Appeals court dismissed appeal by three individuals over Lynas licence extension

PUTRAJAYA — The Court of Appeal today dismissed an appeal by three individuals to challenge the then Pakatan Harapan (PH) cabinet’s decision to grant Lynas Malaysia Sdn Bhd an extension of licence in 2019 to operate its rare earth processing facility.

A three-member panel of judges comprising Justices Datuk Supang Lian, Datuk Seri Mariana Yahya and Datuk Azizul Azmi Adnan,  in dismissing the appeal, held that the High Court had correctly dismissed the judicial review brought by Save Malaysia Stop Lynas chairman Tan Bun Teet and Kuantan residents Ismail Abu Bakar and G. Ponusamy.

In delivering the court’s decision online, Justice Azizul said the relief sought by the three individuals has been rendered academic as subsequent events had taken over.

He said Lynas’ licence was renewed for the sixth time and will expire on March 2, 2026,  and the Atomic Energy Licensing Board (AELB) had amended the terms for the renewal of the licence.

Justice Azizul said that Lynas was issued the licence by the AELB to operate the rare earth facility in Gebeng, Pahang since Sept 3, 2012.

He said the court would not express any opinion even if the decision previously made in respect of the licensing extension and amendments of the pre-conditions were unlawful.

“Any declaration to such effect by this court would not in any way affect the rights of the appellants,” he said, adding that it is the court’s view that there no longer existed any controversy between the parties that would affect them in any meaningful way,” he said.

Justice Azizul said that lawyers representing the three individuals had notified the court that they were dropping their application for a mandamus and certiorari order,  which they initially sought in their judicial review.

They only wanted to pursue the declaration that the decision to extend Lynas operating licence for six months was null and void, he said.

The three individuals had named former Prime Minister Tun Dr Mahathir Mohamad and the 27 Cabinet ministers at the time, the Malaysian Government, AELB and Lynas as respondents in the judicial review application.

In the judicial review application filed on Nov 8, 2019, the three individuals sought a declaration to nullify the decision made on Aug 15, 2019, by Dr Mahathir and his cabinet ministers to allow a licence extension of six months to Lynas.

On July 28, 2021, the High Court dismissed the judicial review application. This prompted the three to appeal to the Court of Appeal which heard their appeal on Nov 9 last year and fixed today to deliver its decision.

Although the individuals’ appeal was dismissed, the bench led by Justice Supang set aside a High Court order requiring them (the individuals) to pay RM20,000 costs to Lynas on the grounds that their application was not frivolous.

The NGO and residents were represented by lawyer Datuk Malik Imtiaz Sarwar, while senior federal counsel Nur Irmawatie Daud appeared for Dr Mahathir and the former ministers. Lawyer Tan Sri Cecil Abraham represented Lynas. — BERNAMA / pic TMR FILE