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Kidex and the law – What the government’s not telling you

THE Kinrara-Damansara Expressway (Kidex) project has certainly been the talk of many angry Petaling Jaya (PJ) residents these past two months.

There has been much debate for and against the project. Its concessionaire Kidex Sdn Bhd says it will ease traffic congestion in PJ and have spillover economic benefits. PJ residents however fear increased noise, pollution and depreciation in property value due to the proposed elevated highway that will cut through SS2, Section 14 and PJ Old Town.

But before we even discuss the merits or demerits of the project itself, what legal requirements and conditions will the concessionaire, federal and state governments have to meet before the project can proceed? So far, a lot of discussion has not focused on the legal aspects. It is therefore instructive to know exactly what the law entails and how the government intends to engage the public to fulfil its legal requirements.

 thenutgraphkidex

Conditions precedent

According to the concession agreement , there are at least two conditions precedent that must be fulfilled by Kidex Sdn Bhd within one year of the agreement’s signing, that is by 15 Nov 2014. The conditions are to get financing for the project and to carry out and report on “the outcome of a Public Opinion Survey for the proposed project.” Works Minister Datuk Fadillah Yusof has said the project would be cancelled if the conditions precedent are not met.

There is thus a clear indication that the government wants to engage the public through a survey, however there are no details on how or when this survey will be done.

Local plans

There are further laws that must be complied with beyond the concession agreement, which neither the federal nor state government has properly addressed.

The Town and Country Planning Act’s section 18 disallows any development that is inconsistent with a local plan.

RTPJ1

RTPJ1

A local plan is the development blueprint for the city. PJ has three local plans known by their Malay acronyms as RTPJ1, RTPJ2 and RKK13. None of these plans have any provision for Kidex. As Kidex will run through areas that are covered under all three local plans, any application to develop Kidex must be automatically rejected.

To get around this, the local plans must be amended to include Kidex. The process to amend a local plan requires detailed studies and reports to justify the changes being proposed. That means reports on the environmental, social and traffic impact must be prepared and then presented to the public for scrutiny.

The manual that governs the preparation of local plans (Manual “Sustainability Assessment” Dalam Penyediaan Rancangan Tempatan) states that the entire process must be documented with a monitoring mechanism in place to ensure accountability.

These requirements must be complied with for Kidex to be lawful. The federal and state governments cannot simply bypass these requirements, whatever figures and facts about reduced traffic congestion or economic benefits they may quote.

Total

The Total Planning and Development Guidelines cover (pic courtesy of KW Mak)

The Total Planning and Development Guidelines issued by the Department of Town and Country Planning stress the need for accountability in carrying out projects. It has a whole chapter dedicated to the need for trustworthiness and credibility on the part of the authorities and states that any actions must be based on “actual knowledge, matured experience based on consultation and the decision made [must be] orderly and credible.”

Ignorance is bliss

Yet, it appears that these stringent requirements contained in government rulebooks and regulations are often not followed, and are again being ignored in the case of Kidex. This is because such knowledge is not widely known by the public. Indeed, so long as people are kept ignorant of their rights, they cannot demand for it.

Even if the local plans are amended to incorporate Kidex, there is still no guarantee that it will be done in an accountable and transparent manner.

MBPJ’s amendment of local plans to accommodate development on the Kelana Jaya PKNS football field is one example of an amendment that did not comply with regulations. The field was originally zoned as a green space in the local plan registered with the state government. MBPJ however had a different version that showed the same area zoned as commercial land. It emerged during an investigation by Selangor’s Select Committee for Competency, Accountability and Transparency (Selcat) that MBPJ amended the local plan after it was gazetted. MBPJ town planning senior assistant director Faiwos Abd Hamid in fact admitted that it was normal practice to make such “corrections” to the local plan even after gazetting. Despite the investigation, no one has been disciplined for the different versions of the local plan that emerged.

Two

Two versions of the books where the local plan is published: One officially gazetted by the Selangor government, the other published by MBPJ, with 210 documented changes.

