Government of Malaysia V Lim Kit Siang 1988 2 MLJ 12

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Government OF Malaysia v LIM KIT Siang, [1988] 2 MLJ 12
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GOVERNMENT OF MALAYSIA v LIM KIT SIANG; UNITED ENGINEERS (M)

BHD V LIM KIT SIANG
CaseAnalysis
| [1988] 2 MLJ 12
GOVERNMENT OF MALAYSIA v LIM KIT SIANG [1988] 2 MLJ 12

Malayan Law Journal Reports · 39 pages
UNITED ENGINEERS (M) BERHAD v LIM KIT SIANG
SC KUALA LUMPUR
SALLEH ABAS LP, ABDUL HAMID CJ (MALAYA), SEAH, HASHIM YEOP A SANI &
ABDOOLCADER SCJJ
SUPREME COURT CIVIL APPEALS NOS 434, AND 456 OF 1987
12 January 1988, 14 January 1988, 15 January 1988, 25 January 1988, 2 February 1988, 3 February 1988,
15 March 1988, 16 March 1988
Case Summary
Administrative Law — Application for declaration — Letter of intent issued to company in respect
of contract to build highway — Application for interim injunction and injunction — Plaintiff a
Member of Parliament and Leader of Opposition — Whether plaintiff has cause of action against
company — Whether application for injunction is not contrary to section 29 of Government
Proceedings Ordinance 1956 — Whether plaintiff has locus standi to bring suit against Government
— Whether even if he has locus standi court's discretion to grant or refuse the remedy of
declaration should be exercised in his favour — Government Proceedings Ordinance 1956, ss 2 &
29 — Specific Relief Act 1950, ss 6, 51 & 54
Civil Procedure — Application to strike out suits on the ground that they disclosed no reasonable
cause of action, in addition to being frivolous, vexatious and an abuse of the court's process —
Application for declaration and injunctive relief — Discretion of court — Locus standi — Whether
Order 53 of English Rules of Supreme Court can be followed in Malaysia — Power of Supreme
Court to review, discharge or vary previous judgment of Supreme Court — Courts of Judicature
Act 1964, s 44
In this case, the respondent who is a Member of Parliament and the Leader of the Opposition had applied
for a declaration that the letter of intent issued by the government to United Engineers (M) Bhd. (UEM) in
respect of the North and South Highway contract is invalid and for a permanent injunction to restrain
UEM from signing the contract with the government. The plaintiff filed his suit in the Penang High Court
on 18 August 1987 and on the same day he applied by way of ex parte summons-in-chambers for an
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GOVERNMENT OF MALAYSIA v LIM KIT SIANG
interim injunction against UEM to restrain it from signing the contract. Edgar Joseph Jr. J. who heard the
application refused it – see [1988] 1 MLJ 35. On appeal to the Supreme Court, the court, in an oral
judgment on 25 August 1987, ordered the interim injunction to be issued with liberty to apply and at the
same time directed an early trial of the suits – see [1988] 1 MLJ 50 at 53.
UEM and the government applied to the High Court to have the interim injunction set aside and the suits
struck out on the ground that they disclosed no reasonable cause of action and also for lack of locus
standi, in addition to being frivolous, vexatious and an abuse of the court's process. The applications were
heard by V.C. George J. who dismissed them – see [1988] 1 MLJ 50. Both UEM and the government
appealed to the Supreme Court.
The following questions, inter alia, arose on the appeal:
(a) whether the respondent/plaintiff has a cause of action to maintain the suit against UEM;
(b) whether his application for an injunctive remedy is not contrary to section 29 of the Government
Proceedings Act 1956;
(c) whether he has locus standi, i.e. title to bring and maintain the action against the government;
(d) whether the oral judgment of the Supreme Court delivered on 25 August 1987 was a final one;
(e) even if he has locus standi, whether his complaint is one in respect of which the court's discretion
to grant or refuse the remedy of declaration should be exercised in his favour.
Held, by a majority (Salleh Abas L.P., Abdul Hamid C.J. (Malaya) and Hashim Yeop A. Sani S.C.J.)
allowing the appeals (Seah and Abdoolcader S.C.JJ. dissenting):
[Per Salleh Abas L.P.]:
(1) the respondent's statement of claim does not disclose any cause of action at all in order to enable
him to maintain the suit against UEM. He has no legal relationship with UEM, he is a complete
stranger to the company and he is not a shareholder. Nor has he any interest directly or indirectly
in the running of the affairs of the company nor has the company done any wrong to the
respondent or deprived him of his right and privilege. The respondent's suit against UEM is
therefore unmaintainable and its application to strike it out should therefore be granted and
consequently its appeal allowed;
(2) since the suit against UEM is not maintainable, there is therefore no question of the respondent's
entitlement to a remedy of declaration and injunction, permanent or otherwise. The interim
injunction which was granted against UEM has no legal basis;
(3) the issue of the interim injunction against UEM is absolutely contrary to the express words of
section 29 of the Government Proceedings Ordinance 1956, as it has in effect indirectly restrained
the government. No reliance in this respect can be placed on Order 53 of the English Rules of the
Supreme Court and section 31 of the English Supreme Court Act 1981;
(4) refusal to grant the injunction in this case is also consistent with paragraphs (d) and (k) of section
54 of the Specific Relief Act so that no injunction can be granted to "interfere with the public
duties of any department of government" nor can it be granted "where the applicant has no
personal interest in the matter". Personal interest here must mean legal interest and not merely
political interest;
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(5) in this case, since not only has the respondent no cause of action against UEM but the court has
also no power to issue the injunction, interim or otherwise, the respondent's suit against UEM is
therefore unmaintainable as it is also vexatious, frivolous and constitutes an abuse of judicial
process;
(6) the rule as to locus standi applicable in Malaysia is that accepted in England before the enactment
of Order 53 of the English Rules of the Supreme Court. Since we have not accepted Order 53 and
its statutory underpinning [*13]
(i.e. section 31 of the Supreme Court Act) there is no justification to depart from the rule of locus
standi accepted by the highest court in England prior to Order 53. The rule is as stated by Buckley
J. in Boyce v Paddington Borough Council [1903] 1 Ch 109 as accepted by the House of Lords in
Gouriet v Union of Post Office Workers and Others [1977] 3 All ER 70; [1978] AC 435;
(7) the two important judgments on locus standi in Malaysia, namely, Lim Cho Hock v Government of
the State of Perak and Others [1980] 2 MLJ 148 and Tan Sri Haji Othman Saat v Mohamed bin
Ismail [1982] 2 MLJ 177, represent the high water marks of the law of locus standi in Malaysia,
beyond which the court should be careful to tread. Both these cases can be justified on the basis
that the plaintiff had a genuine private interest to be furthered and protected;
(8) in this case, the respondent could not have locus standi, whether as a politician, a road and
highway user or a taxpayer;
(9) the wording and tenor of the short oral judgment of the Supreme Court on 25 August 1987 clearly
show that the court did not consider its ruling to be a definitive or conclusive one. The decision
could be no more than a provisional or prima facie one, as confirmed by the proviso in the
judgment that both UEM and the government were "at liberty to apply". There is nothing in the
oral judgment which inhibits the court from considering the problem of locus standi again;
(10)the basis of respondent's application for declaration in this case is the allegation of corrupt practice
by the Prime Minister and two ministers. The issues raised relate to the criminal law. It is
unacceptable that the criminal law should be enforced by means of civil proceedings for a
declaration when the court's power to grant that remedy is only at the discretion of the court;
(11)if the objection of the respondent to the contract is based on the ground of its excessive costs and
unfairness to UEM's rival, the jurisprudence of the court is that it is not for the court to interfere in
the matter because the wisdom and policy decision of the government belongs to the government.
The court cannot tell the public authority how to exercise its power.
(1) Letang v. Cooper (folld).
(2) Reg. v. Secretary of State for the Home Department & Anor., ex parte Herbage (distd).
(3) Boyce v. Paddington Borough Council (folld).
(4) Gouriet v. Union of Post Office Workers & Ors. (folld).
(9) Inland Revenue Commissioners v. National Federation of Self-Employed and Small

Businesses Ltd. (distd).
(10) Reg. v. H.M. Treasury, ex parte Smedley (distd).
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(13) Lim Cho Hock v. Government of the State of Perak, Menteri Besar, State of Perak and
President, Municipality of Ipoh (apprvd).
(14) Tan Sri Haji Othman Saat v. Mohamed bin Ismail (apprvd).
[Per Abdul Hamid C.J. Malaya)]:
(1) the law of standing to sue has two fundamental rules. First, apart from certain cases in which
standing to sue is in the discretion of the court, the plaintiff must possess an interest in the issues
raised in the proceedings. Second, where the private plaintiff relies on an interest in the
enforcement of a public right and not a private right, standing will be denied unless the Attorney-
General consents to a relator action or the plaintiff can demonstrate some special interest beyond
that possessed by the public generally;
(2) while the Supreme Court will not review its own decisions it may, where necessary, depart from a
previous decision, although it will not, of course, lightly do so. Since the point as to locus standi
was not strictly in issue before the Supreme Court then, the oral judgment of the Supreme Court
on 25 August 1987 on this point was wholly gratuitous and obiter. Indeed, the decision therein
turned on one issue only, namely, whether or not the High Court in Penang had construed section
29 of the Government Proceedings Ordinance too widely;
(3) in Malaysia, there is no provision in our Rules of the High Court equivalent to Order 53 rule 3(7)
of the English Rules of the Supreme Court. Thus there is a stringent requirement that the
applicant, to acquire locus standi, has to establish infringement of a private right or suffering of a
special damage. Applying this test, it could not be said that the plaintiff had the necessary locus
standi to institute or maintain the proceedings;
(4) fundamentally, where a statute creates a criminal offence by prescribing a penalty for the breach
of it but not providing a civil remedy, the general rule is that no private individual can bring an
action to enforce the criminal law, either by way of an injunction or by a declaration or by
damages. It should be left to the Attorney-General to bring an action either of his own motion or
at the instance of a member of the public who relates the facts to him;
(5) section 29 of the Government Proceedings Ordinance 1956 affords a defence to the government or
a servant of the government to a claim for an injunction subject to compliance with the
requirements therein stated. The section therefore deals with rights and not procedure. The
defence cannot be taken away by the simple expedient of an amendment to a rule of court made
subsequently in a foreign jurisdiction;
(6) the exception to the definition of "civil proceedings" in section 2(2) of the Government
Proceedings Ordinance which reads "or such proceedings as would in England be brought on the
Crown side of the Queen's Bench Division" must refer to the prerogative jurisdiction of the
Queen's Bench Division in England as at the date of the coming into force of the Ordinance and
was then limited to the granting of orders of mandamus, prohibition and certiorari only. As the
claim in this case was for a declaration and injunction, it fell fairly and squarely within the four
walls of the definition of "civil proceedings" appearing in section 2(2) of the Ordinance. It
follows that the defence under section 29 applies and the English case of Ex parte Herbage [1987]
1 QB 872 is inapplicable.
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(2) Reg. v. Secretary of State for the Home Department & Anor., ex parte Herbage (distd).
[*14]
(4) Gouriet v. Union of Post Office Workers and Others (folld).

Businesses Ltd. (distd).
(14) Tan Sri Haft Othman Saat v. Mohamed bin Ismail (apprvd).
[Per Hashim Yeop A. Sani S.C.J.]:
(1) the circumstances under which the question of locus standi was raised and the reference to it in
the sketchy oral judgment of the Supreme Court on 25 August 1987 should not preclude this court
from considering the question of locus standi of the respondent where before this court the issue
was canvassed as a fundamental issue and argued at great length by both parties;
(2) the decision to depart from precedents must, of course, be exercised with caution and
circumspection. It is a question of judicial responsibility. It is also a question of competing claims
between justice and certainty;
(3) it is a fundamental principle that private rights can be asserted by individuals but public rights can
only be asserted by the Attorney-General as representing the public. The courts have no
jurisdiction in any circumstances to clothe a plaintiff with the right to represent the public interest;
(4) the principle to determine the locus standi of the respondent in this case is still laid down in Boyce
v Paddington Borough Council [1903] 1 Ch 109 as approved by the House of Lords in Gouriet's
case [1977] 3 All ER 70; [1978] AC 435;
(5) Order 15 rule 16 of the Rules of the High Court 1980 is the same as the old English Order 25 rule
5 of 1883. It cannot be made into a basis of jurisdiction for the court to entertain an action which
is not properly before it. The amendment to Order 53 of the English Rules of the Supreme Court
which provides for the test of "sufficient interest in the matter" before leave is granted for
remedies in judicial review cannot apply in Malaysia as no such amendment has been made to any
of the laws in this country;
(6) the principle was correctly stated by the Federal Court in Tan Sri Haji Othman Saat v Mohamed
bin Ismail [1982] 2 MLJ 177 that the sensible approach in a matter of locus standi in injunctions
and declarations would be to regard it as a matter of jurisdiction, where there is an assertion of
infringement of a contractual or a proprietary right, the commission of a tort, a statutory right or a
breach of a statute which affects the plaintiff's interest substantially or where the plaintiff has a
genuine interest in having his legal position declared. However, the courts in Malaysia are not
authorized by law to go beyond this principle;
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(7) section 41 of the Specific Relief Act 1950 does not sanction every form of declaration but only a
declaration that the plaintiff is entitled to a specific legal character or to any right to property. The
legal character or the right must exist at the time the action is instituted;
(8) after 1978, the law on locus standi in England was extended and liberalized by the English courts.
But the courts in this country have no jurisdictional basis to do the same. We should not slavisly
apply the laws in England without comparing the basis of jurisdiction;
(9) according to the law applicable in this country, the respondent has no qualifications in law to
bring the suit in court. He has not shown that he is more particularly affected than other people.
He has not shown that he has any recognizable legal right which has been infringed. He has not
suffered any damage peculiar to himself by reason of the alleged breach of Emergency Ordinance
No. 22. In short, it has not been shown that the rights or interests of the respondent have been
adversely affected over and above that of the ordinary "taxpayer, motorist and frequent user of
highways" as he described himself.
Seah and Abdoolcader S.C.JJ. dissented and dismissed the appeals.
[Per Seah S.C.J.]:
(1) the issue of locus standi has been considered and decided by the Supreme Court when it granted
the interlocutory injunction to the respondent on 25 August 1987. The learned judge was right to
hold that he was bound by the decision of the Supreme Court on this point. This appeal is an
attempt to urge this court, albeit differently constituted and enlarged, to review and reverse the
decision made by the Supreme Court on 25 August 1987 and it is my considered opinion that this
court has no jurisdiction to do so;
(2) the rule as regards "locus standi" or "standing in courts" is not governed by any statutory
enactment but is a rule of practice and procedure laid down by the judges in the public interest.
Like all rules of practice, they are liable to be altered by the judges to suit the changing times;
(3) the respondent, as an elected Member of Parliament, conscious of his duty and responsibility to
the electorates of Tanjung, Penang, the Dewan Rakyat and the peoples of Malaysia, clearly has a
real interest in the subject matter of this suit and therefore has locus standi to institute this
proceedings;
(4) in the field of public law, where the court has a discretion whether or not to make an order
preventing conduct by a public officer or governmental authority that has been shown to be ultra
vires or unlawful, the question of what qualifications a plaintiff must show before the court will
entertain his application for a declaratory order or judgment seems to be one of practice rather
than of jurisdiction;
(5) the recent trend in England after the passing of the English Crown Proceedings Act 1947 seems to
be that the rule of locus standi must be developed to meet the changing trends. In broadening the
requirements that must be met to give the plaintiff a standing in a public [*15]
interest litigation, the High Court must always bear in mind that under the Federal Constitution
the judicial power is vested in the judges. And judicial power includes judicial control or review of
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governmental/executive actions except where the jurisdiction of the High Court is expressly
excluded by the Constitution;
(6) as principal legal adviser to the Cabinet and/or minister of the government under Article 145(2) of
the Federal Constitution, no one would have expected the learned Attorney-General to give his
consent to the respondent to institute this proceeding in a court of law. On the contrary, I would
consider it as a dereliction of his constitutional duty if the learned Attorney-General did not
defend the suit vigorously. In my opinion, a relator action has no application in a public interest
litigation brought to test the legality of a governmental act in a court of law;
(7) the test formulated by Buckley J. in Boyce v Paddington Borough Council [1903] 1 Ch 109 is not
one to be followed. The test of locus standi in a public interest litigation is that laid down by the
Federal Court in Tan Sri Haji Othman Saat's case [1982] 2 MLJ 177 viz. whether the plaintiff has
a real interest in the subject-matter of the suit;
(8) the judgment of the Supreme Court on 25 August 1987 was not made per incuriam and was
binding on the High Court. The learned judge of the High Court applied the law correctly when he
dismissed the application of UEM to discharge the interlocutory injunction of 25 August 1987.
(9) the suit brought by the respondent against UEM and the government of Malaysia is for a
declaratory judgment under Order 15 rule 16 of the Rules of the High Court 1980. The
jurisdiction to make a declaration under this rule is not confined to cases in which the plaintiff has
a complete and subsisting cause of action apart from the rule. The only requirement seems to be
that there must be a justiciable issue;
(10)UEM is a necessary party to the proceeding because the courts have always recognized that
persons interested who are or may be indirectly prejudiced by a declaration made by the courts in
their absence should be made parties to the suit (except in very special circumstances) so that they
may be given the opportunity to be heard in their defence;
(11)the Supreme Court on 25 August 1987 disagreed with the interpretation of section 29 of the
Government Proceedings Act 1956 by the Penang High Court when it decided to grant the
interlocutory injunction to the respondent. The Supreme Court has no jurisdiction to review and
reverse the interpretation of section 29(1) (a) of the Government Proceedings Act 1956 made
after arguments. The learned judge (V.C. George J.) was right in holding that he was bound by the
judgment of the Supreme Court on this particular point;
(12)it is my considered opinion that the Supreme Court, whether it sits as a panel of three, five or
other odd numbers, is vested with the same jurisdiction and that this court has no jurisdiction,
express or implied, to review, discharge or vary the judgment of the Supreme Court made on 25
August 1987;
(13)in my view, the jurisdiction of the Supreme Court to review, discharge or vary is contained in
section 44(3) of the Courts of Judicature Act 1964 when it sits to hear an appeal involving an
interim order made by a judge of the Supreme Court under section 44(1) of the Courts of
Judicature Act 1964. The power of review is confined to that limited circumstance only. The court
should not therefore accede to the request to review and reverse the decision made by the Supreme
Court on 25 August 1987. A fortiori when the Supreme Court was exercising its original
jurisdiction entrusted to them by law in granting the interlocutory injunctions to the respondent
against UEM.
(3) Boyce v. Paddington Borough Council (distd).
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(4) Gouriet v. Union of Post Office Workers And Others (distd).
(13) Lim Cho Hock v. Government of State of Perak, Menteri Besar, State of Perak and
President, Municipality of Ipoh (apprvd).
(30) Duke v. Reliance Systems Ltd. (folld).
