Friday, October 31, 2008

When the judiciary is seen to be 'pro-government(executive)"? - the Nipah Virus case

When judges and courts go all out to protect the government(executive) of the day...then justice fails...then the 3rd branch of government, the Judiciary, has failed...

What happened in the Nipah Virus case is just one such such example - the High Court could have just ordered that certain persons be joined as parties in the suit - which I believe, would have been most just and reasonable, but alas the Court struck off the suit...

Briefly, the case was about :-
A group of 184 individuals affected by the deadly Nipah viral outbreak four years ago had filed a legal suit totalling more than RM130 million against the federal government and several state governments at the Kuala Lumpur High Court.

The plaintiffs — pig farmers, families of deceased Nipah victims and survivors — named the federal government, and the state governments of Negeri Sembilan, Perak and Selangor as defendants in their statement of claim.

They are seeking various damages, including special damages for the loss of pigs, damage to farm facilities, medical and funeral expenses, which amounted to more than RM130 million.

The plaintiffs are also seeking various declarations against the defendants in the suit which was filed in March, but served on the defendants over the past three days.

Among others, they claim the governments had breached their duties, committed negligence and fraud and unlawfully deprived the plaintiffs of their fundamental rights in their handling of the Nipah outbreak between Sept 1998 and May 1999.


Claiming for negligence, the plaintiffs had among others, argued that the governments which are entrusted to ensure the well-being of its people, had among others, failed to take sufficient steps to determine the cause of the outbreak when it first occurred in Perak.

They claimed that the federal government and Perak state government “came to the conclusion that the outbreak in Tambun area was due to Japanese Encephalitis (JE) without any or sufficient cause”.

The plaintiffs also claimed that the federal government had committed fraud when it had, among others, allegedly proclaimed in 1999 that the transmission rate of the Nipah virus was very low, and was not certain whether the Nipah virus was a pathogen.

The government had also allegedly stated that the outbreak was due to JE and not Nipah virus, but later said that the disease was due to both JE and Nipah virus.

They argued that the government knew that the statements were false but made them to induce Malaysians to believe that the authorities had taken all the necessary steps, and were acting in the interests of the people.


The plaintiffs added that such statements were also made so people would believe that the government had not committed a mistake in declaring that the outbreak was due to JE, and not Nipah virus....

...The Nipah virus outbreak which started in late Sept 1998 occurred in various areas from Perak to Negeri Sembilan.

The outbreak was reported to have killed more than 100 people and crippled the pig-farming industry in Bukit Pelanduk, Negeri Sembilan, which is believed to be the biggest in Southeast Asia.- Malaysiakini, 10/5/2002 - Nipah victims filed RM130 million suit against gov’t

And, in November 2004, the High Court struck off the case ...

The Kuala Lumpur High Court has struck out a suit from a group of 184 Nipah virus victims against the federal and state governments on the ground that the plaintiffs have not identified the government officers who caused their damages.

Judge Azmel Maamor said the court could not determine whether the federal government and the Negeri Sembilan, Perak and Selangor state governments were responsible for the damages, including culling their pigs, as their officers were not identified and were not called to defend themselves in court.

“The vicarious liability should not be imposed against the defendants named in this case. They are statutory bodies, they could not conduct the tort by themselves,” Azmel said.

“The tort could only be done through the government officers who carry out their task, and if that is the case, the related government should bear the vicarious liability,” he added.

He said if the officers were found guilty after being tried, then their respective employer - either the federal or state government - would therefore be required to assume responsibility.

“It is unfair and unreasonable to ascertain a government officer is guilty without giving him an opportunity to defend the allegations brought against him,” Azmel added.

Expected to appeal

He pointed out that the procedure to name the individual officers was necessary as stipulated in the Government Proceedings Act 1956 and noted that his decision was made on the precedents laid down in several previous cases.

Azmel has made the ruling to dismiss the suit on Feb 5 this year but reserved his judgement. His judgement was made available recently.

