Judicial Review application challenging Lynas licence extension dismissed WITH COSTS - RM20k to PM/Ministers/governtment and RM20K to Lynas,
WHAT IS THE REASON for dismissing the Judicial Review application - Well, WE DO NOT KNOW BECAUSE THE JUDGE DID NOT GIVE ANY REASONS?
Contacted by the media, the government’s legal representative, senior federal counsel Ahmad Hanir Hambaly @ Arwi, confirmed the decision by judge Ahmad Kamal Md Shahid.
“The judicial review is dismissed,” Hanir said, adding that the court’s decision was conveyed via email exchange with the parties this afternoon.
He added that the court did not provide grounds for the decision.
When judges make a decision, the reasons must be stated at the very least the main points for coming to that decision - True, when the written Grounds of Decision comes out later(if it does) - then, there will be more elaboration of the reasons of the decision..
But, the Grounds of Decision may never be written - as many a judge will not provide WRITTEN grounds of decision, unless there is an Appeal filed.
How can anyone make a decision whether to Appeal or not - if you do not know the REASONS why the judge dismissed a case. Are we supposed to GUESS - that is preposterous.
This matter concerning Lynas is certainly a matter of 'public interest' - and many in Malaysia and the world want to know the reasons this particular Judicial Review decision was dismissed. WHY? WHY?
So, are the 3 individuals supposed to GUESS what the reason was? I hope that the HEAD OF THE JUDICIARY provide clear direction to judges - i.e. when they make any decision to allow or dismiss any application, they must also give the reasons for their decision in brief setting out all the points for their decision. Grounds of Judgment must be written thereafter and made available not later than seven(7) days after a judgment was made in any court case - irrespective of whether there is an Appeal or Not?
Grounds of Judgment are KEY as the provide certainty as to why the Court came to any particular decision.
Was this Judicial Review challenging a GOVERNMENT DECISION dismissed because we cannot challenge the government ...especially the Prime Minister and Ministers? Well, naturally, that may be PERCEPTION that may arise - more so since there seems to be NO REASONS FOR THE DECISION reported?
Was it because the said 3 persons, being ordinary persons, have no right to challenge a government decision..
THEN, there is the question of COST - a punitive cost in my opinion. There should be NO COST when it comes to JUDICIAL REVIEW applications - for this is an application where the people are coming to court and asking the court to Judicially Review a government decision...Even, if there is COST, then it should be token cost, say RM100...
Why exactly did the Court order the 3 applicants to pay Lynas COST? In fact, in a Judicial Review application, there is no need to join anyone but the DECISION MAKER - so, the adding of Lynas could maybe only be a matter of 'courtesy' or maybe because the Applicants may want to apply for an injunction to prevent Lynas from acting on the DECISION the government made...I really do not know. After all, this is all but my opinion.
SHOULD THE COURTS DETER PEOPLE FROM FILING JUDICIAL REVIEW APPLICATIONS TO THE COURT?
Well, when you order them that fails in their application to pay cost that HIGH - it certainly will deter other people from exercising their Democratic Rights and challenging government decisions in the future - so, WRONG UNJUST decisions of government will just be carried out SIMPLY because the people(not rich) simply cannot afford the penalty of COST..
What is the Minimum Wage - it is RM1,200 - this must be appreciated by court - and as such, whenever the court imposes HIGH COST, the courts simply become inaccessible to many...Remember, after all many not RICH individuals already have to expend time, effort and monies(including legal fees and court charges) to take an application for Judicial Review..
In this case, well, as I see it the applicants are personally not going to be ENRICHED monetarily, etc even if Judicial Review application in this case was successful ..
Well, I do not know what happened in court ...
Note that they are not taking an action against Mahathir in his personal capacity in a Judicial Review application - it is against the Prime Minister, certain Ministers, and government department/agencies > so, after Mahathir is no more Prime Minister - this case reasonably is against them new PM and Ministers ...Muhyiddin Yassin is also being sued as the Home Minister then... I believe that case would have filed before the 'change of government'..
In Brief,
1. JUDGES MUST DELIVER REASONS FOR THEIR DECISIONS WHEN THE DECISION IS HANDED DOWN - at least briefly. WHY? Decisions are made based on facts and reasons, and judges have so many cases which means a delay in writing judgment may lead to 'forgetting' or possible inclusion of intentional or unintentional 'after-thoughts'(i.e. matters that may not have been the reasons for the decision was handed down. Writing grounds of judgment when there is going to be an appeal also may lead to the 'adding' of 'new' justifications. So, best for Judges giving decisions to also state the reasons then and there, and Grounds of Judgment must be immediately written down then and there irrespective whether is an appeal or not.
