DEVELOPMENT OF LAW OF PRIMA FACIE IN MALAYSIA

1.0 Prior Amendment 1997

The history of development for the degree of proof required to establish a prima facie before Criminal Procedural Code amendment case can be divided into 3 parts. The first part is before the case of Haw Tua Tau v Public Prosecutor[1]. The second part is at the time of the case of Haw Tua Tau V Public Prosecutor and the third part is after the case of Haw Tua Tau v Public Prosecutor. Basically, prior to 1997, there were debates on what degree of prima facie should be established by prosecution in charging someone under criminal offense. Before the case of Haw Tua Tau, Malaysia court applies the degree of proof as maximum evaluation and beyond reasonable doubt to establish a prima facie case at the close of prosecution’s case. This can be seen through Section 173(f) and 180 of CPC.

Prior to its amendment, Section 173 (f) CPC read as follows:

‘If upon taking all the evidence herein before referred to, the Court finds that no case against the accused has been made out, which if unrebutted would warrant his conviction the Court shall record an order of acquittal.’

The above provision means that after producing evidence to establish prima facie case, the Court finds no case against accused that would convict him, then the Court shall give order for acquittal.

Meanwhile, Section 180 CPC which provides that;

‘When the case for the prosecution is concluded, the court, if it finds that no case against the accused has been made out, which if unrebutted would warrant his conviction, shall record an order of acquittal or if it does not so find, shall call on the accused to enter his defence.’

The above provision states that after the trial proceeding, if accused could not rebut the material evidences adduced by prosecution, then he would be convicted. However, if prosecution could not proof the credible evidences, then the accused will be acquitted or he may be called for defence.

Before going further to disclose development of prima facie in Malaysia, it is vital to know the meaning first. Black’s Law Dictionary defined prima facie as a party’s creation of enough evidence to allow the fact at issue and rule in the party’s favour[2]. The definition of prima facie also can be seen in Burton Legal Thesaurus by William Burton that says, prima facie is adequate, lawfully sufficient, legally adequate, satisfactory, sufficient on its face, sufficient on the pleadings, sufficient to make out a case and sufficiently strong. This means that, prima facie is apparently seen at first glance before further examination had been done.

It must be noted that the burden of proof lies on prosecution to adduce evidences and disclose materials to establish prima facie case. The degree of proof can be defined as a burden imposed on a party to prove certain facts in issue. The burden of proof also sometimes referred to as the persuasive burden, or phrases which indicate that a party bearing the legal burden on a fact in issue will lose on that issue if the burden is not discharge to the required standard of proof. In the case of Woolmington v DPP, Lord Viscount Sanky stated that it is the duty of the prosecution to prove the prisoner’s guilt beyond reasonable doubt. Failure to do so, accused would be acquitted.

We can learn further about prima facie case by looking into certain cases that states about prima facie like the case of A. Ragunathan v PP[3]. In this case, the Court held that according to the given statement, the Court has to determine whether to accuse the person by relating the statement with elements in the charge, and if accepted the charge against him will be prosecuted. This means that, prosecutor need to provide certain materials or adduce certain evidence to establish prima facie against accused person. It must be noted that this is an important case that became the landmark for judges in deciding about maximum evaluation and required degree of proof beyond reasonable doubt. In other words, the Court applied strict rule for prosecution in order to establish prima facie case.

In the case of PP v Abdullah bin Ismail[4], Justice Seah said that the test of a prima facie case is when the evidence adduced by prosecution is accurate, then that established the case against accused beyond reasonable doubt. Also in the case of PP v Chin Yoke[5], the Court ruled that when prosecution entitled for prima facie case, it means that he has evidence that cannot be rebutted by the opposing party. The court also held that a prima facie case can be seen at the end of the prosecution case and then the accused will be called to plead guilty or call for defence. If he was to be called for defence, then he must rebut the prima facie which has thus been made out against him beyond reasonable doubt. Here we can see that the Court apply for maximum evaluation in establishing prima facie case as well as maximum evaluation for defence to rebut it beyond reasonable doubt. However, if after weighing up such evidence for the prosecution and resulting there is no prima facie case, the accused would not be called on for his defence and he/she will be acquitted. Therefore it can be concluded through this case that it is very important for the prosecution to prove their case beyond reasonable doubt in order to put a charge against accused. If prosecutor failed to do so, accused will be acquitted.

Also, a similar approach was espoused in Public Prosecutor v Saimin[6] where Sharma J affirmed that the burden of proof remains on the prosecution throughout the trial to prove prima facie case beyond reasonable doubt. This would mean that before the defence could be called, the court had to make a maximum evaluation of the evidence adduced by the prosecution and that the prosecution witnesses would have to be subjected to a rigorous test of credibility.  The Court held like so based on the case of A. Ragunathan v PP and also from Section 173(f) and Section 180 of CPC before amendment. In both of these provisions, the phrase ‘if unrebutted would warrant his conviction’ would demand an exceptionally concrete reason before the accused is called to answer the charge. Therefore maximum evaluation and degree of beyond reasonable doubt needed to establish prima facie case.

