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.
