LYC (ASX) Wonder where they are going with this?

Originally posted by Sofia2152 ↑

Originally posted by stjohnc
Thanks for your post Doctorwho2. Note that the excellent thegoanna’s first article was dated September 2011and while full of great information, since then things have moved on. The second article that thegoanna posted was dated February 2018 and updates current thinking refuting the legality of ouster clauses.

Looking more carefully at thegoanna’s second post:

https://www.freemalaysiatoday.com/c...ision-that-denies-judicial-review-is-illegal/”

The article begins:

“PETALING JAYA: Any provision in acts of Parliament or state enactments that seeks to remove the court’s judicial review power is now illegal following the ruling by the Federal Court on the M Indira Gandhi case on Monday, say legal experts.”

Granted, the above statement seems to be an opinion from a senior retired judge (Former Federal Court judge Gopal Sri Ram) and others. He cites the Indira or Zainan Case as a precedent, where an ouster clause was set aside because it contravened the doctrine of separation of powers (Judicial, executive and legislative) and as such would have been unconstitutional. The Indira case was presided over by Justice Zainun with a unanimous court verdict.

A precedence means that future similar cases must follow the same logic as cases that have gone before. “Precedence law” generally applies to Anglo-Saxon legal jurisdictions and helps to prevent corruption and maintain consistency of legal decisions. (Judges in Thailand for example are subject to a mix of Roman and Traditional law and have wide discretion to follow their own opinions leading to inconsistent and possibly “financially influenced” verdicts). On the other hand judges in British Commonwealth countries may even refer to each other’s decisions where they have yet to have their own precedent on a particular legal issue.

Another senior lawyer, SN Nair, is quoted in the article as saying: “Any provision in a federal or state legislation that deems a decision as final, or as it is called, an “ouster clause”, is now considered unconstitutional in light of Zainun’s seminal judgment.

The same view that ouster clauses were unconstitutional was expressed by former Malaysian Bar president, Christopher Leong at the Opening of the Legal Year 2014 when he said: “Ouster clauses are obnoxious as they purport to confer absolute powers on the executive and attempt to render the judiciary subordinate”.

So for Lynas, it would seem very difficult for Yeo to resist a judicial review, should it even come to that, as a judicial review would probably happen anyway. In that case she would be seen to have attempted to circumvent the due process of law and thus suffer a major loss of credibility: a high risk option. However, a judicial review probably wouldn’t go her way either: also a high risk option. Damned if she does or damned if she doesn’t if you will.

Negotiation is the only sure way out.
The two groups had on July 18, 2012 filed for leave to commence judicial review application to challenge the decision of the Science, Technology and Innovation Minister and the Atomic Energy Licensing Board to approve TOL for Lynas Malaysia Sdn Bhd to operate the rare earth plant.On August 28, 2012, Justice Mariana granted the two groups leave to commence the judicial review.

https://www.malaymail.com/s/549901/residents-fail-in-appeal-to-have-judge-recused-in-lynas-case

Expand

Thanks Sofia 2152. A very useful article directly relevant to Lynas.

An interesting quote from the judge in deciding if to allow a judicial review includes:

"He said although the same section stipulated that the minister’s decision was final, the residents could rely on the exceptions to the law which clothed them with the right to bring the matter to court."

I guess that is what Lynas meant in their announcement. That they needed to appeal, and exhaust all other legal avenues, to preserve their legal right to a judicial review. I note also that the judge decides if there should be a judicial review - not the minister.

All good.

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