Harapan cabinet’s decision to extend Lynas’ licence valid, rules court
The then Pakatan Harapan cabinet’s 2019 decision to grant a six-month operating licence extension to rare earth refiner Lynas Corporation is valid and a legal challenge against it is academic, a judge ruled.
The High Court judge in Kuala Lumpur, Ahmad Kamal Md Shahid, ruled this in the full written grounds of judgment over his dismissal of a judicial review against the extension.
On July 28, the High Court dismissed the judicial review by group Save Malaysia Stop Lynas (SMSL) and two Kuantan residents against the 2019 decision by the then Harapan administration to grant a six-month operating licence to Lynas.
The three judicial review applicants...
The then Pakatan Harapan cabinet’s 2019 decision to grant a six-month operating licence extension to rare earth refiner Lynas Corporation is valid and a legal challenge against it is academic, a judge ruled.
The High Court judge in Kuala Lumpur, Ahmad Kamal Md Shahid, ruled this in the full written grounds of judgment over his dismissal of a judicial review against the extension.
On July 28, the High Court dismissed the judicial review by group Save Malaysia Stop Lynas (SMSL) and two Kuantan residents against the 2019 decision by the then Harapan administration to grant a six-month operating licence to Lynas.
The three judicial review applicants have since appealed to the Court of Appeal.
When contacted by Malaysiakini, the judicial review applicants’ counsel Larissa Ann-Louis confirmed that the document is the High Court’s full grounds of judgment dated Sept 3 this year.
According to a copy of the full written grounds seen by Malaysiakini, Kamal ruled that the Aug 15, 2019, cabinet decision was validly made as it did not amount to infringing on the ministerial power of the then energy, science, technology, environment and climate change minister Yeo Bee Yin (below).
Previously, the three judicial review applicants had contended that the Aug 15, 2019 decision was invalid as it amounted to Yeo allegedly wrongly delegating her ministerial power to the then cabinet.
The judicial review applicants were referring to Yeo’s then ministerial power to decide on Lynas’ appeal against AELB’s decision on Dec 4, 2018, which said Lynas must fulfil two preconditions before its operating licence could be renewed.
Kamal ruled that the then cabinet decision on Aug 15, 2019, was not in relation to Lynas’ appeal, but only on renewing the operating licence for six months.
The judge noted that Yeo, through a series of correspondences, had decided on Lynas’ appeal against the imposition of the two preconditions, which is distinct from the cabinet’s decision to allow the six-month extension.
Kamal was referring to Yeo’s letter to AELB dated Aug 13, 2019, whereby she instructed the board to take necessary action in relation to the imposition of the preconditions on Lynas.
“Nowhere is it mentioned that the cabinet themselves decided on the preconditions. The cabinet had only decided on the renewal of the licence but not on the preconditions.
“Henceforth, having scrutinised and considered all the exhibits filed in this case, I am of the opinion that the decision dated Aug 15, 2019, reversing the decision of the appropriate authority (AELB) dated Dec 4, 2018, on the imposition of the preconditions, is not the decision of the cabinet,” Kamal said.
The judge noted that as a result, the cabinet’s decision of Aug 15, 2019, did not contravene Section 32 of the Atomic Energy Licensing Act 1984 (AELA), as Yeo had correctly exercised the decision on Lynas’ appeal under that provision.
Section 32 deals with appeals by any person dissatisfied by the decision of any authority under the Act, such as the AELB.
Kamal said that Yeo, as the minister then, was empowered by the provision to decide on Lynas’s appeal against the preconditions, and she had not delegated her power under that provision to the then cabinet.
The judge noted that Yeo’s decision on Lynas’ appeal cannot be challenged in court due to an ouster clause in Section 32(5) of the AELA.
Section 32(5) states that “the minister may, after hearing the appeal, make an order confirming or setting aside the decision of the appropriate authority, or make such order as he thinks fit, and the order of the minister shall be final and shall not be subject to any appeal or review in any court”.
“It is my view on this issue that the decision made by the third respondent is not amenable to judicial review. It is a final decision and shall not be subjected to any review by any court as provided under Section 32(5) of the AELA,” Kamal ruled.
The judge also pointed out that the judicial review was academic as the AELB had already extended Lynas’ operating licence (the fifth licence) for three years from March 3, last year, to March 2, 2023.
Overtaken by events
The judge pointed out that the judicial review applicants were only challenging the validity of the Harapan cabinet’s decision to grant the six-month extension (fourth licence) beginning September 2019.
“In this fourth issue, I take the view that this application for judicial review is academic since the issue or the matter between the parties is no longer in existence.
“The renewal of the fourth licence which was in issue had been overtaken by events and the period of the licence had already expired.
“Moreover, the prayer sought by the applicants is also academic, since the third respondent (Yeo) is no longer the minister in charge,” Kamal said.
“I am also of the view that Lynas has not breached any rules and/or regulations at the LAMP (Lynas Advanced Materials Plant in Gebeng, Kuantan, Pahang).
“More importantly, there is no evidence of any procedural impropriety, irrationality or unreasonableness and/or illegality on the part of the respondents in issuing the fourth licence to Lynas,” the judge added.
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