The most recent attempt to amend the local plan was done in December 2013. However, despite the fact that the process to gazette these amendments hasn’t been finalised, work has already started for some of the proposed developments, making a mockery of the law. For instance, development of Icon City in PJ’s SS8 is well underway, even though the proposal to rezone the area industrial to commercial is only being made now.

Tipping point

Khalid

Khalid’s administration could still comply with the spirit and letter of the law, but doesn’t show inclination towards it

It is still not too late for the federal and state governments and their agencies to conduct proper consultations and impact studies on Kidex to comply with the spirit and letter of the law. It is not sufficient for Menteri Besar Tan Sri Khalid Ibrahim to state that, “Dalam hal ini kalau kita tidak setuju pun, masalah trafik tidak akan selesai, jadi kita perlu ‘adapt dan adopt’.” Proper procedures to amend the local plan with full public disclosure need to be carried out so that those affected can make a free and informed decision on the matter.

After all, what is the purpose of the law when the government agencies at federal, state and local level tasked with its implementation ignore it and allow developers to proceed without following proper procedures? How are these examples demonstrative of good governance, transparency and accountability?

These questions will continue to emerge on the Kidex issue and has even sparked discussion in Penang on a similar issue. Protest against Kidex has also encouraged another group of Petaling Jaya residents to stand up and voice their opposition to the proposed Damansara-Shah Alam (DASH) highway. It would be better if the government heeded the guidelines it has set for itself in approving any development if it intends to be successful in convincing the public of the benefits of any development. The Nut Graph


Former MBPJ Councillor KW Mak is a committee member of the Say No to Kidex pro tem group and was a candidate for the Bukit Gasing state assembly seat in the May 2013 general election.

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22 Responses to “Kidex and the law – What the government’s not telling you”

  1. Sunna Sutta says:

    @KW Mak

    An excellent analysis indeed!

    Clearly there are major conflicts over land use and development in Selangor and Penang. In the case of Selangor, one certainly gets the impression that the somewhat isolated state administration is led by an UMNO stooge because PR state assembly[persons] who are not exco members are raising their voices in objecting to Kidex. However, in the case of Penang, the state government has no excuses. To a certain extent, PR has played into the hands of BN which has also used other strategies like snatching Bibles and dead bodies to destablise the governments of PR-led states. Does it seem strange to you or is it too obvious that the JAI in PR-led states seem to act in defiance of state authority but not so in BN-led states?

    Lest readers get the impression that you are only hammering PR-led state governments, you should provide greater balance by also highlighting land development conflicts in BN-governed states. For example, FMT has written an excellent piece on the recent Johor enactment.

    http://www.freemalaysiatoday.com/category/nation/2014/06/11/needless-fuss-over-johor-enactment/

    • Sunna Sutta says:

      Btw, I forgot to add bride-snatching. It looks like they may have to return 300+ Bibles in Selangor and one dead body in Penang but not too sure about the bride though. LOL!

    • KW Mak says:

      @ Sunna Sutta

      When I exposed MBPJ officers who bought low-cost flats meant for the poor (before Citizen Nades blew the story up), I was accused of not going through proper channels to resolve the matter, even though I wrote letters to the mayor and warned that I would be talking to the media if no action was taken. Still, nothing happened to the officers because Khalid Ibrahim said the sale was morally wrong but legally right. http://www.thenutgraph.com/senior-mbpj-officers-owning-low-cost-flats

      When I fought for freehold rights for leasehold property owners, I was accused by MCA of promoting a DAP populist agenda, even though DAP has said nothing on the issue and would rather promote a RM1,000 leasehold renewal scheme. http://www.thenutgraph.com/leasehold-freehold/

      When I exposed the fact that the Menara Warisan project was being done on land reserved as public open space, no one from Pakatan Rakyat picked it up and used that information to fight the project. http://www.thenutgraph.com/playing-by-the-rules/

      When I showed that MBPJ did not reply to official letters and there was potential hanky-panky involved in the billboard deals that MBPJ did, I was accused of “playing hero”. No officer was reprimanded for not answering a councillor’s written letters for almost a year. http://www.thenutgraph.com/superheroes-needed-in-mbpj/

      When I write about Kidex, I’m anti-PR. Or anti-BN, depending on who the commentator supports. Doesn’t matter that I’m actually talking about rules.

