1.0 INTRODUCTION
In
the case of civil litigation and lawsuits, there are many things that need to
be addressed and considered before an actual lawsuit can be claimed[1].
Those things include that a person must show he has course of action[2] or
issue to be tried, the matter is still within the limitation period[3],
determine the parties in suit and also show that plaintiff have the locus
standi to bring the case[4].
Basically in an application for judicial review the court would first
determines whether the applicant has locus standi to bring the case to the
court. Locus standi originated from Latin phrase which means ‘a place of standing’. In legal
terminology ‘locus standi’ means the right or capacity to bring an action or to
appear in Court[5].
Plaintiff must show to the Court, sufficient connection to and harm from the
law or action challenged to support that party’s participation in the case. If
plaintiff ‘lacks standing’ to bring the suit, then the Court would dismiss the
case without considering the merits of the claim. Therefore, in order to sue
there must be a valid reason for whoever is suing to be there. In other words,
the party suing must have something to lose in order to sue unless they have
automatic standing by action of law[6].
It
must be noted that the law that governs locus standi differ depends on country.
So, in this report I will disclose about the law that governs locus standi in
Malaysia and also United Kingdom and making a thorough comparative analysis
between these two countries. By seeing the comparative analysis of locus standi
in Malaysia and other country, we may find loopholes in that matter and next,
making few recommendations regarding locus standi in Malaysia for the purpose
of enhancing law and justice this country.
2.0 POSITION OF LOCUS STANDI IN
MALAYSIA
Order 53 of the Rules
of High Court 1980 did not provide any provision for locus
standi rule. However, the Malaysian court used ‘an aggrieved person’ as the
requirement for locus standi rule before amendment of Order 53 of the Rules of High Court in 2000. At that time Malaysian
court only granted leave for an application of judicial review if the applicant
could prove that he is ‘an aggrieved person’. The meaning of ‘aggrieved person’
was that the applicant's legal right has been affected by the decision of the
administrative authority.
After
amendment has been made in year 2000, new rule
2(4) was inserted in Order 53. This rule provides that if a person is ‘adversely
affected’ by the decision of an administrative authority, he is entitled to
apply to the High Court for judicial review of the decision taken. The wording
of the new rule 2(4) is as follows;
Any person who is
adversely affected by the decision of any public authority shall be entitled to
make the application (for judicial review).
It
must be noted that the only difference is that before amendment in 2000, the
applicant had to prove that he was an ‘aggrieved person’ and after amendment on
year 2000, applicant must prove that he is ‘adversely affected’ by the
administrative decision. We can see here that the requirement to prove locus
standi is getting stricter compared to before amendment in year 2000.
However,
on 2012, again the rule regarding locus standi was amended in Rules of Court
2012 where under Order 53 Rule 2(4)
it states that;
Any person who is
adversely affected by the decision, action or omission in relation to the
exercise of the public duty or function shall be entitled to make the
application.
Based
on the above provision, the test still of ‘adversely affected’ person. The
differences are only regarding decision, action or omission of public duty.
The
rule of locus standi can be observed though few decided cases in Malaysia. In
case of Lim Kit Siang v United Engineers (M) BHD & ORS (No 2)[7],
plaintiff, as leader of opposition contended that defendants, being leader of
UMNO taking part in deliberation of the Cabinet that considered the proposal by
UEM (in which UMNO had substantial interest) in respect of privatisation of
highways. The Cabinet decided to proceed with privatisation of such highway
amounted them to be guilty of offence under Section 2 of Emergency (Essential
Powers) Ordinance No 22 of 1970.
Basically
in this case Plaintiff seeking interlocutory injunction against defendants and
to invalid such contracts. The issue in this case was whether plaintiff has
locus standi to bring the case. The Court grant the injunction and held that
plaintiff had locus standi to bring the case because in statement of claim
plaintiff showed serious issue to be tried.
However,
defendants want to strike out such application and remove the injunction, thus
making an appeal to the Supreme Court. The new holding can be seen in the case
of Government
of Malaysia v. Lim Kit Siang[8].
In this case, Abdul Hamid CJ (Malaya) and HashimYeop A. Sani SCJ stressed that
where public and not private right was in issue, the applicant needs to show
some special interest beyond that possessed by the public. Here, plaintiff
failed to show that his legal right has been adversely affected in respect of
application to set aside a contract relating to Highway Utara-Selatan.
