Court reviews test for ‘locus standi’

PUTRAJAYA: The Federal Court has reviewed the test for locus standi, ruling that a person needs at least a genuine interest in an issue but no longer needs to prove that his rights are affected.

To have locus standi (legal standing) means a person is qualified to take legal action, as he is affected to some degree by the issue he is taking action against.

The Federal Court made the ruling when deciding on a suit between the Malaysian Trades Union Congress (MTUC) and the Government for access to the concessionaire agreement involving Syarikat Bekalan Air Selangor Sdn Bhd (Syabas) and an audit report.

Justice Hasan Lah ruled that for an applicant to pass the “adversely affected” test, the applicant has to at least show that he has a genuine interest in the subject matter.

“However, it is not necessary for the applicant to establish infringement of a private right or the suffering of a special damage,” he said.

He ruled that MTUC had shown that it had a genuine interest in the two documents and was adversely affected by the minister’s decision.

The panel set aside the test of locus standi as per the 1988 Supreme Court decision in the case of Lim Kit Siang v United Engineers (M) Bhd, in which Lim sought a declaration that the letter of intent issued by the Government to UEM to build the North-South Expressway was invalid.

The Supreme Court had ruled that Lim had no locus standi as he had failed to show that his private right had been infringed upon or he had suffered a special damage.

However, the panel unanimously upheld the Court of Appeal’s decision to deny MTUC and 12 water consumer associations access to the documents as the audit report was an “official secret” document on grounds that it was tabled before and deliberated by the Cabinet.

“As for the concession agreement, the MTUC failed to show that the minister’s decision was illegal and flawed on the ground of procedural impropriety,” said Justice Hasan.

The five-man bench, which included Chief Justice Arifin Zakaria, Chief Judge of Malaya Justice Zulkefli Ahmad Makinudin and Justices Hashim Yusoff and Suriyadi Halim Omar, made no order to costs as the case was of public interest.

The applicants’ counsel Malik Imtiaz Sarwar said that while his clients may have lost the suit, the decision clarified the law on locus standi.

The applicants had on Jan 15, 2007, applied for a judicial review for access to the concessionaire agreement between Syabas and the federal and state governments.

On June 28, 2010, the High Court allowed their judicial review, ruling that the disclosure of the documents would not be detrimental to national or public interest.

However, on Feb 25, 2011, the Court of Appeal overruled the High Court’s decision and held that they did not have the legal right of access to the audit report and concession agreement.

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