VC George J:

(On encl. (13), (16) & (17))

Sometime in December 1986 the first defendant (UEM) was given what is known as a letter of intent, by the ministry of works under the hand of the minister of works, indicating that the Government of Malaysia was prepared to enter into a contract with UEM in respect of the construction and maintenance of the north south highway and certain other roads.

The plaintiff is a member of Parliament and the leader of the opposition in the Dewan Rakyat and in bringing this action claims to do as such and as "a taxpayer, a motorist and a frequent user of highways and roads in the country". He wants the Court to declare that the award of the letter of intent is null and void and for an order restraining UEM from entering into the contract that the letter of intent has reference to. Apart from UEM he has made the minister of finance, the minister of works and the government of Malaysia defendants to the action.

The plaintiff sets out the basis of his claim in the statement of claim that he has filed. Some of the more salient averments he makes are that UEM is a company in effect owned and controlled by a company called Hatibudi Sdn. Bhd. Hatibudi Sdn. Bhd. is owned and controlled by UMNO. The trustees of Hatibudi Sdn. Bhd. are certain UMNO leaders namely the Prime Minister, the Deputy Prime Minister, the Minister of Finance and the Minister of Agriculture. (Why a company should have trustees and what they are trustees of, is not explained). UEM has reported losses of over RM100 million. UEM is insolvent and its shares are suspended from being traded in the Kuala Lumpur stock exchange.

The plaintiff further avers that UEM had in August 1985 submitted to the cabinet through the Minister of Finance proposals for the "privatisation" of the North-South highway and certain other roads. Apparently they had also written directly to the Prime Minister. Apparently the cabinet deliberated on the UEM proposals and on the 29 January 1986 decided to go along with the proposal for the privatisation of the highway but directed the ministry of works to invite tenders in respect thereof with authority to the Ministry to "proceed with the project according to procedure after consultations with the Ministry of Finance." A great deal of interest was generated by the invitation for tenders and eventually submissions were received from 5 companies which included UEM, a company called Pilecon Engineering Bhd. (Pilecon) and another called Syarikat Pembinaan Hashbuddin (M) Sdn. Bhd. (Hashbuddin). The interested tenderers were given 3 months to put in their submission. The plaintiff says that this was too short a period and he also contends rather unreasonably that UEM having directed their mind to the privatisation of the highways earlier than the others had the benefit of a head start.

Counsel for the plaintiff suggest that the tender exercise was only an eyewash and that the decision was predictable that the award would be in favour of UEM. Whether it was in fact predictable or not, it was UEM that won the award. The letter of intent in favour of UEM was given in December 1986 and apparently on 4 January 1987 the minister of works publicly announced that "UEM has won the RM3.4 billion contract".

The real thrust of the plaintiff's complaint appears to be:

(i) The Prime Minister, the Deputy Prime Minister, the Minister of Finance and the Minister of Agriculture being leaders of UMNO taking part in the deliberations of the cabinet that considered the proposal by UEM(in which UMNO had a substantial interest) in respect of the privatisation of the highways that resulted in the cabinet deciding to proceed with the privatisation of the highways amounted to their being guilty of an offence under s. 2 of the Emergency (Essential Powers) Ordinance No. 22 of 1970. It is appropriate that the said s. 2 be looked at here. It reads as follows:

2.(1) Any member of the administration or any member of Parliament or the State Legis