Therefore, it is essential to know that at the very beginning, the Court applied for maximum evaluation and very strict rule in order for prosecution to prove prima facie case beyond reasonable doubt. This strict approach was applied by our courts quite consistently until the Privy Council’s decision on appeal from Singapore in the case of Haw Tua Tau v PP. This is a very important case that has been a landmark for minimum evaluation and lower degree of proof where Lord Diplock held that Section 188 of the Singapore CPC (identically worded as our Section 173(f) CPC before amendment) only involved a hypothetical question of law requiring minimal evaluation of the evidence at that stage. Lord Diplock further stated that the court must act on the presumption that all such evidence of primary facts is true, unless it is inherently incredible[7] that no reasonable person would accept it as being true, and there will be nothing to displace those inferences reasonably drawn from the primary facts. In other words, the Court applied for lower standard of proof that based upon the minimal evaluation of the prosecution evidence. However, if the accused remain silent, the Court will consider that defence has failed to rebut the presumption made by prsecution, and resulting to the accused to be convicted. This also can be seen in the case of Wong Ah Mee v PP[8], where the magistrate held that when the accused remain silent, this will amount to a conviction. Hence, it can be seen that through the case of Haw Tua Tau, the Court applied for minimal evaluation of proof rather than beyond reasonable doubt. However, silence as to defence will be considered as convicted.

On the third part which is after the case of Haw Tua Tau, the degree of proving prima facie again changed. This can be seen by viewing to the case of Pavone v PP[9], Edgar Joseph J noted that the case of A. Ragunathan v PP[10] bound him in the High Court. According to his lordship, the sole question at the close of the case of the prosecution is whether or not a prima facie case has been made out, that is to say, whether there is some evidence which, if believed, establishes the essential elements of the offence charged. If there is such evidence, then the defence must be called. However, if the accused elects to remain silent and calls no evidence, the judge opined that there is nothing illegal if magistrate, upon prima facie evidence being adduced and then acquit the accused even though the accused elects to remain silent, under the condition that the judge not satisfied that the charge has been established by the prosecution beyond reasonable doubt. Here, it shows how important for prosecution to prove prima facie beyond reasonable doubt.

Also, in the case of PP v Man bin Abbas[11], it was held that if proven that there is a prima facie case in the end of the prosecution case, there will be a call for defence, and if the accused remain silent, he will be convicted[12]. Therefore, it is important for the prosecution first to proof the prima facie beyond reasonable doubt in order to put a criminal charge against accused since the Court applied for maximum evaluation. So here, we can see that the Court overruled strict rules for establishing prima facie case.

In addition, at year 1987, Mohd Azmi SCJ in Munusamy v Public Prosecutor[13] stated that, the learned trial judge did not err in law in dealing with the credibility of the witnesses at the close of the prosecution case and there was nothing in Haw Tua Tau to suggest that the prima facie case approach enunciated in PP v Chin Yoke[14] was wrong in principle. This means that the Court may not have to follow the lenient rule in case of Haw Tua Tau in establishing prima facie case. It connotes that the prima facie case is based on a ‘hypothetical beyond reasonable doubt’ case as the court must by necessity evaluate and weigh all the evidence which if not rebutted would warrant a conviction.

However, a bit different in the case of Tan Boon Kean v Public Prosecutor[15] where Mohd Azmi FCJ held that the case required to be established at the end of the prosecution case is ‘prima facie’ and not ‘beyond reasonable doubt’ even though the court has to carry out a maximum evaluation of the evidence. These conflicting decisions eventually necessitated a seven-judge panel to resolve the issue which arose again in the landmark case of Arulpragasan a/l Sandaraju v Public Prosecutor[16]. The Federal Court, in ruling on the appeal of a lorry attendant S. Arulpragasan who was sentenced to death for drug trafficking, decided that the standard of proof required from the prosecution at the close of its case, in a non-jury trial in Malaysia was the usual criminal standard of proof, to wit, the beyond all reasonable doubt standard of proof, which called for a maximum evaluation of the evidence tendered by the prosecution. On the other hand, Eusoff Chin CJ also held that if the accused elects to remain silent and calls no evidence, he would have failed to rebut the evidence adduced by the prosecution and the court must be prepared to convict him. Thus, it is trite law that the onus is on the prosecution throughout the case in any criminal trial to prove the charge against the accused beyond reasonable doubt. To this effect, the same standard of proof applies at the intermediate stage of the trial, namely at the close of the prosecution case[17] which required maximum evaluation and degree of prove beyond reasonable doubt.

            In conclusion, prior to amendment of CPC in 1997, there have been debates and conflicts in determining the test whether maximum evaluation or minimum evaluation should be used and also conflict upon degree of proof needed to establish prima facie case. It must be cognisant that burden of proof lies on prosecution to proof prima facie case, and failure to do so, accused will be acquitted. Apart from that, it can be concluded that generally there are three parts of development of prima facie case which is before the case of Haw Tua Tau v PP, during the case of Haw Tua Taw v pp, and after the case of Haw Tua Tau v PP. On the first part, it was held in few important cases like in the case of PP v Chin Yoke, the judge applied for maximum evaluation and needed to proof prima facie case beyond reasonable doubt at the closed of prosecution’s case. Strict rules have been held and it was hard for prosecution to put a charge on accused.