Therefore the Court held that he does not have the locus standi to commence an
action against Government.
So,
by looking at two cases that I cited above, the test for a person to have locus
standi and commence an action is that he must show that he right has been
adversely affected. The standard is high in order for someone to commence legal
action thus making it hard for any citizen to bring suit against public
authority if his right is not adversely affected.
While
in the case of Lim Kit Siang v Pemangku Ketua Polis Daerah, Butterworth & Ors[9],
plaintiff, as leader of opposition party succeeded in his claim after he could
show reasonable course of action and that he has locus standi to bring the
case. In this case, plaintiff brought an
action claiming in effect that he had been the victim of unfair discrimination
in the matter of his application for a permit under section 27(1) of the Police Act 1967. The Court in allowing the
application held that plaintiff right stated under Article 8(1) of Federal Constitution has been denied since his
legal right has been affected. Therefore based on this case, we can see that
legal action can only be commenced once plaintiff can show that his legal right
has been affected by the public authority.
In addition to that, there is one
more important case regarding rule of locus standi in Malaysia which is Tan
Sri Haji Othman Saat v Mohamed Bin Ismail[10].
In this case respondents applied for a declaration against Menteri Besar of
State of Johore impugning the validity of the alienation of the land in
Mersing, Johore. The Court granted the application to respondents and appellant
appeal on the course that respondent did not have locus standi to bring the
case against him and applied that such declaration to be struck out. The Court
in giving judgement held that for a person to have locus standi, he must be
somebody with such an interest in the subject-matter of the action as to
justify his seeking relief. In this case, the respondent was alleging an abuse
of power and he sought to impugn the validity of the alienation of the land in
question to the appellant. This was a clear case of a person having a special
or substantial interest in the subject-matter of the proceedings and gave him
capacity to sue and there could be no justification in debarring him from doing
so.
In short, in order for a person to
have a locus standi in commencing action in Malaysia, the person must show that
he has special or substancial interest, or in other words his legal right has
been adversely affected. If he does not prove that, then the right to commence
action cease to exist or his application would be struck out.
3.0 POSITION OF LOCUS STANDI IN UNITED
KINGDOM
Before
1978 in Britain, different standards or tests were applied for locus standi
rule regarding mandamus, certiorari and prohibition. In case of mandamus, the
court used a stricter test than other two prerogative orders[11].
For the equitable remedies of declaration and injunction, the applicant had to
prove that he had a ‘specific legal right’ or had suffered ‘special damage’
over and above that suffered by the public in general[12].
In case of mandamus, the applicant also needed to have a ‘specific legal right’
to require an administrative official to do his public duty in accordance with
law[13].
If the applicant did not have ‘specific legal right’ he could not apply for
mandamus, declaration and injunction.
Later
on in 1978, the locus standi rule in Britain was reformulated to enact a
liberal rule on locus standi. The new Order
53 of the Rules of Supreme Court, which came into force on 11 January 1978,
provides that;
The court shall not
grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates[14].
Same
provision has also been enacted in section
31(3) of the Supreme Court Act 1981 (UK). This new rule of locus standi
implies that to apply for judicial review, the applicant taxpayer must have ‘sufficient interest’ in the subject
matter as the requirement of locus standi. This new rule does not require the
old judicially created requirement that the applicant must be an ‘aggrieved
person’, and must have ‘specific legal right’ to the subject matter. Therefore,
this rule may liberalize the principle of locus standi to allow the public
spirited people such as a taxpayer or taxpayers' organisation to have access to
the public interest litigation, where the applicant is not an aggrieved person.
The significance of this new rule is that it requires a single uniform test of
standing for all types of remedies in judicial review proceeding[15].
Therefore,
Order 53 rule 3(5) of the Rules of
Supreme Court (UK) and section 31(3)
of the Supreme Court Act 1981 (UK) require that locus standi should be
assessed at the leave stage. Referring to the provisions, the House of Lords
have observed that the question of standing involves two-stages test. At the
leave stage the court will form a provisional view as to whether an applicant
has a sufficient interest, and at the full hearing, the sufficiency of the
applicant's interest will be assessed against the full legal and factual back
ground to the application.