(32) Guaranty Trust Co. of New York v. Hannay (cited)
[Per Abdoolcader S.C.J.]:
(1) Order 53 of the English Rules of the Supreme Court as it now stands just provides for a modern
system of judicial review and is designed to obliterate the need for distinguishing between the
various alternative forms of prerogative relief and other powers. It is only a procedural provision
for administrative law remedies enabling an omnibus application for judicial review which
empowers the court to give the requisite relief according to the circumstances of the case by way
of any of the prerogative writs as well as declaration, injunction and damages and in the process
provides for the standardization of the different requirements of standing for the several remedies
by enacting a general formula of sufficient interest in the matter to which the application for
judicial review relates;
(2) the Federal Court approved Lim Cho Hock [1980] 2 MLJ 148 in Tan Sri Haji Othman Saat [1982]
2 MLJ 177 and endorsed the concept of liberalizing the scope of individual standing and these two
judgments must be read in the light of the continuing development of the doctrine of locus standi
here and in other jurisdictions. Liberalization of standing has in varying degrees been proceeding
or proposed in other common law countries as I have shown in those two judgments and it would
be a shame if we were to lag behind;
(3) the appellants contend that the principle that is applicable is that laid down in Gouriet v Union of
Post Office Workers [1977] 3 All ER 70; [1978] AC 435 and Boyce v Paddington Borough
Council [1903] 1 Ch 109. The English courts no longer worry about Gouriet, which has been
authoritatively distinguished by the House of Lords in Inland Revenue Commissioners v National
Federation of Self-Employed and Small Businesses Ltd [1982] AC 617; [1981] 2 All ER 93. Lords
Diplock, Scarman and Roskill distinguished Gouriet on the basis that it governed only private
law; [*16]
(4) the House of Lords held that the Court of Appeal was wrong in an application for judicial review
to treat the question of locus standi as a threshold issue to be decided in isolation from the legal
and factual context of the case; this is where the bifurcation into public law and private law
aspects of litigation assumes vital significance in determining the issue. The general conclusion to
be drawn from National Federation is that the majority thought that the issue of standing should
usually be considered along with the merits, as it is now a matter of discretion – the graver the
illegality, the less insistence on showing standing. The minority would abolish standing;
(5) the contention of the appellants is that in matters as that before us, it is only the Attorney-General
himself moving suo motu or by the grant of a fiat for a relator action who has the right to
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challenge and can take action and no other. I would think it is too much to expect process of this
nature involving the ventilation of a public grievance to proceed only through this channel, given
even the fortitude the incumbent of the office would presumably be endowed with, in view of the
rebound where the complaint is against the government itself and the Attorney-General is its legal
adviser. The question of a relator action must necessarily remain attractive as a theoretical
possibility with no conceivable hope generally for practical purposes of advancing to concrete
action beyond that;
(6) to deny locus standi in the instant proceedings would in my view be a retrograde step in the
present stage of development of administrative law and a retreat into antiquity. The principle that
transcends every other consideration must ex necessitate be that of not closing the door to the
ventilation of a genuine public grievance and more particularly so where the disbursement of
public funds is in issue, subject always of course to a judicial discretion to preclude the phantom
busybody or ghostly intermeddler;
(7) the pronouncement on 25 August 1987 is a judgment of the Supreme Court which unequivocally
made a decision on the points in issue before it including that of the standing taken by the
appellants themselves and crucial to the substratum and basis of the respondent's suit. Any view to
the contrary as to the efficacy of that judgment would lay open the door to similar contentions in
relation to the decisions of this court and indeed of other courts as well where brief oral judgments
are delivered at the conclusion of argument;
(8) I must categorically state that the proposition advanced that what the Supreme Court said is obiter
is wholly beyond intelligible comprehension, as the court specifically decided the point of
standing raised and put the issue affecting the very foundation of the suit instituted. As to the
decision being per incuriam, per incuriam is only Latin for "through want of care" or "through
inadvertence" or "by mistake". I have not been told or shown how or when or where any such
forensic mishap occurred in the judgment of the Supreme Court delivered on 25 August 1987;
(9) to reverse that decision of the Supreme Court on locus standi would amount to no less than our
sitting in judgment on another division of this court and overruling its adjudication given only
some four and a half months ago. The Supreme Court which can aptly be described and
designated as the engine-room of the Constitution would as a result have the sanctity of its
decisions set at stake;
(10)the Supreme Court is but the Federal Court reconstituted under a different name with enhanced
jurisdiction and until a policy in relation to judicial precedent has been agreed, formulated and
declared by the judges of the Supreme Court as a collegiate body, I would have thought that the
principles enunciated in Young v Bristol Aeroplane Company Ltd [1944] KB 718; [1946] AC 163
would apply;
(11)the action instituted by the respondent is for a declaration under Order 15 rule 16 of the Rules of
the High Court and no cause of action is necessary in such a case. The reliance placed on section
41 of the Specific Relief Act 1950 is wholly misconceived and misplaced. Section 41 of the Act
is not exhaustive of declaratory relief and a declaration can be sought and made under Order 15
rule 16 as in this case in which event it is not necessary to show a present cause of action;
(12)I am also unable to see the relevance of section 6 of the Specific Relief Act as raised by the
Attorney-General in argument. That provision prohibits the granting of specific relief for the mere
purpose of enforcing a penal law but no such question arises here. The respondent is not asking in
these proceedings for a mandamus or a mandatory injunction against the Attorney-General as
Public Prosecutor to take criminal action in the matter;
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(13)I find equally irrelevant the Attorney-General's reliance on section 7 of the Government
Proceedings Ordinance 1956 which provides for savings of acts done in exercise of public duties.
I cannot see how that provision can help, as all it does is to preclude proceedings against the
government on account of anything done or omitted or refused to be done by the government or
any public officer "in exercise of the public duties" of the government, which expression is
defined in subsection (2) of that section to include paragraph (a) thereof which is the only relevant
part in the present context and which reads "the construction, maintenance, diversion and
abandonment of railways, roads, bridlepaths or bridges";
(14)section 7 of the Government Proceedings Ordinance cannot in my view conceivably appertain to a
complaint of the nature made in the present proceedings involving a challenge to a decision
affecting the expenditure of public funds in relation to a project for the construction of a highway
on the modus of its implementation which does not question the substance of the expenditure or
the execution of the project itself. The respondent's action does not accordingly in any way affect
the exercise of the public duties of the government within the purview of section 7 of the
Ordinance;
(15)a statute is to be treated as always speaking. In its application on any date, its language, though
necessarily embedded in its own time, is nevertheless to be construed in accordance with the need
to treat it as current law. The formula of exclusion from the definition of "civil proceedings" in
section 2(2) of the Government Proceedings Ordinance of "such proceedings as would in England
be brought on the Crown side of the Queen's Bench Division' clearly shows in my view that it is
intended to develop its meaning with evolving circumstances and is accordingly what may
be [*17]
termed as an on-going statutory provision unlike one that is intended to be of unchanging effect or
a fixed term provision;
(16)it would therefore appear that on the wording of the relevant provisions in the Government
Proceedings Ordinance and the exclusion from the provisions precluding injunctive relief against
the government or its officers of such proceedings as would in England be brought on the Crown
side of the Queen's Bench Division and the current position in England in that respect in relation
to proceedings in public law litigation, an injunction in the instant proceedings against the
government is not precluded by section 29 of the Ordinance;
(17)even if, however, section 29 of the Government Proceedings Ordinance is effective to prohibit an
injunction against the government and its officers, and I have come to the conclusion that it is not
in the light of the statutory provisions I have adumbrated, I can see no impediment to the granting
of an interlocutory injunction against UEM in this case;
(18)the provisions of section 54(d) and (k) of the Specific Relief Act have no application in this case.
There is no question of any interference with the public duties of the government as what is
sought is to question the propriety of the transaction between the government and UEM involving
the expenditure of public moneys on the basis of certain allegations raised in respect thereto. In
regard to the personal interest of the respondent, if the respondent can have standing to institute
these proceedings as a public-spirited citizen, Leader of the Opposition, Member of Parliament
and taxpayer, then he must necessarily and certainly have a personal interest in the matter in
consequence on that basis. In any event, section 54 of the Specific Relief Act deals with perpetual
injunctions. The injunction sought and granted in this case was interlocutory pending final
determination of the suit;
(19)it has been said time and again that the discretion whether or not to grant an interlocutory
injunction is vested at first instance and not in the appellate court, whose function initially is one
of review only and it will not overrule the decision of the judge at first instance unless broadly
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speaking he has made an error of law or misconceived the facts and except in those circumstances
it must defer to the judge's exercise of his discretion and must not interfere with it merely on the
ground that the members of the appellate court would have exercised the discretion differently. I
can see no error of any kind in the judgment of V.C. George J. warranting interference by us.
(2) Reg. v. Secretary of State for the Home Department & Anor., ex parte Herbage (folld).
(4) Gouriet v. Union of Post Office Workers & Ors. (distd).

Businesses Ltd. (The Fleet Street Casuals case) (folld).
(10) Reg. v. H.M. Treasury, ex parte Smedley (folld).
(13) Lim Cho Hock v. Government of State of Perak, Menteri Besar, State of Perak and
President, Municipality of Ipoh (folld).
(14) Tan Sri Haji Othman Saat v. Mohamed bin Ismail (folld).
(46) Finlay v. Canada (folld).
Editorial Note
At the conclusion of the hearing of the appeals on 15 January 1988, their Lordships of the Supreme Court
delivered oral judgments, allowing the appeals by a majority. Their Lordships took time to deliver their
written judgments. Salleh Abas L.P. delivered his judgment on 15 March, Abdul Hamid C.J. (Malaya) on
16 March, Seah S.C.J. on 25 January, Hashim Yeop A. Sani S.C.J. on 2 February and Abdoolcader S.C.J.
on 3 February.
Complete list of cases referred to
Letang v Cooper [1965] 1 QB 232
Reg v Secretary of State for the Home Department & Anor, ex parte Herbage [1987] 1 QB 872
Boyce v Paddington Borough Council [1903] 1 Ch 109
Gouriet v Union of Post Office Workers and Others [1977] 3 All ER 70; [1978] AC 435
Reg v Commissioner of Police of the Metropolis, ex parte Blackburn [1968] 2 WLR 893
Blackburn v Attorney-General [1971] 1 WLR 1037
Attorney-General (on the relation of McWhirter) v Independent Broadcasting Authority [1973] 1 All
ER 689; [1973] QB 629
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Reg v Greater London Council, ex parte Blackburn and Another [1976] 1 WLR 550
Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd
(The Fleet Street Casuals case) [1982] AC 617; [1981] 2 All ER 93
Reg v HM Treasury, ex parte Smedley [1985] 1 All ER 589; [1985] 1 QB 657
Reg v Metropolitan Police Commissioners, ex parte Blackburn The Times 7 March 1980
Reg v Commissioner of Police of the Metropolis, ex parte Blackburn [1968] 2 WLR 893
Lim Cho Hock v Government of State of Perak, Menteri Besar, State of Perak and President,
Municipality of Ipoh [1980] 2 MLJ 148
Tan Sri Haji Othman Saat v Mohamed bin Ismail [1982] 2 MLJ 177
Dyson v Attorney-General [1911] 1 KB 410
Baker v Carr (1961) 369 US 186
Williams v Fawcett [1986] 1 QB 604
Young v Bristol Aeroplane Co Ltd [1944] KB 718; [1946] AC 163
Morelle Ltd v Wakeling [1955] 2 QB 379
Attorney-General for Ontario v Canada Temperance Federation [1946] AC 193
Malaysia National Insurance Sdn Bhd v Abdul Aziz bin Mohamed Daud [1979] 2 MLJ 29
O'Reilly v Mackman [1983] 2 AC 237
American Cyanamid v Ethicon Ltd [1975] AC 396
Amalgamated Society of Railway Servants v Osborne [1910] AC 87
Morris v Burdett (1813) 105 ER 361
Datuk Ong Kee Hui v Sinyium Anak Mutit [1983] 1 MLJ 36
Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29
Ganda Oil Industries Sdn Bhd v The Kuala Lumpur Commodity Exchange [1988] 1 MLJ 174
Chief Constable of North Wales Police v Evans [*18]

[1982] 3 All ER 141
Duke v Reliance Systems Ltd [1987] 2 WLR 1225
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WEA Records Ltd v Visions Channel 4 Ltd & Ors [1983] 2 All ER 589
Guaranty Trust Co of New York v Hannay & Company [1915] 2 KB 536
Great Western Railway Co v Owners of SS Mostyn [1928] AC 57
Practice Statement (Judicial Precedent) [1966] 1 WLR 1234
The Bengal Immunity Company Limited v State of Bihar & Ors [1955] 2 SCR 603; AIR 1955 SC 661
Public Prosecutor v Ooi Khai Chin & Anor [1979] 1 MLJ 112
Public Prosecutor v Tai Chai Geok [1978] 1 MLJ 166
Australian Conservation Foundation v Commonwealth of Australia (1979–80) 28 ALR 257
Gillick v West Norfolk and Wisbech Area Health Authority & Anor [1986] 1 AC 112
Reg v Horsham Justices, ex parte Farquharson- & Another [1982] 2 WLR 430
Reg v Felixstowe Justices, ex parte Leigh & Another [1987] 1 QB 582
Fitzgerald v Muldoon [1976] 2 NZLR 615
Reg v Hereford Corporation, ex parte Harrower [1970] 1 WLR 1424
Waddell v Schreyer [1981] 126 DLR (3d) 431
Finlay v Minister of Finance of Canada (1984) 1 FC 516
Finlay v Canada [1986] 2 SCR 607
Thorson v Attorney-General for Canada [1975] 1 SCR 138
Nova Scotia Board of Censors v McNeil [1976] 2 SCR 265
Minister of Justice for Canada v Borowski [1981] 2 SCR 575
Lye Thai Sang & Anor v Faber Merlin (M) Sdn Bhd & Ors [1986] 1 MLJ 166
Foo Loke Ying & Anor v Television Broadcasts Ltd and Others [1985] 2 MLJ 35
Viro v Reg (1978) 141 CLR 88
Jones v The Commonwealth (1987) 61 SLJR 348
Attorney-General v Guardian Newspapers Ltd and Others (The Spycatcher Case) [1987] 1 WLR 1248
Loudon v Ryder (No 2) [1953] Ch 423
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RJ Reuter Co Ltd v Mulhens [1954] Ch 50
Kingdom of Spain v Christie, Manson & Woods Ltd [1986] 1 WLR 1120
Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136
Campbell College, Belfast (Governors) v Commissioner of Valuation for Northern Ireland [1964] 1
WLR 912
Trustees of Clyde Navigation v Laird & Sons (1883) 8 App Cas 658
Assheton Smith v Owen [1906] 1 Ch 179
Pole-Carew v Craddock [1920] 3 KB 109
Attorney-General v The Edison Telephone Company of London (1880) 6 QBD 244
S & F International Ltd v Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62
Additional District Magistrate, Jabalpur v Shivakant Shukla (The Habeas Corpus case) AIR 1976 SC
1207
SUPREME COURT
Tan Sri Abu Talib Othman (Attorney-General, Malaysia); T Selventhiranathan (Senior Federal
Counsel) with him for the appellant in SCCA 434/87.
RR Chelliah (Zaid Ibrahim and CP Mahendran with him) for the appellant in SCCA 456/87.
Karpal Singh (KC Cheah, N Shanmugam and CG Oh with him) for the respondent.
SALLEH ABAS LP
The respondent who is the Leader of Opposition is seeking the aid of the court to interfere in the affairs of
a proposed privatization contract for the construction of the North and South Highway due to be signed
between United Engineers (M) Bhd. (UEM) (appellant in Appeal No. 456/1987) and the Government of
Malaysia (appellant in Appeal No. 434/ 1987) by asking for a declaration that the letter of intent issued by
the Government to UEM in respect of the North and South Highway (NSH) contract is invalid, and based
on the premise he also prays for a permanent injunction to restrain UEM from signing it with the
Government.
On August 18, 1987 he filed a suit to that effect at the Penang High Court and on the same day applied by
way of an ex parte summons-in-chambers for an interim injunction against UEM to restrain it from
signing the NSH contract. The application was heard by Edgar Joseph Jr. J. [see [1988] 1 MLJ 35 ]. He
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refused the application but on appeal to the Supreme Court (Tan Sri Lee Hun Hoe C.J. (Borneo), Tan Sri
Wan Suleiman and Tan Sri Wan Hamzah S.C.JJ.) the court ordered the interim injunction to be issued
"with liberty to apply" and at the same time directed an early trial of the suits [see [1988] 1 MLJ 51 at
53].
Soon after this, UEM and the Government applied to the High Court to have the interim injunction set
aside and the suits struck out on the ground that they disclosed no reasonable cause of action and also for
lack of locus standi, in addition to being frivolous, vexatious and an abuse of the court's process. These
two applications were heard together by V.C. George J. and in a long written judgment the learned judge
dismissed them [see [1988] 1 MLJ 51 ]. Thus the suits [*19]
and the interim injunction stayed on and so both UEM and the Government appealed to the Supreme
Court and hence the case once again came to this court for the second time.
Confusing as these appeals may appear to be, my decision should centre only on the following questions:
(a) whether the respondent/plaintiff has a cause of action to maintain a suit against the United
Engineers;
(b) whether his application for an injunctive remedy is not contrary to section 29 of the Government
Proceedings Act;
(c) whether he has locus standi, i.e. title to bring and maintain the suit against the Government;
(d) whether the oral judgment of the Supreme Court delivered on August 25, 1987 was a final one;
and
(e) even if he has locus standi, whether this complaint is one in respect of which the court's discretion
to grant or refuse the remedy of declaration should be exercised in his favour.
(a) Cause of action
The first issue is whether or not the respondent's statement of claim discloses any cause of action at all in
order to enable him to maintain the suit against UEM. If it does not, the application by UEM to strike out
the suit and consequently its appeal should both be allowed.
What then is the meaning of "a cause of action"? "A cause of action" is a statement of facts alleging that a
plaintiff's right, either at law or by statute, has, in some way or another, been adversely affected or
prejudiced by the act of a defendant in an action. Lord Diplock in Letang v Cooper [1965] 1 QB 232 at P
242 defined "a cause of action" to mean "a factual situation, the existence of which entitles one person to
obtain from the court a remedy against another person". In my view the factual situation spoken of by
Lord Diplock must consist of a statement alleging that, first, the respondent/plaintiff has a right either at
law or by statute and that, secondly, such right has been affected or prejudicated by the
appellant/defendant's act.
Going through the respondent's statement of claim I found nothing in it which shows the existence of such
factual situation. The respondent has no legal relationship with UEM, which would indicate the existence
of any legal right or duty in the relation between them. He is a complete stranger to the company. It is not
shown that the respondent is a shareholder or has any interest, directly or indirectly, in the running of the
affairs of UEM nor has UEM done any wrong to the respondent or deprived or threatened to deprive him
of his right and privilege. The entitling factual situation simply does not exist. Therefore, the respondent's
suit against UEM is unmaintainable and its application to strike it out should therefore be granted and
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consequently its appeal be allowed.
(b) Application for injunctive remedy
Since the suit against UEM is not maintainable, there is therefore no question of the respondent's
entitlement to a remedy of declaration and injunction, permanent or otherwise. The interim injunction
which was granted against UEM has no legal basis.
Apart from this, the issue of the interim injunction against UEM is absolutely contrary to the expressed
words of section 29 of the Government Proceedings Ordinance 1956, as it has in effect indirectly
restrained the Government. Section 29 is as follows:
"29.(1) In any civil proceedings by or against the Government the court shall … have power to make all such orders as it has power to
make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:
Provided that –
(a) where in any proceedings against the Government … the court shall not grant an injunction or make an order for specific
performance, but may in lieu thereof make an order declaratory of the rights of the parties; and
(b) …
(2) The court shall not in any civil proceedings grant any injunction … if the effect of granting the injunction … would be to give
any relief against the Government which could not have been obtained in proceedings against the Government."
(Italics are mine)
This means that no injunction could be directly or indirectly issued against the Government or its officers.
Similarly, the court has no jurisdiction to grant an injunction against a private litigant if the injunction
would have the effect of restraining the [*20]
Government or its officers from performing their functions. This has been the interpretation which has
been placed by the courts in England as well as in this country.
However, this interpretation has recently been questioned by Hodgson J. in Reg v Secretary of State for
the Home Department and Another, ex parte Herbage [1987] 1 QB 872. I do not consider this case as
having much bearing upon the powers of the courts in Malaysia relating to the granting of injunction
against the Government or its servants. The effect of Hodgson J.'s decision is that although section 21 of
the U.K. Crown Proceedings Act 1947 does not apply to proceedings on the Crown side of the Q.B.
Division, and therefore the Crown's immunity from injunction is not claimable under section 21,
nevertheless Order 53, which is backed by section 31 of the Supreme Court Act 1981, gives jurisdiction to
the court to grant injunctions, even interim injunctions, against a servant of the Crown, even though
proceedings may have been commenced on the Crown side of the Q.B. Division. But in Malaysia we have
no Order 53 and section 31. Is it justified for us to import this decision which is only a High Court
decision to depart from the generally accepted interpretation of section 29 of the Government Proceedings
Act? With respect I am unable to agree.
Looking at the statement of claim of the respondent against both the Government and UEM, I cannot help
thinking that the suit against UEM is commenced purely as a ground or a stepping stone for the purpose of
applying for an injunction; more particularly an ex parte interim injunction in order to stop the NSH
contract. Knowing that no injunction could be obtained directly or indirectly against the Government or its
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officers because of the proviso (a) to subsection (1) and subsection (2), the scope of the suit is deliberately
widened to include UEM as another defendant. In my view, the interim injunction should have been
refused.
