pages some act or decision but one who

149-151) on the question of locus standi and endorse the concept of
liberalizing the scope of individual standing..”

it can be said that prior to 1988, the court had adopted a more liberal
approach in the conception of locus standi in public interest litigation.

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However, one must take note that this practice had
changed in the year 1988 whereby the Supreme Court based on the case of United
Engineers (M) Berhad v Lim Kit Siang were in favor of the “aggrieved person”
test. In this case, the Supreme Court took a restrictive approach in
interpreting locus standi. This has directly narrowed down the scope of
judicial review in Malaysia. In the leading case of Government of Malaysia v Lim Kit
Siang; United Engineers (M) Berhad v Lim Kit Siang1,
it was stated that it can hardly be disputed that there is no single
authoritative definition of aggrieved person but in general it can be said that
a person aggrieved is not merely one who is dissatisfied with some act or
decision but one who has been wrongly deprived of or has been refused something
to which he is legally entitled. Any person can come to court for the
protection or enforcement of his rights. The basis of his standing is the
assertion of his private rights. The liberal approach following Order 53 of the
Rule of the Supreme Court in England was rejected prior to the decision laid
down in the above case by the Supreme Court in Malaysia for the reason being
that Malaysia were not parallel or in line with the provision adhered to.  It is known that before Order 53 of the Rules
of the Supreme Court of England was introduced, the courts in Malaysian
followed or favored the approach specified in Gouriet’s case. In the year 1988,
it is known that the liberal approach was restricted following the landmark
case of UEM that if he can prove that he has suffered special damages peculiar
to himself, a person is said to have locus standi to sue. Following the
approach in the case of Gouriet v Union of Post Office Workers2
whereby the courts in Malaysia favored this approach, it is known that
following Rule 3(5), Order 53 of the Rules of Supreme Court, unless it is
satisfied an applicant has a sufficient interest in the matter to which the
application relates, the courts shall not grant leave. During the traditional
approach, the test for all remedies is whether the applicant has sufficient

The traditional test or approach in the case of United
Engineering (M) Bhd v Lim Kit Siang (No.2), it is to be noted that Malaysian
Courts favoured the position or approach in Gouriet’s case in which an
applicant must first suffer damage peculiar to himself in order to entitle
himself to obtain judicial review. Real interest or mere legitimate grievance
will not hold or suffice.

Bearing in mind that prior to the 2000 amendment, the
courts in Malaysia has been favoring the approach in the United Kingdom. This
can be seen evident in the case IRC v National Federation of Self-Employed
and Small Businesses3,
whereby the underlying principle were provided by Lord Diplock himself as he
was then. It was held a grave lacuna would be constituted in our system of
public law if public spirited people were prevented by outdated traditional
approach and technical rules of locus standi from bringing the matter to the
attention of the court. He further emphasized that Parliament comes in the form
of a Judge and they carry the utmost responsibility in deciding the legality of
a certain decision in regards to efficiency and policy.

All in all, Lim
Kit Siang case marked the court’s approach in interpreting the terms of
locus standi shifts from a liberal to restrictive approach, which has resulted
in tightening of rules of locus standi. The strict construction of the locus standi
in the aforesaid case has been highly criticized by the community as it was
deemed to be a misguide, which imposes hardship in applying for judicial
review. This is undoubtedly a step moving backward and it has caused a number
of meritorious cases being thrown out due to this overtly restrictive approach.
In addition to that, the cultivation of good governance has been obstructed in
this sense. Also, the administration of justice is unable to attain due to the
higher number of the cases has been thrown out back in those years. This is
indeed causing a serious injustice to the applicant whose case is on merits.
Thus, this approach has been discarded nowadays due to the reason that such
rule would eventually defeat the attempt for judicial review made by citizens
to assert their public right.

The approach continued to be in force until the
amendment made to the Rules of High Court 1980 in the year of 2000, where the
Order 53 has been introduced to govern the application of judicial review. It
provides that the applicant must be adversely affected to be eligible to make
application for judicial review. This rule of locus standi in Order 53 remains
unchanged in the new Rules of Courts 2012. However, there are different
approaches used in interpreting the Order 53 as shown in case law. Some of the
judges applied narrow and restrictive approach as a result where they are too
familiar in using the approach in Lim Kit Siang case while some other judges
applied literal rule in interpreting the rule of locus standi as they are of
the opinion that Order 53 is an ordinary legislation thus creating a narrow and
rigid approach. These two approaches are bad in the sense where the growth of
public interest litigation is restricted as not many applicants could successfully
apply for judicial review.

 The current
approach has been set out in the Federal Court case of Malaysian Trade Congress & 13
Ors v Menteri Tenaga, Air dan Komunikasi & Anor4 and
it also means that the approach adopted in Lim Kit Siang’s case has been
overruled. In this case, the court ruled that the sole test to determine all
the remedies is “adversely affected” under judicial review. Hence, the
applicant has to satisfy the court that he has a real and genuine interest in
that particular subject matter in order to succeed in proving that his interest
has been adversely affected and thus he has the locus standi to make
application for judicial review. The court further held that neither
infringement of one’s private right nor suffering of special damage is
essential to establish on the part of the applicant. The essential thing is
that there is a real and genuine interest.

As far as we are concerned, in the above case, the
Malaysian Trade Union Congress (“MTUC”) applied for a copy of the water supply concession
agreement entered between the government and the water distribution company.
MTUC, having real and genuine interest in the document on the ground that it is
the absolute duty of government to ensure that the water provided is safe to
consume and it is an inviolable and fundamental human’s right for living, thus
the privatization of supply and distribution of treated water should not leave
any room for unreasonable profiteering. The government is expected to ensure
that its people at all material times has affordable access to treated water.

It is pertinent to note that such pronouncement in
this Federal Court’s case on locus standi is extremely vital because it leaves
a wider access to the court when it is dealing with the application of judicial
review on actions and omissions of public authorities.  This decision was deemed to be less stringent
as compared to the case of Lim Kit Siang.
It remains relevant to date as it is substantially similar to the Rules of
Court 2012 as the provisions under Order 53 has no significant change in either
the repealed RHC or the current ROC.

To conclude, the development of the cases relating to
righteous test to be adopted in rule of locus standi in making application of
judicial review has showed that the test has been changed from the test of
“sufficient interest and special damage” and “aggrieved person” to the current
“adversely affected” test.