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Citizen Nades - R. Nadeswaran (The Sun) Bukit Antarabangsa residents who were victims of Saturday’s landslide will be taking legal action against the authorities. The committee will get legal advice on the matter as they have strong evidence to pursue their claims. I don’t want to reveal what it is now, but we have photographs and copies of complaints made to the local authority.
Bukit Antarabangsa Action Committee chairman Datuk N. Muneandy. The state authority, local authority and any public officer or officer or employee of the local authority shall not be subject to any action, claim, liabilities or demand whatsoever arising out of any building or other works carried out in accordance with the provision of this Act or any by-laws made thereunder or by reason of the fact that such building works or the plans thereof are subject to inspection and approval by the state authority, local authority, or such public officer or officer or employee of the state authority or the local authority and nothing in this Act or any by-laws made thereunder shall make it obligatory for the state authority or the local authority to inspect any building, building works or materials or the site of any proposed building to ascertain that the provisions of this Act or any by-laws made thereunder are complied with or that plans, certificates and notices submitted to him are accurate.Section 95(2) of the Street, Drainage and Buildings Act. THEY want to sue, but the law gives the wrongdoers, in this case the Ampang Jaya Municipal Council (MPAJ) immunity from liability. In the Highland Towers case involving the same local council, a three-member panel presided by the then Chief Judge of Sabah and Sarawak Justice Steve Shim Lip Kiong and Federal Court judges Datuk Abdul Hamid Mohamed and Datuk Arifin Zakaria ruled that the MPAJ was not liable in the pre-collapse period as well as post-collapse period of Block One of the towers. They said local authorities such as the MPAJ were given full immunity under Section 95 (2) of the Street, Drainage & Building Act 1974 (Act 133) from claims for the pre-collapse period. Justice Abdul Hamid Mohamad said that if the local councils were made liable, it would open the floodgates to further claims for economic loss, and this would deplete the council’s resources meant for the provision of basic services and infrastructure. "Projects will stall. The local council may go bust. Even if it does not, is it fair, just and reasonable that taxpayers’ money be utilised to pay the ‘debts’ of such people? In my view, the answer is no," he said. "In my view, the provision of basic necessities for the general public has priority over compensation for pure economic loss of some individuals, who are clearly better off than the majority of the residents in the local council area," he said. He said a local council has an endless list of duties to perform for its residents and relied mainly on assessment rates and fees for licences. In his dissenting judgment on the post-collapse liability, Justice Shim said the MPAJ could not seek shelter because this was a case of negligence in failing to formulate and implement the master drainage plan so as to ensure the stability and safety of the adjacent Blocks Two and Three. He said there was an assumption of responsibility by the MPAJ to do what it had promised. "I do not think it would be in the public interest that a local authority such as the MPAJ should be allowed to disclaim liability for negligence committed beyond the expansive shelter of the law or other relevant provisions of the Act nor would it be fair, just and reasonable to deprive the respondents of their rightful claims under the law," he said. I would want to agree with Justice Shim. The simple reason that some of the people in the council are acting with impunity is because of the immunity. They don’t care if their decisions cause inconvenience, economic losses, damage, injury or even death. As far as they are concerned, they can line their pockets with their Napoleonastic decisions, but they cannot be liable and that their fat bank accounts cannot be touched. As I write these words, I am staring at a bundle of documents in which the (then) Petaling Jaya Municipal Council had authorised the trespass and occupation of private land. The case is before the courts and commenting on it would only invite the vultures who want to feast on what I write, but I care two hoots for the convicted felons and bribe-givers who think Terence Fernandez is easy-picking. In this instance, the trespasser is being sued and his defence is that MPPJ authorised the trespass. While MPAJ is not a party to the suit and if and when it becomes an intervener or a third party, the Section 95 defence would be the only option. Having said that, I want to question the wisdom of the people who incorporated this "do wrong and get away with it" clause in this very important piece of legislation. The Federal Court decision in the case of Steven Phoa and Others v Ampang Jaya Municipal Council further encouraged the corrupt practices, the high-handedness and the lawlessness of some council officials, including presidents, who enter into one-sided agreements with total disregard for the interests of the council’s coffers or the ratepayers. If this 2-1 decision is a precedent, then it gives the people in power to enter into millions, if not billion-ringgit deals; collect their commissions and be immune from prosecution or other forms of action by those who suffer as a result of such decisions. It is understandable if a decision is made inadvertently or on the basis of an oversight, which then becomes a mitigating factor. However, when it is done deliberately (perhaps for a fistful of ringgit) or with full knowledge of its implications or negligently, there should be no protection. It is ironic, immoral and unacceptable that we have a law that protects the corrupt and the wrongdoers. While attempts are made to have emergency motions debated in Parliament, it is hoped that one of our MPs will have the moral conviction to introduce a Private Bill to amend the Act, should the government fail to listen to the clarion call of the people. R. Nadeswaran agrees with the Charles Dickens character who uttered that "the law is an ass". He hopes our lawmakers will not only look into this clause but other obsolete and ridiculous ones in our statute books. He is editor (special and investigative reporting) and can be reached at:
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