Refusal to grant the injunction in this case is also consistent with paragraphs (d) and (k) of section 54 of
the Specific Relief Act in that no injunction can be granted "to interfere with the public duties of any
department of any Government" nor can it be granted "where the applicant has no personal interest in the
matter". Personal interest here must surely mean legal interest and not merely political interest.
In this case, since not only has the respondent no cause of action against UEM but the court also has no
power to issue the injunction, interim or otherwise, the respondent's suit against UEM is therefore
unmaintainable as it is also vexatious, frivolous and constitutes an abuse of the judicial process.
(c) Locus standi
Every legal system has a built-in mechanism to protect its judicial process from abuse by busy-bodies,
cranks and other mischief-makers by insisting that a plaintiff should have a special interest in the
proceedings which he institutes. This special interest is a nexus between him and the party against whom
he brings his complaints to court and is known as locus standi.
In a public law litigation, the rule is that the Attorney-General is the guardian of public interest. It is he
who will enforce the performance of public duty and the compliance of public law. Thus when he sues, he
is not required to show locus standi. On the other hand, any other person, however public spirited he may
be, will not be able to commence such litigation, unless he has a locus standi, or in the absence of it, he
has obtained the aid or consent of the Attorney-General. If such consent is obtained, the suit is called a
relator action in which the Attorney-General becomes the plaintiff whilst the private citizen his relator. I
will deal with this aspect in the later part of this judgment. In the instant appeal, since this is not a relator
action the respondent must show that he has the necessary locus standi to commence and maintain the
suit.
What is the law on locus standi?
A clear statement of it was stated by Buckley J. in Boyce v Paddington Borough Council [1903] 1 Ch 109
as follows:
"A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that
some private right of his is at the same time interfered with (e.g. where an obstruction is so placed in a highway that the owner of
premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from
and to his premises to and from the highway); and, secondly, where no private right is interfered with, but the plaintiff, in respect of his
public right, suffers special damage peculiar to himself from the interference with the public right."
The above passage was accepted by the House of Lords in Gouriet v Union of Post Office Workers and
Others [1977] 3 All ER 70; [1978] AC 435 (see the speeches of Lord Edmund Davies and Lord Fraser).
That was the law of locus [*21]
standi declared by the highest court in England in 1977. However, six months later the law was changed
as a result of a new procedure of judicial review introduced by Order 53 of the U.K. Supreme Court
Rules.
Locus standi is inseparable from, and indeed intertwined with, relator actions because if a private citizen,
wishing to complain that a public authority has not legally performed its function or has failed to perform
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it altogether, has no locus standi, he must obtain the consent of the Attorney-General in order to
commence a relator action. Without locus standi, he cannot proceed on his own. In cases where the
Attorney-General has given his consent, there is, of course, no problem, because no locus standi needs to
be shown since the Attorney-General is constitutionally regarded as the guardian of public right. The
difficulty arises where the necessary consent is not obtained before a private citizen launches a suit. In a
few cases involving matters of general public interest, which were started by a private citizen, the
Attorney-General did intervene in the proceedings either by subsequently giving his consent or even by
his personal appearance, thereby dispensing with the requirement of locus standi of the applicant. Yet
there are cases in which he made no such intervention at all. In such cases, the applicant must show locus
standi.
The study of the development of the law on locus standi in England is very interesting. During the
tenureship of Lord Denning M.R., it appears that the Court of Appeal by a spate of judicial activism
widened the law on locus standi by dispensing with the requirements of private right or private injury
caused to the complaining citizen. (See Reg v Commissioner of Police of the Metropolis, ex parte
Blackburn [1968] 2 WLR 893; Blackburn v Attorney-General [1971] 1 WLR 1037; Attorney-General (on
the relation of McWhirter) v Independent Broadcasting Authority [1973] 1 All ER 689 at p 698 [1973]
QB 629 and Reg v Greater London Council, ex parte Blackburn and Another [1976] 1 WLR 550 at p
559).
This was the view then prevailing in English law in the late sixties and seventies until it was rejected by
the House of Lords in 1977 in Gouriet's case. This case restored the law on locus standi to what was
formerly stated by Buckley J. in Boyce's case. However, the restoration was shortlived because six months
later a new procedure by way of judicial review, which combines applications for the prerogative orders
of mandamus, certiorari and prohibition with applications for declaratory and injunctive remedies, was
introduced by Order 53 of the U.K. Supreme Court Rules.
Under this Order, a private citizen making an application for judicial review is required to show that he
has "a sufficient interest in the matter to which his application relates". Thus English courts are required to
interpret what "sufficient interest" means. In most of the cases decided after the introduction of this Order,
"sufficient interest" has been given a wider meaning than, and a different approach from, that stated in
Boyce's case [1903] 1 Ch 109. The result is the return towards the liberal stand propounded by Lord
Denning in the judgments of the Court of Appeal prior to Gouriet's case. This liberalism can be seen in
the judgment of the House of Lords in Inland Revenue Commissioners v National Federation of Self-
Employed and Small Businesses Ltd [1982] AC 617; [1981] 2 All ER 93 and the Court of Appeal's
decisions in Reg v HM Treasury, ex parte Smedley [1985] 1 All ER 589; [1985] 1 QB 657, Reg v
Metropolitan Police Commissioner, ex Parte Blackburn The Times 7 March 1980 and Reg v
Commissioner of Police of the Metropolis, ex parte Blackburn [1968] 2 WLR 893.
Necessity seems to be the basis for liberalizing the law on locus standi. This can be seen clearly from the
dicta of Lord Denning in a number of cases before and after Gouriet's case was decided. His view, which
was later supported by Lord Diplock, is that if a public-spirited person, not having any special or peculiar
interest in the performance of public duty by a public body, is not given a right of hearing to bring the
matter before the court, no one will ever bring it to court. In other words, it is a necessity, which arises,
not because of his private interest being adversely affected, but because of the nature of the complaint and
the need for the court to intervene and to grant remedies. This is epitomized in Lord Denning's question:
"Are the courts to stand idly by?"
The seed of this liberalism (more accurately abolition) of locus standi first began with a dictum, which
later germinated into a ratio decidendi. The first dictum was sown in Reg v Commissioner of Police of the
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Metropolis, ex parte Blackburn [1968] 2 WLR 893. In this case, Lord Denning threw the question open
whether a private citizen who applied for a mandamus to compel the Commissioner of Police to enforce
gaming law had or had no locus standi. But he did, however, recognize, as shown in the following passage
of his judgment, that such citizen had no locus standi. That is what he said: [*22]
"It is I think an open question whether Mr. Blackburn has a sufficient interest to be protected. No doubt any person who was adversely
affected by the action of the Commissioner in making a mistaken policy decision would have such an interest. The difficulty is to see
how Mr. Blackburn himself has been affected. But without deciding that question, I turn to see whether …" (p. 903)
(italics are mine)
Salmon L.J. agreed with the above quoted passage, whilst Edmund Davies L.J. insisted upon the
requirement of special or peculiar interest. In his view, a person without such interest had no locus standi
to enforce the due discharge of the public duty under consideration.
Three years later, in 1971 (Blackburn v Attorney-General [1971] 1 WLR 1037), the same Mr. Blackburn
came again to court challenging the legality of the British Government's proposed entry into the European
Common Market, since, it was argued, the signing of the European Common Market Treaty would
compromise British parliamentary sovereignty. The court rejected this argument because it held that it
could not impugn the treaty-making power of the Crown. However, during the course of his judgment
Lord Denning M.R. expressed an obiter dictum saying that he would not rule Mr. Blackburn out on the
ground that he had no standing.
The next case in which Lord Denning expressed an obiter is Attorney-General (on the relation of
McWhirter) v Independent Broadcasting Authority [1973] 1 All ER 689 at p 698 [1973] QB 629. In this
case he said:
"In the light of all this I am of opinion that, in the last resort, if the Attorney-General refuses leave in a proper case, or improperly or
unreasonably delays in giving leave, or his machinery works too slowly, then a member of the public, who has a sufficient interest, can
himself apply to the court itself. He can apply for a declaration and, in a proper case, for an injunction, joining the Attorney-General if
need be, as defendant. In these days when government departments and public authorities have such great powers and influence, this is a
most important safeguard for the ordinary citizens of this country; so that they can see that those great powers and influence are
exercised in accordance with law. I would not restrict the circumstances in which an individual may be held to have a sufficient interest.
Take the recent cases when Mr. Raymond Blackburn applied to the court on the ground that the Commissioner of Police was not doing
his duty in regard to gaming or pornography. Mr. Blackburn had a sufficient interest, even though it was shared with thousands of
others. I doubt whether the Attorney-General would have given him leave to use his name: see Reg v Metropolitan Police
Commissioner, ex parte Blackburn [1968] 1 All ER at 770; [1968] 2 QB 771at 137139."
This passage was held by the House of Lords in Gouriet's case to be only an obiter (see Gouriet's case
[1977] 3 All ER 70 at pp 85; [1978] AC 435 95100106and 117).
In another Blackburn case, Reg v Greater London Council, ex parte Blackburn & Another [1976] 1 WLR
550, the same private citizen and another applied to the court for a prerogative order of prohibition
directing the respondent, Greater London Council, not to allow the showing of obscene films as they had
bad influences on children. The Court of Appeal held that the applicants as citizens, ratepayers and
parents residing within the Council's jurisdiction had sufficient locus standi to make the application. Thus
what was formerly an obiter then became a ratio decidendi. In his judgment, Lord Denning said:
"It was suggested that Mr. Blackburn has no sufficient interest to bring these proceedings against the G.L.C. It is a point which was
taken against him by the Commissioner of Police … On this point, I would ask: Who then can bring proceedings when a public
authority is guilty of a misuse of power? Mr. Blackburn is a citizen of London. His wife is a ratepayer. He has children who may be
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harmed by the exhibition of pornographic films. If he has no sufficient interest, no other citizen has. I think he comes within the
principle which I stated in McWhirter's case [1973] QB 629 649, which I would recast today so as to read:
'I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a
public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her Majesty's
subjects, then any one of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced,
and the courts in their discretion can grant whatever remedy is appropriate.' " (pp. 558 – 559).
Those were the cases decided by the Court of Appeal before the House of Lord's decision in Gouriet's
case. In those cases, the Court of Appeal simply passed over the requirement of locus standi and went
straight to the crux of the complaints of the applicants. Before the introduction of the new procedure of
judicial review under Order 53, this approach was not accepted by the House of Lords and the law,
according to the House, was the same as formerly laid down by Buckley J. in Boyce's case.
However, with the introduction of the new procedure, not only locus standi ceased to be a threshold
requirement, its meaning also becomes liberated by the use of the words "sufficient interest" and
consequently relator action ceases to have much meaning. The result is that both the approach to the
problem of locus standi and its [*23]
meaning advocated by Lord Denning were finally accepted by legislation.
Order 53 was based largely on the recommendation of the Law Commission made in their Report on
Remedies in Administrative Law (Law Com. No. 73 Commd. 6407 (1976)). It came into force in January
1978. Subsequently, the Order was given a statutory backing by section 31 of the Supreme Court Act
1981.
For the purpose of explaining this change, it is necessary to refer to three cases of judicial review under
Order 53 in which locus standi becomes liberated. First, Reg v Metropolitan Police Commissioner, ex
parte Blackburn The Times 7 March 1980, secondly, Reg v HM Treasury, ex parte Smedley [1985] 1 All
ER 589; [1985] 1 QB 657 and, thirdly, Inland Revenue Commissioners v National Federation of Self-
Employed and Small Businesses Ltd [1982] AC 617; [1981] 2 All ER 93.
In the first case – this is the fourth Blackburn case – the applicant made an application requiring the
Metropolitan Police Commissioner to take action against a widespread exhibition of pornographic
materials. Even the Temple tube station, which is the station used by the legal fraternity, was not spared
from such daring exhibition. The application was refused by the Divisional Court and on appeal to the
Court of Appeal, the application was similarly dismissed and leave to appeal to the House of Lords was
also refused. The reason for dismissing the appeal was not based on locus standi, but on merits in that it
was held that it is not for Mr. Blackburn nor for the court to tell the Commissioner how he was to perform
his duties. All the judges of the Court of Appeal agreed that Mr. Blackburn, the applicant, had "a
sufficient interest in the matter to which his application related" within the meaning of Order 53 rule 3(5).
This case ended at the level of the Court of Appeal only.
The House of Lords had its first opportunity to decide the issue of locus standi as a requirement for
judicial review under Order 53 in the National Federation of Self-Employed's case [1982] AC 617; [1981]
2 All ER 93.
This was a case in which the Federation contested the legality of the Inland Revenue's decision to give tax
amnesty to casual workers of Fleet Street on the ground that it was difficult to collect the tax from them.
A preliminary objection was taken on behalf of the Inland Revenue to the effect that the Federation had no
locus standi or a sufficient interest to apply for a judicial review relating to the legality of tax amnesty.
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The Divisional Court upheld the objection but the Court of Appeal overruled that decision and held that a
body of taxpayers represented by the Federation could reasonably assert that they had a genuine grievance
in the alleged failure of the Inland Revenue to do its duty in the granting of an unlawful indulgence of tax
amnesty to the casual workers. The House of Lords held that the question of sufficiency of interest was no
longer a threshold requirement under Order 53. The House further held that the question must be
determined on the basis of the available evidence before the court. Although the House agreed with the
Court of Appeal that the Federation had the necessary locus standi, it refused the judicial review on the
ground that the giving of tax amnesty is not an illegal act by the Inland Revenue since it is part of its duty
of good management and collection of taxes. This case therefore clearly shows that the court's approach to
the problem of locus standi under Order 53 has radically changed. Instead of being a threshold
requirement, it now becomes one of the matters to be taken into consideration for the exercise of judicial
review.
In Smedley's case, which went up only as far as the Court of Appeal, a citizen challenged the propriety of
the procedure by which the British Government was proposing to pay a monetary contribution to the
European Community in order to fulfil an undertaking made by the representatives of the Government.
The Government proposed to follow a procedure of an Order-in-Council to be approved by both Houses
of Parliament, whereas the applicant contended that an Act of Parliament should be passed instead. The
application was dismissed by the Queen's Bench Division (Woolf J.) not on the ground of lack of locus
standi but on the ground that it was a matter for Parliament to adjudicate on. As to the locus standi, Mr.
Justice Woolf in the Queen's Bench Division said that:
"he would be surprised if a public-spirited citizen was prevented from coming before a court to prevent an unconstitutional and
unauthorized disposal by the Government of funds."
(The Times 8 December 1984)
In the Court of Appeal ( [1985] 1 All ER 589), it was held that the applicant as a taxpayer had sufficient
locus standi to raise the question by way of judicial review. Slade L.J. said, at p. 595: [*24]
"I do not feel much doubt that Mr. Smedley, if only in his capacity as a taxpayer, has sufficient locus standi, to raise this question by
way of an application for judicial review; on the present state of the authorities, I cannot think that any such right of challenge belongs
to the Attorney-General alone."
In view of this liberation achieved by the introduction of Order 53 which was later propped up by section
31 of the Supreme Court Act, the applicants, as both Blackburn's and Smedley's cases have shown, if they
are private citizens, need not have to proceed by way of relator action making the Attorney-General as the
dominant complainant to challenge the legality of an administrative or executive decision, although of
course the court still retains its discretion whether to exercise the judicial review or not. In both
Blackburn's and Smedley's cases, the court held that the applicant had locus standi, but refused the
applications because the matters complained of were not within the jurisdiction of the court to consider. In
Blackburn's case the application requested the court to tell the Commissioner of Police, London to do his
duties whilst in Smedley's case the applicant required the court to tell the executive how to proceed to
implement its Common Market undertaking.
Back in Malaysia, since we have not accepted Order 53 and its statutory underpinning (i.e. section 31 of
the Supreme Court Act) there is no justification therefore for us to depart from the rule of locus standi
accepted by the highest court in England prior to Order 53.
Speaking on the effect of Order 53, Lord Ackner in his paper presented at the Fourth International Appeal
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Judges' Conference said:
"Judicial review, certainly in English law, is a growth industry. In the last five years it has increased by over a 100 per cent, from 500
applications to over one thousand excluding criminal applications. The leading English textbook on administrative law, written by that
distinguished academic well-known in Malaysia, Professor Sir William Wade Q.C., has developed from a slim little volume first
published in 1961 to a heavy tome approaching a thousand pages in its fifth edition published five years ago, and there is clearly much
more to follow in the sixth edition."
This growth must have been due to the change in the law.
In Malaysia, there are two important judgments on locus standi. The first is Lim Cho Hock v Government
of the State of Perak, Menteri Besar, State of Perak and President, Municipality of Ipoh [1980] 2 MLJ
148 and the second is Tan Sri Haji Othman Saat v Mohamed bin Ismail [1982] 2 MLJ 177.
In Lim Cho Hock's case, the plaintiff was a Member of Parliament for the parliamentary constituency of
Ipoh as well as a member of the Perak State Legislative Assembly for the constituency of Kepayang and a
ratepayer within the area of the Ipoh municipality. He challenged the legality of the appointment of the
Menteri Besar, Perak as President of the Ipoh Municipal Council. It was held that as a ratepayer the
plaintiff had locus standi.
In the second case, i.e. Tan Sri Haji Othman Saat's case, the respondent who was one of 183 applicants
for state land felt aggrieved because after waiting for eight years without any response from the state
authority, he subsequently learnt to his horror that the land he and others had applied for was alienated to
a number of people who did not appear to deserve the land at all, one of whom was the appellant who was
then the Menteri Besar of Johore. The Federal Court held that the respondent had locus standi. The failure
of the state authority to decide upon his application, the alienation of the land in question to other persons
and, conversely, his expectation that his application would be decided one way or the other and that he
would not be kept in suspense for a long time only to learn later that the subject-matter of his application
had gone to someone else – all these constituted his standing to commence the proceedings.
In my judgment, these two cases represent the high water marks of the law of locus standi in Malaysia,
beyond which the court should be careful to tread. Both these cases can be justified on the basis that the
plaintiff had a genuine private interest to be furthered and protected.
What is important about Tan Sri Haji Othman Saat's case is that part of the judgment which dealt with the
approach which the court should take when confronted with the question of locus standi. Here is what the
court said:
"The sensible approach in the matter of locus standi in injunctions and declarations would be that as a matter of jurisdiction, an
assertion of an infringement of contractual or a proprietary right, the commission of a tort, a statutory right or the breach of a statute
which affects the plaintiff's interests substantially or where the plaintiff has some genuine interest in having his legal position declared,
even though he could get no other relief, should suffice."
Taking this approach, let us now examine the basis of the respondent's claim on locus standi. [*25]
First, he says he is the Leader of the Opposition, i.e. a politician. It is common knowledge that a politician
works for voters' support. From his statement of claim, it appears that the respondent brought up this
complaint to court because of his inability to prevent the formation of the NSH contract by political
means. The question is: is he motivated by public-spiritedness or an expectation of political gain and
popularity? Would political grievances give him the locus standi? In my judgment, the court should be
slow to respond to a politically motivated litigation unless the claimant can show that his private rights as
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a citizen are affected. Similar caution was expressed by Salmon L.J. in Blackburn's case [1971] 1 WLR
1037 saying that he deprecated "litigations the purpose of which is to influence political decisions". Thus
as a politician, the respondent's remedy in this matter does not lie with the court, but with Parliament and
the electorate.
Next, as a frequent road and highway user, I cannot see how he could be different from other road and
highway users. There is nothing to show that he would be prevented from using roads and highways,
already constructed or proposed to be constructed. If he objects to the tolls that are to be imposed for
using the proposed NSH highway, he has, like any other users, an option either to use the highway or to
use old or other roads. Thus, as a road and highway user, he also has no locus standi.
I now come to the question whether as a taxpayer the respondent has locus standi to bring this suit against
the Government. According to Smedley's case a taxpayer has locus standi, but that case like many other
cases I referred to earlier was decided under the new procedure of judicial review introduced by Order
53RSC which enlarged the meaning of locus standi to "sufficient interest". But we have not adopted this
new procedure in our High Court Rules. Therefore, the question whether or not the respondent as a
taxpayer has locus standi to interfere in the NSH contract must, in my judgment, be answered in the
negative.
Under Article 68(1) of the Constitution, the Government can make contracts and can sue and be sued. In
the making of a contract, section 2 of the Government Contract Act 1949 ensures that if the contract is
reduced to writing it should be made in the name of the Government and signed by a Minister or a public
officer authorized by a Minister. There is nothing in the Constitution or in the Government Contract Act
which imposes a legal duty on the Government to consult and accept the views of any taxpayer or group
of taxpayers or to hear objections. There may be a moral and political obligation on the part of the
Government to be mindful of taxpayers' objection, but this is not a basis for the court to find a legal duty
giving any taxpayer locus standi to maintain this suit. Such moral obligation should be addressed at other
forums.
