While I recognise that the Oxford English dictionary may not have such a word as \’piratising\’, it is the only apt word to describe what has happened to a \’local authority road\’ between SS2 and Damansara Jaya, Taman Megah, Kelana Jaya and Taman Tun Dr Ismail.
Today that local road is called the Lebuhraya Damansara-Puchong (LDP) and has become a privatized highway. To me, it is a \’piratized highway\’. Why and how?
I start with some very basic and fundamental questions about how this local authority road became a federal road. Who now really has final authority for this local road, if it has not yet been gazetted as a federal road? How did the federal government take over this local road? Under our Federal Constitution what basis or authority does the federal government have to change what is local into something federal? Does the Constitution really give such authority? Worse still, how could they privatise this locally approved and built road which was developed by property merchants explicitly for the use by local residents?
Under the Federal Constitution, are not local roads under the jurisdiction of local authorities or state authorities at best? Therefore, did the Petaling Jaya City Council (MBPJ) approve this transfer of our local road to the federal government only to be further handed over to a private merchant to rape and reap the local residents?
On Jan 1, the toll rates here went up by 60 percent and local residents are angered by this \’rape and reap\’ effect. In fact, this past week there have been many protests regarding this price-hike. I believe many of these protests are justifiable and valid. Local residents have a right to get angry and be upset, especially if it is true that the concessionaire is raking in millions from residents.
My questions
One day, out of the blue some time ago, in the name of the so-called privatisation policy of the then government, the SS2 local road was literally \’hijacked\’ to become a federal highway (presumably under the jurisdiction of the federal JKR).
My question: was there a Cabinet Paper and if so was it prepared by the Ministry of Works, and was it circulated for views by the other relevant ministries and departments especially related to this jurisdictional transfer of ownership or even stewardship? The question arises because this same local road was further designated to become a privatized highway and contracted out to a particular company on a BOT (build, operate and transfer) basis.
My further questions: What were the due processes used to sell the public property to private entities for a concession period of time? How were these private entities selected? Is not the selling of a concession the same as selling or disposing of any public property? Were the rules and procedures of the Financial Procedures Act followed in this time-based sale of public property?
In fact my real question is: Under what law and whose legal jurisdiction was this private and locally developed road given as a concession to private developers? Who really has the authority to do this? What due process must such a disposal of public assets follow? Does the Cabinet really have such authority to privatise without any due legal process? Was it clearly not a local road developed by the housing developers, according to the planning approvals for the use of local residents? How then can the federal government, namely the cabinet, privatise this local public road? Does the Federal Constitution even give such jurisdiction; if so, can the attorney-general or any constitutional lawyer point out under which clause this \’hijacking\’ of a local road can be so executed? Really then, is it not piratization? Am I wrong?
To add further insult to injury, this so-called highway is not even a very \”high way\” to me as a local resident and user of the road. I will give some personal examples to make my case. When the highway was first launched, they sold a gadget called \’fast-trak\’ for the ease of travel. All buyers paid a RM50 deposit for the gadget and its use for electronic deductions on a fast-track lane basis. Everything was fine for the initial period but after a while, especially at the Sunway Lagoon toll station, after you make your RM1 deduction you were caught in a traffic jam, bumper to bumper all the way until the Jalan Majlis exit in SS3, Kelana Jaya. Is this really the highway experience for which we were required to pay for? It was jammed most of the time and we actually paid the rates to be stuck in jams. After some time, and as if to throw the baby out with the bathwater, even this fast-track gadget became irrelevant as the specific concessionaire was \’forced\’ by the works minister to switch to the \’Touch and Go\’ system.
Most PJ residents ended up becoming the real losers and the recipients of yet another false and unfulfilled contract with a promise. Moreover, we also had to spend a lot of extra-time and extra money for the many detours around this now \’piratised federal highway\”. And, this, while the pirates are laughing all the way to the bank with greater and greater profits based on an illegal acquisition of an illegitimate contract. Am I wrong?
Before last week, neither the public nor Parliament had viewed or sighted the Litrak Concession Agreement with the Government of Malaysia. But, thanks to some risk-taking by Parti Keadilan Rakyat (PKR) information chief, even this hurdle has now been overcome. That contract has now become public property, thanks to some conscientiously objecting public servant who has chosen to release a copy, I believe, for public interest purposes.
Apart from the illegitimacy of the contract, even if approved by the cabinet, why should the contents of such an agreement be considered a secret. There should be nothing secret about it and in fact must become a public document if the Abdullah government is serious about their stated public policy of openness and transparency. There can be no integrity or uprightness if such contractual documents, which make-up a 40 year concession by the government of the day to a privately-owned company on a subject matter of public interest cannot be revealed. Am I wrong?
In fact, if the Malaysiakini report is anything to go by, Litrak the Concessionaire made a RM80 million profit for 2006, which is a 43 percent increase over its 2005 net profits. What then is the real basis for the public policy which supports such an increase, other than being a one-sided contract? Which rational party would continue a contract which is obviously one-sided? What more if this contract was executed in the so-called public interest but which is now shown to be in the private and not public interest? Does a one-sided contractual argreement ever hold? In fact, as an ex-public servant, I am sure that I can find sufficient grounds to find faults with any such contract; if there is the political will. Cannot the government retract a one-sided contract if in fact the government is serving the public\’s interest? Does not the government of the day have full legal and executive authority over such matters? Am I wrong?
Lawsuit perhaps?
Therefore, my final question is, can we the local residents of PJ not take the local authority to court for negligence in the stewardship of our public interest by allowing the \’piratization\’ of our local authority road? Can the local residents begin the process for what is called a \’class action suit\’ in the United States. Can we not consider the local government as the primary offending party, the state government as secondary party and the federal government as the \’aiding and abetting\’ party in such a public interest law suit? Am I wrong? Can some more qualified legal minds advice all of us on this matter?
While these are my questions, my good friend; an ex-public service colleague, MBA classmate, ex-Ministry of Finance officer, historian and neighbour has yet some other questions and issues, he has asked me to convey as well:
Is there no social responsibility for any such monopoly contract awarded, whether international or local, to undertake transparent price fixing? Is not non-transparent price fixing illegal in all such cases? It appears that the specific contract is one where those who are supposed to take care of public interest; as they are public servants, whether political or not, have failed miserably in their fiduciary duty to protect public interest. As such are they not therefore open to legal suits by those who are victims of such a process?
On the so-called legal issue of the Official Secrets Act; the legal maxim is that one cannot seek protection under the law for illegal acts. Can the government or any power that does things that are illegal therefore use the OSA to protect those that had failed in their fiduciary duties?
Despite being in the 21st century, our government and those who are directly involved in this case behave like feudal lords of the old
Whistle blowing is an accepted practice elsewhere in the world. I think that people should be encouraged to blow the whistle on such illegal, unethical and immoral practices, especially where public interest is blatantly compromised.
