The Kuala Lumpur High Court has rejected the leave application for a judicial review against the Atomic Energy Licensing Board's (AELB) approval of a temporary operating licence to Lynas Corporation to operate a rare earth refinery.

NONE The application filed by 10 residents from Gebeng, Kuantan, where the refinery is located, was declared “premature” on three peculiar facts and circumstances issued by Justice Rohana Yusof.

The judge pointed out that the court is not the right platform to deal with the judicial review as there is an appeal pending before the Science, Technology and Innovation Minister that is set to be heard on April 17.

She also cited that a parliament select committee (PSC) was formed on March 23 to investigate the safety standards of the Lynas Advanced Materials Plant (LAMP) and AELB has suspended the plant’s temporary operating licence (TOL) until all the contentions are disposed of.

Rohana was referring to the appeal by six representatives of the Save Malaysia Stop Lynas (SMSL) movement to the minister, Maximus Ongkili, to annul the plant’s licence.

She said the appeal lodged by the SMSL to the minister is based on provisions under the Atomic Licensing Act 1984 and “it must be given due deference”.

NONE “The exercise of appeal to the minister is an exercise pursuant to the provision of the Act, and the court cannot 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 is in fact pending appeal through a statutory provision, the court would be rendering that appeal superfluous, thus making that, which is enacted by Parliament to be meaningless.

“This court should not allow for the applicants’ impudence of the pending appeal by granting for a judicial review.

“Needless to say, it may lead to the confusion and embarrassment in the event that the findings of the minister differ from that of the court’s,” said the judge.

However, The Malaysia Insider reported today that three of the six petitioners withdrew from the ministerial hearing slotted for next Tuesday at the Malaysian Nuclear Agency in Bangi.

Waste of public resources and funds

Rohana, in coming to the decision, said the health and environmental concerns which would have been raised in the judicial review will be the same issues addressed before the ministry.

“Matters concerning environment and health can be resolved in that appeal process where the minister is able to invite professional and expert inputs that are required.

NONE “The AELB has also deferred issuance of the licences till the disposal of that appeal,” she said.

The PSC is another dimension that cannot be ignored, said Rohana, adding that the panel will be the proper channel to deliberate on complaints and grievances voiced.

Rohana did not also agree with arguments posed by the residents’ lead counsel Tommy Thomas that the PSC has nothing to do with the judicial review application, as there are no laws that prohibit two branches of the government to simultaneous deal with the same issue.

“Obviously having all the branches of the government focussing on the same issue is a sheer waste of public resources and public funds. Potentially it may cause embarrassment,” she opined.

“The three branches of the government should not be in competition. That is not their purpose.

“The court should not hesitate to interfere in view of the fact that a more prudent approach is now been invoked to deliberate similar issues raised under the appeal,” she added.

 
NONE On the demands that the court issue a prohibition order against AELB from issuing the TOL until a detailed environmental impact assessment (EIA) report is submitted to the Department of Environment, Rohana said: “It would appear from the prayer that the applicants are seeking for this court to make an order for AELB to comply with relevant laws before issuing the TOL.

“It cannot be the role of the court to order AELB to comply with written laws. Such an order is ludicrous because it cannot be the duty of the court [...]. All laws in Malaysia must be complied with by everyone in this country [...] unless the laws are transgressed and then remedy can be sought,” she said.

The judicial review filed on Feb 17 challenged the TOL and named the AELB, the Department of Environment’s director-general of environmental quality and Lynas Malaysia Sdn Bhd as respondents.

Speaking to reporters, the applicants’ lawyer K Shanmuga said that they will file an appeal as soon as possible.

“It is a very sad day for Malaysia, in terms of democracy and the principle of separation of powers, when the judge said she doesn’t want to embarrass the minister. It also reflects that the judge is afraid to make a decision that it different frm the minister’s,” said Kuantan PKR parliamentarian Fuziah Salleh.

“Regardless, the people of Kuantan are not going to be bullied and we have decided to appeal the decision immediately,” she said.

 
Commit to best practices, Lynas told

 
She appealed to Lynas to commit to “best practices” employed in their refinery in Mont Weld, Australia, where the alleged hazardous waste is sent back to the mines to be disposed off.

NONE “We are asking Lynas not to apply double standards by giving an excuse that they are complying with all the Malaysian standards. We want them to do whatever they do in Australia, to do it here,” said Fuziah, reminding Lynas to not take advantage of the loopholes in the law.

Asked whether the opposition will have a change of heart and take part in the PSC, Fuziah shot down the suggestion as Parliament had rejected a suggestion to issue a stop-work order on the plant which is expected to be up and running in June.

Lynas is of the view that the waste from the refinery will not pose hazards and will instead be reprocessed into commercial products.

PAS environmental bureau chair Zulkefly Mohamad Omar said that tomorrow, Solidariti Se-Malaysia Himpunan Hijau, a coalition of 22 non-governmental groups, will stage a nationwide anti-Lynas protests at mosques nationwide.

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