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Wednesday July 16, 2008

‘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.

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