DAP urges an immediate repeal of Section 95(2) of the Street Drainage and Building Act 1974 to remove the legal immunity to local government councils from prosecution and liability in accordance with good governance, accountability, the legal and moral principle that those who commit wrongdoing cannot escaped unpunished but must be fully liable. Such a repeal would be consistent with the principles that no one is legally immune and Article 8 of the Federal Constitution that everyone is equal before the law.

Malaysians were shocked by the Federal Court decision that Section 95(2) of the Street Drainage and Building Act 1974 grants full legal immunity to Majlis Perbandaran Ampang Jaya and local government councils from prosecution and liability for any wrongdoings committed. Whilst DAP respects the decision made by the Federal Court in line with the principle of judicial independence, such a legal position is manifestly unfair and a travesty of justice that must be corrected by Parliament.

Section 95(2) of the Street Drainage and Building Act 1974 states:

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 provisions 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.

The Federal Court unanimously decided on 17.2.2006 that the local government council was legally protected against legal action even though they were found to be negligent and partly responsible for the collapse of the Highland Towers on 11.12.1993 after a landslide.  Forty-eight people were killed in the tragedy. Another 73 were affected when the two remaining blocks were later found to be unsafe and condemned.

Section 95(2) must be repealed to uphold the basic consititutional principle under Article 8 of the Federal Constitution that all persons are equal before the law, entitled to the equal protection of the law and expressly prohibiting discrimination except as expressly authorized by the Federal Constitution.  Section 95(2) should not be used as an escape clause for irresponsible, errant, inefficient and even corrupt local government officials who caused not only great financial losses but also loss of life as shown in the Highland Towers tragedy. If even Rulers such as the Yang di Pertuan Agung and the Sultans no longer enjoy legal immunity from prosecution there is neither logic nor rationale for local government councils to enjoy such privileges of legal immunity.

The Federal Court also held that local government councils’ main priority should be providing services to the public and  it was not "fair, just and reasonable" for taxpayers’ money to be used to pay for such damages because  it would deplete the resources it had to spend on services and basic infrastructure. At the present moment, local government councils have behaved in an irresponsible manner because they are appointed and not elected by the people.

The lack of democracy has resulted in a failure of accountability and transparency and a poor record of public facilities and services. Money which should be spent on public services are abused for “white elephant” projects and junket trips overseas. Something is very wrong in our laws if ratepayers can not get compensation for negligence and abuses of power by local government councils that result in financial losses or loss of life.

The latest Federal Court decision clearly benefits local authorities at the expense of the general public. Worse it may create an unhealthy impression that the local government councils can do no wrong and encourage them to behave in a reckless and irresponsible manner risking financial loss and injury to ratepayers.

Public interest, justice and accountability requires that Section 95(2) be repealed to protect the interests of ratepayers. If ratepayers can not seek recourse to the courts to seek justice and correct the wrongs committed by local government councils, then YAB Prime Minister must do so at the next Parliamentary meeting next month in line with the idealism of justice and fairness underlying the his administration. 

Yours faithfully,

TAN KOK WAI

CHAIRMAN

DAP RESTORE THE 3^RD VOTE COMMITTEE