As the High Court for judicial review of the

As in the case of
lawsuits and civil litigation, before an actual lawsuit can be claimed there
are various issues that need to be addressed and be considered.1
One of the issues that need to be considered are that the person must show that
he have a course of action.2
Secondly, whether the matter that need to tried is within their limitation
period,3
followed by, identifying the parties in the litigation and show the locus
standi that the plantiff have to bring in the case4. The
issue that arises for the application of the judicial review is basically whether
the applicant has the locus standi to bring the case to the court.

The position of locus
standi in Malaysia can be seen in Order 53 of the Rules of High Court 19805
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 ” aggrieved person”
the leave for an applicant can be granted by the Malaysian court. If the
decision of the administrative authority have been affect the legal right of
the applicant then 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.

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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)6
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 amendment 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 20127 was
again being amended regarding to the 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)8
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 to the court. 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 held that plaintiff had locus standi to bring the case by granting the
injunction because in statement of claim plaintiff showed serious issue to be
tried. However, by making an appeal to the Supreme Court, the defendants wanted
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 Siang9.
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 requires 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. Based on the cases above, it can be summarise as, if
a person have been adversely affected and successfully proved then the test
will be to commence an action and to have locus standi.

 While in the case of Lim Kit Siang v Pemangku Ketua Polis Daerah, Butterworth & Ors10,
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. Moreover,
as observing this case, it is clear that once a plantiff proves or shows that this
legal rights have been affected by the administrative authority then legal
action can be commenced.

In addition, Tan Sri Haji Othman Saat v Mohamed Bin
Ismail11
 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 appellant
appeal on the course that respondent did not have locus standi to bring the
case against him applied that such declaration to be struck out, this is
because the Court granted the application to respondents and. Next, 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 he must
be somebody with such an interest in the subject-matter of the action as to
justify his seeking relief for the person to have locus standi.

In the case of Taib bin Awang b Mohamad bin Abdullah
12,
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. In addition, in the case of Sio Koon Lin v SB Mehra 13
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 14

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 requirement.

1 (n.a). (n.d.).
Preliminary matters. Retrieved on 10th November 2016,from
http://paralegal.laws.com/civil- litigation/preliminary-matters

2 Cause of
action. (2018). En.wikipedia.org. Retrieved 23 January 2018, from
https://en.wikipedia.org/wiki/Cause_of_action

3 OUT OF TIME?
RECENT DEVELOPMENTS IN LIMITATION. (2018). Radcliffechambers.com. Retrieved 23
January 2018, from
http://www.radcliffechambers.com/wp-content/uploads/2012/10/Out_of_Time_-_Recent_Developments_in_Limitation_-_2013-1.pdf

4 locus standi |
Definition of locus standi in English by Oxford Dictionaries. (2018). Oxford
Dictionaries | English. Retrieved 23 January 2018, from
https://en.oxforddictionaries.com/definition/locus_standi

5 Malaysia: Rules
of the High Court (1980) | Global Class Actions Exchange. (2018).
Globalclassactions.stanford.edu. Retrieved 20 January 2018, from
http://globalclassactions.stanford.edu/content/malaysia-rules-high-court-1980

6 Rules of Court
2012. (2018). Zulkiflihasan.files.wordpress.com. Retrieved 21 January 2018,
from
https://zulkiflihasan.files.wordpress.com/2008/06/rules-of-court-2012-01-07-2012.pdf

7 Rules of Court
2012. (2018). Zulkiflihasan.files.wordpress.com. Retrieved 21 January 2018,
from
https://zulkiflihasan.files.wordpress.com/2008/06/rules-of-court-2012-01-07-2012.pdf

8 1988 1 MLJ 50

9 1988 2 MLJ 12,
at pg. 32

101988 2 MLJ 648

11 1982 2 MLJ 177

121983 2 MLJ

13 1981 1 MLJ 25

14 1992 1 MLJ 11

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