Hence I fail to see how the respondent, whether as a politician, a road and highway user or a taxpayer,
could have locus standi.
(d) Oral judgment of the Supreme Court
This leaves me to say something about the oral judgment of this court delivered on August 25, 1987. The
Attorney-General prefaced his submission by saying that the previous proceedings before this court were
in law still ex parte proceedings, being a continuation of proceedings before Edgar Joseph Jr. J. because,
he said, no appearance by either the Government or UEM had then been filed. Thus, he submitted, the
ruling of the court would only be provisional and therefore not binding and in any event it was only an
unreasoned decision. Mr. Karpal Singh, on the other hand, countered the submission saying that the
proceedings were in fact and in law inter partes proceedings and the ruling of the court therefore should
stand.
Whatever the merits and demerits of these arguments, in my judgment, the wording and the tenor of this
short oral judgment clearly show that the court did not consider its ruling to be a definitive or conclusive
one. In this connection, it should be recalled that the matter before the Supreme Court then only
concerned the refusal by Edgar Joseph Jr. J. to grant the respondent's application for an ex parte interim
injunction. The evidence available before the court was only the respondent's affidavit which in effect is a
mere repetition of his statement of claim. The court then had not the advantage of full arguments as had
V.C. George J. and us. Thus the decision could only be no more than a provisional or prima facie one.
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This is confirmed by a proviso in the oral judgment itself which says that UEM and the Government were
"at liberty to apply". Presumably "to apply" means to apply to the High Court to set aside the interim
injunction. Hence, I cannot see anything in the oral judgment which inhibits the court [*26]
from considering the problem of locus standi again.
(e) Judicial discretion
So much has been said on issues of lack of reasonable cause of action, lack of locus standi and abuse of
court's processes and injunction against the Government and its servants. There is, however, one other
issue, which, I think, is pertinent to this case. Assuming that I am wrong on the question of locus standi,
and that the respondent therefore has locus standi, another question arises as to whether this is a sort of
case in which the court would exercise its discretion to issue the declaration applied for. To answer this
question, it is necessary to examine the substance of the respondent's complaints.
There can be no doubt that the respondent's complaints are grave and serious and have even assumed the
status of national importance and celebrity. But what in reality are they?
The respondent objected to the signing of the contract because he said the ministers involved in the
making of the Cabinet decision concerning the NSH contract are all guilty of a criminal offence of corrupt
practices under Emergency Ordinance No. 22, the allegations being that these ministers are biased in
favour of UEM because UEM belongs to UMNO of which the Prime Minister is the President and the
Minister of Finance is an important office bearer and that the Minister of Works, who is the President of
MIC, sold to UEM one million worth of MIC lottery tickets. The respondent also objected to the
Government's rejection of tenders of two companies who are UEM's rivals despite the fact that these
tenders were much lower. It was therefore scandalous and economically unwise for the Government to
commit such a huge expenditure from the public fund.
Shorn of any emotional and psychological elements which a complaint of this nature generates, in essence
and effect the complaint is an invocation of the court's aid in order to prevent not merely a threatened
illegal act (the signing of the NSH contract) by the Government but also to enforce the criminal law
against these three ministers. This raises a constitutional question of great importance involving the
position of the Attorney-General and the dichotomy between criminal law and civil law.
In this connection, we must remind ourselves of our true function in this appeal. We are not sitting as a
criminal court holding a criminal trial nor are we hearing a criminal appeal. We are also not sitting as a
commission of inquiry investigating into the wisdom, malpractices and misdeed of the government and its
officials. We are only sitting as a ultimate civil court of appeal of the nation in which our duty is to deal
only with such issues of law and facts as relate and are relevant to the case.
As stated previously, the basis of the respondent's application for declaration is the allegation of corrupt
practice by the Prime Minister and the two ministers. V.C. George J. in the court below admirably dealt
with the legal as well as factual aspects of the offence pertaining to the negotiation and formation of this
contract and he finally came to the conclusion that there were issues to be tried. But the question is: are
these issues, which are in no uncertain term allegedly criminal, to be tried in a civil court by the civil
process? Is the respondent's application not an invitation to the civil court to exercise criminal
jurisdiction?
In Gouriet's case, the House of Lords was confronted with a similar question. The House refused to allow
the enforcement of criminal law by a civil court. Lord Diplock reminded the House of the importance of
keeping a difference "between private law and public law" meaning, in the context of that case, civil law
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and criminal law. In the words of Lord Diplock, "it is the failure to recognize this distinction that has …
led to some confusion and an unaccustomed degree of rhetoric in this case". I accept this approach in view
of the separation of the system of criminal justice from that of the civil justice system. It is unacceptable
that criminal law should be enforced by means of civil proceedings for a declaration when the court's
power to grant that remedy is only at the discretion of the court. Jurisdiction of a criminal court is fixed
and certain. The standard of proof in a criminal case is different from that required in a civil case and
moreover the Attorney-General is the guardian of public interest and as the Public Prosecutor, he, not the
court, is in control of all prosecutions. How can a prosecution of this nature be done behind his back?
These are some of the most serious objections to the exercise by a civil court of its discretionary power
relating to declaratory and injunctive remedies. Our system requires the public to trust the impartiality and
fair-mindedness of the Attorney-General. If he fails in his duty to exhibit this sense of fairness and to
protect public interest [*27]
of which he is the guardian, the matter can be raised in Parliament or elsewhere.
Finally, if the objection of the respondent to the NSH contract is based on the ground of its excessive costs
and unfairness to UEM's rivals, the jurisprudence of the court is that it is not for the court to interfere in
the matter because the wisdom and policy decision of the Government belongs to the Government. We
cannot tell the public authority how to exercise its power (per Lord Justice Lawton in Blackburn's case
The Times 7 March 1980 (at p 15)). Consequently, all those figures and reports showing economic
feasibilities for and against the project are absolutely irrelevant and serve no purpose.
In view of what I have said earlier, I would allow the appeals and order that the suits against UEM and the
Government be dismissed and the interim injunction discharged. I would also order that the deposit of the
appeal paid by UEM be refunded and as regards costs each party should bear its own costs both here and
in the courts below.
Abdul Hamid C.J. (Malaya): This appeal raises an issue of considerable importance. The central issue
revolves round the question of "locus standi' of a private person seeking a declaration and an injunction in
a case for the enforcement of a public right purportedly for public interest.
"Locus standi" is generally understood to mean the right of a party to appear and be heard by a tribunal. A
litigant is said to have locus standi, in effect standing to sue in a court of law, if that court recognizes his
or her ability to institute and maintain proceedings before it. The question of standing is thus separate and
distinct from questions of the substantive merits and the legal capacity of the plaintiff. It follows,
therefore, that a litigant may lack standing to bring a case which would succeed if brought by the right
litigant.
Put in a nutshell, the law of standing to sue has two fundamental rules. First, apart from certain cases in
which standing to sue is in the discretion of the court, the plaintiff must possess an interest in the issues
raised in the proceedings. Second, where the private plaintiff relies on an interest in the enforcement of a
public right and not of a private right, standing will be denied unless the Attorney-General consents to a
relator action, or the plaintiff can demonstrate some special interest beyond that possessed by the public
generally.
Now, there are two limbs in the arguments that standing rules help in the allocation of scarce judicial
resources. One of these is that liberalizing the rules will open the flood gates to litigation: see Dyson v
Attorney-General [1911] 1 KB 410. The other is that judicial resources being always strictly limited,
when there are competing claims for access to the courts by a busybody on the one hand and an individual
with a genuine grievance on the other, priority ought to be given to the latter over the former.
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A justification for standing rules relates to standing as a function of the adversary system. Self-interest is
seen as the motivating force that will ensure that the parties present their respective positions in the best
possible light. If the motivation of self-interest is non-existent so that the ensuing dispute is not with
respect to contested rights and obligations of the parties themselves, then the assurance of diligent
preparation and argument cannot exist. To quote the Law Reform Commission of British Columbia,
Report on Civil Litigation in the Public Interest 1980, quoting Baker v Carr (1961) 369 US 186 at p 284:
"Access to the courts must be restricted to those who have a personal interest in the litigation if, in the words of the Supreme Court of
the United States, the courts are to ensure that concrete adverseness which sharpens the presentation of issues upon which the courts so
largely depend."
The other justification for standing rules relates to the private individual plaintiff suing with respect to a
matter of public interest unless the Attorney-General consents reflects a constitutional principle about the
division of responsibility between the executive and the judiciary: see e.g. Gouriet v Union of Post Office
Workers [1977] 3 All ER 70; [1978] AC 435 per Viscount Dilhorne. Alternatively, an institutional view is
advanced which notes that the public interest embraces broader concerns than those properly addressable
by courts of law:
"The decisions to be made as to the public interest are not such as courts are fitted or equipped to make. The very fact, that, as the
present case very well shows, decisions are of the type to attract political criticism and controversy, shows that they are outside the
range of discretionary problems which the courts can resolve. Judges are equipped to find legal rights and administer, on well-known
principles, discretionary remedies."
(ibid at p. 482 per Lord Wilberforce)
I would now analyse very briefly the judgment of the court below and the cases relied on therein as
showing that the plaintiff in the instant case had [*28]
the necessary locus standi to bring and to maintain the present proceedings.
In the first place, the learned judge referred to the oral judgment of the Supreme Court reversing the High
Court, Penang by imposing the injunction hereinbefore mentioned against United Engineers (M) Bhd.
(UEM).
The oral judgment of the Supreme Court was very brief and is hardly necessary that it be set out here. It is
to be observed that the locus standi point was not an issue before the High Court in Penang where the
application for injunction was refused on three separate grounds: (a) that the injunction sought, although
in form against UEM, was in substance and intent an injunction against the Government and so section 29
of the Government Proceedings Ordinance 1956 constituted an absolute bar to the application; (b) that
having regard to the balance of convenience, to grant the injunction would amount to impugning the
powers of the Government to enter into contracts and, so, contrary to public interest; and (c) that there had
been a long and unexplained delay on the part of the plaintiff both in the institution of the suit and the
bringing of the application. In this regard, I fully subscribe to the finding of the learned judge Edgar
Joseph Jr. as to the construction to be placed on section 29 of the Government Proceedings Ordinance
1956.
The Supreme Court clearly had dealt with only ground (a). As to the locus standi point, there was only a
casual reference made to it.
It is therefore understandable why the point was taken before the learned judge that the judgment of the
Supreme Court on the issue of locus standi was merely obiter dicta.
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The learned judge did not, however, feel constrained to decide whether this part of the judgment of the
Supreme Court was obiter dicta or ratio decidendi. Instead, he expressed the view that – "In the instant
case, the judgment of the Supreme Court cannot be examined by me as a mere precedent that bears
analysis to discover what is ratio and what is dictum and whether the findings were per incuriam or
otherwise." He therefore concluded that it was not a judgment which it was open to him to review and
proceeded to observe that "even the Supreme Court may not review its own judgments". With respect, I
would say that while the Supreme Court will not review its own decisions, it may, however, where
necessary, depart from a previous decision, though it will not, of course, lightly do so.
At this point, I refer to the case of Williams v Fawcett (CA) [1986] 1 QB 604 at pp 615and 616 where Sir
John Donaldson M.R., after stating that the court retained the power in an exceptional case to depart from
its previous decisions, approved the following passages in Young v Bristol Aeroplane Co Ltd [1944] KB
718 at p 729 [1946] AC 163:
"Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other
decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or
a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is
entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its
mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there
may not be other cases of decisions given per incuriam in which this court might properly consider itself entitled not to follow an earlier
decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special
facts."
and in Morelle Ltd v Wakeling [1955] 2 QB 379 :
"As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in
ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such
cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.
This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per
incuriam must, in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be, in the language of
Lord Greene M.R., of the rarest occurrence. In the present case it is not shown that any statutory provision or binding authority was
overlooked … As we already said, it is, in our judgment, impossible to fasten upon any part of the decision under consideration or upon
any step in the reasoning upon which the judgments were based and to say of it: 'Here was a manifest slip of error'."
In Attorney-General for Ontario v Canada Temperance Federation [1946] AC 193, a Privy Council case,
Viscount Simon observed: "Their Lordships do not doubt that in tendering humble advice to His Majesty
they are not absolutely bound by previous decisions of the Board, as the House of Lords is by their own
judgments."
But when Lord Gardiner became Lord Chancellor, he took a leading part in the discussions on precedent.
On July 26, 1966, he made a statement [*29]
in the House of Lords when all the then Lords of Appeal in Ordinary were present. The crucial paragraph
in his statement was as follows:
"Their Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly
restrict the development of the law. They propose, therefore, their present practice and, while treating former decisions of this House as
normally binding, to depart from a previous decision when it appears right to do so."
In Malaysia National Insurance Sdn Bhd v Abdul Aziz bin Mohamed Daud [1979] 2 MLJ 29, Raja Azlan
Shah F.J. (as he then was), speaking for the Federal Court, said this:
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"However, I would once again emphasize what has so often been said before, that precedents are not to be slavishly followed; a case
may be followed only for its strict ratio decidendi." (Emphasis supplied)
Reverting to the judgment of the Supreme Court, my view is that since the point as to locus standi had not
strictly been in issue, it is wholly gratuitous and entirely obiter. Indeed the decision therein turned on one
issue only, namely, whether or not the High Court in Penang had construed section 29 of the Government
Proceedings Ordinance 1956 too widely.
I must now direct my attention to the locus standi point which arises acutely for decision in the
application to strike out which has been fully argued before us.
Clearly, the main hinge upon which the judgment of the learned judge rested as regards the locus standi
point was the judgment of the Federal Court in Tan Sri Haji Othman Saat v Mohamed bin Ismail [1982] 2
MLJ 177.
Having regard especially to the very full arguments which have been addressed to the court and the
obvious public importance of the case before the court, I consider that the time is now ripe for us to restate
our position on the law of standing in this country.
It was Lord Denning who first provided the running to liberalize the law of standing in England. He did
this in two ways; first, he recognized every one's interest in seeing the law enforced and, secondly, in
according that recognition to all public law cases, no matter what the remedy sought was. To illustrate, I
shall quote from his judgment in Ex parte Blackburn [1976] 1 WLR 550 at p 559:
"I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a
public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her Majesty's
subjects, then any one of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced,
and the courts in their discretion can grant whatever remedy is appropriate."
He did, however, add that as a matter of discretion, the prerogative remedies will be refused "to a mere
busybody who is interfering in things which do not concern him" (at p. 559).
I now refer to Gouriet v Union of Post Office Workers [1977] 3 All ER 70; [1978] AC 435. In that case
there was a proposed temporary union ban on communications to and from South Africa. The ban would
have been criminal, and yet, the Attorney-General, without explanation, refused to sue or lend his name to
a relator action. In the Court of Appeal, Lord Denning thought that the case involved a point of high
constitutional principle ( [1977] QB 729 at 736737) and asked "What is to be done about it? Are the
courts to stand idly by? Is the Attorney-General the final arbiter as to whether the law should be enforced
or not?" And then he concluded: "The plain fact is that the law must be obeyed."
The House of Lords, however, did not agree and reversed the Court of Appeal judgment. The majority
view there was that the same standing rule applies whether the remedy sought is a declaration or an
injunction. Either the plaintiff's "rights" must be at stake, or, if the matter does not concern private rights,
the plaintiff must suffer or be about to suffer "special damages" peculiar to himself. The main plank in the
reasoning of their Lordships regarding the monopoly enjoyed by the Attorney-General in speaking for the
public is best illustrated by the following passage in the judgment of Lord Diplock:
"My Lords, at the heart of the issue in these appeals lies the difference between private law and public law. It is the failure to recognize
this distinction that has in my view led to some confusion and an unaccustomed degree of rhetoric in this case."
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It is true to say, however, that Gouriet's case was distinguished in the House of Lords case of Inland
Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC
617; [1981] 2 All ER 93 (popularly known as the Fleet Street Casuals case). In that case, the applicant
was a company formed to promote the interests of [*30]
small businesses. It alleged that its constituents and other non-unionists were pursued without mercy for
not paying their taxes. The applicant accordingly sought judicial review of a deal struck by the Revenue
with the printing industry unions following the offer of an amnesty whereby certain tax investigations
would be dropped in return for union cooperation in securing an end to casual workers evading income
tax by using fictitious names. On the ground that the unions were receiving preferential treatment,
mandamus and declaratory relief were sought.
In these circumstances, the applicant could point to no injury or "interest" beyond the sense of grievance
at what seemed to them as preferential treatment being accorded to union members in defiance of the law.
At the hearing before the Divisional Court, pursuant to leave having been granted ex parte for judicial
review, the Revenue appeared and challenged the applicant's standing by way of a preliminary objection.
The preliminary objection was upheld and the application dismissed without an examination of the merits.
The House of Lords was unanimous that it was at least "unfortunate" (per Lord Wilberforce) for the
Divisional Court to have determined the standing issue without regard to the merits.
Lord Wilberforce insisted that standing was a threshold issue whilst at the same time maintaining that
except in the most obvious cases, it would usually be convenient to postpone consideration of the issue
until argument on the merits. He also said that taxpayers usually lacked standing to litigate the affairs of
other taxpayers. But he did also say (at p. 633):
"That a case can never arise in which the acts or abstentions of the Revenue can be brought before the court I am certainly not prepared
to assert, nor that, in a case of sufficient gravity, the court might not be able to hold that another taxpayer or other taxpayers could
challenge them. Whether this situation has been reached or not must depend upon an examination, upon evidence, of what breach of
duty or illegality is alleged."
And, further down, at p. 634:
"A sense of fairness as between one taxpayer or group of taxpayers and another is an important objective, so that a sense of unfairness
may be the beginning of a recognizable grievance."
Lord Roskill shared Lord Wilberforce's view when he made the concession that there is a possibility of
judicial review at the instance of strangers if the government's behaviour were "grossly improper" (at p.
662) and emphasized the need in most cases to proceed to a hearing on the merits before the question of
standing could be examined. Nevertheless, he rejected Lord Denning's "high constitutional principle" in
the Blackburn case [1976] 1 WLR 550 saying that it amounted to the virtual abolition of the standing
requirement (at p. 661). Lord Fraser, on the other hand, expressed agreement with Lord Wilberforce and
Lord Roskill and then asserted that standing was not simply a matter of discretion. He concluded,
however, that an "exceptionally grave or widespread illegality" might be judicially reviewable by any
taxpayer (at p. 647). Lord Diplock approved of Lord Denning's "high constitutional principle" for cases
involving "flagrant and serious (governmental) breaches of the law" (at p. 644). He said the "whole
purpose" of the leave requirement (which under the new Order 53 rule 3(7) introduced a common
standing test, namely, that of a "sufficient interest") is to filter our hopeless cases (p. 643). So also Lord
Scarman, who approved of Lord Denning's approach (at p. 654), adding that the leave requirement was a
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matter for judicial discretion and was designed solely to filter out hopeless cases or cases brought by
"busybodies" (at p. 653).
Clearly, therefore, those members of the court in the Fleet Street Casuals case [1982] AC 617; [1981] 2
All ER 93 who were in favour of retaining the requirement of standing were of the view that the
requirement should no longer be defined by using different formulae appropriate to the different remedies
available in public law. The term "sufficient interest" in the new English Order 53 rule 3(7) – which
incidentally has no counterpart in our Rules of the High Court 1980 – was sufficiently flexible to express
a requirement which can vary as the relationship between the subject-matter, the remedy sought and the
applicant varies (at pp. 631, 645–646 and 658–659).
For a true appreciation of the Fleet Street Casuals case [1982] AC 617; [1981] 2 All ER 93, some general
observations should be made regarding the English Rules of the Supreme Court which were re-written in
1977 with the introduction of a new Order 53. The new Rules preserve the prerogative remedies' two
stage proces but are no longer referred to as rules nisi or absolute. Applicants must apply (usually ex
parte) for leave to file an originating motion seeking judicial review. Short time limits apply and
discovery and interrogatories are available. The procedure has not only been standardized for orders in
the [*31]
nature of the old prerogatory remedies but it is also expressed as being applicable where a declaration or
an injunction is sought. In O'Reilly v Mackman [1983] 2 AC 237, the House of Lords has held it is an
abuse of process to bypass the leave requirement of Order 53 by issuing a writ for a declaration or
injunction. It is important to note, as I have earlier observed, that Order 53 rule 3(7) introduced a common
standing test, namely, that of "sufficient interest".