      I can go on and on. Fact of the matter is, it doesn’t matter what issue I talk about and in what context. People will equate me as MCA / DAP / BN / PR supporter depending on the issue while the other side does absolutely nothing about it.

      It is simply easier to shoot the messenger than deal with the message. It does not make the issue I highlighted go away however.

      • Sunna Sutta says:

        Peace, brother!

        I only meant what I said in the context of the article that you wrote. I realise of course that the focus of the article is on Kidex. However, the only other example of land development conflict that you raised referred to Penang which, as I said, gave the impression that you were only hammering PR-governed states.

        I am fully aware of your excellent past record of highlighting the many incidents where the rights of the rakyat, with respect to land use and development, were trampled on in both PR and BN governed states.

        • Sunna Sutta says:

          @KW Mak

          It is not difficult to guess what happened to your position in MBPJ after you blew the whistle on MBPJ and the state government for giving the green light to certain MBPJ officers to buy low-cost flats meant for the poor.

          Whistleblowers are the unsung heroes in every society who are inevitably vilified and often convicted in court of wrongdoing when they should instead be honoured for their bravery in standing up in defence of the interests of fellow citizens against those who abuse their political power.

          There are laws which can be conveniently used or rather abused by powerful wrongdoers against whistleblowers, especially the OSA. In Malaysia, although the Whistleblower Protection Act of 2010 protects those who disclose the actions of those who are responsible for improper conduct in both the private and public sectors, the unwritten after-the-fact addition to the said Act (true to Orwell’s Animal Farm) is, “as long as the whistleblower exposes people who are not linked to the government at the federal, state or local levels”. We only need to look as far as how much more vigorously the government is [...] pursuing the case against the former Public Bank officer who exposed the illicit financial transactions in the “Cowgate” scandal compared to that against the NFC top management.

          Even in the USA, whistleblowers who expose wrongdoing of the government against the people are inevitably accused and convicted of treason. Chelsea (formerly Bradley) Manning was sentenced to 35 years in jail for leaking 750,000 classified documents to Wikileaks which revealed how the US government and military lied to the American people and controlled media coverage to their advantage in regard to the war in Iraq. Edward Snowden who exposed NSA’s widespread electronic eavesdropping on American citizens in the name of the war against terrorism only barely escaped a similar fate by fleeing to Russia.

          In other words, I salute you!

      • tng says:

        All politicians are the same, regardless of BN or Pakatan. While practically everybody knows BN are politicians, very few know Pakatan are also politicians. But should you label Pakatan as politicians, many will come bashing you. Funny they keep shouting about ‘democracy’ but don’t seem very democratic to me.

        • Sunna Sutta says:

          That is too sweeping a statement!

          Selangor PR state assemplypersons who are not Exco members have been raising strong objections against Kidex.

          In the final instance, all politicians have their own faults and in a democracy, one at least has the choice to vote for the lesser (or least) of the two (or many) evils.

          As for me, I only have absolute faith in NGOs such as Bersih which are genuinely committed to the civil society concept as well as certain members of the “Fifth Estate” like FMT and The Nutgraph which practise fair news reporting that is not biased in favour of any particular political faction. Unfortunately, I am not allowed to vote for them.

          • tng says:

            Allow me to ask you. Did those Selangor PR state assembly persons raise questions about the Penang sea tunnel? The answer is “no”. The reason is very simple, in politics, politicians only look after their own interests. In Selangor, it’s in their interest to raise questions because they fear their voters will not vote for them the next time. Since Penang voters don’t vote in Selangor, it’s not in those Selangor PR assembly persons to raise questions.

