Experts: Govt could be sued over allegedly botched Covid-19 response

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Could the Malaysian government be sued over alleged mishandling of the Covid-19 pandemic in the country?

According to a former federal court judge and a former Bar Council president, such civil actions are possible, but it requires expert reports and other in-depth documentary evidence over any such alleged official mishandling of measures to curb the pandemic in Malaysia.

Retired federal court judge Gopal Sri Ram told Malaysiakini that such hypothetical actions could be filed as representative action per the country’s Rules of Court 2012.

The practising lawyer said that this is because Malaysian law does not recognise class action per se, but instead recognises representative action.

“Before we consider such an action, we should have prima facie evidence that the government was negligent.

Azman Ghani/The Star

“For that, we need credible expert reports on the availability and deployment of (public) funds (in government efforts to curtail Covid-19),” Sri Ram said.

Echoing similar views was former Bar Council president Salim Bashir, explaining that any parties can sue the government under normal civil claim for alleged negligence related to handling of the pandemic in Malaysia.

The lawyer pointed out that the hypothetical suit needs to be based on alleged negligence linked to the government’s execution of written law or public duty, and that such civil action needs to be filed within 36 months of the date of alleged breach of duty.

“Individuals affected by mismanagement and negligence (in the) handling of matters of public duty like any public health crisis, can bring an action against government organisations for failing to take reasonable and necessary precautions to prevent infections.

Yusof Mat Isa

“However, the question of success entirely depends (on) whether (the) government or organisations have broad discretion and power to determine directions to handle the public health crisis and have taken all reasonable steps to contain any infections,” Salim said.

The lawyer noted that the success of any such hypothetical legal action depends on whether the plaintiffs have contributorily negligence that resulted in contracting the virus.

“The suits can be brought individually or by way of representatives action, under Rules of Court 2012, where numerous persons have the same interest.

“The suit must establish a duty of care on the part of the government and some harm is reasonably foreseeable to result from the (alleged) negligent acts.

“There must be proximity between the plaintiffs and defendants, and fundamentally the issue of causation and remoteness of the damages will need to be determined.

“The Government Proceedings Act 1958 allows for actions in contract or tort to be brought against the government.

“Remedies are generally intended to demand responsibility rather than punishing the defendants,” Salim noted.

Sri Ram and Salim were commenting over the feasibility of any hypothetical legal action against the Malaysian government over any purported mishandling of the pandemic in the country, in light of similar legal actions filed against certain foreign governments recently.

On Dec 23 last year, online news portal reported that several relatives of Italian citizens, who died during the pandemic in the European country, have sued their government for 100 million euro in damages.

On May 14 this year, online news portal Bangkok Post reported that the family of e-sports player Kunlasub Wattanaphon is suing Thai prime minister Gen Prayut Chan-o-cha and others, for 4.5 million baht, claiming the deceased’s inability to get tested in time led to his death from Covid-19.

On July 25, Malaysia’s opposition lawmakers lodged police reports against Health Minister Dr Adham Baba and a few other ministers over alleged negligence in handling the Covid-19 pandemic in the country. – Malaysiakini