Tuesday, July 29, 2008

Failure to act on complaint

\In the course of my social and political work, I used to receive complaints from members of the public that some law enforcement agencies and municipal councils failed to take action of their complaints. We have entrusted our rights to them and these agencies at times failed us and it was always very annoying. However, we need to understand that not all complaints could be acted upon, unless the law allows them to be acted upon. For example, some who made complaints just wanted the police to make immediate arrest of an offender or suspect, but, police officers normally could not proceed immediately to arrest unless the complaints involved seizable offences where arrests could be made without warrants of arrest. If warrants are needed, applications need to be made to the local magistrate before an arrest could be conducted. This may need a bit of time. Many times, when there were delays to execute arrests, the police, due to the ignorance of the public, were always wrongly blamed.

If a municipality is concerned, to be fair, we need to ensure that the matter of our complaint falls within the area or jurisdiction of the bandaraya or municipality concerned and we also need to ensure that the bandaraya or municipality also has the power to act on the complaint.

However, government agencies could not simply ignore our complaints lightly and if they do this, we can bring them to court if the acts or omission complained of are within their power to act and of which they are legally obligated to act.

The police, for example, when complaints involved cases of trespass to land or serious vandalism to property, the police in order to avoid or in order to decline not to proceed with the investigation would tell the complainant that the complaint was a civil matter and that the matter could only be brought to the civil court and that the police had no power to conduct an investigation. If such an excuse does happen, then, it would not be a proper course of action because the law requires the police to investigate a complaint that is serious in nature once lodged.

Therefore, the Bakun folks who recently lodged police complaints against criminal trespass to their native lands and property by officers of a government department should go further to seek court’s intervention to act against the officers of the government department concerned.

For the Bakun folks who had lived on their lands for the past 130 years, there are circumstances that warrant them as complainants or aggrieved persons to seek the court’s intervention for a protection order besides seeking the court to issue an order requiring the police to explain for their action, omission or negligence by way or prerogative writs pursuant to s.25(2) of the Courts of Judicature Act 1964. Since police reports had been lodged against the officers of the government department concerned, the police department could not sit tight and ignore the complaints as contempt of court could befall them if these Bakun folks would wish to pursue the matter against the police department in court by seeking the court’s intervention to issue a prerogative writ.

Be reminded, the court as umpire in the administration of justice of what is right and what is wrong has a constitutional duty to protect the rights of the members of the public and is duty bound constitutionally to give orders and or directions to the police and other relevant authorities when there is a failure by them to perform their duties or legal obligations in the administration of justice. Failure to comply the court’s order and or directions will attract the person or authority concern to contempt of court or penal sanctions pursuant to Article 126 of the Federal Constitution.

Therefore, government officers simply could not ignore public complaints as they are expected to work for the people and to fulfill their official obligation as permitted by the law because a failure to do so could invite penal sanctions from the court once the complainant brings the complaint to court to redress the matter.

3 comments:

Anonymous said...

I agree with you, but at time when the municipality or he bandaraya wants to act to people complaints some politicians would come fowards under the guise of representing the rakyat as ask the government agency not to take action. This is always the case when it comes to illegal hawkings and the like. These illegal hawkers will ask for help from these politicians and these politicians will say that what the illegal hawkers is right in the eyes of the law eventhough their act clearly contradict the Local Government Ordinance and the local authority by law. Look at the illegal parkings which happened every where. Look at the illegal selling of goods in the five footway? What can the local authorities do? Confisticate them? Compound the owners? Or blame the agencies? I feel blaming the local authorities is not right, the shop owners should also adhere to the rules and regulation or the local authorities by-law. I have stayed in US and Australia and we don't have much problem such as illegal hawkings. Shopkeepers don't display their goods in the five foot ways in the street of Brisbane or Surfers paradise or in Kingstone Street in Sydnye. But if you visit the China town you will see some of the attitude of the Chinese traders as compared to their other counterpart. Or even in the street of Kuching, Batu 7, Batu Kawah or even Batu 10. I observed those who park their luxurious mercedes benz or BMW or their four wheel drive are the rich people or the rich business owners who are ofcourse mainly Chinese. As a representative of the Chinese and instead of blaming the government agencies of not doing their encorcement job. Can you as an elected Chinese respesentative educate these guys not sell their goods in the five foot ways. You see YB these are the people who put you in the DUN and they have confidence in you. Can you do this on our part instead of discrediting the officials. The officials have their hand tied because this businessmen who are unscroupluous sometimes will resort to tell the boss of these small time civil servants who are just keen to eke out a living for their families. So please YB, tell those businessmen to be ethical in their dealing. Tell the Chinese shopkeepers not to trade in the five footways, not to part indiscriminately. If this can be done, I am sure you will get more votes in the next comming election. And on top of that, please don't interfere if the enforcement officers take stern actions against those illegal hawkers.

