by Hidir Reduan Abdul Rashid
Prime Minister Dr Mahathir Mohamad and the cabinet have been targeted by a lawsuit seeking to quash the government’s six-month extension of the operating licence for the controversial Lynas rare earth processing plant.
This was revealed by copies of an ex parte judicial review leave application by Save Malaysia Stop Lynas chairperson Tan Bun Teet, 71, and two other Kuantan residents, Ismail Abu Bakar, 71, and G Ponusamy, 68, which were filed by law firm Messrs Azri Lee Swee Seng & Co at the Kuala Lumpur High Court Registry on Nov 8.
Under the law, ex-parte refers to court proceedings where only one party is present while the opposing side is not.
The three applicants are seeking leave to commence the judicial review which seeks several declarations, among them that the collective decision of Mahathir and the entire cabinet made on Aug 15 to give a six-month extension for Lynas' operating licence is null and void, and of no effect.
It was reported on Aug 15 that the government gave a six-month licence extension to Lynas' rare earth processing plant in Gebeng, Kuantan, Pahang, but imposed several conditions with a view that the factory will curb its radioactive waste production within four years from the granted extension.
The three applicants claimed that the cabinet’s decision contravened the decision of the AELB on Dec 4 last year, which required Lynas fulfil two preconditions before its operating licence can be renewed.
They said the preconditions are that Lynas must first remove 451,000 tonnes of water leach purification (WLP) from the premises by Sept 2 this year, and the company needs to submit an action plan for the disposal of the non-radioactive NUF (scheduled wastes) before Feb 15 this year before it can be considered under the Environmental Quality Regulations (Scheduled Wastes) 2005.
They said that AELB imposed these preconditions for Lynas’s operating licence renewal following its perusal of a report made by an executive review committee which was appointed by the government on Oct 15, 2018, to look into Lynas’ operations.
According to the cause papers, Tan appeared before the committee and forwarded to it the “Presentation by SMSL to the Executive Review Committee” dated Nov 5, last year.
The trio, however, noted that Lynas later filed an appeal against the AELB’s decision with Yeo on Jan 3 this year, among various other appeal processes that the company went through this year.
The three applicants seek a declaration that Yeo had unlawfully and wrongly delegated her decision-making power, conferred under Section 32 of the Atomic Energy Licensing Act 1984, to the cabinet, thus making said cabinet’s decision on Aug 15 being ultra vires the said Act and is therefore null, void and no effect.
Under the law, the Latin maxim ultra vires refers to something done beyond one’s legal authority.
Section 32 refers to the power of the minister to hear appeals by parties affected by the decision of authorities in relation to the regulation of the atomic energy industry in Malaysia, such as Tan or Lynas. In this case, the said minister is Yeo.
Tan, Ismail and Ponusamy seek leave to proceed with the judicial review for a court order to quash the cabinet’s Aug 15 decision, which as a condition for the extension of the operating licence, directed Lynas to produce a plan to build a cracking and leaching facility outside Malaysia for the purpose of transferring the same currently within the Gebeng Kuantan facility out of Malaysia, among others.
The trio seeks an order to compel Yeo as minister to make a decision in regards to their and Lynas’ appeal made under Section 32 of the Act.
“We state that the failure of the government to take cognizance of the precautionary approach in allowing almost half a million tonnes of radioactive wastes (WLP) in Malaysia shows a failure of responsibility on the government’s and the relevant authorities’ part,” the trio said.
The three applicants contended that Yeo had acted in breach of the fundamental principles of natural justice or procedural fairness by allowing the cabinet to dictate the decision to be made over the Lynas issue, rather than she makes her own decisions in accordance to the Act, among others.
The three applicants also seek other remedies, orders and directions as the justice of the case demands, all reasonable and subsequent orders and directions or orders as this honourable court may be deemed fit and necessary, as well as costs.
Checks of the online cause list at ecourtservices.kehakiman.gov.my showed that the judicial review leave application is set for hearing before Kuala Lumpur High Court judge Nordin Hassan at 9am tomorrow (Dec 11).
According to copies of the leave application obtained by Malaysiakini today, the legal action is targeting:
- Prime Minister Dr Mahathir Mohamad
- Deputy Prime Minister Dr Wan Azizah Wan Ismail
- Science Technology and Innovation Minister Yeo Bee Yin
- Home Minister Muhyiddin Mohd Yassin
- Finance Minister Lim Guan Eng
- Defence Minister Mohamad Sabu
- Education Minister Dr Maszlee Malik
- Rural Development Minister Rina Mohd Harun
- Economic Affairs Minister Mohamed Azmin Ali
- Housing and Local Government Minister Zuraida Kamaruddin
- Transport Minister Anthony Loke
- Communications and Multimedia Minister Gobind Singh Deo
- Human Resources Minister M Kulasegaran
- Agriculture and Agro-Based Industry Minister Salahuddin Ayub
- Health Minister Dr Dzulkefly Ahmad
- Youth and Sports Minister Syed Saddiq Syed Abdul Rahman
- Entrepreneur Development Minister Mohd Redzuan Md Yusof
- Water Land and Natural Resources Minister Xavier Jayakumar
- Domestic Trade and Consumer Affairs Minister Saifuddin Nasution Ismail
- Works Minister Baru Bian
- Foreign Minister Saifuddin Abdullah
- Primary Industries Minister Teresa Kok
- Minister in the Prime Minister’s Department Mujahid Yusof
- Federal Territories Khalid Abd Samad
- Minister in the Prime Minister’s Department Liew Vui Keong
- International Trade and Industry Minister Ignatius Darell Leiking
- Tourism Arts and Culture Minister Mohamaddin Ketapi
- Minister in the Prime Minister’s Department P Waytha Moorthy
- The government of Malaysia
- Atomic Energy Licensing Board (AELB)
- Lynas Malaysia Sdn Bhd