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Sunday November 22, 2009

Big impact in ‘small’ man’s win

By SHAILA KOSHY


KUALA LUMPUR: In a David vs Goliath case, Subramaniam Gopal took to court his fight against a municipal council directive barring him from selling fish and vegetables in his mini market.

The result? He won a landmark ruling that could have wide-reaching repercussions for other common folk.

The mini market owner’s case found favour with the Temerloh High Court which ruled that the local government did not have the right to prosecute him. Such a prosecution would contravene the Federal Constitution.

All was going well for him until 2006 when the Temerloh Municipal Council decided to take him to court on four charges of operating his business – the GSM Mini Market – on Jalan Besar Lanchang, without a valid licence.

“I have been running a provision shop in Lanchang for the past 31 years. But the council told me in 2005 that they wouldn’t renew my licence if I didn’t move my fish and vegetable business in my mini-market to the council’s new market,” Subramaniam, 50, said in an interview conducted in Tamil and Bahasa Malaysia.

“I told them I would not move to their market in the hutan (jungle). I would go bankrupt; no body goes there,” he said of the now-abandoned wet market near the woods.

“Since then, they have been sending me compound notices but I refused to pay. Other provision shops are selling fish and vegetables and they are getting their licence renewed.”

Then in 2006, the council legal officer got a summons to prosecute him from the magistrate’s court in Bentong. Subramaniam was facing a RM2,000 fine and RM200 more for every day of infraction, or RM6,000 a month for operating without a licence.

His lawyer Datuk M. Ramachelvam then took up a preliminary objection that the council had no business prosecuting him and that prerogative lay with the Attorney-General (A-G) as Public Prosecutor.

The magistrate’s court disagreed and Ramachelvam filed for a revision in the High Court where Judicial Commissioner Akhtar Tahir ruled that Section 120 of the Local Government Act, which empowered local councils to prosecute, contravened Article 145(3) of the Federal Constitution which gave the absolute right to do so to the A-G.

Subramaniam said he pursued the matter because he felt the action taken against him was “just wrong”.

“What am supposed to do if I can’t run my business?” asked Subra­maniam who provides for his wife, K. Mageswari, 47, his two daughters and son, his widowed mother and sister and her child.

Subramaniam, whose customers are largely Felda settlers in the area, is a “local” boy made good. On May 14, 2007, he was awarded an Ahli Mangku Pahang by the Sultan of Pahang. The photograph of that momentous event has a place of pride on a wall in the shop.

Born in Perak, Subramaniam and his 11 siblings moved to Pahang when his father decided to look for a job there. He started to potong susu (tap rubber) at the Lanchang Estate at the age of nine but when he turned 19, his father gave him RM1,500 to start his provision business.

Subramaniam is hoping that others in Lanchang and elsewhere in Malaysia will also challenge “unconstitutional” prosecutions.

He is aware that because the court issued a discharge not amounting to an acquittal, the council can come back after him with a summons approved by the A-G.

But he is ready for the fight.

Related Stories:
No licence to try offenders
Court ruling takes bite out of local council summonses

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