It has been said that the modern approach to standing in England under the new Order 53 can be
summarized thus: provided that the applicant has an arguable case he will probably be given leave to
apply for judicial review. At the full hearing, if he has a meritorious claim, the court will strive to accord
locus standi so long as he is not a mere busybody with no legitimate complaint: see R.J.F. Gordon on
Judicial Review Law and Procedure – para 4-07 p. 51.
But even in England under the present relaxed standards which apply to standing if the applicant's interest
in the matter under dispute is not direct or personal but is general or public, it will be for the court to
determine whether he has the requisite standing to apply for judicial relief. Moreover, it has been said that
the formula "sufficient interest" is not intended to create a class of persons popularly referred to as private
"attorney-generals" who seeks to champion public interests in which he is not himself directly or
personally concerned under the guise of applying for judicial review: see Supreme Court Practice 1985 p.
765 para 53/1-14/47.
But in Malaysia, there is no provision in our Rules of the High Court equivalent to Order 53 rule 3(7) of
the English Rules of the Supreme Court. Thus, in my view, there shall be a stringent requirement that the
applicant, to acquire locus standi, has to establish infringement of a private right or the suffering of
special damage: see Gouriet v Union of Post Office Workers [1977] 3 All ER 70; [1978] AC 435, and also
Boyce's case [1903] 1 Ch 109 and this I consider to be the relevant test to apply when determining the
question of standing.
It is noteworthy that in the Fleet Street Casuals case [1982] AC 617; [1981] 2 All ER 93, Lord Diplock
and Lord Scarman made the significant assertion that before the new Order 53, declarations and
injunctions were confined to private law, being available only to those whose "rights" were infringed or
threatened. Moreover, the majority distinguished the Gouriet case [1977] 3 All ER 70; [1978] AC 435 on
the basis that the standing rule applicable to declarations and injunctions was now different where Order
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53 was being used (at pp. 638– 639, 649 and 657–658). The new Order 53, they said, introduced not
merely a standard procedure for all public law remedies but also a common standing test, namely, the
Order 53 rule 3(7) "sufficient interest" test. Some of the judgments accepted that this formula was flexible
enough to allow for differences in approach having regard to the relief sought (at pp. 631, 645–646 and
658– 659). Others acknowledged that the new rule was the occasion for rethinking their position on the
law of standing (at pp. 631, 646–646 and 647– 648).
In all the circumstances, I would treat the Fleet Street Casuals case [1982] AC 617; [1981] 2 All ER 93 as
one based upon a unique rule of court which has no counterpart in this country. This point is a crucial
factor which does not appear to have been taken into consideration by the judge in Tan Sri Haji Othman
Saat's case [1982] 2 MLJ 177. In any event, as I have already noted, I would prefer the test of standing
propounded by their Lordships in the Gouriet case [1977] 3 All ER 70; [1978] AC 435, that is to say, the
same standing rules apply whether the remedy sought is a declaration or an injunction. And, either the
plaintiff's "rights" must be at stake, or when, as in the present case, the matter does not concern private
rights, the plaintiff must suffer or be about to suffer damage peculiar to himself. In the Tan Sri Haji
Othman Saat case, a liberal approach in considering the requirement of locus standi was advocated.
Speaking for myself, I would hesitate to say that a mere "legitimate grievance" or "a real interest" in the
suit will suffice to show standing to sue. Be that as it may, I would say that the decision in Tan Sri Haji
Othman Saat's case was correct having regard to the facts of that particular case.
Applying the preferred test, I fail to see how in the particular circumstances of this case, it could be said
that the plaintiff had the necessary locus standi to institute or maintain the present proceedings. Before I
conclude, I would touch briefly on the accusations of criminality made against those who participated in
the Cabinet decision.
In his statement of claim which was verified by his affidavit filed in support of the application for the
interlocutory prohibitory injunction, the plaintiff claimed that he was bringing this action as a Member of
Parliament, Leader of the Opposition, [*32]
a taxpayer, a motorist and a frequent user of highways and roads in the country. He has cited as
defendants to the action UEM, the Minister of Finance, the Minister of Works and the Government of
Malaysia as defendants. He has prayed that the court should declare the award of the letter of intent null
and void and for an order restraining UEM from entering into any contract pursuant to the letter of intent.
To quote his counsel when speaking for him before the learned judge, "the core of his contention was the
contravention of section 2 of the Ordinance No. 22 of 1970." In particular, it was contended that UMNO
would benefit by the award of the contract to UEM and this amounted to an advantage to members of
UMNO who participated in the decision-making process at the Cabinet meeting concerned, thus resulting
in the contravention of section 2 of the Ordinance.
The learned judge appears to have been much impressed with these submissions for, after reviewing a
number of cases where accused persons were prosecuted for offences in contravention of section 2 of the
Ordinance, he concluded that "the contention of counsel for the plaintiff appears to be well founded. The
statement of claim certainly raises serious questions to be tried within the meaning of American Cyanamid
[1975] AC 396. That the claim of the plaintiff is frivolous or vexatious or an abuse of the process is
without merit."
With all due respect to the learned judge, my view is clear in that fundamentally where a statute creates a
criminal offence by prescribing a penalty for the breach of it but not providing a civil remedy – the
general rule is that no private individual can bring an action to enforce the criminal law, either by way of
an injunction or by a declaration or by damages. I am inclined to the view that it should be left to the
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Attorney-General to bring an action, either of his own motion or at the instance of a member of the public
who "relates" the facts to him: see Gouriet's case [1977] 3 All ER 70; [1978] AC 435.
Finally, I would like to refer to a query that was raised in the course of the appeal in relation to section 29
of the Government Proceedings Ordinance 1956 considered in the light of Reg v Secretary of State for the
Home Department & Anor, ex parte Herbage [1987] 1 QB 872. The respondents' answer to the point
raised was that Ex parte Herbage did not apply in view of our Order 53. And that the definition of "civil
proceedings" in section 2(2) of the Ordinance should refer to the position as it stood in 1956 when the
Ordinance was enacted and should not therefore be affected by changes brought about to the English
Order 53 in 1977.
Tan Sri Eusoffe Abdoolcader S.C.J. said that there was a lack of substance in this proposition. The
question is was there really? It is to be observed that the changes brought about by the English Order 53 in
1977 resulted in an omnibus provision to include not only the prerogative orders of mandamus,
prohibition and certiorari, but also the remedies of declarations, injunctions, etc. It may well be argued
that the correct answers is to be found in the so-called principle that a statute is to be treated as always
speaking and that the exception in section 2(2) of the Ordinance is an on-going statutory provision. The
elementary point to note, however, as regards section 29 of the Ordinance is that it affords a defence to
the Government or a servant of the Government to a claim for an injunction subject to compliance with
the requirements therein stated. The section therefore deals with rights and not procedure.
That being so, the question which arises is whether such a defence, which cannot be said to be available if
the point had arisen for decision prior to 1977, can be said to have been taken away by the simple
expedient of an amendment to a rule of court made subsequently in a foreign jurisdiction. I regret I find
myself unable to subscribe to this proposition since not only are we an independent sovereign country
whose Parliament has seen fit to repeal the right of appeal to the Judicial Committee of the Privy Council
in all matters but also because we have our own Order 53 which is limited to prerogative orders only and
does not extend to claims for declaration, injunction or damages. Clearly, any lengthy discussion on
section 29 should not have overlooked this crucial factor.
I would accordingly hold that the exception to the definition of "civil proceedings" in section 2(2) of the
Ordinance which reads "or such proceedings as would in England be brought on the Crown side of the
Queen's Bench Division" must refer to the prerogative jurisdiction of the Queen's Bench Division in
England as at the date of the coming into force of the Ordinance and which was then limited to the
granting of orders of mandamus, prohibition and certiorari only.
Consequently, as the claim in the present case was for a declaration and injunction it fell fairly and
squarely within the four walls of the definition of "civil proceedings" appearing in section [*33]
2(2) of the Ordinance. It follows that the defence under section 29 applies and the case of Ex parte
Herbage is, therefore, wholly inapplicable.
In consideration, I would allow both the appeals and hereby order that both the orders of the judge be set
aside and both suits be dismissed and injunction set aside. As to the costs, my order is that each party shall
bear its own costs here and in the court below.
Seah S.C.J. (dissenting): There are two appeals before this court. The first appeal (No. 434 of 1987) is by
the Government of Malaysia against the dismissal by the learned judge (V.C. George J.) of their
application to strike out the statement of claim under Order 18 rule 19 of the Rules of the High Court
1980 and the inherent jurisdiction of the High Court. The second appeal (No. 456 of 1987) is by United
Engineers (M) Berhad or UEM in short against the refusal by the same judge (a) to set aside the
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interlocutory injunction granted by the Supreme Court (Lee Hun Hoe C.J. (Borneo), Wan Suleiman and
Wan Hamzah S.C.JJ.) on August 25, 1987 and (b) to strike out the suit under Order 18 rule 19 of the
Rules of the High Court 1980 and the inherent power of the High Court. The respondent in both these
appeal is Lim Kit Siang. The learned Attorney-General has raised a number of important issues of law and
procedure and I think I should deal with them.
Locus standi of the respondent to bring this suit
Both the learned Attorney-General and learned counsel for UEM have submitted strongly that the learned
judge erred in law and in fact in holding that on the facts of the case the respondent has locus standi to
bring this suit.
It is my considered opinion that this issue of locus standi had been considered and decided by the
Supreme Court (Lee Hun Hoe C.J. (Borneo), Wan Suleiman and Wan Hamzah, S.C.JJ.) when it granted
the interlocutory injunction to the respondent on August 25, 1987. In fact, the standing of the respondent
to institute this proceeding was raised by learned counsel for UEM and from the record of appeal, the
learned Senior Federal Counsel who appeared for the Government of Malaysia took part in the legal
arguments. The Supreme Court disposed of this issue in the following words:
"We have considered a number of authorities both English and local as to the question of locus standi. We need only say that on the
facts of this case the appellant (Lim Kit Siang) clearly has locus standi to bring this suit."
The learned judge was right to hold that he was bound by the decision of the Supreme Court of August 25,
1987 on this point and I agree with him. In my opinion, this appeal is an attempt to urge this court, albeit
differently constituted and enlarged, to review and reverse the decision made by the Supreme Court on
August 25, 1987 and it is my considered opinion that this court has no jurisdiction to do so.
The Latin phrase "locus standi" as used by the courts in England, or "standing in courts" as the term is
commonly understood by the lawyers in the United States of America, seems to indicate that a person is
allowed by the judges to appear and be heard in a legal proceeding. It is a procedural barrier erected by
the judges to prevent the court's time and public money from being wasted by multiplicity of frivolous and
vexatious litigations brought by busybodies whose actions are bound to fail in limine and also to prevent
abuse of the legal process.
In IRC v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 Lord Diplock
said (at p. 103) [1981] 2 All ER 93:
"The rules as to 'standing' for the purpose of applying for prerogative orders, like most of English public law, are not to be found in any
statute. They are made by judges; by judges they can be changed, and so they have been over the years to meet the need to preserve the
integrity of the rule of law despite changes in the social structure, methods of government and the extent to which the activities of
private citizens are controlled by governmental authorities that have been taking place continuously, sometimes slowly, sometimes
swiftly, since the rules were originally propounded. Those changes have been particularly rapid since the 1939–45 wars. Any judicial
statements on matters of public law if made before 1950 are likely to be a misleading guide to what the law is to-day."
In the same case and after dealing with the question of locus standi in public law, Lord Scarman said at p.
113J:
"The discretion belongs to the court; and, as my noble and learned friend Lord Diplock has already made clear, it is the function of the
judges to determine the way in which it is to be exercised …"
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In short, the rule as regards "locus standi" or "standing in courts" is not governed by any statutory
enactment but is a rule of practice and procedure laid down by the judges in the public interest. Like all
rules of practice, they are liable to be altered by the judges to suit the changing times.
In Tan Sri Haji Othman Saat v Mohamed bin Ismail [1982] 2 MLJ 177, the Federal Court upheld the
decision [*34]
of the High Court in giving locus standi to the plaintiff who failed in his application for a plot of land at
Mersing, Johore. The appellant, Tan Sri Hj. Othman Saat, was the Menteri Besar of the State of Johore at
the relevant time. And in the National Federation of Self-Employed case [1982] AC 617; [1981] 2 All ER
93, Lord Diplock observed, obiter, that he would accord standing to "a single public-spirited taxpayer
who brought the matter to the attention of the court to vindicate the rule of law and get the unlawful
conduct stopped."
The respondent here is an elected Member of Parliament. Although he represented the parliamentary seat
of Tanjung, Penang in the Dewan Rakyat, yet "when he is returned and sits in Parliament he serves for the
whole realm" (per Lord Shaw quoting Coke in Amalgamated Society of Railway Servants v Osborne
[1910] AC 87 (at p 112)). Lord Ellenborough C.J. in Morris v Burdett (1813) 105 ER 361 said (at p. 364)
that "every person who is returned to Parliament is bound by the law of the land to serve". Coming nearer
home in the case of Datuk Ong Kee Hui v Sinyium Anak Mutit [1983] 1 MLJ 36, Salleh Abas F.J. (as he
then was) in giving the judgment of the Federal Court said at p. 40D:
"Our system of government expects that every member of the legislature, whether Parliament or a State Assembly, should conduct
himself with honour and dignity worthy of his position as the nation's legislator and for this reason irrespective of his station in life and
calling he is given the appellation of 'The Honourable' to precede his name. It is because of this high regard and honour in which he is
held that he is required to swear under Article 59 of the Federal Constitution and the equivalent Article of the State Constitution an oath
as Member of Parliament or State Assembly (as the case may be) and allegiance, instead of signing a contract as a civil servant does
before taking part in the proceeding of the House. The oath binds him in conscience which should guide him how to act not only with
regard to his parliamentary or legislative duties but also in his relations with his party and members of the public …"
It is plain from the statements of these distinguished members of the higher hierarchy of the judiciary both
in England and Malaysia that as an elected Member of Parliament the respondent has a duty not only to
the electorate of Tanjung, Penang but also to the Dewan Rakyat and the peoples of this country. If, as a
Member of Parliament, the respondent brings this suit bona fide, alleging government wrongdoings in
about to award a contract in the construction of the proposed North-South Highway to UEM where an
enormous sum of public moneys running into billions of ringgit would be spent illegally, I think I would
be abdicating my duty if I were to hold that the respondent had no standing to institute this proceeding and
that the suit was not properly brought and should not be entertained. I am therefore in complete agreement
with my learned brothers in the Supreme Court (Lee Hun Hoe C.J. (Borneo), Wan Suleiman and Wan
Hamzah S.C.JJ.) that on the facts of this case the respondent clearly has locus standi to bring this suit. In
my opinion, as an elected Member of Parliament the respondent, conscious of his duty and responsibility
to the electorate of Tanjung, Penang, the Dewan Rakyat and the peoples of Malaysia, clearly has a real
interest in the subject matter of this suit and therefore has locus standi to institute this proceeding. I am
not deterred by expressions of opinions in this court that the rule on locus standi should not be expanded.
In the field of public law where the court has a discretion whether or not to make an order preventing
conduct by a public officer or governmental authority that has been shown to be ultra vires or unlawful,
the question of what qualifications a plaintiff must show before the court will entertain his application for
a declaratory order or judgment seems to me to be one of practice rather than of jurisdiction. The recent
trend in England, after the passing of the English Crown Proceedings Act 1947, seems to be that the rule
of locus standi must be developed to meet the changing times. In broadening the requirements that must
be met to give the plaintiff a standing in a public interest litigation, the High Court must always bear in
mind that under the Federal Constitution of Malaysia, the judicial power is vested in the judges. And
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judicial power includes judicial control or review of governmental/executive actions except when the
jurisdiction of the High Court is expressly excluded by the Constitution (see Dato Menteri Othman bin
Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29). Judicial review is available
only as a remedy for the conduct of a public officer, executive or person exercising statutory or
governmental power which is ultra vires, void or unlawful. It is available only in public law (see Ganda
Oil Industries Sdn Bhd v The Kuala Lumpur Commodity Exchange [1988] 1 MLJ 174). In a judicial
review the court is not concerned with the reasonableness of the governmental or statutory order but only
with its legality (see Chief Constable of North Wales Police v Evans [1982] 3 All ER 141). A similar view
was expressed by Lord Diplock in the National Federation of Self-Employed case [1982] AC 617 at p.
644F [1981] 2 All ER 93 in the following words:
"It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is
unnecessary because they are accountable to Parliament for the way in which they carry out [*35]
their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is
the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge."
Proceeding by way of a relator action
The learned Attorney-General on behalf of the Government of Malaysia takes the point that the learned
judge erred in law when he failed to hold that the respondent should have resorted to "relator" proceedings
in the circumstances of the case and he erred further when he held in effect that the law pertaining to
"relator" proceedings is archaic and impracticable in Malaysia. In support of this contention, the learned
Attorney-General cited a passage in the judgment of Lord Wilberforce in the case of Gouriet v Union of
Post Office Workers [1977] 3 All ER 70 (at p 477) [1978] AC 435 which reads:
"A relator action – a type of action which has existed from the earliest times – is one in which the Attorney-General, on the relation of
individuals (who may include local authorities or companies) brings an action to assert a public right. It can properly be said to be a
fundamental principle of English law that private rights can be asserted by individuals, but that public rights can only be asserted by the
Attorney-General as representing the public. In terms of constitutional law, the rights of the public are vested in the Crown, and the
Attorney-General enforces them as an officer of the Crown. And just as the Attorney-General has in general no power to interfere with
the assertion of private rights, so in general no private person has the right of representing the public in assertion of public rights. If he
tries to do so his action can be struck out."
At first sight, this seems an attractive submission until one reads the explanations given by Lord Diplock
and Lord Roskill in IRC v National Federation of Self-Employed [1982] AC 617; [1981] 2 All ER 93 on
the Gouriet case. At pp. 638–639, Lord Diplock said:
"As respects the claim for a declaration considerable reliance was placed upon the recent decision of this House in Gouriet v Union of
Post Office Workers [1977] 3 All ER 70; [1978] AC 435, which held that a private citizen, except as relator in an action brought by the
Attorney-General, had no locus standi in private law as plaintiff in a civil action to obtain either an injunction to restrain another private
citizen (in casu a trade union) from committing a public wrong by breaking the criminal law or a declaration that his conduct is
unlawful unless the plaintiff can show that some legal or equitable right of his own has been infringed or that he will sustain some
special damage over and above that suffered by the general public. This decision is, in my view, irrelevant to any question that your
Lordships have to decide today. The defendant trade union in deciding to instruct its members to take unlawful industrial action was not
exercising any governmental powers; it was acting as a private citizen and could only be sued as such in a civil action under private law.
It was not amenable to any remedy in public law. Lord Wilberforce and I were at pains to draw this distinction."
After referring to Gouriet's case, an authority much relied upon by the learned Lord Advocate on behalf of
the appellants I.R.C. in support of his contentions regarding the circumstances in which declarations
might be granted, Lord Roskill observed at pp. 657–658:
"But Gouriet's case was a relator action and was not concerned with prerogative orders or judicial review, and the relevant observations
of your Lordships must be read in the light of that fact and of the subsequent enactment of Order 53 (of the English Rules of the
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Supreme Court)."
In my opinion, Gouriet's case presented the House of Lords with an opportunity to clarify the role of a
private citizen in the enforcement of the criminal law. The House replied that the enforcement of the
criminal law in England by way of injunction in a civil suit is an altogether exceptional process, to be used
with caution and permitted only for special reasons, and available only to the Attorney-General. In my
opinion, Gouriet's case was concerned with private law (law which regulates men's dealings with their
fellow men as private citizens) whereas here, in this instant appeal, we are dealing with public law (law
which regulates the exercise of government in their broadest sense). This distinction is relevant and
necessary and is pointed out by Lord Diplock in Gouriet's case at p. 500C in the following words:
"The words italicized in the last paragraph are important words for they draw attention to the fact that the jurisdiction of a civil court to
grant remedies in private law is confined to the grant of remedies to litigants whose rights in private law have been infringed or are
threatened with infringement. To extend that jurisdiction to the grant of remedies for unlawful conduct which does not infringe any
rights of the plaintiff in private law is to move out of the field of private into that of public law with which analogies may be deceptive
and where different principles apply."
