Admin Law - Judicial Review

Guide to answering Judicial Review Question on Locus Standi

QUESTION 

1.      Millenium Sdn Bhd set up a new processing plant in Petaling Jaya recently. The Selangor State Government has approved Millenium Sdn Bhd’s application for authorization to discharge radioactive waste into two rivers flowing behind the plant. Anti-Pollute Quest, an environmental organization, is outraged by the authorization granted by the Selangor State Government. Dali and Mani are villagers who live near the plant and use the water from the rivers daily.

Advise Anti-Pollute Quest, Dali and Mani whether they can seek judicial review of the decision of the Selangor State Government to grant the authorization to discharge the radioactive waste into the two rivers.

Note: In italics is for info only, no need include in answer.

ANSWER

In this case, the main issue whether Anti-Pollute Quest, Dali and Mani have locus standi to seek judicial review.

[In Malaysia, prior to the amendment in 2000, the courts applied the “aggrieved person” (after Lim Kit Siang v UEM, 1988; before that is sufficient interest - Lim Cho Hock, George John v Goh Eng Wah) as requirement for locus standi. After the amendment in 2000, order 53, rule 2(4) requires the applicant to prove that he is adversely affected by the decision of public authority.]

After the amendment to the Rules of High Court 2000 to Rules of Court 2012, order 53, rule 2(4) was amended to provide for the application for judicial review to persons adversely affected by decision, action or omission in relation to the exercise of the public duty or function. As it stands now, what needs to be proven is the element of “adversely affected”. Hence, analogy can be made to post 2000 cases.

Sivarasa Rasiah v Badan Peguam Malaysia states that O53 should be interpreted liberally

In QSR Brands v Suruhanjaya Sekuriti & Anor (2006), COA held that it was for the applicant to show that he falls within the factual spectrum that is covered by the words 'adversely affected'.

At one end - cases where the particular applicant has an obviously sufficient personal interest in the legality of the action impugned.

At the other end - cases where the nexus between the applicant and the legality of the action under challenge is so tenuous that the court may be entitled to disregard it as de minimis.

In the middle - cases which are in the nature of a public interest litigation.

Public interest litigation stems from the test of sufficient interest for locus standi. With reference to the case of Ex parte World Development Movement, the court held that a mere busybody cannot be given locus standi, but one of the factors which influence the courts to give locus standi is the importance of upholding the Rule of Law, i.e. The government cannot act arbitrarily. In this case, World Development Movement was granted locus standi as there was the lack of a third party to challenge the UK government’s decision. The definition of sufficient interest has been expanded to include public interest litigation. In Ex Parte Greenpeace, the courts also considered the reputation and standing of the organization seeking to challenge an administrative challenge.

Ex Parte Greenpeace

Facts
The environmental pressure group, Greenpeace, sought to bring judicial review proceedings against the decision of the Inspectorate of Pollution to authorise the discharge of radioactive waste from the Thorp nuclear plant in Cumbria. Greenpeace had 2500 members or supporters living in the area likely to be affected by the decision.

Legal principle
The Divisional Court held that the court should take into account the nature of the applicant, its interests in the issues raised, the remedy it sought to achieve and the nature of the relief sought. Greenpeace was a responsible organization with an established reputation for its interest in environmental matters and some of its members, who would have had standing in their own right, lived in the area affected

Furthermore, in Malik Brothers v Narendra Dadhich AIR [1999] SC 3211, If the court finds in the garb of PIL actually an individual's interest is sought to be carried out or protected, it would be bounden duty of the court not to entertain such petition as otherwise the very purpose of innovation of PIL will be frustrated. For example, what happened in QSR Brands.

In MTUC v Menteri Air, Tenaga dan Komunikasi (2014), the FC affirmed the findings in QSR Brands and Malik Bros, and held that the "adversely affected" test was the single test for all the remedies provided for under Order 53 of the RHC.

