Site Loader
Rock Street, San Francisco

As in the case of lawsuits and civil ligitigation, before an actual lawsuit can be claimed there are various isssues that need to be addressed and be considered.  One of the issues that need to be considered are the person must show that the person have a course of action . Secondly, whther the matter that need to tried is whiting their limitation period , followed by, identifying the parties in the litigation and show the locus standi that the plantiff have to bring the case . The issue that arises for the application for the judicial review iis basically whetehr the applicant has the locus standi to bring the case to the court. The position of locus standi in Mlaysia can be seen in Order 53 of the Rules of High Court 1980 where it stated that it did not provide any provision for locus standi rule, Anyhow, before amendment made in Order 53 of the Rules of High Court in 2000, Malaysian court used “an aggrieved person” as one of the requirement for locus standi.At that moment, if the applicant could prove that he is the “an aggrieved person” the leave for an applicant can be granted by the Malaysian court. If the decision of the administrative authority have been affceted legel right of the applicant that it is known or define as “aggrieved person”. New rule 2(4) was inserted in Order 53 right after in year 2000 when the  amendment has been made. This rule provides that a person is entitled to apply to the High Court for judicial review of the decision taken by the administrative authority if a person is ‘adversely affected’ by the decision of an public bodies. Rule 2(4) is as stated anyone who is adversely affected by the decision of any public authority shall be entitled to make the application that is for judicial review. There are a minor differences between the amanedment before and after 2000 that is the applicant had to prove that he was an ‘aggrieved person’ before amendment in 2000, and, applicant must prove that he is ‘adversely affected’ by the administrative decision after amendment on year 2000 as where the condition to prove locus standi is getting stricter compared to before the amendment made in year 2000. In 2012,  the Rules of Court 2012 was again being amended regarding locus standi where under Order 53 Rule 2(4) stipulates that; Any person who is adversely affected by the decision, action or omission in relation to the exercise of the public duty or function shall be entitled to make the application. Based on the above provision, the test still of ‘adversely affected’ person. However, the differences are based on action, decision or omission of public duty. The case of Lim Kit Siang v United Engineers (M) BHD & ORS (No 2)  is one of the case where the rule of locus standi can be observed where the plaintiff, who is a leader of opposition opposed that defendants, as leader of UMNO taking part in deliberation of  the Cabinet that deliberated the proposal by UEM (in which UMNO had substantial interest) in respect of privatisation of highways. The issue in this case was whether plaintiff has locus standi to bring the case.The Cabinet decided to proceed with privatisation of such highway amounted them to be guilty of offence under Section 2 of Emergency (Essential Powers) Ordinance No 22 of 1970. Plaintiff wants to invalid such contracts and to seek for interlocutory injunction against defendants. The Court grant the injunction and held that plaintiff had locus standi to bring the case because in statement of claim plaintiff showed serious issue to be tried. However, by making an appeal to the Supreme Court, the defendants want to strike out such application and remove the injunction. The new holding can be seen in the case of Government of Malaysia v. Lim Kit Siang . Abdul Hamid CJ (Malaya) and HashimYeop A. Sani SCJ in this case strained that where public and not private right was in issue, the applicant needs to show some special interest beyond that possessed by the public. Here, plaintiff failed to show that his legal right has been adversely affected in respect of application to set aside a contract relating to Highway Utara-Selatan. Therefore the Court held that he does not have the locus standi to commence an action against Government. So, by looking at two cases that I cited above, the test for a person to have locus standi and commence an action is that he must show that he right has been adversely affected. The standard is high in order for someone to commence legal action thus making it hard for any citizen to bring suit against public authority if his right is not adversely affected. While in the case of Lim Kit Siang v Pemangku Ketua Polis Daerah, Butterworth & Ors , plaintiff, as leader of opposition party succeeded in his claim after he could show reasonable course of action and that he has locus standi to bring the case. In this case, plaintiff brought an action claiming in effect that he had been the victim of unfair discrimination in the matter of his application for a permit under section 27(1) of the Police Act 1967. The Court in allowing the application held that plaintiff right stated under Article 8(1) of Federal Constitution has been denied since his legal right has been affected. Therefore based on this case, we can see that legal action can only be commenced once plaintiff can show that his legal right has been affected by the public authority. In addition, Tan Sri Haji Othman Saat v Mohamed Bin Ismail   is one of the most  important case in relation to the rule of locus standi in Malaysia which is In this case respondents applied for a declaration against Menteri Besar of State of Johore impugning the validity of the alienation of the land in Mersing, Johore. The Court granted the application to respondents and appellant appeal on the course that respondent did not have locus standi to bring the case against him and applied that such declaration to be struck out.. In this case, the respondent was alleging an abuse of power and he sought to impugn the validity of the alienation of the land in question to the appellant. This was a clear case of a person having a special or substantial interest in the subject-matter of the proceedings and gave him capacity to sue and there could be no justification in debarring him from doing so. The Court in giving judgement held that for a person to have locus standi, he must be somebody with such an interest in the subject-matter of the action as to justify his seeking relief.In the case of Taib bin Awang b Mohamad bin Abdullah  , the plaintiff was convicted in the Kadi’s court and he appealed but before his appeal could be heard he commenced an action for malicious prosecution and it was so held that since the appeal has yet to be heard, and the issue had yet to be disposed of, how could malicious prosecution be established? The cause of action was therefore premature. Next in the case of Sio Koon Lin v SB Mehra   the plaintiff commenced an action for recovery of arrears that where in fact not yet due at the time of the claim. Needless to say the claim was thrown out just as this similar occasion occur as in the case of Simetech (M) Sdn Bhd v Yeoh Cheng Liam Construction Sdn Bhd  In a nutshell, in commencing action in Malaysia in order for a person to have a locus standi, the person must show that his legal right has been adversely affected, substantial or special interest.If the right to commence action terminate to exist or his application would be struck out if he does not prove the main requierement.

Post Author: admin


I'm Dora!

Would you like to get a custom essay? How about receiving a customized one?

Check it out