A copy of the judgement was obtained by malaysiakini and the group is expected to appeal to the Court of Appeal. ... - Malaysiakini, 4/11/04 - Officers not named: Suit from pig farmers struck out

It was good that in April 2005, the Court of Appeal allowed the appeal...

The Court of Appeal has directed the government to enter its defence against a suit brought by 184 victims of the Nipah virus outbreak in 1999.

They had appealed against a Kuala Lumpur High Court decision last February to dismiss their RM130 million suit, on grounds that they had not identified the government officers responsible for the damages.

Today, however, a three-member bench comprising Justice Gopal Sri Ram, Richard Malanjum and Hashim Yusoff decided there was no need for the appellants to name all the officers involved and the co-defendants.

File defence

The court also directed the government to file its defence by June 30 and set the matter for case management in the high court on April 20 - Malaysiakini, 6/4/2005 - Govt ordered to enter defence in Nipah claims case
Now, the Federal Court on 30/10/2005 struck off the case...
A three-member panel, led by Chief Judge of Malaya Arifin Zakaria, unanimously decided this morning to uphold a High Court decision to dismiss the multi-million ringgit suit.

The two other judges were Nik Hashim Nik Abdul Rahman and Zulkefli Ahmad Makinudin.

bukit pelanduk pig farmers case trial 301008 02“The respondents’ (victims’) case was so untenable and doomed to fail both on the facts and the laws,” said Nik Hashim, who read out the 24-page judgment.
...Agreeing with the earlier decision that the government officers had not been identified, justice Nik Hashim said today the action could not proceed as a wrong party had been named.- Malaysiakini, 30/10/2008 - Heartbreak for Nipah virus victims

Was Justice Done? I say it was not done....the Judges got bogged down with technicalities...and were not interested in proceeding on the merits and deciding in the interest of justice... how sad.

So, they did not name the officers of the government, Defendants.., and the court could have so easily cured that by ordering that the said persons be added as parties..

And who may these be -- all the workers/officers at the ground, their supervisors, their head of departments, their District heads, their State level heads...etc..- and sometime it is not difficult for the lay person to know all their names. For many, they were just government officers or police or RELA officers - names are immaterial. Try getting the names and you will see how difficult it is... We got OSA (Official Secrets Act...) and so we cannot even go and check the records to find out the names of the persons concerned...

The law about persons who were not joined as parties when they should have been is clear - and the Court also can join them without any application from any party...

(1) No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application-

(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b) order any of the following persons to be added as a party, namely-

(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.

(3) An application by any person for an order under paragraph (2) adding him as a party must, except with the leave of the Court, we supported by an affidavit showing his interest in the matters in dispute in the cause or matter or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter.-Rule 6. Misjoinder and non-joinder of parties. (O. 15 r. 6) - Rules of the High Court 1980

So what happened - why did the Judges not exercise the power that they did have to add in persons that they felt should be parties in the suit?

Well, the Federal Court decision saves the Government -- from having the case heard on the merits, and possibly an order that the Government pays damages at the end of the day...

Well, can't they not just file another suit.... well against Government, generally suits must be filed within 3 years -- so no more chance.

And, I wonder whether the courts also awarded cost ... mmm, that means not just you never get your case heard - but you also end up paying COST to the government...

Where is the JUSTICE?

With the new appointment of Zaki Azmi as the head of Judiciary - noting his past ties with UMNO, persons in government, and some businesses..., I doubt that things will improve...

The judiciary must be independent of the executive and the legislative - They are where the normal people will run through to seek justice for things done (or not done) by the government - but this Federal Court decision will surely 'deter' any person/s from taking cases against the government...

Technical and procedural non-compliances etc.... should take the back seat when it comes to the courts and justice. Our priority is to get down to the merits of the case and to decide justly...

* My opinion is based on the facts obtained from the various reports. I will appreciate that others who may have more facts or differing opinions to post your comments here as well.

1 comment:

bn haramjadah said...