Wednesday, January 21, 2009

Flash floods a matter of ‘good faith’

Reported by P Stek in Malaysiakini on 20.1.2009

Civil servants and local authorities cannot be sued for the decisions they make, provided they act in “good faith”. Because the current legal interpretation of “good faith” is very narrow, it is very difficult to hold local governments accountable for their decisions. Even if federal planning and design guidelines are ignored, local authorities cannot be sued. “Section 95 of the Street, Drainage and Building Act 1974 grants immunity to the state and immunity to civil servants if a decision is made in ‘good faith’, but is a decision in ‘good faith’ if it is in disregard of existing policies, and repeated complaints by residents or warnings by experts?” asks Derek Fernandez, city councillor for Petaling Jaya. Fernandez explains that civil servants often make bad planning decisions because of political pressure from city councillors or state officials. “Some are corrupt and close their eyes to the dangers,” says Fernandez, adding that local authorities often lack independent expertise. They rely heavily on the developers’ experts to make decisions. The consequences of planning failures are significant. Flash floods caused by poorly-planned development continue to cause significant damage. “These are not natural disasters. A natural disaster is when a river in a forest floods. These are our disasters, they are caused by human error,” says Piarapakaran Subramaniam from the Federation of Malaysian Consumer Associations (Fomca). “Old development areas were designed for their own water runoff generation. When huge drains from new developments are connected, the old drains are simply under-designed,” explained Subramaniam.

Once a flash flood occurs, the local government’s response is often inadequate.
“The way (Kuala Lumpur City Hall) solves the problem is that they unclog a particular drain, but they never look at the whole system. Following a heavy downpour the water simply has nowhere to go,” says Lim Lip Eng (DAP-Segambut), whose constituency is regularly hit by flash flooding. “City Hall overlooked drainage in the Draft Kuala Lumpur 2020 City Plan.
"They looked at the zoning of land, but how can Kuala Lumpur be a world class city without a good drainage system?” Lim asked, noting that he had repeatedly complained to City Hall about the matter.

Malaysia has some excellent guidelines related to flash flooding, including the Urban Stormwater Management Manual 2001 (MSMA) which requires “control at source” for runoff water generated by new developments. However these measures have failed to prevent flash floods in Kuala Lumpur as recently as Aug 2008.

Immunity is not acceptable
“Of course civil servants should not be sued if they are performing their duty to the best of their ability. But if there is gross negligence they should be held accountable,” said Lim. It is a sentiment that is shared by Fernandez and Subramaniam.

“It will cost more in the short term, but less in the long term,” Fernandez explains. He proposes local governments take three important steps: (1) In the planning and design stage, flood risks and other geohazards must be properly investigated. Local authorities must have the financial resources to hire independent expertise. The cost of these experts should be covered by a higher building permit application fee paid for by the developers. Engineers and local authorities should be publicly liable for their actions. (2) Someone should be held responsible for the construction and the work of sub-contractors. Currently, if standards are found to be lacking, no one takes responsibility. (3) Long term maintenance must be addressed. If a new development requires the construction of a retention pond, then the owners of the development must also be charged for its maintenance. If they are bankrupt their properties should be repossessed.
In addition, all three agreed that the immunity of civil servants is not acceptable.

Restoring trust in civil service
They insist on the abolition or amendment of certain laws, including the Public Authorities Protection Act 1948 or a re-interpretation of the term “good faith” by the courts.
Malaysiakini has tried to contact several civil servants about how they view their legal immunity, but all declined to comment. A better legal definition of ‘good faith’ is sorely needed. This is not to punish the civil servants but to restore trust in the civil service and the decisions that it makes.

Lim has asked the Works Ministry in Parliament for proof that the new SMART tunnel is actually working. The SMART tunnel was completed in 2007 at a cost of RM1.8 billion to prevent flash flooding of the Klang River in central Kuala Lumpur. When asked if the proof was really necessary, Lim said: “You can’t blame me. If you look at the majority of huge projects, they haven’t worked very well.”

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