            Same reason why Lim Guan Eng raised questions about the radiation risk at Lynas in Kuantan but said nothing about similar radiation risk at one of the world’s largest tin smelter in Penang. Malaysia Smelting Corporation in Penang also imported radioactive tin ore from Australia and leaving behind radioactive waste in Malaysia. In Kuantan’s case, he hopes to snatch votes from BN so he raises the radiation issue. In Penang, it’s not in his interest to raise trouble for himself if Penang people don’t know what’s going on at MSC factory in the 1st place?

            These are just of some of the reasons why I said “all politicians are the same”.

          • Kong Kek Kuat says:

            @ KW Mak

            Perhaps this lay[person], tng, is a politician, too, because he [or she] seems to only raise issues in relation to PR only.

            What about you, KW Mak? Are you a politician? If you are, would you want to reply to this tng on his “all politicians are the same” comment?

          • Sunna Sutta says:

            @tng, if not democracy then what kind of government do you advocate – absolute monarchy, theocracy, dictatorship? Do you know about Winston Churchill’s famous dictum, “Democracy is the worst form of government, except for all those other forms that have been tried from time to time.” Democracy may not be perfect but I guess you still do not get the “lesser of the two evils” concept that I raised.

            Regarding the DAP-led Penang government and Penang voters, you have to understand that the average person votes according to which side of the bread that he/she thinks is buttered. In other words, the primary concern in the general elections is the economy, i.e., jobs, putting food on the table, etc. Environmental concerns are secondary until one’s life and health are at stake as we saw in the case of the previous rare earth metals plant in Bukit Merah. The difference between Bukit Merah and Lynas is the information in the former is an after-the-facts case while the latter is a before-the-facts case (see for example, CAP’s letter in http://www.malaysiakini.com/letters/200572). In regard to Lynas, it is a case of going in with one’s eyes wide open. The byproducts of tin smelting and mining – slag and tailings – emit much less dangerous radiation compared to both the raw input materials and waste materials in the Lynas plant. History will repeat itself. It was only when the number of cases of radiation sickness and leukemia shot up in Bukit Merah that the plant was shut down; Lynas is destined to go down the same path.

            Nobody said Lim Guan Eng is perfect. In fact, we know that a certain tycoon who denuded a hilltop in Penang, now popularly known as Bukit Botak was only given a light tap on the wrist [...]. However, once again the average Penang voter compares the excesses of the DAP-led government with the much greater excesses of the previous BN-led government.

          • KW Mak says:

            @ Kong Kek Kuat

            Some people prefer eggs scrambled, some prefer it poached, some prefer it hard boiled and some prefer it soft boiled. Some people just don’t like eggs.

            An egg is an egg however.

            Just as opinions are opinions and how many people have lots of different views on the court’s ruling on the word ‘Allah’ (gasp – I’ve used the word and I’m not a Muslim!).

            I think I have answered your question… but it may not be the answer you are looking for. Maybe you would like me to cook BN brand eggs?

            Haha.

  2. tng says:

    I am for democracy but why are you and KKK so touchy when I point out all politicians will tell lies? If you disagree with my 2 examples, please point out which part you disagree with and we can discuss further. If you couldn’t, then both of you are merely being emotional and becoming irrational because it involves your favorite politicians.

    On radiation. This is a scary word to many people purely out of ignorance. Many are not aware radiation is in the air we breathe and in the food and water we consume, without exception. This is what they called “Background radiation”. But as long as the radiation level is not over a certain figure, you can’t do anything about it and just accept it as a fact of life.

    According to USA, foods with radiation of <1.2 bq/g are considered safe for consumption. Lynas’s license calls for Lynas to reduce their waste radiation down to 1 bq/g.

    According to United Nation International Atomic Energy Agency IAEA, anything below 10 bq/g is being classified as non-radioactive. Lynas raw material is 6 bq/g. You might want to ask those Anti-Lynas people how much is the radiation at Bukit Merah and I can assure you, it’s well over IAEA’s limit.

