The Court of Appeal needs more time to study the appeal against releasing the water concession agreement of the federal government, Selangor government and Syarikat Bekalan Air Selangor, along with the audit report, to interested parties and has therefore has deferred its decision to Feb 25.

The appeal was filed by the Water, Energy and Telecommunications Minister and the federal government against a High Court decision on June 28 last year granting the Malaysian Trades Union Congress (MTUC) and several individuals access to the documents classified under the Official Secrets Act.

Sitting in Putrajaya today, the three-member Court of Appeal panel said the issues raised required further deliberation and therefore they needed more time to arrive at a decision.

The bench was headed by Justice Zaleha Zahari, with the other members being Justices Abu Samah Nordin and Mohd Hishamudin Mohd Yunus .

"We do not really have time to discuss the matter due to the number of cases that we have heard. We also have to deliberate on the authorities and case laws presented to us," Justice Zaleha said.

mtuc cawp water tariff pc 171006 charles santiago Klang MP Charles Santiago ( right ), who is one of the respondents in the case, said the fact that the judges required more time proved the importance of the case, adding that "it will have far a reaching impact as what we want is transparency and good governance".

Santiago added: "The decision will have an impact on other similar agreements, including toll concessionaire deals, should the people want to view them. We hope the fact that the appellate court needs time will result in it upholding the High Court decision."

The MTUC and the other respondents sought access to the documents, which were deemed confidential, following a proposed price hike to the water tariff in 2006.

Besides this, they also sought:

  • A declaration that the applicants and general public have access to the audit report and water concession agreement;
  • Alternatively, a declaration that the documents are public documents and therefore not official secrets;
  • An order of certiorari to quash the decision of the respondents in denying them access to the documents; and
  • An order of mandamus to compel the minister to disclose the contents of the documents.

Landmark decision of the court

High Court judicial commissioner Hadhariah Syed Ismail in her 19-page judgment on June 28 last year said she was not convinced the disclosure of the documents would be detrimental to national security or public interest.

"In fact, I am of the opinion that the truth is the contrary," she ruled, saying that there must be a reasonable explanation why a document is classified as secret.

Hadhariah also agreed with the applicants' contention that the fact that the audit report was presented to the cabinet was not sufficient to justify its classification under the Official Secrets Act.

"It also cannot be, in the spirit of the OSA, to extend protection in cases where the government believes there will be public discussion and criticism against government actions," she said.

Having read the audit report herself, she concluded that it contained information relevant to the concession agreement, in particular the issue of raising the water tariff.

While she could foresee public discussion and criticism against the government, the concession agreement and audit report should be released in tandem as the report made certain comments and references to provisions and concessions in the agreement.

'Disclosure will serve public interest'

"The disclosure will serve public interest, in keeping the public informed of the workings of the government, as well as promote discussion on public affairs," she said.

"In this era of transparency, accountability and priority given to the needs of the rakyat... it is only fair that such documents be made public. I am of the view the court should lean in favour of the aggrieved parties in matters involving public interest."

Since the concession agreement was executed with public interest in mind, it was therefore in public interest that it be disclosed.

The judicial commissioner added: "What could possibly go wrong if what the public wants to know is whether the deal was a win-win situation, or a one-sided agreement benefiting one party only?

"Until and unless the agreement is disclosed to the public, it will cause anxiety to the public wanting to know about matters that affect their basic needs."