LOCUS STANDI AND THE RIGHT TO SUE
Most people don’t sue government and its officers because of fear and ignorance in the mistaken belief that they- government- can’t be sued.
The fact that the Supreme Court in Malaysia overturned the Lim Kit Siang definition of Locus Standi in MTUC vs Bekalan Air Selangor Sdn Bhd (Syabas), offers cold comfort to those claiming the issue of standing. It offers even less over how that principle of standing has since been broadened in its meaning and in its application in the UK an Australia since.
In Lim Kit Siang (1988) The Supreme Court ruled that Lim had no locus standi to bring an action as he had failed to show that his private right had been infringed upon or he had suffered a special damage.
The later case of MTUC vs Bekalan Air Selangor Sdn Bhd (Syabas) which initially recognized the broader meaning of locus standi was defeated in the Court of Appeal by the respondents having convinced the Court of Appeal that the audit report sought by the plaintiff was in fact a document covered by the “official secrets act” and therefor not disclosable without a certificate from the relevant minister.
However no one in the legal fraternity had noticed that the matter of the audit report being “an official secret” had not been pleaded in the courts below nor had it been raised as a defence prior to appeal.
Now getting back to what locus standi really means and how each and every one of us may in fact have locus standi to bring an action where a matter is in the domain of the Public Law some commentary in the subject by learned judges elsewhere in the commonwealth may be necessary.
THE PUBLIC HAVE RIGHT TO SUE IN PUBLIC INTEREST MATTERS
Environmental group Greenpeace was granted standing in R. v. Inspectorate of Pollution, ex parte Greenpeace Ltd in another matter of Public Law and public interest. This was a matter which sought to challenge a proposed license for a nuclear power plant. The High Court in the UK identified Greenpeace as a “responsible and respected body with a genuine concern for the environment” in a watershed decision granting them standing to pursue the litigation.
This decision is widely seen as the basis upon which the principle of “representational standing,” or “third party standing,” is grounded. The principle gives power to third parties (public interest groups) in lieu of others who would have enjoyed traditional standing in the matter. Another English decision Ex parte Richard Dixon (20 April 1997), continued the liberalization, and the exposition of the viewpoints that Public Law is about duties, not just rights and damage. Justice Sedley wrote:
“Public Law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs — that is to say, misuses of public power; and the courts have always been alive to the fact that a person or organization with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well-placed to call the attention of the court to an apparent misuse of public power. . . .”
This particular point(s) raised by Justice Sedley and later supported by other courts should serve as a warning to Dr. Mahathir and his supporters and any other public official present or past who has engaged in the abuse of power that they too are subject to “The Rule of Law” and its consequences.
WHY MAHATHIR’s ADMISSION ABOUT ANWAR’S INNOCENCE MUST BE TRIED – HE MUST RESIGN
Specifically in Dr. Mahathir’s case what comes to mind is Mahathir’s outrageous admission that Anwar Ibrahim is innocent of the charges against him. A statement Dr. Mahathir made prior to his 10 May request to the King of Malaysia to pardon Anwar Ibrahim. One would recall that it was Dr. Mahathir who when prime minister of Malaysia in 1997 had Anwar Ibrahim arrested and subsequently tried and jailed on charges initiated and proffered against Anwar Ibrahim by Dr. Mahathir personally. His culpability extends to himself as prime minister and as chief executive of his government till 2002.
The only inference one can draw from that recent comment by Dr. Mahathir that “Anwar is innocent” is that he Dr. Mahathir had lied to parliament, the courts, to the nation and to the world at large that Anwar was guilty of a number of offences at the heart of which was the charge of sodomy.
Dr. Mahathir by his recent admissions is therefore unfit to hold office as prime minister today. He must step down or face the prospect of an action against him for abuse of public office, perjury and failing to disclose his involvement in a number of jailable offences he had committed during his tenure in office previously prior to his retirement in 2002. He is as liable to arrest today as Anwar Ibrahim was when Mahathir ordered the former’s arrest and jailing in 1998. A precedent has been set.
MAHATHIR’S PAST MISCONDUCT IN OFFICE IS AN OPEN SECRET
Many of those matters of Mahathir’s misconduct in office and abuse of power are the subject of further private investigation till today. The investigation includes material secured from the offices of law firms dating back to the mid 1980’s.
In the early 1980’s court and lawyers records show a claim was filed against Dr. Mahathir’s bagman Vincent Tan (and others) over a breach of contract concerning the issuance of licenses to Tan and his associates by Mahahtir’s government with Mahathir’s knowledge. This is but one of many sources of Mahathir’s and Vincent Tan’s involvement in corruption during the earlier Mahathir era.
A claim and statement of claim was drafted by former Court of Appeal justice Gopal Sri Ram (then a lawyer) which was tardy, imprecise, embarrassing and lacking in any particulars to succeed. The matter was eventually settled amicably out of court between the plaintiff and defendants some 20 years on. Dr. Mahathir was astute enough not to leave his ‘fingerprints’ on any of the documents or participate directly in negotiations to that transaction. Regardless the evidence shows he had full knowledge of and consented to the grant of that license without any public tender being called.
There is more. Much more which goes to the unlawful financing of Yeoh Tiong Lay’s purchase of a power utility company and the siphoning of commissions and profits from the Maminco deal which made multi-millionaires out of many in the tin mines in Perak. All of these documented. The point here is the selective use of the courts and the laws to prosecute. That’s not the “Rule of Law”. Lawyers and witnesses talk as they grow older and talk many of them have done.
These are but a few of several examples of transactions involving Dr. Mahathir and his previous government which was clearly an abuse of power and authority in government. Each of the myriad of transactions was and remains actionable as no limitation period applies to criminal offences.
THE SELANGOR STATE EXECUTIVE AND THE MISUSE OF POWER AND PUBLIC FUNDS
Further and in reviewing the actions of the Selangor State Executive and its contributions of state money to Bersih disclosed by Ambiga Srinivasan on Malaysia Kini YouTube in 2012, the following further case is relevant in the context of the abuse of power: Bateman’s Bay Aboriginal Land Council. It concerns the misuse of public funds.
There is a plethora of public power abuse cases which confirms that ordinary people or corporations and organizations such as UMNO and others like them have the standing to bring against government. No one is immune to the law not even Dr. Mahathir, nor his past, his present nor his interpretation of the “rule of law”.
Relieving Lim Guan Eng of a court order to stand trial on charges of corruption is not the prerogative of the executive. That’s interference with the courts and the judiciary. Guan Eng’s incompetence as a minister comes in the wake of his halving of the state debt in a matter of days after claiming the previous government left a debt of 1 Trillion MYR a mythical figure plucked out of thin air by Mahathir and Guan Eng. A responsible minister would have resigned in he face of such an embarrasing scandal. Not Guan Eng.
EVEN THE PRESIDENT OF THE USA SOMETIMES HAS TO STAND NAKED
Even the Pope and the President of the USA is subject to the law. Pope Benedict now a prisoner of the Vatican is restricted in his movements only inside the Vatican. He faces arrest outside of it.
Richard Nixon had to step down in the face of Watergate. In this day and age of no impunity, Mahathir and everyone else like him has to beware. Threatening and jailing those he does not like has no place in any civilized society anymore.
Mahathir has yet to answer for a number of criminal offences none of which have gone away. That’s because the prosecution of crimes is not statute barred.