The Federal Court then held that in order to pass the "adversely affected" test, an applicant has to at least show that he has a real and genuine interest in the subject matter.

The Court added that it is not necessary for the applicant to establish infringement of a private right or the suffering of special damage (Govt of Malaysia v Lim Kit Siang).

In contrast to QSR Brands which was a case of private interest litigation, Anti-Pollute Quest falls within the middle of the spectrum, it is a public interest litigation. They are bringing the case on behalf of the villagers who live near the plant. In MTUC, the court after considering the whole legal and factual context of the application especially the fact that this is a public interest litigation, decided that MTUC had shown that it had a real and genuine interest in the two documents. Hence, MTUC was adversely affected by the Minister's decision. Applying the same principle, APQ was bringing a case on public interest litigation as it does not in fact suffer from infringement of private right of special damage. In view of the fact that it was acting as an environmental body and activist, it has a real and genuine interest in the subject matter. APQ falls within the middle of the spectrum test for locus standi established in QSR. The court will also consider the reputation of APQ and lack of other groups to bring the case. Anti-Pollute Quest has locus standi.

Similarly, Dali and Mani need not prove that they are suffering from an infringement of a private right or suffer special damage, but they only need to prove that they are adversely affected.

However, following the Minister’s decision allowing Millennium to dispose radioactive waste in the river from which they get their daily supply of water, Dali and Mani clearly have been adversely affected because the radioactive waste will affect their health and wellbeing through oral consumption. This falls under the right to life as stated in Tan Tek Seng, which is the quality of life that forms the facets of life. Moreover, GSR clearly stated that right to life includes the right to a clean environment. Therefore, Dali and Mani has locus standi to seek judicial review.

However, they need to note that according to Order 53 Rule 3(6) – the application for judicial review shall be made within 3 months from date grounds of application arose or decision communicated (previously 40 days). Any application to extend time must now be heard inter partes.  

REMEDIES

In this case, Anti-Pollute Quest, Dali and Mani can apply for a certiorari to quash the Selangor State Government’s decision and/or a declaration that the State Government’s approval was wrongful. These two remedies are not mutually exclusive. In B Surinder Singh Kanda v Govt of Malaysia, the Privy Council ruled that the remedy of declaration is also available to the plaintiff in addition to certiorari.

Certiorari

MP Jain stated that a certiorari is issued when a body has infringed norms of NJ, or acts under an invalid law, or commits errors of jurisdiction, or there is an error of law (non-jurisdictional error) apparent on the face of record, or where decision is based on findings of fact for which there is no legal evidence in support.

In considering to grant a certiorari, the court may take into account whether the applicant has an alternative legal remedy available to him. In Badat bin Drani v Tan Kheat, HC refused to grant certiorari to quash an order of the Rent Board on the ground that it was open to the petitioner to appeal to the High Court against the Board’s order. Applying this principle, Anti-Pollute Quest, Dali and Mani should make sure that they should exhaust all alternative legal remedies before applying for certiorari.

Declaration

A declaration merely declares what the legal rights of the concerned parties are. It has no coercive force nor does it quash any decision which may have been taken by admin body. However, it may effectively undermine the enforceability of an administrative act. For example, an order of the 

Minister which was declared as invalid cannot be enforced legally.

With regards to declaration, s41 SRA provides that it can be sought as to the Pf’s entitlement to a legal character, or status or right to property. The phrase ‘legal character’ in s41 is very broad, and it means a position recognised by law. It includes legal status of a person and covers many situations where a legal right of a person is infringed by an illegal or ultra vires action of an administrative authority.

By analogy to the meaning of life in Art 5 as iterated in Tan Tek Seng, the right to clean water can be constituted as one of the facets of life that form the quality of life, and therefore, is a basic fundamental right recognized by law.

In this case, certiorari is the best remedy as it can quash the minister’s decision, whereas a declaration has no coercive legal effect.