Samy Vellu is wrong for Cabinet is not a court of law and cannot take the “final decision” on whether PLUS has the legal powers under the NSE concession agreement to impose arbitrary and unfair “overstaying fines” on motorists
by Lim Kit Siang
(Ipoh, Friday): The statement by the Works Minister, Datuk Seri S. Samy Vellu after the MIC central working committee meeting in Kuala Lumpur yesterday that the cabinet will make a final decision next Wednesday on whether PLUS Expressway Bhd., the concessionaire of the North-South Expressway (NSE), can impose fines on those found to have spent an excessively long time on the expressway (Bernama) is most astounding and shocking, betraying a most elementary ignorance about the important doctrine of separation of powers in the country.
What “final decision” is Samy Vellu talking about? Is he implying that the Cabinet has usurped the powers of the judiciary to adjudicate on legal rights and issues.
Samy Vellu is wrong for the Cabinet is not a court of law and is not the final body to adjudicate on whether PLUS has the legal powers under the NSE concession agreement to impose arbitrary and unfair “overstaying fines” on motorists
The answer as to whether PLUS, as contended by its managing director Datuk Idrose Mohamed, has the right and power under the NSE concession agreement to impose arbitrary and unfair fines on motorists for overstaying in the NSE is a simple and straightforward one, and is to be found in the terms and conditions of the NSE concession.
The PLUS management has not only claimed that under the NSE concession agreement, it has the right to operate and manage toll collection along the highways and that “the exercise to detect and curb fraudulent toll transactions is part of efforts to safeguard the integrity of the collection system”, it has also given notice that it proposes to insist on its legal rights under the concession by re-imposing the “overstaying fines” for NSE motorists to deal with toll cheats.
There is no need for Samy Vellu to go on a wild goose’s chase and demand elaborate reports and studies on toll cheating, as the issue is whether PLUS has been given the legal rights under the NSE concession agreement to be “a law unto itself” to impose arbitrary and unfair “overstaying fines” in order to deal with toll cheats.
It is downright outrageous and scandalous that as Works Minister as well as the Cabinet member chiefly responsible for the NSE concession negotiations in 1987, Samy Vellu does not know what rights of the Malaysian public the government has signed away to PLUS in the NSE concession.
All Samy Vellu needs to do now is to refer to the NSE concession agreement for the answer as to whether PLUS has the right to impose arbitrary and unfair “overstaying fines” on NSE motorists. If he does not understand the meaning of the terms of the concession on this question, he should ask the Attorney-General, Tan Sri Gani Patail to give his legal opinion as to whether PLUS has been given such legal powers.
The question of the Cabinet making the final decision whether PLUS can impose arbitrary and unfair “overstaying fines” does not arise, for the decision has already been made and is to be found in the NSE concession. There is also no need for the Cabinet to be bogged down with the technical details of various forms of toll cheating and how to counter them – as if the Cabinet does not have more important things to do!
Samy Vellu should study the NSE concession as Malaysians are entitled to be told as to what remedies are available to the Cabinet and the public if PLUS arbitrarily re-imposes “overstaying fines” on NSE motorists in two scenarios - legally and illegally.
Firstly, what remedies are open to the Cabinet to protect the motorists if the NSE concession has given PLUS the legal right to impose arbitrary and unfair “overstaying fines” on NSE motorists? Will the Cabinet have to plead with PLUS not to exercise such legal rights by asking for re-negotiations and offering compensation?
Secondly, what remedies are available to the Cabinet if PLUS does not have such legal powers under the concession, and the “overstaying fines” are clearly unlawful and in breach of the NSE concession? Can the Cabinet terminate the NSE concession for such a breach by PLUS?
Or is Samy Vellu unable to answer both questions?
Samy Vellu is obliged to give answers to these questions to the Malaysian motorists and the public as the NSE concession agreement is still a secret document 16 years after it had been signed.
An important thing Samy Vellu can do in the next Cabinet meeting is to secure endorsement for a new policy to make public all privatization agreements, starting with the NSE concession agreement – in line with the promise by the Prime Minister, Datuk Seri Abdullah Ahmad Badawi for a more open, accountable and transparent administration.
* Lim Kit Siang, Parliamentary Opposition Leader, MP for Ipoh Timur & DAP Central Policy and Strategic Planning Commission Chairman