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Wednesday, July 16, 2008

6 Years...

... and counting.

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

Outbreak actions protected by law

PUTRAJAYA: The Government’s actions in addressing the 1998-99 Nipah virus epidemic are protected by law, the Federal Court heard.

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.


Anonymous said...

If simple logic that any default should be accountable by the defaulter. I believe the Government is right to say the Federal Government should not be the only one to be sued.

However, with the Public Authority Protection Act and the Publice Service Act imposed. The Federal Government cannot say others should be involved when they had been relaxing on those who directly should be responsible.

As the situation stand, should the Federal Government takes a Third Party Proceeding to pass some of the Liability to those they think are liable if they are agents or contract parties to guide their (wrong?) decision making?


Anonymous said...

“All the while, we had the Health Minister telling people to eat pork and that it was safe,” the lawyer submitted.

That, is some messed up sh*t. Am in shock. But, this is the case in Malaysia isn't is, non-experts pretending to be experts. It extends to so many areas of our lives. Not just health, but even down to building infrastructure and landscaping.

So many bothced up jobs at the rakyat's expense, usually the tax payer's expense, but this? This is a travesty of justice.


Mr. Smith said...

Each time there is a scandal, rumour or allegation, the government's first reaction is to deny, cover up and then attack the "messenger".
Of course it has the newspapers and TV to brainwash the gullible with the government's version.
Yes, I remember Datuk Seri Chua Jui Meng was the Minister then and he was damn sure - as sure as the sun rises - that it was the JE virus and eating pork, as long it is fully cooked is safe.

Anonymous said...

Sdr Malik, permit me to repeat a question which I posed in your earlier post:

I am trying to understand the legal aspect of two seemingly contradicting actions by the police: on one hand a person against whom a report was made was arrested (very roughly at that as if he was the mafia boss or a hitman). On the other hand several other persons against whom a report and a declaration under oath were made for a far more serious crime were allowed to continue to enjoy life without any investigation initiated, let alone being arrested. In fact the person who made the report had instead been arrested!

I cannot reconcile this. The actions were very inconsistent. What does the law say. Or has the police complete freedom to decide which way to act (or not act) on different cases.

Thank you

Anonymous said...

The Medical Records of those patients are the fundamental basis for the facts finding for clinical symptoms, treatments, tests conducted. A thorough comparison needs to be conducted to justified the claim. Had clinical symptoms and virology been compared?

However, are they available and how genuine those records are provided is another key point to find.

The medical report I got after assaulted by a lawyer can see there are much space to move around from a medical record to a medical report!

Anonymous said...

The Federal Government has no way to escape from the liability, especially as no one else can handle the epidermic disease.

Key points would be:
1. Whether the Lab had thoroughly checked to identify the disease.
2. Whether the medical personnel had queried if it could be disease other than JE from the symptoms.
3. Whether the administration had been honestly doing their utmost possible with the information they received.
4. Whether the medical and administration are aware of other similar disease than JE during the period, such as Hendra Virus.

Poor administration, conflicts between departments and personnels and the lack of openness and transparency among the offices could very much be the basis of repeated medical errors or disasters.

If following can be experienced in a big and important GH, I believe there are much space to be improved in GH.

1) With a up-surf of pressure from a normal 110 to 158 even after 7 hours of an incident with blurring of vision, X-ray was taken instead of CT. When the symptom remained for over a day, X-ray was taken again but no CT of the head.
2) Inward Department refused to take reference from the Outpatient or vice versa for the same patient within the period.
3) It took more than half day to have the X-ray when the X-ray department can do it within half an hour after patient personally checking with the X-ray department.
4) A medical report of one page took more than two months to complete on a one day ward. The wordings lead to a conclusion of Well when admitted and Well when discharged even symptoms remain and some even worsen.

HAD PROFESSIONALISM BE FOUND? But, GH is meant to be a cradle for many "professional" to come!

Malik Imtiaz Sarwar said...

Saudara Idris,

firstly, my apologies for the late reply.

The decision to investigate or not is very much left to the discretion of the police. However, the assumption is that the police will take steps to discharge their duties fairly and equally, without discrimination and in accordance with the law. Selective investigation is arguably a breach of this duty and is therefore not correct in law. If legal procedures are utilised incorrectly, and I say selective investigation is incorrrect use, then in law this considered to have been done in bad faith.

The courts have however been reluctant to allow for review of decisions not to investigate or to investigate as the case may be.

I hope this has been of assistance. My apologies again.


Anonymous said...

You don't get it. Your lamentation of lost of our rich tapestry should have been a serious warning.

Given that there are 3 million largely Muslim migrant labour in this country and it will never go down, this country is likely to be more than 80% Muslims-Malay&Malayliked eventually. Its already gone...