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Restating the Test for Judicial Review


Vijay Raj explains the Federal Court's decision on locus standi


In a recent judgment delivered on 12 February 2014, the Federal Court in Malaysian Trade Union Congress & 13 Ors v Menteri Tenaga, Air dan Komunikasi & Anor (unreported) ("MTUC Case") held that the test laid down by the Supreme Court in Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 ("Lim Kit Siang") to determine whether a claimant has capacity or standing to initiate an action (or as it is commonly referred to, locus standi) is not applicable when determining whether a person may apply for judicial review. Judicial review is the mode of action through which the courts may be approached to check on and review administrative decisions, actions and omissions of public authorities.


In Lim Kit Siang, the Ministry of Works issued a Letter of Intent to United Engineers (M) Berhad ("UEM") indicating that the Government of Malaysia was prepared to enter into a contract with UEM in respect of the construction and maintenance of certain roads.

Mr Lim Kit Siang ("Lim"), who was the leader of the Opposition in the Dewan Rakyat at that time, claimed that UEM was ultimately owned and controlled by UMNO and that its leaders had taken part in Cabinet deliberations relating to the same project and that therefore, the award to UEM was improper, unfair and tainted with bias.

The question arose as to whether Lim had locus standi to commence the action in the High Court. In the High Court, Dato' V.C. George, J (as he then was) ruled in favour of Lim. The Government appealed the decision to the Supreme Court, which was then the apex court of Malaysia.

The Supreme Court held that a litigant may only commence an action if he seeks redress for an interference with a right that is private or personal to him or, in the event of an interference to a right that is common to all members of the public, if he suffers special damage peculiar to himself. As a result, the Court ruled that Lim did not have locus standi to commence the action because it could not be said that there was or would be an interference with his private or personal right nor could it be said that he had or would suffer special damage peculiar to himself.


The brief facts of the MTUC Case were as follows. The services of the Selangor Water Supply Department had been privatised with effect from 15 March 2002. As a result, water distribution was taken over by Perbadanan Urus Air Selangor Bhd, which was subsequently taken over by Syarikat Bekalan Air Selangor Sdn Bhd ("SYABAS").

About two years later, SYABAS was granted a 30-year concession to supply treated water to the State of Selangor and the Federal Territory under a Concession Agreement which, inter alia, provided that SYABAS was entitled to increase the water tariffs if it achieved a 5% reduction in what was known as non-revenue water.

SYABAS subsequently applied to increase the water tariffs by 15% based on an audit report which purportedly confirmed that SYABAS had achieved a 5% reduction in non-revenue water ("Audit Report"). Thereafter the Minister announced that SYABAS had met the performance target and was eligible to increase water tariffs by 15% as from 1 November 2006.

The Malaysian Trade Union Congress ("MTUC") applied to the Minister for a copy of the Concession Agreement and the Audit Report justifying the 15% increase. The Minister refused to furnish the documents as he considered them to be classified. On 15 January 2007, MTUC and 13 others filed an application for judicial review asking for, amongst others, a declaration that the general public and MTUC had a right to view the two documents and an order directing the Minister to disclose the contents of the same.

In the High Court, Hadhariah Syed Ismail JC (as her Ladyship then was) allowed the judicial review application. The Government's appeal against the High Court's decision was allowed by the Court of Appeal, with Mohd Hishamudin Yunus JCA dissenting.


MTUC and the other Applicants obtained leave to appeal to the Federal Court on the following question of law:

"Whether the test of locus standi propounded by the Supreme Court in Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 i.e. that an applicant must establish infringement of a private right or the suffering of special damage still applies to (an) application for judicial review, and to what extent, in light of the present Order 53 Rule 2(4) of the Rules of High Court 1980?"

Order 53 of the Rules of High Court 1980 ("RHC") prescribes the mode and procedure by which an application for judicial review is to be made. It was only inserted into the RHC after the Supreme Court's decision in Lim Kit Siang. Order 53 allows any person who was "adversely affected by the decision of any public authority" to apply for judicial review.

The Federal Court answered the question posed above in the negative. The Court adopted the principles laid down in QSR Brands Bhd v Suruhanjaya Sekuriti & Anor [2006] 2 CLJ 532, 541-542 where the Court of Appeal held as follows:

"[16] It is to rid this dichotomous approach which often produced injustice that O.53 in its present form was introduced. There is a single test of threshold locus standi for all the remedies that are available under the order. It is that the applicant should be "adversely affected". The phrase calls for a flexible approach. It is for the applicant to show that he falls within the factual spectrum that is covered by the words "adversely affected". At one end of the spectrum are cases where the particular applicant has an obviously sufficient personal interest in the legality of the action impugned ...

[17] At the other end of the spectrum are 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 of the spectrum are cases which are in the nature of a public interest litigation. The test for determining whether an application is a public interest litigation is that laid down by the Supreme Court of India in Malik Brothers v Narendra Dadhich AIR [1999] SC 3211, where, when granting leave, it was said:

[P]ublic interest litigation is usually entertained by a court for the purpose of redressing public injury, enforcing public duty, protecting social rights and vindicating public interest. The real purpose of entertaining such application is the vindication of the rule of law, effective access to justice to the economically weaker class and meaningful realisation of the fundamental rights. The directions and commands issued by the courts of law in public interest litigation are for the betterment of the society at large and not for benefiting any individual. But if the Court finds that in the garb of a public interest litigation 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 public interest litigation will be frustrated."

On the basis of the foregoing, the Federal Court held that the "adversely affected" test was the single test for all the remedies provided for under Order 53 of the RHC. Hence the answer to the question posed in this appeal has to be in the negative.

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.

The Federal Court found that MTUC possessed the necessary locus standi to bring the action. The Federal Court said:

"MTUC claimed that it and/or the public are entitled to the two documents on the basis that the government is under a responsibility to provide safe and affordable treated water; water being an inalienable and basic right to human existence and living; there should not be unreasonable profiteering given that the supply and distribution of treated water had been privatised; and they have a legitimate expectation that the government shall at all times ensure that its people has affordable access to treated water ...

Looking at the whole legal and factual context of the application especially the fact that this is a public interest litigation, we are of the view 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 ..."

As the other Applicants did not make a similar request to the Minister as MTUC did for the documents, the Federal Court held that these Applicants were "strangers to the application" and did not satisfy the locus standi threshold set out in Order 53. The apex court further held that the dissatisfaction by the Appellants with the decision made by the Minister in rejecting MTUC's application did not make them persons who were "adversely affected" within the meaning of Order 53 of the RHC.

Notwithstanding its finding that MTUC had the locus standi to commence the proceedings, the Federal Court went on to conclude on other grounds that MTUC was not entitled to the two documents.


The pronouncement by the Federal Court on locus standi in this case is significant as it seems to signal a wider access to the courts for the purpose of having decisions, actions and omissions of public authorities reviewed by the judiciary as the test laid down in the MTUC Case appears to be less stringent than that laid down in Lim Kit Siang.

Although the RHC has been replaced by the Rules of Court 2012, this decision remains relevant as Order 53 of the Rules of Court 2012 is substantially similar to the repealed provision of the RHC.

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Vijay is a Partner in the Dispute Resolution Division of SKRINE. His main practice areas include commercial, corporate, insolvency, tort and administrative law.



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