Kota Kinabalu: The High Court here dismissed the judicial review application by an occasional train commuter to stop the State Government's plans to seal all the 70 illegal crossings along the railway track from here to Tenom.Judge Dato' Abdul Rahman Sebli held there was no merit in Robert Mojolou's application and dismissed it with costs.
Retiree Mojolou, 58, of Penampang, had named the Minister of Infrastructure Development and the General Manager of Sabah Railway as first and second respondent, respectively, in his judicial review, which he filed on Nov. 4, 2011.
He filed the matter following a serious train accident involving an oil tanker at Km 8 Jalan Petagas-Kepayan here on Oct. 31 last year.
Mojolou, who was represented by counsel Marcel Jude, had sought an order of prohibition against the first and second respondents to prevent them from closing down crossings of the Sabah State Railway where the railway track passes over a road, path or occupational crossing, following the accident.
He also sought an order of mandamus to direct the first and second respondents to exercise the relevant powers under Sections 20 and 21 of the Railways Ordinance to provide adequate gating and fencing facilities as well as any other relief deemed fit by the court.
In his decision, Abdul Rahman held that the crossings that the respondents closed were all illegal crossings and the reason they were closed was to prevent accidents like the Oct. 31, 2011 incident from happening again.
"The applicant wants the crossings to remain open but he did not say in his affidavit-in-support nor in his supplementary affidavit that he will take responsibility if another accident happens at any of the illegal crossings that he wants to remain open."
"Among the documents that the applicant is relying on to support his application is a newspaper cutting which quoted certain businessmen's fear that the closure of the illegal crossings would hit their businesses hard.
It appears that the applicant is more concerned with loss of business than with loss of life and limb.
"Under the law, it is the duty of the Sabah State Railway Department to ensure the safety of the public along the railway track.
This is provided by Section 31 of the Railway Ordinance, which stipulates that every railway official is legally bound to do everything necessary to ensure the safety of the public and shall refrain from doing any act likely to cause danger.
"Thus, by closing the illegal crossings, the Sabah Railway authority was merely doing what the law requires them to do.
"As at December 2011, there were 70 illegal crossings situated along the railway track from Tanjung Aru to Tenom that the applicant wants to remain open. But he is not even a regular user of any of the 70 crossings, which means he lacks locus standi to maintain this application for judicial review.
"The fact that he is a regular commuter of the train does not confer on him a legal right to ask for a court order to stop the respondents from closing the illegal crossings," said Abdul Rahman.
He further said that the applicant had also failed to state in his affidavit how his life is affected by the closure of the illegal crossings.
"He did not even specify which of the 70 illegal crossings had affected his life by reason of its closure. In any event the undisputed evidence is that feeder roads have been constructed connecting all the illegal crossings to the nearest legal crossings, which are manned by personnel of the Railway authority.
"As for the applicant's contention that the respondents should provide gates and fencing at the illegal crossings, the unchallenged evidence of the second respondent is that it is illogical for the Sabah Railway Department to provide safety features for all the illegal crossings as many of the illegal crossings do not fit the specifications of the department and are dangerous to the railway track as well as to the public at large," he said.
Abdul Rahman also found no merit in the applicant's argument that the respondents' decision to close the illegal crossings was not in compliance with Sections 18, 21 and 22 of the Railway Ordinance.
"In the first place, none of the illegal crossings had been declared to be public roads, paths or occupational crossings by the Sabah Head of State.
It is the discretion of the Head of State to do so and it is only upon the exercise of such discretion that the railway authority is bound to provide gates and fencing at the level crossings.
"Since it is a discretion vested in the Head of State, the applicant has no legal right to compel the authority to declare the illegal crossings as public roads, paths or occupational crossings.
"Even if the law allows the applicant to make an application to the respondents to legalise the illegal crossings, obviously he had not done so and even if he did make the application, it is entirely for the respondents to decide whether to allow or disallow the application, with public safety being the paramount consideration.
"It is not a matter of right for the applicant to compel the respondents to legalise the illegal crossings.
"In the present case, the respondents' decision to close the crossings was with public safety in mind. The applicant has not provided any evidence nor has he suggested that the closure was for reasons other than safety reasons," held Abdul Rahman.
He also ruled that the applicant's application was out of time, as the decision to close the illegal crossings was made in 2006 but the present application was only made in November 2011.
"The respondents have explained why the illegal crossings were not closed earlier and this was due to the presence of telecommunication and electricity posts which halted the construction of the feeder roads.
According to the second respondent's affidavit, all the existing illegal crossings will be closed by the end of May 2012," he added.
Mojolou had claimed that the respondents' intention to close the illegal crossings is ultra vires the Railways Ordinance and that the Minister should have taken action according to Sections 21 and 22 of the Railways Ordinance.
He also claimed the ultra vires action of the respondents to close the illegal crossing without compliance with Sections 21 and 22 of the Ordinance would be a dereliction of the duty of both respondents and ordinary villagers would suffer for the respondents' unlawful actions.
