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2012 MarsdenLR 203
COURT OF APPEAL PUTRAJAYA
MINISTER OF ENERGY WATER AND COMMUNICATION & ANOR – Appellant
Versus
MALAYSIAN TRADE UNION CONGRESS & ORS – Respondent
[Civil Appeal No: W-01-424-2010]
The court established that public interest and consumer rights can override confidentiality claims regarding governmental documents, affirming citizens' entitlement to access information impacting their basic needs.
Headnote:(A) Judicial Review - Courts of Judicature Act, 1964 - Official Secrets Act, 1972 - The court deliberated on the right to access public documents requested by a trade union regarding a concession agreement and audit report for water supply, denied by the Minister, citing confidentiality under the Official Secrets Act. The High Court granted access, asserting applicants’ locus standi due to their status as water consumers. The appeal addressed whether the applicants had the right to the requested documents and evaluated the Minister's obligations under the Act, concluding that the initial denial was unfounded as the documents do not classify as official secrets or private contracts. (Paras 12, 35, 50, 68, 76, 130, 157).
Findings of Court:
The court held that the applicants had a legitimate expectation of access to the documents that justified the judicial review application.
Issues: Determining locus standi of applicants and the nature of documents in question.
Ratio Decidendi: Locus standi was affirmed based on the applicants’ adverse impact from the Minister's decision, reinforcing the concept that public interest supersedes confidentiality clauses.
Result: Appeal dismissed with costs and High Court's order affirmed.
| Table of Content |
|---|
| 1. decision allowing appeal and costs ordered. (Para 1 , 9 , 36) |
| 2. factual background related to audit report requests. (Para 3 , 4 , 5 , 6 , 39) |
| 3. court's authority in assessing public interest and secrecy. (Para 12 , 19 , 25) |
| 4. legal requirements for disclosing documents per official secrets act. (Para 13 , 27) |
| 5. arguments regarding access and transparency in government. (Para 38 , 40 , 42) |
[1] This appeal was allowed by a majority with my brother, Mohd Hishamudin Yunus JCA, dissenting. My reasons in allowing this appeal are as follows.
[2] At the outset it is pertinent to state that the Government of Selangor (the 2nd respondent in the High Court), has been wrongly named a party to this appeal as the 2nd respondent did not object to the application in the High Court and did not participate in the proceedings culminating in the decision which is the subject of this appeal.
Background
[3] What transpired may be shortly stated. The Malaysian Trade Union Congress (MTUC), a society of trade unions (the 1st applicant in the High Court/1st respondent in this appeal), had vide letter dated 7 November 2006 to the Minister of Energy, Water and Communications, (the 1st respondent in the High Court/the 1st appellant in this appeal, subsequently referred to as "the Minister") requested the Minister to publicise/make public the agreement executed between the Government of Selangor, Government of Malaysia and Syarikat Bekalan Air Selangor Sdn Bhd ("SYABAS") dated 15 December 2004 ("the Concession Agreement") as well an Audit Report.
[4] By another letter dated 23 November 2006 (exh "RJ16") MTUC made another request to the Minister, this time to furnish to them a copy of the Audit Report and the Concession Agreement.
[5] The Minister responded to MTUC's requests in terms of letter dated 23 November 2006 (exh "RJ17") which, inter alia, states as follows:
"Untuk makluman pihak tuan, kementerian ini berpendapat bahawa Perjanjian Konsesi di antara Kerajaan Persekutuan, Kerajaan Negeri Selangor dan pihak SYABAS serta Laporan Audit tidak sesuai untuk didedahkan kepada umum memandangkan dokumen berkenaan adalah dokumen berperingkat yang dikategorikan sebagai "SULIT" dan "RAHSIA" Kerajaan."
[6] MTUC and 13 others (the 2nd to 14th applicants in the High Court/2nd to 14th respondents in this appeal) then, on 15 January 2007, filed an application for judicial review for the following reliefs:
a) a declaration that applicants and/or general public have a right to have access to the Audit Report and the Concession Agreement;
b) alternatively, a declaration that the Audit Report and the Concession Agreement are public documents and not Official Secret documents;
c) an order of certiorari to quash the decision of the appellants denying the applicants access to the Audit Report and the Concession Agreement;
d) an order of mandamus directing the Minister to disclose the contents of the Audit Report and the Concession Agreement to the applicants and/or the general public.
[7] In paras 3 and 4 of the statement filed pursuant to O 53 r 3 of the High Rules 1980 (the Rules), the applicants' advanced the following reasons to support their application. The applicants contended that the decision of the Minister denying them access to the documents in issue was unreasonable; that the Minister had failed to consider relevant considerations and considered irrelevant considerations. According to the applicants there was a breach of art 8 of Federal Constitution which required the Minister to act reasonably and in failing to give reasons for his decision contrary to the applicants legitimate expectation that the Minister would act in a responsible manner.
[8] In opposing the application on behalf of the Minister and the Government of Malaysia (the 3rd respondent in the High Court/2nd appellant in this appeal), paras 5 and 7 of the affidavit affirmed by Japar bin Abu on 18 January 2008 states as follows:
"5. Saya menegaskan di sini bahawa Perjanjian Konsesi di antara K
