Trio Sue Dr M Cabinet Over Lynas 6 Month Operating Licence Extension

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Prime Minister Dr Mahathir Mohamad and the cabinet have been targeted by a lawsuit seeking to quash the government’s six-month extension of the operating licence for the controversial Lynas rare earth processing plant
This was revealed by copies of an ex parte judicial review leave application by Save Malaysia Stop Lynas chairperson Tan Bun Teet, 71, and two other Kuantan residents, Ismail Abu Bakar, 71, and G Ponusamy, 68, which were filed by law firm Messrs Azri Lee Swee Seng & Co at the Kuala Lumpur High Court Registry on Nov 8
Under the law, ex-parte refers to court proceedings where only one party is present while the opposing side is not
The three applicants are seeking leave to commence the judicial review which seeks several declarations, among them that the collective decision of Mahathir and the entire cabinet made on Aug 15 to give a six-month extension for Lynas' operating licence is null and void, and of no effect

It was reported on Aug 15 that the government gave a six-month licence extension to Lynas' rare earth processing plant in Gebeng, Kuantan, Pahang, but imposed several conditions with a view that the factory will curb its radioactive waste production within four years from the granted extension
The three applicants claimed that the cabinet’s decision contravened the decision of the AELB on Dec 4 last year, which required Lynas fulfil two preconditions before its operating licence can be renewed
They said the preconditions are that Lynas must first remove 451,000 tonnes of water leach purification (WLP) from the premises by Sept 2 this year, and the company needs to submit an action plan for the disposal of the non-radioactive NUF (scheduled wastes) before Feb 15 this year before it can be considered under the Environmental Quality Regulations (Scheduled Wastes) 2005
They said that AELB imposed these preconditions for Lynas’s operating licence renewal following its perusal of a report made by an executive review committee which was appointed by the government on Oct 15, 2018, to look into Lynas’ operations
According to the cause papers, Tan appeared before the committee and forwarded to it the “Presentation by SMSL to the Executive Review Committee” dated Nov 5, last year
The trio, however, noted that Lynas later filed an appeal against the AELB’s decision with Yeo on Jan 3 this year, among various other appeal processes that the company went through this year
The three applicants seek a declaration that Yeo had unlawfully and wrongly delegated her decision-making power, conferred under Section 32 of the Atomic Energy Licensing Act 1984, to the cabinet, thus making said cabinet’s decision on Aug 15 being ultra vires the said Act and is therefore null, void and no effect
Under the law, the Latin maxim ultra vires refers to something done beyond one’s legal authority
Section 32 refers to the power of the minister to hear appeals by parties affected by the decision of authorities in relation to the regulation of the atomic energy industry in Malaysia, such as Tan or Lynas. In this case, the said minister is Yeo
Tan, Ismail and Ponusamy seek leave to proceed with the judicial review for a court order to quash the cabinet’s Aug 15 decision, which as a condition for the extension of the operating licence, directed Lynas to produce a plan to build a cracking and leaching facility outside Malaysia for the purpose of transferring the same currently within the Gebeng Kuantan facility out of Malaysia, among others
The trio seeks an order to compel Yeo as minister to make a decision in regards to their and Lynas’ appeal made under Section 32 of the Act
“We state that the failure of the government to take cognizance of the precautionary approach in allowing almost half a million tonnes of radioactive wastes (WLP) in Malaysia shows a failure of responsibility on the government’s and the relevant authorities’ part,” the trio said
The three applicants contended that Yeo had acted in breach of the fundamental principles of natural justice or procedural fairness by allowing the cabinet to dictate the decision to be made over the Lynas issue, rather than she makes her own decisions in accordance to the Act, among others
The three applicants also seek other remedies, orders and directions as the justice of the case demands, all reasonable and subsequent orders and directions or orders as this honourable court may be deemed fit and necessary, as well as costs
Checks of the online cause list at ecourtservices.kehakiman.gov.my showed that the judicial review leave application is set for hearing before Kuala Lumpur High Court judge Nordin Hassan at 9am tomorrow (Dec 11)
According to copies of the leave application obtained by Malaysiakini today, the legal action is targeting:Prime Minister Dr Mahathir MohamadDeputy Prime Minister Dr Wan Azizah Wan IsmailScience Technology and Innovation Minister Yeo Bee YinHome Minister Muhyiddin Mohd YassinFinance Minister Lim Guan EngDefence Minister Mohamad SabuEducation Minister Dr Maszlee MalikRural Development Minister Rina Mohd HarunEconomic Affairs Minister Mohamed Azmin AliHousing and Local Government Minister Zuraida KamaruddinTransport Minister Anthony LokeCommunications and Multimedia Minister Gobind Singh DeoHuman Resources Minister M KulasegaranAgriculture and Agro-Based Industry Minister Salahuddin AyubHealth Minister Dr Dzulkefly AhmadYouth and Sports Minister Syed Saddiq Syed Abdul RahmanEntrepreneur Development Minister Mohd Redzuan Md YusofWater Land and Natural Resources Minister Xavier JayakumarDomestic Trade and Consumer Affairs Minister Saifuddin Nasution IsmailWorks Minister Baru BianForeign Minister Saifuddin AbdullahPrimary Industries Minister Teresa KokMinister in the Prime Minister’s Department Mujahid YusofFederal Territories Khalid Abd SamadMinister in the Prime Minister’s Department Liew Vui KeongInternational Trade and Industry Minister Ignatius Darell LeikingTourism Arts and Culture Minister Mohamaddin KetapiMinister in the Prime Minister’s Department P Waytha MoorthyThe government of MalaysiaAtomic Energy Licensing Board (AELB)Lynas Malaysia Sdn Bhd- Mkini

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