It
is very pertinent to determine who has ‘sufficient interest’ and who does not
have. The court determines ‘sufficient interest’ (locus standi) by looking at
various factors such as, the nature of the power and duty of a public authority
to be performed, the nature of the breach of the duty, the objective and
content of the provisions of a statute which has not been complied with,
whether the public authority has acted unlawfully, the nature of the right or
interest of the applicant which has been affected by public authority decision
and et cetera.
In
R.
v. IRC, ex parte National Federation of Self-Employed and Small Businesses Ltd,
the House of Lords held that the Federation did not have sufficient interest in
the case because it could not prove that the Revenue had failed to do their
statutory duty. Lord Diplock in this case observed that he could held that the
Federation had ‘sufficient interest’ if the Federation could prove that the
conduct of the Revenue was ultra vires or unlawful in the circumstances. From
this case, it can be said the applicant in judicial review proceedings has to
show some personal injury and a public-spirited man or organization may not
challenge an action taken by an administrative department merely because he
does not have any interest in the subject matter or has not suffered any loss.
This view will bar a public-spirited man or a representative organisation to
have access in public interest litigation, where his or its personal interest
is not affected.
In
short, the rule of locus standi in UK is more flexible and lenient in
permitting a person to bring an action against public authority.
4.0 LEGAL ANALYSIS: COMPARISON OF LOCUS
STANDI IN MALAYSIA AND UK
Based
on this report, it is pertinent to know that if the rule of standing is strict,
there may arise a situation when there is no one qualified to bring an action
in the court and consequently, the administrative order then might probably go
unreviewed and this would amount to a negation of rule of law[16].
Now
if we compare between the new Order 53 (Malaysia) and Part 54 of CPR (UK), we
will find that the locus standi rule in these two countries are different. In
the UK the locus standi rule has been liberalised to enable more and more
people to have access to the judicial review proceedings while in Malaysia the
locus standi rule has been made strict so that if a person is not ‘adversely
affected’, he will not be entitled to apply for judicial review.
Apart
from that in the UK, the applicant in an application for judicial review must
have ‘sufficient interest’ in the subject matter to apply for judicial review.
He does not need to prove that he has ‘specific legal right’ in the subject
matter and his ‘specific legal right’ has been affected by administrative
decision. He also does not need to prove that he has been an ‘aggrieved person’.
Simply he needs to prove at the permission stage that he has ‘sufficient
interest’ in the subject matter of the case. While in Malaysia, the applicant
in an application for judicial review need to prove that he has been ‘adversely
affected’ by the administrative decision. The meaning of ‘adversely affected’
is not very clear. Malaysian court has not yet clearly expressed its opinion on
this matter. But we can see in the case of Government of Malaysia v. Lim Kit Siang, plaintiff
failed to commence action against defendant simply because his interest was not
‘adversely affected’ so he considered as not having locus standi to bring the
case. Based on this case, we can conclude that ‘adversely affected’ means a
person legal right has been badly affected. So, it is hard for any citizen to
bring an action against public administrative authority if he lacks legal
standing.
In
addition to that, the difference between rule of locus standi in Malaysia and
UK is that in UK, the rule is more flexible while the law in Malaysia is
stricter. The ‘sufficient interest’ rule in the UK allows more and more
applicants to apply for judicial review of administrative decisions. This
flexible standing rule in the UK also allows public interest litigation in the
sense that a public-spirited man or a representative body may apply for
judicial review to vindicate the rule of law. For example, if a government
development policy unfairly affects the people in an area, any public-spirited
man or a representative organisation may apply for judicial review of the
policy decision as they have ‘sufficient interest’ in the subject matter. But
if we see the position of locus standi rule in Malaysia, the applicant in an
application for judicial review must show that he is ‘adversely affected’ by
the public authority decision. This rule means that the right or interest of
the applicant must be ‘adversely affected’ to have standing to apply for
judicial review. If his rights are not adversely affected by the public
authority's decision the applicant may not have locus standi. So, Malaysia
propagates a stricter locus standi rule which may bar public interest
litigations in the sense that a public-spirited man cannot apply for judicial
review because his personal right or interest has not been affected by public
authority decision; or the court may ask him to prove that he has suffered
‘special damage’ over and above that suffered by the public in general which is
to negate his locus standi. This strict rule will certainly bar certain
applicants to have locus standi in an application for judicial review where not
his personal right but public right or interest is affected.
