CASE OF THE WEEK

This leave application by the applicants was made for the purpose of applying for judicial review challenging the decision of Lembaga Perlesenan Tenaga Atom in granting Lynas Malaysia Sdn Bhd (LYNAS) a temporary operational license (TOL) pursuant to the Atomic Energy Licensing Act 1984 (`the Act'). The applicants also sought for a stay order pending the disposal of the judicial review application. The applicants were all residents near the town of Gebeng where the Lynas Advanced Materials Plant (LAMP) was located. The Atomic Energy Licensing Board (Board) approved the application by LYNAS for Temporary Operating License (TOL) pursuant to reg. 23 of the Radiation Protection (Licensing) Regulations 1988. The applicants were now applying to quash the decision of the first respondent in approving the TOL. The applicants submitted that the granting of TOL by the first respondent was in breach of the law, in particular the Environmental Quality Act 1974, and was irrational for failing to take into account environmental concerns. The AG's chambers raised the objection on this leave application for failure to comply with s. 32 of the Act which allowed domestic remedy to the applicants, namely, the right of appeal to the Minister on any decision made by the Board under the Act. The applicants, however, contended that the failure to exhaust internal remedy was no bar to this action (Majlis Perbandaran Pulau Pinang v. Syarikat Kerjasama Serbaguna Sungai Gelugor dengan Tanggungan) and that this was a case of a decision amenable for a judicial review.

Held (dismissing the application):

(1) One must look at the facts in its entirety to determine whether there exists a decision which has affected the applicant to determine if the decision is amenable to judicial review (Wee Choo Keong v. Ketua Pengarah Perkhidmatan Awam; refd; Sivarasa Rasiah v. Badan Peguam Malaysia & Anor; refd). A concluded government stance which is likely to affect or infringe the right of an applicant has been suggested to be a decision that the court can declare a declaration upon. Thus, the decision of the first respondent in approving the TOL was a decision amenable to judicial review. (paras 15 & 16)

(2) The peculiar facts of the present case disclosed that s. 32 had been invoked. There was already an appeal pending under s. 32 filed by five other persons on the same impugned decision. The Minister had acted under s. 32 and had fixed a timely hearing date of the appeal. In view of the fact that the issues involved were technical, scientific and concerned environmental issues affecting the health and environment of the nation, surely that tribunal was in a better position to hear the complaints and grievances than the court of law. Issues of facts and findings on technical matters would be more appropriately deliberated in such a forum. Hence, this statutory remedy better suited the case and would more satisfactorily dispose of the grievances and complaints of the applicants. (para 21)

(3) The appeal lodged by these five appellants before the Minister was made pursuant to the requirement of the relevant provisions of the Act and it must be given due deference. The exercise of appeal to the Minister is an exercise pursuant to the provision of the Act, and the court could not in the face of the appeal process pending before the Minister now undermine that process. If the court were to proceed with its reviewing power over a decision, which was in fact pending appeal through a statutory provision, the court would be rendering that appeal superfluous, thus making that which was enacted by Parliament meaningless. Under these circumstances, the judicial review application by the applicants was premature. (para 22)

(4) The letter issued to LYNAS as shown in the written submission of the putative respondent stated that the first respondent had suspended all the issuance of all the TOL also pending the disposal of the hearing of the appeals brought by the five appellants mentioned above. The suspension was made pursuant to s. 16(6) of the Act. There was no necessity to quash the said decision and hence leave to apply for an order of certiorari should not be allowed because the decision was no longer in effect. The application for a stay order had also become redundant. (para 26)

(5) The applicants also prayed to obtain leave to apply for a prohibitive order against the first respondent from issuing TOL until and unless a Detailed Impact Assessment Report was made to the second respondent, Ketua Pengarah Kualiti Alam Sekitar, and the second respondent approved the said detailed report. In other words, the applicants sought for an order for the first respondent to comply with relevant laws before issuing the TOL. Such order was ludicrous because it could not be the duty of the court to order the first respondent to comply with relevant laws. Only when laws are transgressed can the remedy be sought in court. (paras 28 & 29)

Case(s) referred to:

Association of Banks Officers, Peninsular Malaysia v. Malayan Commercial Banks Association [1990] 2 CLJ 734; [1990] 1 CLJ (Rep) 33 SC (refd)

Government of Malaysia & Anor v. Jagdis Singh [1987] 1 CLJ 451; [1987] CLJ (Rep) 110 SC (foll)

Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 CLJ 65 FC (refd)

Metacorp Development v. Ketua Pengarah Hasil Dalam Negeri [2011] 1 LNS 1002 HC (refd)

R v. Secretary of State for Employment exparte Equal Opportunities Commission [1995] 1 AC 1 (refd)

Robin Tan Pang Heng v. Ketua Pengarah Kesatuan Sekerja Malaysia & Anor [2010] 9 CLJ 505 FC (refd)

Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2002] 2 CLJ 697 CA (refd)

Wee Choo Keong v. Ketua Pengarah Perkhidmatan Awam [2010] MLJU 1097 (foll)

Legislation referred to:

Atomic Energy Licensing Act 1984, ss. 8, 16(6), 32(2), (4)

Federal Constitution, arts. 5, 8, 13

Radiation Protection (Licensing) Regulations 1988, reg. 23

Rules of the High Court 1980, O. 53 r. 8

Counsel:

For the applicants - Tommy Thomas (K Shanmuga, Preetha Pillai, Mahalatchumi Balakrishnan & Azira Aziz with him); M/s Tommy Thomas

For the 1st & 2nd respondents - Suzana Atan (Noor Hisham Ismail with him); AG's Chambers

For the 3rd respondent - Dato' Puthucheary (Wong Kah Hui & SS Chin with him); M/s Jeff Leong, Poon and Wong

Watching brief:

Denny Kwa - Bar Council

Chan Yen Hui - MMA

Jessica Binwani - CAP & SAM

Shamila Segaran - MCCHR

Reported by Suhainah Wahiduddin