VOON LEE SHAN said...

I agree with you and its good food for thought. We now lived in a society of greed and its a sad thing that integrity of our own people wanning each year. Some 50-40 years ago, bussinessmen doing business with less things put down on dotted lines, but, now businessmen whether chinese or not, they seemed not to care for people and dotted lines on legal documents also meant nothing much to many of them.

I learnt from the book of Tan Sri Lim Goh Tong that during his days, most things were done on trusts and when they had business dealings in their early years, the late Tan Sri also never met Tan Sri Loh Boon Siew, but, business between them flourished. It was after quite sometime later that they decided to meet to discuss business for some joint projects. I learnt that it was this trust, that helped them developed good relationship with each other and became good business partners to conquer the business world. Both later on became billionaries in this region. Its something we need to learn from both great men!

Coming back to your comment,those who are rich and those who knew people in the corridors of power, will go on to find their means to exploit the weak and the oppressed. They could no more differentiate what is right and what is wrong, but, to them what they did although wrong, was also right! They parked their cars indisicrimnately and of course, there are those who did that because parking fees are expensive and the cronies makes lots of money at the expense of the public and and they were forced to save not only due to high parking fees, but, also to off-set expenditure on increased prices of essential goods. Such profits should instead go to the Bandarayas and Municipatilites to fund the many things good for the public and the community, for better environment and trading places for all, including places for petty traders and hawkers. If these could be done, definitely this could elevate the some of the hardships of these petty traders and hawkers. They will also not be forced to do hawking indiscriminately, blocking the five footways, on the pathments and fighting with the enforcement officers, etc. Enforcement officers could also find less trouble from these hawkers and there will be less tempers and stone throwings between hawkers and law enforcement officers!

Now, we hear Klang muicipality needs much money and may find sources to pay salaries for their staffs. We also is aware MBKS also needs alot of money and the present Mayor is now in a big headache as there are debts owed to state government that need to be paid back.The new mayor had to cope with many thing,among others, whether the contractors had faithfully carried out their contracts, or whether the contractors just took money and gave substandard services, etc

The shopkeepers who put their merchandise on their five footways were because, as I said they could get "protection" from those in the top. The persons who suffered are the enforcement people, the little people who were forced to do the dirty job. I was part of that last time and I know how frustrating at times in law enforcement. Law enforcement should involve effort of everyone, not only YBs and must also be tampered with mercy, not with bull strength and a lack of understanding of its social and legal implications. The Bandarayas and municiplalites have to find ways and means to tackle these problems and politicans should come with constructive ideas and not only attack the wrong policies and attacking personalties. To attack personalities is bad because this shows we are not mature enough to face the challenges ahead and to do so, we are not coming with ideas but to unnecessary destroy and demoralise a person.

Of course, when the authorities who disregarded the voice of those who complained, then, the aggrieved party may need to seek court's intervention, but, most often than not, these aggieved parties were weak and poor people. What our society needs now is proper social education, better understanding of each other and not to do things unto others that we don't want others do unto us. There should be efforts of all parties to do better for all, and I regret I could not do it alone, but I will give my best to improve this society for the better. I regret,self respect is no more with many of us and my final analysis is that, this "rot" was the result of poor management concept and lack of good governance and lack of sound policies of the present government. Over the years these weaknesses had accumulated to the detriment of our society and will take time to rectify. However, to be fair, not all things done by the present government is so bad and rotten, but, the accumulated dirt need some soul sorching for all of us. Let us all play a part and make our society better for a better tomorrow.

Mindy said...

You write very well.