Later on 1982, in the case of Haw Tua Tau, the judge had been more lenient in establishing prima facie case whereas prosecution need not proof it beyond reasonable doubt and minimum evaluation applied. However, in latter case, the Court used the rule based on case of PP v Chin Yoke that applies for maximum evaluation and standard proof of beyond reasonable doubt for prima facie to be established except for the case of PP v Tan Boon Keat where in this case, the Court applied for maximum evaluation to the evidences, but prosecution need not prove prima facie case beyond reasonable doubt. Here we can see that most of judges depended on precedent cases in applying maximum evaluation and degree beyond reasonable doubt. Even though there has been few attempts made in regards of prima facie in the case of Haw Tua Tau and Tan Boon Keat, but it was not followed. However, these few attempts were a good start in amending CPC in regard of prima facie later on, which would be discussed later. Also, prior to 1997, it can be concluded that once prima facie case been established beyond reasonable doubt, the accused will be called for defence and need to rebut the prima facie beyond reasonable doubt. Failure to rebut, accused will be convicted and if he chose to remain silent, also will be convicted.

Haw Tua Tau v Public Prosecutor [1981] 2 MLJ 49

A.Ragunathan v PP [1982] 1 MLJ 139

PP v Abdullah bin Ismail [1983] 1 MLJ 417

PP v Chin Yoke [1940] 9 MLJ 47

Wong Ah Mee v PP [1967] 1 MLJ 220

Pavone v PP [1986] 1 MLJ 72

PP v Man bin Abbas [1996] 3 SLR 29

Munusamy v Public Prosecutor [1987] 1 MLJ 492

Tan Boon Kean v Public Prosecutor [1995] 4 CLJ 456

Arulpragasan a/l Sandaraju v Public Prosecutor [1996] 4 CLJ 597

The Law Dictionary | What is prima facie. Retrieved on 9th December 2015, from http://thelawdictionary.org/prima-facie/

Bharath. (2008). Prima facie (Criminal Procedure Code). Retrieved on 9th December 2015, from http://alagendra.blogspot.my/2008/04/prima-faciecriminal-procedure-code.html

Noor Hidayah. (2011). Prima facie. Retrieved on 9th December 2015, from http://chentakurekure.blogspot.my/2011/12/prima-facie.html

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[1] [1981] 2 MLJ 49

[2] The Law Dictionary | What is prima facie. Retrieved on 9^th December 2015, from http://thelawdictionary.org/prima-facie/

[3] [1982] 1 MLJ 139

[4] [1983] 1 MLJ 417

[5] [1940] 9 MLJ 47

[6] [1971] 2 MLJ 16

[7] In the case of State of West Virginia v Tracy L. Haid, the Court defined ‘inherently incredible’ as more than a contradiction, inconsistency or lack of corroboration.

[8] [1967] 1 MLJ 220

[9] [1986] 1 MLJ 72

[10] [1982] 1 MLJ 139

[11] [1996] 3 SLR 29

[12] Bharath. (2008). Prima facie (Criminal Procedure Code). Retrieved on 9^th December 2015, from http://alagendra.blogspot.my/2008/04/prima-faciecriminal-procedure-code.html

[13] [1987] 1 MLJ 492

[14] This case, the judge applied for maximum evaluation and needed prosecution to prove prima facie case beyond reasonable doubt.

[15] [1995] 4 CLJ 456 FC

[16] [1996] 4 CLJ 597

[17] Noor Hidayah. (2011). Prima facie. Retrieved on 9^th December 2015, from http://chentakurekure.blogspot.my/2011/12/prima-facie.html

CRITICAL ANALYSIS AND VIEW REGARDING POSITION OF LOCUS STANDI IN MALAYSIA OVER THE YEARS IN COMPARISON WITH ANOTHER JURISDICTION.

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 11^th 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 10^th November 2016, from

http://paralegal.laws.com/civil-litigation/preliminary-matters

Oxford Dictionary | Locus standi. Retrieved on 10^th November 2016, from 

https://en.oxforddictionaries.com/definition/locus_standi

USLEGAL | Locus standi law and legal definition. Retrieved on 11^th November 2016, from

http://definitions.uslegal.com/l/locus-standi/

Acts

Rules of High Court 1980

Rules of High Court 2000

Rules of Court 2012

Rules of Supreme Court Act 1981 (UK)

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[1] (n.a). (n.d.). Preliminary matters. Retrieved on 10^th 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 10^th November 2016, from  https://en.oxforddictionaries.com/definition/locus_standi

[6] USLEGAL | Locus standi law and legal definition. Retrieved on 11^th 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 11^th 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.