THE Court of Appeal has upheld the ruling of a High Court which dismissed a leave application for judicial review by residents to revoke the temporary licence issued by Atomic Energy Licensing Board (AELB) for the Lynas Advanced Materials Plant (LAMP) in Gebeng, Pahang.
A three-man Court of Appeal bench led by Datuk Ramly Ali said the residents should have appealed to the Science, Technology and Innovation Minister (Datuk Seri Dr Maximus Ongkili) before turning to the court for remedy.
AELB comes under the jurisdiction of the minister.
"We find that the High Court did not err in its judgment," Ramly said in dismissing the residents' appeal.
Ramly said an appeal to the minister was appropriate to deal with the issue, adding that in a judicial review application, the disputed facts and allegations could not be clearly determined.
The court also ordered the disputing parties to bear their own costs. On April 12, the High Court dismissed a leave application filed by 10 local residents.
Judge Rohana Yusuf, in her decision after hearing a preliminary objection raised by the Attorney- General's Chambers and AELB, said the leave application was premature since the matter was pending appeal before the minister and the Parliamentary Select Committee.
Therefore, she said the court was not the right forum to hear the review application.
She pointed out that five other residents were appealing on the same matter before Ongkili and hearing had been fixed.
Rohana said the appeal by the five residents before Ongkili was made pursuant to the requirement of the relevant provisions of the Environmental Quality Act 1974 and must be given due deference.
"The court cannot, in the face of the appeal process, pending before the minister, now undermine that process.
"If the court was to proceed with its reviewing power, it would be rendering that appeal superfluous." She added that the leave application was premature and if it was granted, it may lead to confusion and embarrassment in the event that the findings of the minister differed from that of the court.
On Feb 17, the 10 residents filed the application, naming the AELB, which oversees the production, application and use of atomic energy and radioactive material, the director-general of Environmental Quality and Lynas Malaysia Sdn Bhd (Lynas) as respondents.
In the application, the residents sought an order to quash the AELB's Jan 30 decision to issue the temporary licence to Lynas Malaysia.
They also applied for an order to prohibit AELB from issuing any temporary or permanent licence to Lynas, except or until the company presented a detailed evaluation report on the plant's effects on the environment to the director-general of Environmental Quality and until the report was approved.
Counsel Tan Sri Cecil Abraham appeared for Lynas, Nor Hisham Ismail represented AELB while Tommy Thomas was counsel for the residents.
Resource: The New Straits Times, Page: 12
Date: Tuesday, 11 September 2012
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