It is plain that Gouriet's case is clearly distinguishable from the instant case in that, firstly, the respondent
instituted this proceeding in his capacity as an elected Member of Parliament, whose duty is not confined
to the electorate of Tanjung, Penang but also to the Dewan Rakyat and the peoples of Malaysia. Secondly,
the respondent did not bring this suit to enforce the criminal law and, lastly, the action appeared to have
been brought primarily to test the legality of the proposed government's intention to award the North-
South Highway project contract to UEM. In short, it was a public interest suit calling for judicial review
on the legality of the proposed executive action. As [*36]
principal legal adviser to the Cabinet and/or Minister of the Government of Malaysia under Article
145(2) of the Federal Constitution, no one would have expected the learned Attorney-General to give his
consent to the respondent to institute this proceeding in a court of law. On the contrary, I would consider
it as a dereliction of his constitutional duty if the learned Attorney-General does not defend the suit
vigorously. In my opinion, a "relator" action has no application in a public interest litigation brought to
test the legality of a governmental act in a court of law.
It has been adumbrated that the test formulated by Buckley J. in Boyce v Paddington Borough Council
[1903] 1 Ch 109 should be the proper test to be applied when a member of the public or a citizen sues the
public authority without joining the Attorney-General. At p. 114 Buckley J. said:
some private right of his is at the same time interfered with (e.g. where the obstruction is so placed in a highway that the owner of
premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from
and to his premises to and from the highway); and secondly where no private right is interfered with, but the plaintiff, in respect of his
public right, suffers special damage peculiar to himself from the interference with the public right."
I am unable to agree with this submission for the following reasons:
(a) this test was laid down by Buckley J. in 1902 long before the passing of the English Crown
Proceedings Act 1947;
(b) Lord Diplock stated that "any judicial statements on matters of public law if made before 1950 are
likely to be a misleading guide to what the law is to-day (see National Federation of Self-
Employed's case [1982] AC 617 at p 640A [1981] 2 All ER 93);
(c) Boyce's case had nothing to do with judicial review;
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(d) adoption of this test would, in my respectful opinion, be a retrograde step and would have the
indirect effect of placing governmental actions outside the purview of judicial control and
therefore above the law; and
(e) acceptance of the Boyce test would result in impliedly overruling Lim Cho Hock v Government of
Perak & Ors [1980] 2 MLJ 148 and Tan Sri Haji Othman Saat's case [1982] 2 MLJ 177, the
former being a decision of Abdoolcader J. (as he then was) and the latter that of the Federal Court.
The Supreme Court (Lee Hun Hoe C.J. (Borneo), Wan Suleiman and Wan Hamzah S.C.JJ.)
seemed to have accepted the correctness of these authorities and followed them when they held
that the respondent had the locus standi to bring this suit and I am in agreement with their
opinions. In my opinion, the test of locus standi in a public interest litigation is as laid down by
the Federal Court in Tan Sri Haji Othman Saat's case, viz. whether the plaintiff has a real interest
in the subject-matter of the suit.
Was the judgment on August 25, 1987 made per incuriam
It is submitted by the learned Attorney-General that the judgment of the Supreme Court (Lee Hun Hoe
C.J. (Borneo), Wan Suleiman and Wan Hamzah S.C.JJ.) dated August 25, 1987 was made per incuriam.
The per incuriam doctrine has been explained and restated by Sir John Donaldson M.R. in a recent case of
Duke v Reliance Systems Ltd [1987] 2 WLR 1225 in the following words:
"I have always understood that the doctrine of per incuriam only applies where another division of this court has reached a decision in
the absence of knowledge of a decision binding upon it or a statute, and that in either case it has to be shown that, had the court had this
material, it must have reached a contrary decision. That is per incuriam. I do not understand the doctrine to extend to a case where, if
different arguments had been placed before it, or if different material had been placed before it, it might have reached a different
conclusion. That appears to me to be the position at which we have arrived to-day."
In my opinion, the submission based on per incuriam is misconceived in that when the Supreme Court
delivered the judgment on August 25, 1987 it was made after hearing arguments from the learned Senior
Federal Counsel representing the Government of Malaysia, learned counsel acting for UEM and learned
counsel appearing for Lim Kit Siang. It seems to me that the Supreme Court had considered all the
arguments, authorities and statutes relevant to the case and the learned Attorney-General is unable to point
to any particular ordinance or binding authority which had inadvertently been disregarded by the Supreme
Court except to show that he disagreed with the interpretation of the scope of section 29 of the
Government Proceedings Act 1956 given to it by the learned judges of the Supreme Court and the
decision of the Supreme Court that on the [*37]
facts of this case the respondent clearly had the locus standi to bring this suit. In my opinion, the learned
Attorney-General therefore fails to bring his case within the per incuriam rule as stated by Sir John
Donaldson M.R. in the abovementioned case.
Was the judgment of August 25, 1987 binding on the High Court
The next legal point taken by the learned Attorney-General and learned counsel for UEM is that the
interlocutory injunction granted by the Supreme Court (Lee Hun Hoe C.J. (Borneo), Wan Suleiman and
Wan Hamzah S.C.JJ.) on August 25, 1987 was by nature provisional only and that such an order may be
revised or discharged by the judge who made it or by another judge of the High Court in the light of
subsequent evidence and argument. As authority for this proposition, the case of WEA Records Ltd v
Visions Channel 4 Ltd & Ors [1983] 2 All ER 589 is relied upon.
For the respondent, it was argued by learned counsel that the interlocutory injunction was granted by the
Supreme Court after hearing arguments from learned counsel representing the respondent, the
Government of Malaysia and UEM. Although the learned Attorney-General seems to complain that very
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short time was given to his chambers to prepare the case when the appeal came up for hearing on August
25, 1987, yet the record of appeal does not disclose any application having been made to the Supreme
Court for a postponement. Unlike WEA Records' case, learned counsel for the respondent has submitted
that the interlocutory injunction of August 25, 1987 was granted by the Supreme Court and not by a judge
of the High Court. Being an interlocutory injunction, learned counsel concedes that it is in a sense a
provisional order and may be set aside or varied by a judge of the High Court but only if the aggrieved
party can prove (a) a change of circumstances or new facts having come to light after August 25, 1987
and/or (b) suppression of material facts when applying for the interlocutory injunction before the Supreme
Court on August 25, 1987.
I agree with the contention of learned counsel for the respondent that the interlocutory injunction granted
by the Supreme Court on August 25, 1987 can only be discharged or varied under the two circumstances
set out in (a) and (b) above. In my opinion, the interlocutory injunction was granted by the Supreme Court
in the exercise of its original discretionary jurisdiction and is not therefore subject to review by the High
Court except under the two circumstances abovementioned. It is in that context that the words "with
liberty to apply to the court below", which are inserted by the Supreme Court, is to be understood. The
phrase "with liberty to apply", in my opinion, does not entitle an aggrieved party to apply to a judge of the
High Court to review the original discretion exercised by the Supreme Court. To allow this is to place the
judge in an invidious position. In this respect, the facts of this case are distinguishable from WEA Records'
case.
Now, when UEM applied to the High Court to discharge the interlocutory injunction of August 25, 1987
they did not appear to rely on a change of circumstances or fresh facts which had come to light after
August 25, 1987 which would justify the learned judge reviewing the matter in the light of these new
facts. The learned judge was right not to reopen the case in the absence of fresh facts. Dealing with the
complaint of suppression of material facts, the learned judge rejected this allegation and I do not disagree
with him on this finding. In my opinion, the learned judge applied the law correctly when he dismissed the
application of UEM to discharge the interlocutory injunction of August 25, 1987.
No reasonable cause of action against UEM
It is the submission of learned counsel for UEM that on the facts as pleaded in the statement of claim, the
respondent has no reasonable cause of action against UEM. Learned counsel seems to forget that this suit
brought by the respondent against UEM and the Government of Malaysia is for a declaratory judgment
under Order 15 rule 16 of the Rules of the High Court 1980 which provides that: "No action or other
proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought
thereby, and the court may make binding declarations of right whether or not any consequential relief is or
could be claimed". Order 25 rule 5 of the English Rules of the Supreme Court 1883 is the forerunner of
Order 15 rule 6. The validity of Order 25 rule 5 was unsuccessfully attacked in Guaranty Trust Co of New
York v Hannay [1915] 2 KB 536 and Hannay's case may be taken as establishing the proposition that the
jurisdiction to make a declaration under this rule is not confined to cases in which the plaintiff has a
complete and subsisting cause of action apart from [*38]
the rule. In my opinion, the only requirement seems to be that there must be a justiciable issue. In Lim
Cho Hock's case [1980] 2 MLJ 148 Abdoolcader J. (as he then was) said that the "court's power to make
declaratory judgments is confined to matters justiciable in the courts". In my opinion, the contention of
learned counsel for UEM is misconceived.
In my opinion, UEM is a necessary party to this proceeding because the courts have always recognized
that persons interested who are or may be directly prejudiced by a declaration made by the courts in their
absence should be made parties to the suit (except in very special circumstances) so that UEM may be
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given the opportunity to be heard in its defence.
section 29 of the Government Proceedings Ordinance 1956
It is the submission of the learned Attorney-General that having regard to the clear provision of section
29(1)(a) of the Government Proceedings Act 1956 (hereinafter referred to as the 1956 Act) that no
injunction shall be granted against the Government in any civil proceedings by or against the Government,
the interlocutory injunction granted by the Supreme Court (Lee Hun Hoe C.J. (Borneo), Wan Suleiman
and Wan Hamzah S.C.JJ.) on August 25, 1987, although addressed to UEM, was indirectly directed at the
Government of Malaysia. The learned Attorney-General argues that what cannot be done directly cannot
be done indirectly. The Penang High Court seems to take the view that an interlocutory injunction
directed against UEM would be caught by section 29(1)(a) of the 1956 Act and for this reason, the
learned judge dismissed the ex parte application of the respondent. On appeal, the Supreme Court
disagreed with the construction put to section 29(1)(a) by the Penang High Court when it decided to grant
the interlocutory injunction to the respondent on August 25, 1987. The learned Attorney-General appears
to be asking this court, albeit differently constituted and enlarged, to review and reverse the interpretation
of section 29(1)(a) of the 1956 Act made by the Supreme Court after arguments. For the reasons I have
already given above, it is my considered opinion that this court has no jurisdiction to do what the learned
Attorney-General asks. The learned judge was right in holding that he was bound by the judgment of the
Supreme Court on this particular point and I agree with his conclusion.
Conclusion
In my opinion, these appeals are an attempt to persuade this court, albeit differently constituted and
enlarged, to review and reverse the decision made by the Supreme Court (Lee Hun Hoe C.J. (Borneo),
Wan Suleiman and Wan Hamzah S.C.JJ.) on August 25, 1987 after hearing arguments from the learned
Senior Federal Counsel representing the Attorney-General, learned counsel for UEM and the respondent.
It is my considered opinion that the jurisdiction of the Supreme Court, whether it sits in a panel of three,
five or other odd numbers, is vested with the same jurisdiction and that this court has no jurisdiction,
express or implied, to review, discharge or vary the judgment of the Supreme Court made on August 25,
1987. In my opinion, the jurisdiction of the Supreme Court to review, discharge or vary is contained in
section 44(3) of the Courts of Judicature Act 1964 when it sits to hear an appeal involving an interim
order made by a judge of the Supreme Court under section 44(1) of the 1964 Act. In my opinion, the
power of review is confined to those limited circumstances only. Since the learned Attorney-General is
unable to bring his case within the provision of section 44(3) of the Courts of Judicature Act 1964, this
court should not accede to the request. A fortiori when the Supreme Court was exercising its original
discretion entrusted to them by law in granting the interlocutory injunction to the respondent against
UEM. For the above reasons, I would dismiss both the appeals.
Hashim Yeop Sani S.C.J.: The crucial question in both the appeals is the question of locus standi of the
respondent, Mr. Lim Kit Siang. Has Mr. Lim Kit Siang standing, i.e. the qualifications in law to bring the
suit in court?
The first difficulty to surmount in this regard is what appears to be a ruling on the locus standi of the
respondent made in the oral judgment of the Supreme Court (Lee Hun Hoe C.J. (Borneo), Wan Suleiman
S.C.J. and Wan Hamzah S.C.J.) delivered by Lee Hun Hoe C.J. (Borneo), and appears at p. 174 of the
Appeal Record in Civil Appeal No. 434 of 1987 as follows:
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"We have considered a number of authorities both English and local as to the question of locus standi. We need only say that on the
facts of this case the appellant clearly has locus standi to bring this suit."
The appeal before the Supreme Court then was from the judgment of Edgar Joseph Jr. J. who had [*39]
refused an interlocutory prohibitory injunction sought by the respondent restraining United Engineers
(M) Bhd. by itself or through its agents and/or servants from signing the proposed contract on the North-
South Expressway. The refusal by the learned judge was based on the grounds, inter alia, that the
injunction if granted would be in violation of section 29 of the Government Proceedings Act and also that
the balance of convenience would be against granting the injunction. It is clear from the record that the
question of locus standi was not an issue before Edgar Joseph Jr. J. and as such locus standi was never an
issue in the memorandum of appeal before the Supreme Court then. It would appear that the question of
locus standi of the respondent was casually raised in the course of argument in the appeal.
A precedent is "in point" if there was raised, argued and decided in it, in relation to one set of facts, some
issue of law which is the same as has arisen now before the court. In as much as it is the function of the
court deciding in a later case to ascertain what the ratio of a precedent is, it must also decide what is mere
obiter dicta or judicial dicta, i.e. not part of a ratio but relevant only to a collateral matter.
Dealing with the question when a court is bound by the judgment of another court, either superior or
coordinate, Viscount Dunedin in Great Western Railway Co v Owners of SS Mostyn [1928] AC 57 said at
p. 73:
"And if from the opinions delivered it is clear – as is the case in most instances – what the ratio decidendi was which led to the
judgment, then that ratio decidendi is also binding. But if it is not clear, then I do not think it is part of the tribunal's duty to spell out
with great difficulty a ratio decidendi in order to be bound by it."
In my view, the circumstances under which the question of locus standi was raised and the reference to it
in the sketchy oral judgment of the Supreme Court then should not preclude this court from considering
the question of locus standi of the respondent where before this court the issue was canvassed throughout
as a fundamental issue and argued at great length by both parties.
On the question of binding precedents, the House of Lords is no longer bound by its own previous
decisions – Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 issued by Lord Gardiner L.C. on
behalf of himself and the Lords of Appeals in Ordinary on July 26, 1966. The Indian Supreme Court in
The Bengal Immunity Company Limited v The State of Bihar and Others [1955] 2 SCR 603; AIR 1955 SC
661 held that it would not be bound by its own previous decisions and that nothing in the Constitution
prevented the Supreme Court from departing from its previous decisions. The United States Supreme
Court too has a number of times reversed itself. The Privy Council has also held that it was not absolutely
bound to follow its earlier decisions. In this country too, the appellate court has been known to reverse its
previous decisions as shown in Public Prosecutor v Ooi Khai Chin & Anor [1979] 1 MLJ 112 where the
Federal Court reversed its previous decision in Public Prosecutor v Tai Chai Geok [1978] 1 MLJ 166 on
the question of interpretation of jurisdiction.
Of course, the decision to depart from precedents must be exercised with caution and circumspect. It is a
question of judicial responsibility. It is also a question of competing claims between justice and certainty.
As Lord Gardiner L.C. said: "Too rigid an adherence to precedents may lead to injustice."
Now I come to the real crux of the matter. The basis of the claim of the respondent as set out in his
statements of claim was explained in great length in the judgment of the learned judge, V.C. George J.,
whose decision is challenged in the present appeals. According to the pleadings, it was the contention of
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the respondent that the contract which United Engineers (M) Bhd. proposed to enter into with the
Government, apart from being unlawful, would be adverse to the interest of the respondent as well as that
of the public and that the court should declare the letter of intent null and void and of no effect because it
was tainted by the alleged breach of the provision of Emergency Ordinance No. 22. Looking at the basis
of his claims and the nature of the reliefs sought, it is quite obvious on the law as it now stands that Mr.
Lim Kit Siang can come only with the consent of the Attorney-General or by means of a relator action.
The principle that the jurisdiction of the court can be invoked by one who seeks to protect a legal right or
to obtain a declaration of legal rights as between him and some other person or authority has been
extended to permit the institution of proceedings by the Attorney-General on behalf of the public. The
Attorney-General represents the public in this regard. The intervention of the Attorney-General is founded
on the principle that the Crown is parens patriae and that the Attorney-General [*40]
appears for and represents the public interest. Traditionally, it has been held to be basic that if the
Attorney-General does not sue ex officio or allow someone else to sue ex relatione no one else can claim
to represent the public interest.
It is a fundamental principle that private rights can be asserted by individuals, but public rights can only
be asserted by the Attorney-General as representing the public. The courts have no jurisdiction in any
circumstances to clothe a plaintiff with the right to represent the public interest.
Therefore, however much one may admire Mr. Lim Kit Siang for being public-spirited to raise in court a
subject which he thinks is of national importance, one must not be blind as to what is the proper law to
apply to see whether he has the qualifications in law to do so. To shut out from our minds what is the
proper law to apply just to enable him to ventilate his grievance would be an abdication of our duty as
interpreters of the law.
In England, the amendment to Order 53 of the Rules of the Supreme Court came into effect on January
11, 1978 and provides in rule 3(5) thereof for the test of "sufficient interest in the matter" before leave is
granted for remedies in judicial review. This test to give standing to a party replaced the old judicially
created rule of "aggrieved person". The test of "sufficient interest in the matter" is also laid down in
section 31(3) of the English Supreme Court Act 1981. This provision appears under Part II of the Act
which deals with "jurisdiction". No such amendment has been made to any of our laws in this country.
Viscount Dilhorne in Gouriet v Union of Post Office Workers [1977] 3 All ER 70; [1978] AC 435 dealt
with Order 15 rule 16 of the English Rules of the Supreme Court which is identical with Order 15 rule 16
of our Rules of the High Court 1980. It reads:
"No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby,
and the court may make binding declarations of right whether or not consequential relief is or could be claimed."
Viscount Dilhorne said at p. 495:
"It does not provide that an action will lie whenever a declaration is sought. It does not enlarge the jurisdiction of the court. It merely
provides that no objection can be made on the ground only that a declaration is sought."
In short, Order 15 rule 16 of our Rules of the High Court 1980 cannot be made into a basis of jurisdiction
for the court to entertain an action which is not properly before it.
The language of our Order 15 rule 16 is the same as that in the old English Order 25 rule 5 of 1883. On
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this, Viscount Dilhorne said at p. 495 that:
"It provides no ground for saying that since 1883 the courts have had jurisdiction to entertain an action instituted by a person other than
the Attorney-General who does not claim that any personal right or interest will be affected and who is seeking just to protect public
rights."
What then is the proper law to apply to determine the locus standi of the respondent here? In my opinion,
the principle in Boyce v Paddington Borough Council [1903] 1 Ch 109 as approved in Gouriet is still the
law applicable in this country. Buckley J. propounded the law as follows:
some private right of his is at the same time interfered with …; and secondly, where no private right is interfered with, but the plaintiff,
in respect of his public right, suffers special damage peculiar to himself from the interference with the public right."
In my view, we ought also to apply the common law principle enunciated in Boyce by virtue of section 3
of the Civil Law Act 1956.
In Australia, the same strict test was applied by the High Court when dealing with the question of locus
standi as illustrated in Australian Conservation Foundation v Commonwealth of Australia (1979–80) 28
ALR 257. The main purpose of the suit there was to challenge a decision to approve the establishment of a
resort and tourist area. The Foundation was a body involved with issues affecting environment. The High
Court denied standing to the Foundation. The High Court held it to be clear that "an ordinary member of
the public who has no interest other than that which any member of the public has in upholding the law
has no standing to sue to prevent the violation of a public right or to enforce the performance of a public
duty." Gibbs J. also said:
"A belief however strongly felt that the law generally or a particular law should be observed or that conduct of a particular kind should
be prevented does not suffice to give its possessor locus standi."