2. People should not be DETERRED using the 'check and balance' in a democracy by applying for Judicial Review of government's decision - there should be NO COST, or a token cost of less than RM1k. This is more so in a public interest case where the application is filed by the people or groups of people.
NOW, PM Muhyiddin and his Cabinet should also say whether they too still stand by the DECISION made by Mahathir and his then Cabinet. Since, they challenged this Judicial Review application, it can be said that the fully support the then PH Plus government decision on Lynas.
Note that in Court, the PM/Ministers and Government agency was represented by Federal Counsel - not some privately engaged lawyer.
This opinion is based on media reports - Maybe the judge gave their reason but Media chose to just report 'dismissed' or 'allowed'. If so, Media must be more responsible in the future and also ensure that the REASONS for decision is reported. Poor media reports can mislead us..
Judicial review application challenging Lynas licence extension denied by High Court
The judge ordered costs of RM20,000 to be paid to all respondents by the three individuals challenging the decision to allow the licence extension of the rare earth processing facility owned by Lynas Malaysia Sdn Bhd. (Photo by Reuters)
KUALA LUMPUR (July 28): The High Court today denied a judicial review application by three individuals challenging the decision of former prime minister Tun Dr Mahathir Mohamad and his Cabinet, and three others, to allow the licence extension of the rare earth processing facility owned by Lynas Malaysia Sdn Bhd.
Senior Federal Counsel Ahmad Hanir Hambaly, when contacted, said that Judge Datuk Ahmad Kamal Md Shahid denied the judicial review application in online proceedings this afternoon.
The judicial review was filed by Save Malaysia, Stop Lynas chairman Tan Bun Teet and two Kuantan residents, namely Ismail Abu Bakar and G Ponusamy, on Nov 8, 2019 as the applicants. They were all represented by lawyers Datuk Seri Gopal Sri Ram, Dinesh Athinarayanan and Saha Deva.
Ahmad Hanir, meanwhile, was representing Dr Mahathir, the first respondent, and the 27 Cabinet ministers at that time, who were the second to 28th respondents, the Malaysian government and the Atomic Energy Licensing Board (AELB), while Lynas was represented by lawyers Tan Sri Cecil Abraham and Datuk Sunil Abraham.
The judge then ordered costs of RM20,000 to be paid to all respondents by the three individuals.
The court also ordered the trio to pay another RM20,000 costs to Lynas.
The three individuals, among other things, were seeking a declaration that Dr Mahathir and the 27 ministers’ collective decision as the federal Cabinet on Aug 15, 2019 to allow a licence extension of six months for the Lynas operation was null and void.
The first applicant, Tan, also filed his objection to the environmental impact assessment (EIA) by showing there were breaches to the licensing conditions and underground water pollution as included in the executive review committee report.
Court throws out legal challenge against Lynas' operating licence extension
Save Malaysia Stop Lynas (SMSL) and two Kuantan residents failed in their legal bid to squash the six-month operating licence extension granted to the Lynas rare earth processing plant by the then Pakatan Harapan federal administration.
The High Court in Kuala Lumpur this afternoon dismissed the judicial review application by SMSL chairperson Tan Bun Teet as well as Ismail Abu Bakar and G Ponusamy.
Contacted by the media, the government’s legal representative, senior federal counsel Ahmad Hanir Hambaly @ Arwi, confirmed the decision by judge Ahmad Kamal Md Shahid.
“The judicial review is dismissed,” Hanir said, adding that the court’s decision was conveyed via email exchange with the parties this afternoon.
He added that the court did not provide grounds for the decision.
Under the law of civil proceedings, in the event that a court does not provide grounds for a decision when initially delivered, the detailed grounds would be provided later when the full written judgment is issued.
When contacted later today, lawyer A Dinesh said the court ordered his clients - Tan, Ismail and Ponusamy - to pay a total of RM40,000 as costs to the 31 respondents in the matter.
On Nov 8, 2019, the trio filed the legal action, naming then prime minister Dr Mahathir Mohamad and the members of the then Harapan cabinet as among the 31 respondents in the matter.
