The Court has fixed April 12 to deliver its decision on whether 10 Gebeng residents will be permitted to challenge an approval for the TOL for Lynas KUALA LUMPUR: The Attorney-General’s Chambers today questioned the need for a judicial review sought by residents in their attempt to stop the Lynas rare earth plant. The argument was because a Parliamentary Select Committee (PSC) and an appeal to the Minister of Science, Technology and Innovation Maximus Ongkili on the matter were still pending. However, the government’s position drew flak from lead counsel for the residents, Tommy Thomas, who lashed out at the A-G’s legal representatives for suggesting that the judiciary and Parliament could not function independently. “Isn’t the A-G the custodian of public interest? Is it their understanding that the three branches of government can’t discuss at the same time an issue of massive public interest? That is absolutely flawed. That is not what we call separation of powers. There is no contempt, both can simultaneously do their functions,” he said. Senior federal counsel Noor Hisham Ismail later explained to reporters that the A-G’s Chambers was merely asking the court to take “judicial notice” of the two other pending actions. “Basically the appeal to the minister and the PSC are going to deal with the same issue. Therefore, the court should be slow in giving this judicial review; let the parties exhaust all avenues,” he said. He said several parties, including residents, had appealed to the minister over the case and it would be heard on April 10, while the PSC was set up on March 20 in the Dewan Rakyat. “We are not saying these people have no remedy and can’t seek redress. It concerns safety, scientific, radiation and the like, which we feel, can be better deliberated by way of appeal before the minister. Solicitors can even come to represent the aggrieved party (in the minister’s appeal),” he said. The High Court room this morning was packed with over 100 Gebeng residents, supporters, lawyers and media personnel. Some were even forced to stand. High Court (appellate and special powers division) judge Rohana Yusuf heard both parties and later fixed April 12 to decide on the A-G’s preliminary objection to the leave application for a judicial review filed by the residents to challenge Atomic Eenergy Licensing Board’s decision to issue the Temporary Operating License (TOL) to Lynas. ‘Speculative argument’ Earlier, senior federal counsel Suzana Atan submitted that the residents’ argument that AELB did not comply with the Environmental Quality Act (EQA) 1974 was merely “speculative” as there was nothing in their affidavits to support this contention. The court filings of the residents had included two affidavits by chemical engineer Lee Chee Hong and resident Zakaria Abdullah. Lee, who had been deeply involved in researching and presenting his findings on the plant, emphasised that allowing Lynas to begin its operations would put Malaysia at risk of another environmental disaster. Both Suzana and Noor Hisham were representing AELB and the director-general of Environment Quality. The crux of the residents’ case was that the TOL issued by AELB was illegal as well as contravened and breached Section 34(A) of the EQA, which requires a Detailed Environmental Impact Assessment (DEIA) for such a project. Lawyer representing Lynas, Dominic Puthucheary, submitted today that the application by the residents was “premature”. He said that while approval was given, no licence had been issued, and so “nothing has moved”. Putucheary also produced a letter by AELB saying that the issuance of the TOL was postponed. “Nothing has really been done to defy AELB. There is no illegallity, there is no excess jurisdiction, unreasonableness,” he said. Also representing Lynas was lawyer Wong Kah Hui. On Feb 17, 10 residents who live between 3km and 18km from the RM2.5 billion Lynas Advanced Materials Plant (LAMP) in Gebeng, filed a judicial review asking the court to quash AELB’s Jan 30 decision to grant the TOL to Lynas. They were attempting to prevent Lynas from starting its operations in the second quarter of the year, accusing Lynas of ignoring their fears of health and environmental repercussions. The applicants are: Zakaria Abdullah, Ramli @ Kamaluddin Awang, Ab Sani Ahmad, Mohd Rasid Hamzah, Mansor Bedu, Ali Akbar Othman, Hasim Awang, Nadarajan Raju, Pang Chee Kian, Yuw Yin Lan. The suit also called for AELB to be prohibited from issuing any temporary or permanent license to Lynas until a DEIA report was submitted to and approved by the Department of Environment (DOE). The respondents are AELB – which oversees the production, application and use of atomic energy and radioactive material – the director-general of Environment Quality and Lynas Malaysia Sdn Bhd. The applicants also claimed that AELB breached several Federal Constitution provisions particularly Articles 59 (1), 13 and 8(1) pertaining to freedom, equality and the rights to property respectively. The applicants had stated that the AELB acted in breach of national justice by approving the TOL as it had not given an opportunity to those who wanted to make representations on the safety of LAMP in a “meaningful or proper” manner.
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