    Now think back, when was the last time those Anti-Lynas people show you the radiation figures for Lynas and Bukit Merah and nuclear reactors? You will find they try very hard not to give it to you. Or they gave you a Lynas figure of 62 bq/g whereas Lim Kit Siang’s [blog] gave 6 bq/g. So either Anti-Lynas is lying or Lim Kit Siang’s [blog] is lying, take your pick.

    • Sunna Sutta says:

      @tng, your exact words in your first post were, “All politicians are the same, regardless of BN or Pakatan. While practically everybody knows BN are politicians, very few know Pakatan are also politicians. But should you label Pakatan as politicians, many will come bashing you. Funny they keep shouting about ‘democracy’ but don’t seem very democratic to me.”

      Clearly, if all “politicians are the same”, you were certainly condemning democracy as whichever person we vote for, we end up voting for someone who abuses the rakyat’s mandate as badly as the other person. Even if you meant what you said in regard to “lies”, it is logically impossible that all the lies of politicians are of equal weight.

      Regarding Lynas, even given that we accept that the raw ore has a safe radiation level of 6 bq/g, you have completed ignored the fact that the waste product after the concentrated rare earth ores have been extracted most certainly will have a much higher radiation level which undoubtedly exceeds the safety limit. Why else do you think Australia has cited national legislation which categorically states in no uncertain terms that Lynas waste will not be permitted to reenter Australia? (http://au.ibtimes.com/articles/302422/20120222/malaysia-china-lynas.htm#.U61HKvmSzyQ). Although our government has insisted that the waste will be shipped back to Australia, I would just love to see how we can violate Australian sovereignty with such impunity!

      The stark reality is Lynas waste will somehow have to be buried not far from someone’s backyard in Pahang as no other state will willingly accept such a poisoned chalice. To clean up Bukit Merah, Mitsubishi had to level a hilltop in a remote area in Perak and bury the waste 25 feet deep (www.nytimes.com/2011/03/09/business/energy-environment/09rareside.html?_r=1&). How many hilltops will have to be leveled before we finally realise the irrevocable harm caused to the rakyat and the environment?

      • tng says:

        Sunna. You are confusing states[person] and politicians. People like Gandhi and Mandela were states[persons] who were not power hungry. Karpal was almost there also. Lim Guan Eng and Najib etc are definitely politicians.

        The radiation in Lynas’s waste is not a lot higher, it’s 6.2 bq/g compared to raw material’s 6 bq/g. Lynas will have to reduce it down to 1 bq/g before disposal (like I said earlier, it’s food grade radiation). Hardly qualifies as “world’s largest radioactive dump” that politicians would like you to believe. And for your information, the large amount of radioactive waste produced by that huge factory in Penang is 1.4 bq/g. Now you know why politician only like to shout “radiation” but never want to give you the actual figures. Try asking them this acid question and see what they say. Ask them, how much is the radiation at Bukit Merah? It’s several times over IAEA’s 10 bq/g.

        Hence I stand by my statement “all politicians are the same”.

        • Sunna Sutta says:

          @tng, no I am not confusing statespersons with politicians. As KW Mak said, you have a certain tendency of talking in circles and in this instance, trying to spin the argument on a new circle probably for the purpose of distraction.

          As for Lynas’s claim that the waste radiation emission is no more than 6.2 bq/g, it has been pointed out that the said figure has not been independently verified.
          (https://newmatilda.com/2012/12/19/lynas-waste-plans-toxic-pipe-dream)

          Show me the evidence of independent verification if you have any. If not, then we have to interpret the Australian government’s insistence of not allowing Lynas waste to reenter Australia as evidence that they are aware of the high level of radioactivity in the said waste. If Australia cannot find a safe place to bury the waste in the vast wilderness over there, it should be unimaginable for us to even contemplate the thought of doing so in Malaysia, a much smaller and densely populated country. Consider also leaching from containers that will eventually corrode and disintegrate in our wet tropical conditions. Sooner or later, this will happen to the ARE waste containers that many wrongly think are safely buried up in the Kledang Range in Perak, a mere 15 km from Ipoh and 3 km from Papan in Bukit Merah.

