184 Plaintiffs commenced legal action against the Federal Government and the Governments of the States of Perak, Selangor and Negri Sembilan. They were made up of farmers, workers, dependants of persons who had died and persons who had suffered personal injury, all having suffered injury from the so-called Japanese Encephalitis outbreak of 1998. They claimed that the Governments had mishandled the situation, misdiagnosing JE when it was in fact something very different and more dangerous, Nipah Virus. They claimed that the Governments had tried to cover this up, insisting that it was JE even when it became clear that it was not.
The High Court struck out the action on a technicality in 2002, taking the position that the specific agents of the government who had done wrong should have been joined, instead of just the Governments. Leaving aside the fact that this was impossible, bearing in mind the number of persons involved, there was (as we saw it, and still do) no legal requirement for this to be done.
The Court of Appeal reinstated the action in 2005, taking the position that there was no need to do so and that this was an appropriate matter to be taken to trial, it being amongst other things in the public interest.
The Federal Court granted leave to the Governments to appeal and heard the appeal yesterday. Six years later, we are still dealing with preliminaries.
The Star carried a report today. It says it all. Whether the Plaintiffs get their day in court is up to the Federal Court.
Note that the proceedings at this stage are merely at the preliminary stage. What was said was based on what has been set out in the claim of the Plaintiffs. These facts have as yet not been found to have occurred
Senior Federal Counsel Datuk Mary Lim submitted that the provisions provided by legislation offered absolute protection.
She said this was even more so when the orders made by the chief ministers in the affected states for certain actions to be taken over the existence of viral encephalitis in animals, including culling, had gone unchallenged.
Lim, representing the Federal Government and the state governments of Perak, Selangor and Negri Sembilan, was making submissions in an appeal against a suit filed by 184 pig farmers and the next-of-kin of those who died during the epidemic.
The senior federal counsel also argued that the suit was defective because it named the Government as the principal defendant for tort or a breach of a person’s rights.
She said this contravened the Government Proceedings Act 1956.
“You cannot sue the Government directly for tort. You can only sue the Government vicariously,” she said, adding that those who had committed the torts had to be made parties to the suit.
Malik Imtiaz Sarwar, counsel for the plaintiffs, argued that the question of immunity was based on law and facts, and that these protection provisions were applied provided the necessary elements were fulfilled.
“However, based on our pleadings, there was a great deal of misdemeanour on the part of the Government,” he said.
Citing examples, Malik Imtiaz said the Health Minister had reiterated on several occasions throughout the epidemic, which started in September 1998, that Japanese Encephalitis (JE) was a disease affecting the animals.
The minister, he said, had even assured the public that consumption of pork was safe, as JE could not be transmitted that way.
The lawyer pointed out that an expert who had suggested the possibility of another type of virus had also been reprimanded for questioning the “official theory”.
Malik Imtiaz said it was only in March 1999 that the Centre for Disease Control in the United States identified the virus as a new strain – subsequently named the Nipah virus – and classified it as P4, a pathogen that could only be handled by personnel in safety suits inside a secure lab.
“All the while, we had the Health Minister telling people to eat pork and that it was safe,” the lawyer submitted.
On the contention that the Government could not be sued for tort as a primary defendant, Malik Imtiaz agreed with Lim but pointed out that the suit had spelt out that the Government acted through its agents.
However, he disagreed that those agents had to be named as defendants in the suit saying it was only necessary to identify them and establish the liability.
Justices Arifin Zakaria, Nik Hashim Nik Ab Rahman, and Zulkefli Ahmad Makinudin reserved their judgment to a date yet to be fixed.
The suit, filed in 2002, was struck off by the High Court the same year before the Court of Appeal restored it in 2005.