Prior was not based on statutory but rather

Topic: LawGovernment
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Last updated: May 27, 2019

Priorto the Order 53 of the Rules of Court 2012 coming into force, there wereseveral principles that govern the locus standi previously. Locus standi bydefinition simply means that an applicant must have judicial review in regardsto having a sufficient interest in that matter. As per quoted by Tun Salleh AbasL.P as he was then, every legal system has a built-in-mechanism to protect itsjudicial process from abuse by busybodies, cranks and other mischief-makers byinsisting that a plaintiff should have a special interest in the proceedingwhich he constitutes. This special interest is a nexus between him and theparty against whom he brings his complainants to court and is known as locusstandi.             Reading judicial review in line withlocus standi, it must be taken into note that there was a traditional approachbefore the new approach came into force.

As for the traditional approach ofjudicial review, it was not based on statutory but rather an inherent right ofthe courts. The courts were not supposed to interfere with the merits of thedecision as they only has supervisory jurisdiction. The courts had no inflictedpower upon them to change decisions on their own and they were only allowed toreview the decision-making process and not the decision itself. As far as thecurrent approach is concerned, the courts are now able to critically analysethe merits of the case and providing relief to the aggrieved party.1            It must be noted that in during theyear of 2000 in Malaysia, there were no statutory Enactment that could definein regards to locus standi. The judges had the utmost discretion as it wassimply procedures and rules laid down by them when it came to determining locusstandi prior to the introduction of order 53 of the Rules of Court 2012. Theapproach that was given during this period was the liberal approach prior to1988 which in other words are open to reformation and new ideas and they arenot merely confined by traditional approach or thinking.

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This approach contributedto the development of the public interest litigation in Malaysia.2             However, one must take note thatthis practice had changed in the year 1988 whereby the Supreme Court based onthe case of United Engineers (M) Berhad v Lim Kit Siang were in favor of the”aggrieved person” test. In the leading case of Government of Malaysia v Lim Kit Siang; United Engineers (M) Berhad vLim Kit Siang 1988 LRC (Const) 8113,it was stated that it can hardly be disputed that there is no singleauthoritative definition of aggrieved person but in general it can be said thata s person aggrieved is not merely one who is dissatisfied with some act ordecision but one who has been wrongly deprived of or has been refused somethingto which he is legally entitled. Any person can come to court for theprotection or enforcement of his rights.

The basis of his standing is theassertion of his private rights. The liberal approach following Order 53 of theRule of the Supreme Court in England was rejected prior to the decision laiddown in the above case by the Supreme Court in Malaysia for the reason beingthat Malaysia were not parallel or in line with the provision adhered to. It isknown that before Order 53 of the Rules of the Supreme Court of England wasintroduced, the courts in Malaysian followed or favored the approach specifiedin Gouriet’s case. In the year 1988, it is known that the liberal approach wasrestricted following the landmark case of UEM that if he can prove that he hassuffered special damages peculiar to himself, a person is said to have locusstandi to sue.

  Following the approach inthe case of Gouriet v Union of PostWorkers 1978 A.C. 4354whereby the courts in Malaysia favored this approach, it is known thatfollowing Rule 3(5), Order 53 of the Rules of Supreme Court, unless it issatisfied an applicant has a sufficient interest in the matter to which theapplication relates, the courts shall not grant leave. During the traditionalapproach, the test for all remedies is whether the applicant has sufficientinterest. 1 Tan, M.

(n.d.). Notes on judicial review.

online Availableat: Accessed 22 Jan.

2018.2 Keong, D. (2016).

 An Overview on the Public InterestLitigation in Malaysia: Development and Dilemma Under Provision of Remedies forEnforcement of Fundamental Rights. online Available at: 22 Jan.

2018.3 1988 LRC (Const) 8114 1978 A.C. 435


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