it (federal government) to make public those documents.
The federal government had on July 2 last year obtained a stay on the High Court ruling pending this appeal.
Azizah submitted that the application by MTUC and 13 water consumers for a judicial review of the decision of the then Energy, Water and Communications Minister Datuk Seri Dr Lim Keng Yaik in denying their request to make public those documents, was misconceived.
She said this was because they did not have the legal right to gain access to the documents and therefore did not have the locus standi (legal standing) to file the judicial review application.
"There is no federal law which allows the respondents to have access to the audit report and the concession agreement," she said.
Azizah said since the documents were classified confidential under the Official Secret Act 1972 (OSA), the minister was bound under the same act from divulging on official secret and it was an offence to do so.
She said the High Court erred in law when she granted a mandamus order to the respondents without ascertaining whether the minister had a legal duty to give the documents to the respondents as well as ascertaining whether the respondents had legal right to the documents.
She said the respondents were not adversely affected by the minister's rejection to grant them access to the documents because the respondents did not have any legal right to the documents.
"As such the minister had not breached the legal rights of the respondents when he refused to grant MTUC access to both sets of documents," she said.
Azizah, however, said parties to an agreement may by mutual agreement disclose the agreement to a third party.
The panel comprising Justices Datin Paduka Zaleha Zahari, Datuk Wira Abu Samah Nordin and Datuk Mohd Hishamudin Mohd Yunus have deferred their decision to Thursday as they indicated that they required time to deliberate on the issues raised in the appeal.
MTUC and 13 others including its former chairman Syed Sharir Syed Mohamud and two children, aged 10 and 15, obtained leave from the court on June 14, 2007, to initiate a judicial review against the minister's refusal to grant them access to the documents.
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 Dec 15, 2004.
They claimed that the audit report formed the basis for the 15 per cent 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.
Earlier, their counsel Malik Imtiaz Sarwar had submitted that his clients had the right to gain access to the documents because access to water was a basic human right and that water supply was monopolised by Syabas in Kuala Lumpur, Putrajaya and Selangor.
He said the audit report was not "secret" under OSA merely because it was part of the documents deliberated by the Cabinet for the calculation of non-revenue water in the cabinet meeting on Oct 11 2006.
Malik said in fact both the Government of Selangor and Syabas did not have any objection to the documents being made public - BERNAMA
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