In February last year, it was reported that the then Harapan government granted a three-year extension of Lynas’ operating licence, to run until March 2023.
The Atomic Energy Licensing Board (AELB) imposed four conditions for the three-year extension, namely that:
1. Lynas to begin the process of developing the permanent disposal facility (PDF) within the first year from the date of approval of the licence;
2. Lynas must submit a work development plan for the construction of the PDF and report on its development status as determined by the Malaysian AELB;
3. Lynas must ensure that the cracking and leaching plant outside Malaysia is in operation before July 2023. After that period, Lynas will no longer be allowed to import raw materials containing naturally occurring radioactive material (Norm) into Malaysia; and
4. Holding of the financial deposit will be maintained for compliance with the relevant licence conditions.
After the proceedings conducted via email this afternoon, Dinesh explained that the court ordered his clients to pay the RM40,000 costs, following submissions on how much costs need to be paid.
“The applicants are required to pay costs of RM20,000 (global costs) to the (first to 30th) respondents without allocator fee.
“The applicants are required to pay costs of RM20,000 to the 31st respondent, subject to allocator fee,” Dinesh said.
The first listed 28 respondents were the former Harapan cabinet members, namely
- Mahathir;
- Former deputy prime minister Dr Wan Azizah Wan Ismail;
- Former energy, science, technology, environment and climate change minister Yeo Bee Yin;
- Former home minister Muhyiddin Yassin (who is now Prime Minister of the PN cabinet);
- Former finance minister Lim Guan Eng;
- Former defence minister Mohamad Sabu;
- Former education minister Maszlee Malik;
- Former rural development minister Rina Harun (who is now Women, Family and Community Development Minister in the PN administration);
- Former economic affairs minister Mohamed Azmin Ali (who is now the PN government’s International Trade and Industry Minister);
- Zuraida Kamaruddin (who in the then Harapan and now PN administration is still Housing and Local Government Minister);
- Former transport minister Anthony Loke;
- Former communications and multimedia minister Gobind Singh Deo;
- Former human resources minister M Kulasegaran;
- Former agriculture and agro-based industry minister Salahuddin Ayub;
- Former health minister Dzulkefly Ahmad;
- Former youth and sports minister Syed Saddiq Abdul Rahman;
- Former entrepreneurship development minister Mohd Redzuan Md Yusoff;
- Former water, land and natural resources minister A Xavier Jayakumar;
- Former domestic trade and consumer affairs minister Saifuddin Nasution Ismail;
- Former works minister Baru Bian;
- Former foreign affairs minister Saifuddin Abdullah (now Communications and Multimedia Minister in the PN government);
- Former primary industries minister Teresa Kok;
- Former minister in the prime minister’s department (religious affairs) Muhajid Yusof Rawa;
- Former federal territories minister Khalid Abd Samad;
- The late former minister in the prime minister’s department (legal affairs) Liew Vui Keong;
- Former international trade and industries minister Ignatius Darrell Leiking;
- Former tourism, arts and culture minister Mohamaddin Ketapi;
- Former minister in the prime minister’s department (national unity) P Waytha Moorthy.
The 29th, 30th, and 31st respondents are the government of Malaysia, AELB, and Lynas Malaysia Sdn Bhd.
Through the judicial review action, Tan and the two Kuantan residents sought a declaration that the then cabinet’s decision on Aug 15, 2019 was null and void as it contradicted an earlier Dec 4, 2018 decision by the Energy, Science, Technology, Environment, and Climate Change Ministry (Mestecc) on the matter.
On Aug 15, 2019 the then cabinet decided to grant Lynas the extension, provided they fulfilled three conditions:
- Present a plan for a cracking and leaching facility abroad and transfer the processing of radioactive waste from its Gebeng plant in Kuantan
- Identify a specific location for a permanent disposal facility for existing radioactive waste
- Stop all research and development on the usage of radioactive waste
The ministry earlier set two conditions for Lynas before allowing any license renewal - remove accumulated radioactive Water Leach Purification (WLP) residue from Malaysia; and submit an action plan on how it will dispose of non-radioactive waste.
The trio also sought a declaration that Mestecc Minister Yeo Bee Yin unlawfully and wrongly delegated her decision-making power, provided under Section 32 of the Atomic Energy Licensing Act 1984, to the cabinet.
They contended that the cabinet acted beyond its legal authority in the Aug 15, 2019 decision. - Malaysiakini, 28/7/2021
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