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Time to scrap immunity of authorities
30/12/08 NST By Salleh Buang

Section 95(2) of the Street, Drainage and Building Act 1974 (Act 133) may be difficult for lay persons to comprehend fully and I, therefore, reproduce a portion of what's relevant here.

It states that "the State Authority, local authority and any public officer... 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 and any by-laws made thereunder ... and nothing in this Act or any by-laws made thereunder shall make it obligatory for the State Authority of the local authority to inspect any building, building works...to ascertain that the provisions of this Act or any bylaws made thereunder are complied with ... "

In a nutshell, it says that a local authority and its officials are immune from any action or claim arising out of any building or other works. It also says that neither the local authority nor its officials are obliged to carry out any inspection to ensure this Act or any by-laws are complied with.

In simple language, it says (from the local authority's point of view), "You can't touch me. If I carried out my job under the Act and I did badly, you can't sue me. If I don't do my job under the Act, you also can�t sue me."

It is a total, ironclad and watertight protection from any civil suit for any action or inaction.

The Highland Towers tragedy

In the aftermath of the Highland Towers tragedy (which took 48 lives), a civil action was filed by 73 plaintiffs against 10 defendants. The local authority (MPAJ) was named as the fourth defendant.

At the High Court, Justice James Foong held that although the local authority was indeed negligent in respect of its duties associated with building (approval of building plans, drainage system during construction, and issuance of Certificate of Fitness), it was nevertheless immune from liability under section 95(2) of the 1974 Act. However, MPAJ was not immune in respect of its negligence in carrying out its post-building functions of maintaining the East Stream.It was also held liable in nuisance.

The plaintiffs' victory at the High Court was, unfortunately, shortlived. When the case reached the Federal Court, the highest court in the land, by a majority decision (2:1), held that MPAJ was immune from liability.

Justice Abdul Hamid Mohamad (who delivered the majority verdict) said if local authorities were to be made liable, it would open the floodgates to further claims for economic loss, and this would deplete their financial resources needed for the provision of basic services and infrastructure to the general public.

Ask your lawyer friends for their reaction to this "floodgate theory" floated by our judiciary. They would probably say if the English House of Lords had held on to this floodgate theory, the modern law of negligence will not be what it is today.

Abdul Hamid further held that it would be unfair for rate payers' money to be used to pay out damages for the local authorities' negligence.

"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.

Justice Steve Shim, who delivered a dissenting judgment, said MPAJ could not seek protection under section 95(2) of the Act because it was negligent in formulating and implementing the master drainage plan necessary to ensure the stability and safety of Blocks Two and Three.

The learned Judge said, "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 Section 95(2) 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."

In evaluating the Highland Towers final verdict, the question any right thinking Malaysian should ask was "has justice been done to the plaintiffs?"

Phang Ah Heng, who lost three members of his family in the Highland Towers tragedy, regards the Act as a "bad law" that must be revamped to prevent similar tragedies in the future.

"Amend that law. Make local councils responsible and accountable for what they give approval for," he said.

Fifteen years ago, soon after the Highland Towers incident, the government announced a complete ban on hillside development. Did that ban last?

After the recent Dec 6 Bukit Antarabangsa tragedy, a similar ban was announced. Do you think this time it will be any different?

I wonder whether anybody is right now drawing up a petition calling for the scrapping of this legal immunity for local authorities. I am sure a large number of Malaysians would gladly sign that petition.

At one point in time more than 30 years ago when Act 133 came into force, perhaps there was a need for local authorities to be given legal protection from civil suit.

But we are no longer in 1974. We are now in the 21st century, in an age of transparency and accountability, with our leaders talking and promising to practise good governance.

Let us walk the talk.

Scrap the immunity and make the local authorities accountable to their residents.

 

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