The Federal Court, the highest court in our country, in the case of Highland Towers vs Eight Defendants, one of which was the Ampang Jaya Municipal Council (MPAJ), delivered its judgment on Feb 17.

The court held that MPAJ was not liable for the collapse of a Highland Tower, because subsection 95(5) of the Street, Drainage and Building Act 1974 exempted them from all and any liability, even if MPAJ had been partly negligent in carrying out responsibilities entrusted to them under the Act. This was a reversal of the earlier findings of the earlier High Court which held that MPAJ's liability was 15 percent.

Judges have the responsibilty to interpret and apply laws. In this present case, their interpretation of the pertinent clause in the Act, may well be correct. Nevertheless, the effect of the judgment has far-reaching and serious consequences on the rights of all Malaysians.

When Malaysians suffer because of acts of negligence committed by local authorities, they have no recourse whatsoever in law to hold local councils responsible for their negligent acts, even if the negligent acts endanger lives.

We can all remember with horror, the tragedy which occurred on December 11, 1993, when one of the Towers collapsed. The collapse of the Tower caused tremendous loss to 44 owners of apartments. More tragic was the loss of 48 lives!

The emotional pain suffered by surviving next of kin grieving for the deceased and injured loved ones, is incalculable and continuing. The Federal Court affirmed that MPAJ had been partly negligent for the collapse when it approved plans for a stream on the steep hillslope to be diverted.

The Federal Court also affirmed that MPAJ failed and neglected to maintain the diversion. The Federal Court also held that the combined effect of these two actions had " created a danger." The Federal Court held that notwithstanding these facts, the pertinent exemption clause precluded liability on the part of MPAJ.

Protecting lives

It is a well established principle internationally that the right to life is a fundamental human right, This principle has been endorsed by the United Nations and other human rights groups. What is more valuable among the core of human values than the right to life? It is therefore incumbent on the government of our country to take all necessary measures and enact laws to protect the lives of its citizens and to ensure their safety.

One such measure is that statutory bodies such as local councils, which have been entrusted with duties and responsibilities, inter alia, to ensure compliance with building requirements, are vigilant monitoring agencies.

That officials in local councils entrusted with power to enforce requirements, strictly adhere to all provisions under the bylaws of the Act and make certain that there are no violations pertaining to building requirements, environmental degradation, or other factors which could endanger the lives of people. If they are negligent in carrying out their duties, they should be held accountable.

In the United Kingdom and other developed countries, governments and local authorities take their responsibilities very seriously. Local authorities monitor at frequent intervals, all building and construction projects to ensure that safety standards are met.

Developers, architects, engineers, and contractors dread running foul of the law, because of the heavy penalties that are imposed if any of the requirements are violated.

Strictly liable

If the Federal Court's interpretation of the pertinent clause is correct, our government should with all urgency amend the exemption clause in the Street, Drainage and Building Act and other relevant laws pertaining to building and construction projects, to protect the fundamental right to life and safety of Malaysians.

Local councils which are given the power to enforce the laws, should be held strictly liable and penalties imposed if they fail or neglect in carrying out their duties. Apart from civil liability, provisions should be included in the Act to hold individual officials in local councils criminally liable in certain circumstances should they fail or neglect in carrying out their responsibilities and duties, as they affect the lives of Malaysians.

It has been repeatedly claimed that we are a caring society. If this is so, then first and foremost the caring should be to protect the precious life of each individual Malaysian. The lives of 48 people have been lost due partly to the negligent acts of a quasi government agency.

This is a case of great public interest. Furthermore there was a dissenting judgement by one of the three judges in the Federal Court. In these circumstances could not a move be initiated to convene a special sitting of a full Federal Court comprising of five judges, to review the decision of the Federal Court?

VICTOR OORJITHAM is a retired lawyer who works together with NGOs on local issues.