In this country, the principle was in fact correctly stated by the Federal Court in Tan Sri Haji Othman Saat
v Mohamed bin Ismail [1982] 2 MLJ 177 that "the sensible approach" in a matter of locus [*41]
standi in injunctions and declarations would be to regard it as a matter of jurisdiction, where there is an
assertion of an infringement of a contractual or a proprietary right, the commission of a tort, a statutory
right or a breach of a statute which affects the plaintiff's interest substantially or where the plaintiff has a
genuine interest in having his legal position declared. Indeed, the principle enunciated there is consistent
with the principle enunciated by Buckley J. in Boyce. However, in my view the courts in this country are
not authorized by law to go beyond this principle.
No doubt, section 41 of our Specific Relief Act 1950 is an old provision and may even be regarded as
antiquated but it is still in the statute book as part of our law. In the Specific Relief Act, section 41 comes
under the chapter "Declaratory Decrees" and deals with persons seeking declarations of status or right
from the court. That section reads:
"Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or
interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled,
and the plaintiff need not in that suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or
title, omits to do so."
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Section 41 does not sanction every form of declaration but only a declaration that the plaintiff is entitled
to a specific legal character or to any right as to property. Therefore any person who has "a right to any
legal character" may bring an action against anyone who denies that right. The prerequisite for such a
declaratory action is that the plaintiff must first establish that he qualifies as a person entitled to any legal
character or to any right as to any property. The legal character or the right must exist at the time the
action is instituted.
After 1978, the law on locus standi in England was extended and liberalized by the English courts. But in
my opinion, the courts in this country have no jurisdictional basis to do the same.
This appeal, in my opinion, illustrates once again the point that we should not apply the laws in England
without comparing the basis of jurisdiction. If it is felt that there is a lacuna in the law in that not every
public-spirited person can come to court then it is up to the legislature to amend the appropriate law to
give jurisdiction to the courts to entertain every such person. The courts should not pretend to perform the
function of the legislature.
It can hardly be disputed that there is no single authoritative definition of an 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. As Lord Edmund-Davies said in Gouriet:
"It has long been established that no citizen can of his own initiative sue in our courts on his own behalf save to assert and protect his
private rights or to repel a right asserted against him by another."
Thus, in my view, according to the law applicable in this country, Mr. Lim Kit Siang has no qualifications
in law to bring the suit in court. He has not shown that he is more particularly affected than other people.
He has not shown that he has any recognizable legal right which has been infringed. He has not suffered
any damage peculiar to himself by reason of the alleged breach of Emergency Ordinance No. 22.
In short, it has not been shown that the rights or interests of Mr. Lim Kit Siang have been adversely
affected over and above that of "the ordinary taxpayer, motorist and frequent user of highways" as he
described himself. The fact that he is also a Member of Parliament or the Leader of the Opposition does
not alter the position. In those capacities, he may acquire standing in other forums.
I would therefore allow the appeal, set aside the order of the learned judge and dismiss the suit. I also
agree that parties bear their own costs here and below.
Abdoolcader S.C.J. (dissenting): In delivering oral judgment ex tempore at the conclusion of argument
giving reasons for my decision to dismiss these two joint appeals with costs, I declared at the inception
that I was entering a vigorous dissent. It now only remains for me to register and reflect in this judgment
the force of my dissent revolving primarily around the crucial question of law as to standing to sue in
public law litigation and endeavour in doing so to translate the sting of the thing [*42]
into language as mild as I can mobilize and muster without mincing words.
First things first, however, and so to briefly epitomize the factual background of this matter: The
respondent, Lim Kit Siang, who assumes a title to sue in several capacities which I will have to advert to
presently instituted these proceedings by way of writ against United Engineers (M) Berhad ("UEM") and
the Government of Malaysia and two ministers, the Minister of Finance and the Minister of Works, for a
declaration that the letter of intent given in December 1986 by the Government in favour of UEM for the
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privatization of the North-South Highway is null and void and of no consequence on the basis of
allegations of impropriety and misconduct in the award of the tender for this project and statutory corrupt
practice which it is not necessary to specify in detail for the purposes of this judgment, and an injunction
to restrain UEM from signing the contract for the project with any agent or servant of the Government.
On filing the action in the High Court at Penang and before service of the writ on any of the defendants
the respondent applied by ex parte summons for an interlocutory injunction against UEM to restrain it
from signing the proposed contract pursuant to the letter of intent pending the final determination of the
suit. The application was heard as an opposed ex parte summons with the State Legal Adviser, Penang,
appearing on behalf of the two ministers and the Government before Edgar Joseph Jr. J. who dismissed
the application. The respondent appealed to the Supreme Court and although none of the defendants had
entered appearance they were served with the record of appeal and were represented by counsel at the
hearing of the appeal. The Supreme Court gave an oral judgment after hearing submissions on August 25,
1987 allowing the appeal and granting the interlocutory injunction sought with costs in the cause and
liberty to apply to the court below, and further directing an early trial of the action before another judge.
UEM then applied to the High Court to have the injunction granted by the Supreme Court set aside and
the suit struck out on the ground that it discloses no reasonable cause of action, is frivolous or vexatious or
is otherwise an abuse of the process of the court, and alternatively in the exercise of its inherent
jurisdiction on the ground that the action is not maintainable in law or that the respondent has no locus
standi. The two ministers also jointly applied by summons to have the suit against them struck out on
similar grounds and in addition invoked Order 15 rule 6(2) of our Rules of the High Court 1980 for their
dismissal as parties to the suit by the reason of improper or unnecessary joinder for want of any
reasonable cause of action against them. The Government as well took out a summons on grounds
identical to those of UEM. V.C. George J. heard all these three applications and in a reserved judgment
delivered on October 5, 1987 dismissed the applications by UEM and the Government with costs but
allowed that of the two ministers, and holding that they were not necessary parties to the action, struck
them out as defendants from the suit with costs. UEM and the Government promptly appealed to the
Supreme Court against the dismissal of their respective applications in these two appeals which were
heard together on January 14 and 15, 1988.
I should perhaps observe that in the course of argument before us I drew attention to three recent cases –
Reg v Her Majesty's Treasury, ex parte Smedley [1985] 1 All ER 589; [1985] 1 QB 657, Gillick v West
Norfolk and Wisbech Area Health Authority & Another [1986] 1 AC 112 and Reg v Secretary of State for
the Home Department & Another, ex parte Herbage [1987] 1 QB 872 which are in my view highly
pertinent to the issues raised in this matter, but the all-round reaction appeared to be one of complete lack
of acquaintance with these decisions which I shall have to advert to later, but I only mention this at this
stage as my reference to these decisions was only met by the appellants in answer to me with purported
reliance, as an all-purpose smoke-screen to deny their relevance or application here, on the provisions of
Order 53 of the English Rules of the Supreme Court 1965 as amended in 1977 and now given statutory
force by section 31 of the English Supreme Court Act 1981, in view of the changes effected by the
English Order 53 in its present form.
It is therefore necessary to briefly deal with Order 53 of the English Rules of the Supreme Court. The
English Order 53 as it now stands just provides for a modern system of judicial review and is designed to
obliterate the need for distinguishing between the various alternative forms of prerogative relief and other
powers. It is only a procedural provision for administrative law remedies enabling an omnibus application
for judicial review which empowers the court to give the requisite relief according to the circumstances of
the case by way of any of the prerogative orders as well as declaration, injunction and damages, and in the
process provides for the standardization of [*43]
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the different requirements of standing for the several remedies by enacting a general formula of sufficient
interest in the matter to which the application for judicial review relates.
The pivotal issue on which the appeals were actually argued and turned is that of locus standi or standing
to sue. The respondent, like his English counterpart in Ex parte Smedley [1985] 1 All ER 589; [1985] 1
QB 657, is a man of many parts, and perhaps of even more. He launched these proceedings in his capacity
as specified in the statement of claim as a Member of Parliament, the Leader of the Opposition in the
House of Representatives, a State Assemblyman, a taxpayer, a motorist and a frequent user of highways
and roads in the country.
I have given judgment in two cases setting out the relevant precepts relating to standing – in the High
Court in Lim Cho Hock v Government of The State of Perak & Others [1980] 2 MLJ 148 and in the
Federal Court in Tan Sri Haji Othman Saat v Mohamed bin Ismail [1982] 2 MLJ 177 and I see no reason
to depart from the principles expounded in these two decisions. The Federal Court approved Lim Cho
Hock in Tan Sri Haji Othman Saat and endorsed (at p. 179) the concept of liberalizing the scope of
individual standing, and these two judgments must be read in the light of the continuing development of
the doctrine of locus standi here and in other jurisdictions. I alluded to the necessity of keeping in tune
with the times in the development of the approach to the question of locus standi in Tan Sri Haji Othman
Saat (at p. 179) to this effect:
"Even if the law's pace may be slower than society's march, what with increased and increasing civic-consciousness and appreciation of
rights and fundamental values in the citizenry, it must nonetheless strive to be relevant if it is to perform its function of peaceful
ordering of the relations between and among persons in society, and between and among persons and government at various levels."
Liberalization of standing has in varying degrees been proceeding or proposed in other common law
jurisdictions as I have shown in these two judgments, and it would be a shame if we were to lag behind.
The imbroglio that has arisen in this matter is the result of the myopic obfuscation of the distinction
between public law and private law cases. The appellants contend that the principle that is applicable is
that laid down in Gouriet v Union of Post Office Workers [1977] 3 All ER 70; [1978] AC 435 and Boyce v
Paddington Borough Council [1903] 1 Ch 109 which I have dealt with in Tan Sri Haji Othman Saat.
The English courts no longer worry about Gouriet. It has been authoritatively distinguished by the House
of Lords in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses
Ltd [1982] AC 617; [1981] 2 All ER 93. The applicant in that case was a company formed to promote the
interests of small business. Alleging that its constituents and other non-unionists were pursued without
leniency for not paying their taxes, the applicant sought judicial review of a deal that the Revenue had
struck with printing industry unions whereby certain tax investigations would be dropped in return for
union cooperation in securing an end to casual workers evading income tax by using fictitious names. The
unions, it was said, were receiving preferential treatment, and mandamus and declaratory relief were
sought. Lords Diplock, Scarman and Roskill (at pp. 638–639, 649 and 657–658 respectively)
distinguished Gouriet on the basis that it concerned only private law. The House of Lords held that the
Court of Appeal had been wrong, in an application for judicial review, to treat the question of locus standi
as a threshold issue to be decided in isolation from the legal and factual context of the case; his is where
the bifurcation into public law and private law aspects of litigation assumes vital significance in
determining the issue. The general conclusion to be drawn from National Federation is that the majority
thought the issue of standing should usually be considered along with the merits, as it is now a matter for
the court's discretion – the graver the illegality, the less insistence on showing standing. The minority
would abolish standing.
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I referred in Tan Sri Haji Othman Saat (at p. 179) to Reg v Horsham Justices, ex parte Farquharson &
Another [1982] 2 WLR 430 where Lord Denning M.R. referred (at p. 446) to National Federation and
Lord Diplock's assertion in that case (at p. 740) of the right of even a single public-spirited taxpayer to
bring a matter to the attention of the court to vindicate the rule of law and get unlawful conduct stopped.
National Federation was applied in Reg v Felixstowe Justices, ex parte Leigh & Another [1987] 1 QB 582
which held that a journalist, or possibly the press through him, as guardian of the public interest in open
justice, had a sufficient interest to give him locus standi to apply for a declaration that the justices hearing
the case were not entitled to withhold their names for security reasons.
Tan Sri Haji Othman Saat actually involved a private law element as the plaintiff's grievance there was
the denial of his application for the land [*44]
in question and its grant to the defendant who was the Menteri Besar of the State and other personages in
the upper echelon of the administration. In Lim Cho Hock I accorded standing to the plaintiff who was a
Member of Parliament, a member of the State Assembly and a ratepayer to impugn the appointment of the
Menteri Besar of the State as President of the Ipoh Municipal Council. In the Blackburn cases which I
referred to in Lim Cho Hock and Tan Sri Haji Othman Saat, standing was accorded to the applicant prior
to the examination of the merits of the applications on the reasoning that unless the court in its discretion
gave him a hearing, then no one would bring the matter to court.
In Fitzgerald v Muldoon [1976] 2 NZLR 615 which I referred to in Lim Cho Hock (at p. 150), standing
was granted to an individual to challenge a general administrative order relating to the compulsory
universal superannuation scheme merely because he was one of the million compulsory contributors. In
Reg v Hereford Corporation, ex parte Harrower [1970] 1 WLR 1424 the court did not deny standing on a
challenge by local business people as rate-payers, but as electrical contractors, on a complaint that the
local authority had not followed proper tendering procedures in letting out a contract for the installation of
central heating.
Public-spirited citizens do not seem to have deluged the English courts with applications for judicial
review since National Federation, but there are some noteworthy decisions. Ex parte Smedley [1985] 1
All ER 589; [1985] 1 QB 657 is one of the few recent examples of a citizen's challenge. There, a taxpayer
who sought relief by way of certiorari and declaration was given standing by the English Court of Appeal
to challenge the Treasury's proposal to pay a large sum of money – in excess of 120 million – to subsidize
the European Economic Communities' budget without seeking an Appropriation Act, and it did so on the
basis that the grounds of challenge were serious, and, it seems, that the amount involved made the
threatened illegality serious. The applicant was given standing to challenge the decision affecting
spending of public funds on technical grounds which did not question the substance of the spending
decision. In the High Court (The Times, December 8, 1984) Woolf J. said that he "would be surprised if a
public-spirited citizen was prevented from coming before a court to prevent an unconstitutional and
unauthorized disposal by the government of funds". In the Court of Appeal Sir John (now Lord)
Donaldson M.R. said (at p. 664) that the applicant sought the assistance of the court in his capacity as a
British taxpayer and elector and (at p. 667) that he agreed with Woolf J. that he would be extremely
surprised to find himself obliged to uphold the submission that the applicant had no sufficient interest and
therefore no locus standi. It is, I think, of some importance to refer to and quote in extenso what Slade L.J.
had to say on the question of locus standi (at pp. 669–670):
"The speeches of their Lordships in Reg v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small
Businesses Ltd [1982] AC 617 well illustrate that there has been what Lord Roskill described at p. 656G-H as a 'change in legal policy',
which has in recent years greatly relaxed the rules as to locus standi. Lord Diplock referred at p. 640C to a 'virtual abandonment' of the
former restrictive rules as to the locus standi of persons seeking prerogative orders against authorities exercising governmental powers.
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If the court had taken the view that Mr. Smedley's application was of a frivolous nature, the wide discretion given it by R.S.C. Order 53
would have enabled it to dispose of it appropriately. There has, however, been no suggestion that it is of this nature. It raises a serious
question as to the powers of Her Majesty in Council to make an Order in Council in the form of the draft now before Parliament. The
making of any such Order would be likely to be followed automatically by the expenditure by the government of substantial sums from
the Consolidated Fund in reliance on section 2 of the European Communities Act 1972. I do not feel much doubt that Mr. Smedley, if
only in his capacity as a taxpayer, has sufficient locus standi to raise this question by way of an application for judicial review; on the
present state of the authorities, I cannot think that any such right of challenge belongs to the Attorney-General alone."
In Gillick [1986] 1 AC 112, the House of Lords allowed a mother of five daughters under the age of 16 to
challenge the legality of the government provision of contraceptive advice to females under 16. The
mother's standing went unquestioned, although it was accepted that her daughters were unlikely to seek
contraceptive advice without her consent. I do not see that the English Order 53 as enacted in its present
form makes any distinctive difference to affect the position. It might well be asked what sufficient interest
for the purposes of judicial review as enacted in the English Order 53 since 1977 the applicant in Ex parte
Smedley [1985] 1 All ER 589; [1985] 1 QB 657 would have had apart from the other many millions of
electors and taxpayers in challenging the proposed subsidy to the European Economic Communities'
budget without Parliamentary approval, and so too in the case of Victoria Gillick who was given standing
although the memorandum on family planning services issued by the Department of Health and Social
Security would not in fact have affected her children.
[*45]
In Waddell v Schreyer [1981] 126 DLR (3d) 431, the British Columbia Supreme Court gave the plaintiff,
who sought a declaration that certain orders-in-council were ultra vires, standing by virtue of his special
interest as a Member of Parliament. An appeal to the British Columbia Court of Appeal was dismissed:
[1983] 1 WWR 762; and leave to appeal to the Supreme Court of Canada was refused: [1983] 1 WWR
lii. In Finlay v Minister of Finance of Canada (1984) 1 FC 516 the Federal Court of Appeal of Canada
allowed a citizen who was neither directly affected nor a taxpayer to challenge the validity of federal and
provincial transfer payments under the Canada Assistance Plan. The decision has been upheld by the
Supreme Court of Canada sub nomine Finlay v Canada [1986] 2 SCR 607. The Supreme Court decided
that the interest of the applicant was too remote or speculative to grant standing under the general
requirement that the plaintiff must have a sufficient private or personal interest in the subject matter. The
court went on to hold, however, that in appropriate public law cases, as a matter of judicial discretion,
standing might be given to a private individual notwithstanding the fact that a constitutional or Charter of
Rights and Freedoms issue was not involved. The court thus extended the principle laid down in Thorson
v Attorney-General for Canada [1975] 1 SCR 138, Nova Scotia Board of Censors v McNeil [1976] 2 SCR
265 (both of which I dealt with in Lim Cho Hock) and Minister of Justice for Canada v Borowski [1981] 2
SCR 575 – all three of which involved the requirements for standing in a constitutional case where a party
has no direct interest – to the field of administrative law and, in the result, granted standing to Finlay to
bring an action for a declaration to challenge the legality of Federal cost-sharing arrangements.
The contention of the appellants is that in matters such as that before us it is only the Attorney-General
himself moving suo motu or by the grant of a fiat for a relator action who has the right to challenge and
can take action and no other. I would think it would be too much to expect process of this nature involving
the ventilation of a public grievance to proceed only through this channel, given even the fortitude the
incumbent of the office would presumably be endowed with, in view of the rebound where the complaint
is against the Government itself and the Attorney-General is its legal adviser, as it would surely be
expected that if the complaint merited action by the Attorney-General or by his fiat to a relator, he would
himself in the first instance have had the cause of complaint aborted before its overt manifestation. For the
Attorney-General to have to proceed himself or by relation in such a case would only be a deplorable and
intolerable reflection as in the normal course of events such a situation would and should never be
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allowed to arise, and so the question of a relator action must necessarily remain attractive as a theoretical
possibility with no conceivable hope generally for practical purposes of advancing to concrete action
beyond that. This appears to be the rationale in granting standing in such circumstances in other
jurisdictions and perhaps explains why Slade L.J. said in Ex parte Smedley [1985] 1 All ER 589; [1985] 1
QB 657 in the passage I have cited that he could not think that any such right of challenge belongs to the
Attorney-General alone.
I am not therefore impressed that the road to relief in regard to public law issues can be travelled only
with the permission of the Attorney-General. To deny locus standi in the instant proceedings would in my
view be a retrograde step in the present stage of development of administrative law and a retreat into
antiquity. The merits of the complaint are an entirely different matter, and we are not concerned with the
personalities in the picture or whether it is a highway project or the construction of a causeway to the
moon that is involved. The principle that transcends every other consideration must ex necessitate be that
of not closing the door to the ventilation of a genuine public grievance, and more particularly so where the
disbursement of public funds is in issue, subject always of course to a judicial discretion to preclude the
phantom busybody or ghostly intermeddler.
The effect of the denial of standing in such circumstances would be, and it has indeed been so suggested,
that we will have to fold our arms and do nothing, in which event I would add we might also as well have
to hang our heads in sorrow and perhaps even in mortification in not being able to at least entertain for
consideration on its merits any legitimate complaint of a public grievance or alleged unconstitutional
conduct. To take an instance: If a considerable sum of money is taken out by executive fiat from the
Consolidated Fund without Parliamentary approval by way of a Supply Act for the implementation of a
project, however laudable, the legality of such a move would then be incapable of being tested or
challenged by a public-spirited citizen or a taxpayer as in Ex parte Smedley [1985] 1 All ER 589; [1985] 1
QB 657 and Finlay v Canada (1984) 1 FC 516. The courts must therefore be cautious in accepting any
postulate that purports to narrow the rights of recourse to them and, in the present context, in constricting
the concept of standing in public law [*46]
litigation, and will have to be ready to sharpen their constitutional knives as and when the occasion
demands.
