On 28th July 2021, in Tan Bun Teet & 2 Ors v Tun Dr Mahathir Bin Mohamad & 30 Ors (Judicial Review Application No. WA-25-508-11/2019), the High Court of Malaya at Kuala Lumpur dismissed the judicial review proceedings filed by Tan Bun Teet, Ismail Bin Abu Bakar and Ponusamy a/l Govindasamy (“the Applicants”) effectively seeking to quash the fourth full operating licence issued to Lynas Malaysia Sdn Bhd (“Lynas”) for the period 3rd September 2019 to 2nd March 2020 in relation to the operation of one of the world’s largest rare earth plants in Gebeng, Pahang Darul Makmur.

Justice Dato’ Ahmad Kamal Bin Md. Said in delivering the written grounds of judgment of the High Court of Malaya held, inter-alia, that:

  1. the then Cabinet within the Government of Malaysia did not decide or make a decision in respect of the appeal lodged by Lynas in relation to the pre-conditions sought to be imposed by the Atomic Energy Licensing Board (“AELB”) vis-à-vis the renewal of Lynas’ full operating licence for the period 3rd September 2019 to 2nd March 2020. The Cabinet only decided that the full operating licence ought to be renewed. Such a decision on the part of the Cabinet is distinct from the decision made in respect of the appeal lodged by Lynas by Ms Yeo Bee Yin, the then Minister of Energy, Science, Technology, Environment and Climate Change;
  2. Ms Yeo Bee Yin, the then Minister of Energy, Science, Technology, Environment and Climate Change, lawfully made a decision in respect of the appeal lodged by Lynas in accordance with Section 31(5) of the Atomic Energy Licensing Act 1984 (“AELA 1984”). In no way did, Ms Yeo Bee Yin, the then Minister of Energy, Science, Technology, Environment and Climate Change, delegate her powers under the AELA 1984 to the then Cabinet. As such, the decision of the then Minister of Energy, Science, Technology, Environment and Climate Change is not ultra vires Section 32 of the AELA 1984. The said decision is not tainted by any illegality and/or procedural impropriety;
  3. the decision of Ms Yeo Bee Yin, the then Minister of Energy, Science, Technology, Environment and Climate Change is not reviewable given the ouster clause prevalent in Section 32(5) of the AELA. In this regard, the decision of the Federal Court of Malaysia in Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750 is binding;
  4. as it is not in dispute that the AELB had extended the full operating licence issued to Lynas for a fifth time upon its expiry on 2nd March 2020 for the period 3rd March 2020 to 2nd March 2023, the entire judicial review application is academic as there is no live issue in existence. The renewal of the fourth licence which was in issue has been overtaken by events as the fourth licence which was the subject of the judicial review proceedings expired on 2nd March 2020 and a new fifth licence had since been issued; and
  5. ultimately, there was no evidence of any illegality, procedural impropriety, irrationality and/or unreasonableness on the part of the Respondents (namely, the then Cabinet and the AELB) vis-à-vis the issuance of the fourth licence to Lynas.

The full written grounds of judgment of the High Court of Malaya can be obtained from the following link:
https://ejudgment.kehakiman.gov.my/ks_builtin/file_dispatcher_pub.php?id=13990&key=d9887f16c56c546ee1f885d8ed7664d9

An appeal to the Court of Appeal of Malaysia has since been filed by the Applicants. The appeal is pending determination.

Tan Sri Dato’ Cecil Abraham, Dato’ Sunil Abraham, Noor Muzalifah Binti Shabudin and Anne Sangeetha Sebastian successfully represented Lynas in the proceedings before the High Court of Malaya.

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