5.0 CONCLUSION
In
conclusion, the rule of locus standi in Malaysia is stricter compared to that
in UK. In Malaysia we can see that the test used for a person to have a locus
standi is that he must show to the Court that his right has been ‘adversely
affected’ by public authority. The provision governing rule of locus standi is
provided under Order 53 Rule 2(4) of Rules of Court 2012. Whereby in UK, rule
of locus standi is more lenient. The test in UK is that a person must show to
the Court that he has ‘sufficient interest’ to commence an action against
public administrative authority.
Based
on this report, I would like to recommend that rule of locus standi in Malaysia
to be more lenient so that any citizen can bring action against public
authority who abused the power given to them so that rule of law and justice
can be achieved. To do this, the parliament should play an important part in
amending the provisions for locus standi. All in all, I hope that this report
would give awareness to readers that the rule of locus standi in Malaysia has
barred many citizens from taking legal action against public authority and the
current provision under Order 53 Rule 2(4) of Rules of Court 2012 as if making
public authority to be almost immune from the legal powers against them. This
would probably led to many abused of powers by the higher ups in exercising
their duty. Therefore, to avoid that, amendment to the laws of locus standi in
Malaysia should be amended and to be made more lenient so that justice would
avail.
6.0 REFERENCES
Journal
Lewis, C. (1992). Judicial remedies in public. Sweet &
Maxwell; London. pg. 268.
Professor Jain. (1997).
Administrative law of Malaysia and
Singapore. Malayan Law Journal; Malaysia. pg. 749.
Websites
Md
Abdul Jalil. (2004). Locus standi rule
for judicial review: The current law in the UK and
Malaysia.
Retrieved on 11th November 2016, from http://www.ukm.my/juum/JUUM%202004/Locus_Standi_Rule_For_Judicial_Review%20(full).pdf
(n.a).
(n.d.). Preliminary matters.
Retrieved on 10th November 2016, from
Oxford
Dictionary | Locus standi. Retrieved
on 10th November 2016, from
USLEGAL
| Locus standi law and legal definition.
Retrieved on 11th November 2016, from
Acts
Rules
of High Court 1980
Rules
of High Court 2000
Rules
of Court 2012
Rules
of Supreme Court Act 1981 (UK)
[1]
(n.a). (n.d.). Preliminary matters.
Retrieved on 10th November 2016, from http://paralegal.laws.com/civil-litigation/preliminary-matters
[2]
Course of action arose when plaintiff can show there are the existence of
person who can sue and be sued.
[3]
Limitation period differs depends on type of course of action taken against
defendant and it subject to Limitation Act 1953
[4]
Known as preliminary matters in civil suit before commence an action.
[5] Oxford
Dictionary | Locus standi. Retrieved
on 10th November 2016, from https://en.oxforddictionaries.com/definition/locus_standi
[6] USLEGAL
| Locus standi law and legal definition.
Retrieved on 11th November 2016, from http://definitions.uslegal.com/l/locus-standi/
[7]
[1988] 1 MLJ 50
[8] [1988]
2 MLJ 12, at pg. 32.
[9]
[1988] 2 MLJ 648
[10] [1982]
2 MLJ 177
[11]
Md Abdul Jalil. (2004). Locus standi rule
for judicial review: The current law in the UK and Malaysia. Retrieved on
11th November 2016, from http://www.ukm.my/juum/JUUM%202004/Locus_Standi_Rule_For_Judicial_Review%20(full).pdf
[12] Boyce
v. Paddington Borough Council [1903] 3 All ER 1068.
[13] R
v Commissioner of Customs and Excise, ex p. Cooke and Stevenson [1970] 3 All ER
1068.
[14] Order
53 rule 3(5) of the Rules of Supreme Court.
[15]
Lewis, C. (1992). Judicial remedies in public.
Sweet & Maxwell; London. pg. 268.
[16]
Professor Jain. (1997). Administrative law of Malaysia and Singapore. Malayan
Law Journal; Malaysia. pg. 749.
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