          No, not all politicians are the same. All of them lie but some lie more or spin greater lies than others.

          • tng says:

            Sunna.

            1. Why are you happy with the 1.4 bq/g waste produced in Penang but not the 1.0 bq/g waste in Kuantan?

            2. Why would Lim Kit Siang agree to the 6.2 bq/g figure?

            Are these logic?

          • Sunna Sutta says:

            @tng, let me remind you yet again that the figures of 6.2 bq/g prior to further reduction to 1.0 bq/g in the recycled gypsum materials that are to be used as construction materials are figures provided by Lynas. Once again, let me point out to you that you have not responded to the gauntlet that I threw at you i.e. you have failed to provide any evidence that both the said before and after figures have been independently verified. By purposely trying to ignore my challenge, you have affirmed that the radioactivity levels are most likely in excess of IAEA’s safety limit.

            As for what Lim Kit Siang said in his blog, his exact words are, “Note the experts carefully said: ‘Relatively low.’ The imported concentrated ore has an activity level of 6 Bq/g (Becquerel per gram). The WLP residue is expected to have an activity level of 6.2 Bq/g (page 16). But, surprise! The WLP is treated as radioactive!” (http://blog.limkitsiang.com/2012/03/14/lynas-what-were-the-iaea-experts-thinking-on-the-plane-home/).

            In other words, Kit Siang merely cited what the so-called Lynas experts claimed, following which he cast immense doubts over the truth of the figures as the WLP (water leach residue) is still treated as radioactive. Don’t you see the illogic of Lynas’s claims as argued by Kit Siang? If it is indeed true that the WLP has a radioactivity level of well below IAEA’s cutoff level of 10 bq/g, why do they still consider it to be radioactive?

            By continuing to twist Lim Kit Siang’s words, you are only doing more damage to your case! Stop trying to beat around the bush! I demand that you stop ducking and answer my challenge of giving us independent verification of Lynas’s figures.

            Also answer my other question which you have also deliberately avoided. Why does Australia vehemently refuse to allow the WLP to reenter their territory if its radioactivity is at the level of what you claim to be “food grade radiation”?

    • Kong Kek Kuat says:

      @ tng

      … And yet, PR is continuing to become serious talk among the people, and BN continuing its spiral into a laughing matter by the day.

      I wonder what´s wrong with your arguments.

  3. tng says:

    Sunna. Why are you so worried about whether Lynas can reduce their waste down to 1 bq/g or not? Didn’t you know Lim Guan Eng said the agency entrusted to oversee Lynas called AELB is very professional and competent. Or are you saying Lim Guan Eng also cannot be trusted just like BN? Personally, I don’t trust any politician.

    http://www.themalaysianinsider.com/malaysia/article/dap-wants-aelb-to-report-false-solar-plant-radiation-claims-to-mcmc/

    • Sunna Sutta says:

      @tng, first you twisted Lim Kit Siang’s words in a feeble attempt to mislead readers into thinking that he accepted the 6.2 bq/g radioactivity level of Lynas’s waste. Now you are attempting to play the same trick on Lim Guan Eng.

      In the Malaysian Insider report that you quoted, Guan Eng was in fact complaining about the rather tepid and unenthusiastic response of AELB with regard to the false claim that the Bosch solar panel plant will produce radioactive wastes. Instead of issuing an unequivocal statement that the claim was false, AELB merely issued a statement that claims that the Bosch solar panel plant in Penang will produce radioactive waste are “not so accurate”.

      Far from calling AELB competent and professional, the exact words of Guan Eng in the press statement were, “This…has caused harm to AELB’s reputation as an independent professional body as well as a competent regulatory institution.”

      Guan Eng further chastised AELB’s lack of strong action by adding, “The AELB must therefore act fast to restore its reputation by lodging a report with the Malaysian Communications and Multimedia Commission (MCMC).”


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