PUTRAJAYA, Oct 25 — Two groups of Kuantan residents failed in their appeals at the Court of Appeal, here, today to have High Court judge Datuk Seri Mariana Yahya recused from hearing their judicial review applications which challenged the approval of a temporary operating licence (TOL) for the Lynas rare earth plant.
A three-member panel chaired by Justice Datuk Zaharah Ibrahim unanimously dismissed the appeals brought by the first group led by Tan Bun Teet, Syed Talib Syed Sulaiman and Hasimah Ramli and the second group comprising Ismail Abu Bakar and Tan Ah Meng.
She held that the court did not see any prejudice to the residents if Justice Mariana continued to hear their judicial review applications.
Justice Zaharah said this was because leave was already granted to the residents to commence the judicial review.
Justice Zaharah was presiding on the panel with Justices Datuk Anantham Kasinater and Datuk Abang Iskandar Abang Hashim.
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.
In March this year, the group applied to have Justice Mariana recused from hearing their judicial review applications.
On April 19, Justice Mariana rejected their applications to have her recused.
The two groups subsequently filed their appeals to the Court of Appeal.
In today’s proceedings, counsel Datuk Bastian Vendargon said his clients (residents) feared that they would be unfairly prejudged on a locus standi issue if Justice Mariana heard their judicial review applications.
He said this was because, she (Justice Mariana) had on January 29, this year heard an application brought by another group of residents led by Mohd Taufig Teng Abdullah for leave to institute judicial review proceedings to challenge the issuance of the TOL.
Vendargon said Justice Mariana had dismissed that group’s leave for judicial review application on the sole ground that they (the group) did not have the locus standi (legal standing) to commence the judicial review proceedings as they did not exhaust their domestic remedy by appealing to the minister as provided under Section 32 of the Atomic Energy Licensing Act 1984.
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.
Counsel Tan Sri Cecil Abraham, representing Lynas Corporation Ltd and Lynas Malaysia, submitted that the facts in the case involving the group led by Mohd Taufiq Teng differed from the facts of the case of these two groups.
Senior Federal Counsel Shamsul Bol Hassan represented the minister and the board.
Outside the court, Vendargon said he would consult his clients on whether to bring the matter up to the Federal Court. — Bernama