The question of locus standi, which the notes of proceedings disclose was raised for the first time in the
present proceedings by Mr. Zaid Ibrahim appearing for UEM in this matter in the course of the hearing of
the appeal before the Supreme Court on August 25, 1987 and pursued by Senior Federal Counsel
appearing for the Government, appears to have been fully exposed in argument, as the court in arriving at
its decision in a short judgment owing to the urgency of the matter stated it had considered a number of
authorities, both English and local, as to the question of locus standi and that it need only say that on the
facts of this case the respondent clearly has locus standi to bring the instant suit. We are now met with the
preposterous contention that this judgment of the Supreme Court is only obiter and made per incuriam
just because it does not set out full reasons for its decision. The pronouncement on August 25, 1987 is a
judgment of the Supreme Court which unequivocally made a decision on the points in issue before it
including that of standing taken by the appellants themselves and crucial to the substratum and basis of
the respondent's suit. Any view to the contrary as to the efficacy of that judgment would lay open the door
to similar contentions in relation to decisions of this court and indeed of other courts as well in matters
where brief oral judgments are delivered at the conclusion of argument.
I must categorically state that the proposition advanced that what the Supreme Court said is obiter is
wholly beyond intelligible comprehension, as the court specifically decided the point of standing raised
and put in issue affecting the very foundation of the suit instituted. And as to the decision being per
incuriam, I would suggest that before any argument on this line is ever to be raised, it would be highly
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instructive to first refer to the latest observation in this regard by Sir John (now Lord) Donaldson M.R. in
the English Court of Appeal in Duke v Reliance Systems Ltd [1987] 2 WLR 1225 ( at p 1228):
"I have always understood that the doctrine of per incuriam only applies where another division of this court has reached a decision in
the absence of knowledge of a decision binding upon it or a statute, and that in either case it has to be shown that, had the court had this
material, it must have reached a contrary decision. That is per incuriam. I do not understand the doctrine to extend to a case where, if
different arguments had been placed before it or if different material had been placed before it, it might have reached a different
conclusion. That appears to me to be the position at which we have arrived today."
"Per incuriam" is only Latin for "through want of care" or "through inadvertence" or "by mistake". I have
not been told or shown how or when or where any such forensic mishap occurred in the judgment of this
court delivered on August 25, 1987.
To reverse that decision of the Supreme Court on locus standi now would amount to no less than our
sitting in judgment on another division of this court and overruling its adjudication given only some four
and a half months ago. The Supreme Court which can aptly be described and designated as the engine-
room of the Constitution would as a result have the sanctity of its decisions set at stake. In Lye Thai Sang
& Another v Faber Merlin (M) Sdn Bhd & Others [1986] 1 MLJ 166 this court held, in a judgment
delivered by Tan Sri Abdul Hamid C.J. (Malaya), that where an appeal has been heard and disposed of by
the Supreme Court, the court has no power to review the case, that is, to re-open, rehear and re-examine
its decision for whatever purpose. It now becomes a matter of speculation whether that decision itself has
been the subject of review by this court as a result of the decision of the majority of this Bench in the
instant appeals. I must point out that only a constitutional amendment can confer jurisdiction and
effectuate the power of review by the Supreme Court of its own decisions.
V.C. George J. in consonance with the doctrine of stare decisis and judicial discipline was accordingly
bound by the decision of the Supreme Court given on August 25, 1987 as he properly held, and, I would
add, he also examined the position as to locus standi in law independently by extensive reference to
authority and correctly came to the same conclusion.
To discard the decision of the Supreme Court given previously and so very recently in the same matter
and on the same point and summarily dismiss it as the appellants would have us do would only inject
alarming uncertainty into the law, with however the consoling thought but perhaps as an unintended
consequence that just as the majority judgment in this matter has purported to reverse the decision of this
court given on August 25, 1987, so would it pave the way for yet another division of this court to
reconsider the question in issue in some other subsequent case perhaps in [*47]
the not too distant future and come to a different conclusion and restore the principle of law accepted in
the decision reversed. The result of all this would well be, adapting my words in Foo Loke Ying &
Another v Television Broadcasts Ltd and Others [1985] 2 MLJ 35 (at p 45), to countenance in the realm of
judicial precedent a free-for-all like the aftermath of an English football match. Well then did Francis
Bacon have cause to muse as he did, and that too as far back as 1605:
"It is of so much importance to a law, that it be certain, that without this, neither can it be just, 'for if the trumpet give an uncertain
voice, who shall equip himself for war?' Similarly, if the law give an uncertain voice, who shall prepare himself to obey? Therefore, it is
necessary that it warn before it strike".
I must touch on one other matter in this regard. Tan Sri Abdul Hamid C.J. (Malaya) in delivering his
judgment says that perhaps the time has come to review the decision of the Federal Court in Tan Sri Haji
Othman Saat, and that the Supreme Court is not bound by decisions of the Federal Court. I am not aware
of nor do I subscribe to any such theory on the doctrine of stare decisis in our court in relation to
decisions of the Federal Court. The Supreme Court is but the Federal Court reconstituted under a different
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name with enhanced jurisdiction, and until a policy in relation to judicial precedent has been agreed,
formulated and declared by the judges of the Supreme Court as a collegiate body, as indeed the High
Court of Australia has done in Viro v Regina (1978) 141 CLR 88 and Jones v The Commonwealth (1987)
61 SLJR 348 after appeals to the Privy Council ceased, I would have thought that the principles
enunciated in Young v Bristol Aeroplane Company Limited [1944] KB 718 (at p 169) [1946] AC 163
would apply. As for Tan Sri Haji Othman Saat, speaking for myself I can see no reason for any review of
that decision of the Federal Court, and the call so made would appear to be all the more surprising as there
has been no such suggestion by the appellants, and this would seem to echo the shades of the Spycatcher
case (Attorney-General v Guardian Newspapers Ltd and Others [1987] 1 WLR 1248) when the House of
Lords in a 3-2 majority judgment affirming the decision of the Court of Appeal with an extended order
went entirely outside the submissions made and widened the scope of the injunction granted by restricting
publication of the proceedings pending before the Supreme Court of New South Wales without any
request for an order to this effect by the Attorney-General.
I now turn to the matter of a cause of action against the appellants. The question raised of the absence of
any cause of action is in my view nothing more than a large red herring, perhaps covered with a thick
white sauce, but in all its stark reality a large red herring nevertheless. The action instituted by the
respondent is for a declaration under Order 15 rule 16 of the Rules of the High Court, and no cause of
action is necessary in such a case. The reliance placed on section 41 of the Specific Relief Act 1950 is
wholly misconceived and misplaced. Tan Sri Haji Othman Saat (at p. 178) has made it clear that section
41 of that Act is not exhaustive of declaratory relief, and a declaration can be sought and made under
Order 15 rule 16 as in this case in which event it is not necessary to show a present cause of action.
The plaintiff may, in a case of tort, be asserting that he has title to some property, for example, in a
slander of title case. In Loudon v Ryder (No 2) [1953] Ch 423 neither damages nor an injunction could be
awarded, for the defendant lacked malice, but a declaration of the plaintiff's title was made since the
defendant was persisting in his false assertions. In short, the plaintiff need not have a cause of action. The
reasoning in this decision was approved in RJ Reuter Co Ltd v Mulhens [1954] Ch 50 and Kingdom of
Spain v Christie, Manson & Woods Ltd [1986] 1 WLR 1120 (at pp 1127-1128).
As Dyson v Attorney-General [1911] 1 KB 410 said that Order 25 rule 5 (which was the precursor of
Order 15 rule 16) could be used even where no consequential relief could be granted, it impliedly ruled
that it is permissible to sue for a declaration in the absence of a cause of action. This was expressly stated
to be the position in Guaranty Trust Company of New York v Hannay & Company [1915] 2 KB 536 which
held that the court has power to make a declaration at the instance of a plaintiff though he has no cause of
action against the defendant. In Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970]
AC 1136 the Privy Council summed up the present position (at p. 1167) as follows:
"There may be circumstances under which a person may have the right to go to a court for a declaration (whether or not he seeks other
relief) without being able to or having to show that he has a cause of action apart from his claim for a declaration. His application will
not be defeated because he applies merely for a declaratory judgment or order. His application for a declaration of his right is not to be
refused merely because he cannot establish a legal cause of action: Guaranty Trust Company of New York v Hannay & Co [1915] 2 KB
536. As Bankes L.J. said in that case there would be the limitation that the relief claimed must be something which it would not be
unlawful or unconstitutional or inequitable for the court to grant [*48]
or contrary to the accepted principles upon which the court exercises its jurisdiction."
I would also observe that I am unable to see the relevance of section 6 of the Specific Relief Act raised by
the Attorney-General in argument. That provision prohibits the granting of specific relief for the mere
purpose of enforcing a penal law, but no such question arises here. The point taken, that it is not for the
respondent to arrogate to himself the matter of alleging criminal misconduct and that this is a matter
solely for the Attorney-General as the Public Prosecutor, involves the fallacy of petitio principii as the
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primary issue is that of standing and not the consideration of the substantive question involving the
relevance and merits of the allegations. The respondent is not asking in these proceedings for a mandamus
or a mandatory injunction against the Attorney-General as Public Prosecutor to take criminal action in the
matter.
I find equally irrelevant the Attorney-General's reliance on section 7 of the Government Proceedings
Ordinance 1956 which provides for savings of acts done in exercise of public duties. I will not set out that
section in extenso to obviate prolixity, and it will suffice for me to say that I cannot see how that provision
can help, as all it does is to preclude proceedings against the Government on account of anything done or
omitted or refused to be done by the Government or any public officer in "exercise of the public duties" of
the Government, with the expression which I have put in quotes defined in subsection (2) of that section
to include paragraph (a) thereof which is the only relevant part in the present context and which reads:
"the construction, maintenance, diversion and abandonment of railways, roads, bridle-paths or bridges".
This must necessarily mean that the Government is rendered immune from action in the execution of any
such works by reason of any loss or damage suffered thereby by any person as a result of, for instance, the
diversion or construction of a highway or road affecting his business or residence or otherwise with
economic or other consequences. Subsection (3) substantiates this position as it specifically permits an
action for damages or compensation arising out of negligence or trespass in the execution of any such
works. Section 7 of the Ordinance cannot in my view conceivably appertain to a complaint of the nature
made in the present proceedings involving a challenge to a decision affecting the expenditure of public
funds in relation to a project for the construction of a highway on the modus of its implementation which
does not question the substance of the expenditure or the execution of the project itself. The respondent's
action does not accordingly in any way affect the exercise of the public duties of the Government within
the purview of section 7 of the Ordinance.
I advert now to the interlocutory injunction granted against UEM. It is argued that no junction can issue
against the Government by virtue of the provisions of section 29 of the Government Proceedings
Ordinance and so the issue of an injunction against UEM in effect amounts to a devious device to
circumvent that statutory prohibition. In the course of argument on this issue, I raised a query in relation
to the provisions of section 29, and when I referred in this regard to Ex parte Herbage [1987] 1 QB 872,
this decision seemed to be about as familiar generally as the identity of the Unknown Warrior. The effect
of section 29, briefly put, is to debar the grant of an injunction against the Government or its officers in
any civil proceedings by or against the Government. The term "civil proceedings" is defined in section
2(2) of the Ordinance to mean any proceeding whatsoever of a civil nature before a court and includes
proceedings for the recovery of fines and penalties and an application at any stage of a proceeding, but
does not include proceedings under Chapter VIII of the Specific Relief Act 1950, or such proceedings as
would in England be brought on the Crown side of the Queen's Bench Division. In England all the
remedies for the infringement of rights protected by public law including declarations and injunctions
must now be applied for by way of an application for judicial review under the English Order 53 (O'Reilly
v Mackman [1983] 2 AC 237), and this is brought on the Crown side of the Queen's Bench Division. The
requisite provisions in the Ordinance I have referred to reproduce textually totidem verbis the equipollent
provisions in the British Crown Proceedings Act 1947, namely, sections 21 and 38(2) thereof.
In Ex parte Herbage [1987] 1 QB 872, the applicant was remanded in custody awaiting his extradition to
the United States of America. He complained that he was being detained under inhumane conditions and
he applied for judicial review and either an order of mandamus or a mandatory injunction directed against
the Secretary of State and the prison governor in terms that would ensure that he was detained under
humane conditions and not in solitary confinement. On the applicant seeking an interim injunction
directing the Secretary of [*49]
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State and the prison governor to take all necessary steps to ensure that he was granted the same
opportunities of association with other prisoners as were accorded to prisoners on remand, it was held that
although section 21(2) of the Crown Proceedings Act had been construed as prohibiting the grant of an
injunction against an officer of the Crown in civil proceedings, the subsection was not applicable to
proceedings on the Crown side of the Queen's Bench Division and did not affect the jurisdiction of the
court to grant prerogative orders against officers of the Crown, and as the provisions of the English Order
53 since reinforced by section 31 of the English Supreme Court Act 1981 gave the court power to grant
injunctive and interim relief in proceedings for judicial review, the court now had jurisdiction to grant an
interim injunction against an officer of the Crown on an application for judicial review.
The only answer that could be advanced to the point I raised in this regard with inference to the relevant
provisions of the Government Proceedings Ordinance and Ex parte Herbage [1987] 1 QB 872 was that
this case did not apply in view of the English Order 53 and that the exception in the definition of "civil
proceedings" in section 2(2) of the Ordinance referred to the position as it stood in 1956 when the
Ordinance was enacted and was not affected by the changes brought about to the English Order 53 in
1977. It is therefore necessary to examine the substance or the lack of it in this proposition.
A statute is to be treated as always speaking. In its application on any date, its language, though
necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat
it as current law. The formula of exclusion from the definition of "civil proceedings" in section 2(2) of
the Ordinance of "such proceedings as would in England be brought on the Crown side of the Queen's
Bench Division" clearly shows in my view that it is intended to develop in meaning with evolving
circumstances and is accordingly what may be termed an ongoing statutory provision unlike one that is
intended to be of unchanging effect or a fixed-time provision. The general presumption is that the
legislature intends the court to apply to an on-going statute a construction that continuously updates its
wording to allow for changes since the statute was initially framed. The assumption that is adopted by the
courts is summarized in the expression "an Act is deemed to be always speaking", that is to say, words in
an Act are to be interpreted in accordance with their current meaning.
This approach is of relatively recent origin, as previously statutes were generally construed in accordance
with their natural meaning as at the date of their enactment. This rule was ossified in the maxim
"Contemporanea expositio est optima et fortissima in lege" (the best and surest mode of construing an
instrument is to read it in the sense which would have been applied when it was drawn up). It is clear now,
however, that the operation of this rule in its fullest extent has been abandoned except perhaps in the
construction of ambiguous language used in very old statutes where the law itself may have had a rather
different meaning: Campbell College, Belfast (Governors) v Commissioner of Valuation for Northern
Ireland [1964] 1 WLR 912 (at p. 941 per Lord Upjohn). In considering a modern statute "contemporanea
expositio" is of no value, and the courts have refused to apply it to statutes passed within the last hundred
years (Trustees of Clyde Navigation v Laird (1883) 8 App Cas 658 (at p 673); Assheton Smith v Owen
[1906] 1 Ch 179 (at p 213)). It follows that legal references in an enactment must be updated to allow for
change, and instances of this are Pole-Carew v Craddock [1920] 3 KB 109 where "tax" in a pre-income
tax enactment was held to include income tax, and Attorney-General v The Edison Telephone Company of
London (1880) 6 QBD 244 which held a telephone to be a "telegraph" within the meaning of the
Telegraph Acts 1863 and 1869, although the telephone was not invented or contemplated in 1869.
It would therefore appear that on the wording of the relevant provisions in the Government Proceedings
Ordinance and the exclusion from the provisions precluding injunctive relief against the Government or
its officers of such proceedings as would in England be brought on the Crown side of the Queen's Bench
Division and the current position in England in that respect in relation to proceedings in public law
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litigation, an injunction in the instant proceedings against the Government is not precluded by the
provisions of section 29 of the Ordinance.
Even if, however, section 29 of the Ordinance is effective to prohibit an injunction against the
Government or any of its officers, and I have come to the conclusion that it is not in the light of the
statutory provisions I have adumbrated, I can see no impediment to the granting of an interlocutory
injunction against UEM in this case. The inability [*50]
to proceed against the Government, if at all, does not of necessity per se preclude the grant of injunctive
relief against UEM as the transaction sought to be impugned is synallagmatic in nature and not unilateral,
and the affidavits disclose contentions as to the solvency of UEM and other matters as well involving it in
respect of which the High Court has found there were in fact serious questions to be tried.
Anent the matter of the interlocutory injunction granted against UEM, the Attorney-General also seeks to
rely on the provisions of section 54(d) and (k) of the Specific Relief Act which provide respectively that
an injunction cannot be granted to interfere with the public duties of any department of any Government
in Malaysia, or with the sovereign acts of a foreign government (paragraph (d)), and where the applicant
has no personal interest in the matter (paragraph (k)). I cannot see how they apply to affect the position in
the matter before us. There is no question of any interference with the public duties of the Government as
what is sought is to question the propriety of the transaction between the Government and UEM involving
the expenditure of public moneys on the basis of certain allegations raised in respect thereto; the
respondent does not seek to question the substance of the spending decision or the propriety of the North-
South Highway project itself. In any event, whether or not there can conceivably be any question of
interference with the public duties of the Government is a matter for determination after consideration of
the merits at the hearing, and these proceedings have not as yet reached that stage. As for paragraph (k),
the question of whether the respondent has any personal interest or not in the matter must depend on the
postulate of standing and I need not belabour this point as I have dealt with it at some length, and if the
respondent can have standing to institute these proceedings as a public-spirited citizen, Leader of the
Opposition, Member of Parliament and taxpayer, then he must necessarily and certainly have a personal
interest in the matter in consequence on that basis.
And quite apart from all this, I would point out that section 54 of the Specific Relief Act comes under
Chapter X of the Act dealing only with perpetual injunctions, and section 51 of the Act which comes
under Chapter IX and refers to injunctions generally draws a distinction between temporary injunctions
and perpetual injunctions, specifically enacting that a perpetual injunction can only be granted by the
decree made at the hearing and upon the merits of the suit. The injunction sought and granted in this case
was interlocutory pending the final determination of the suit.
V.C. George J. in the High Court carefully and meticulously examined in a well-considered and logically
explicit judgment all the points raised and in issue before refusing to discharge the interlocutory
injunction granted by the Supreme Court on August 25, 1987. It has been said time and again that the
discretion whether or not to grant an interlocutory injunction is vested at first instance and not in the
appellate court whose function initially is one of review only, and it will not overrule the decision of the
judge at first instance unless, broadly speaking, he has made an error of law or misconceived the facts,
and except in those circumstances it must defer to the judge's exercise of his discretion and must not
interfere with it merely upon the ground that the members of the appellate court would have exercised the
discretion differently, and I would refer to the judgment of the Federal Court in this regard in S & F
International Limited v Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62 (at p 64). I can see no error of
any kind in the judgment of V.C. George J. warranting interference by us.
Juan MyLexis
lOMoARcPSD|21075942
Page 54 of 54
In the premises and for the reasons I have discussed, I said at the conclusion of argument I would dismiss
these appeals with costs.
One redeeming feature in this matter is that each party was ordered to bear its own costs here and below
when the appeals were allowed as a result of the judgment of the majority of this Bench. This at least
shows in relation to the issue of locus standi that the respondent was not all that wrong in purporting to
assume the right in the capacities he specifies to institute these proceedings.
As a postlude, I would add this. If this judgment reads in toto aut in partibus like an indictment, let me
immediately say it is meant to – against the doctrine of retrogression in the field of public law litigation in
this age and at this stage of its evolution.
It might not perhaps be inapposite to close by referring to the dissent of Khanna J. in the Supreme Court
of India in the famous Habeas Corpus case (Additional District Magistrate, Jabalpur v Shivakant Shukla
AIR 1976 SC 1207 when he concluded his judgment (at p. 1277) with these words: [*51]
"As observed by Chief Justice Hughes, judges are not there simply to decide cases, but to decide them as they think they should be
decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and
recognized than that unanimity should be secured through its sacrifice. A dissent in a court of last resort, to use his words, is an appeal
to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the
dissenting judge believes the court to have been betrayed."
Appeal allowed.
Solicitors: Zaid Ibrahim & Co; Karpal Singh & Co.
End of Document
Juan MyLexis

Government of Malaysia V Lim Kit Siang 1988 2 MLJ 12

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Government OF Malaysia v LIM KIT Siang, [1988] 2 MLJ 12

Engineering Materials (Universiti Teknologi MARA)

Studocu is not sponsored or endorsed by any college or university

GOVERNMENT OF MALAYSIA v LIM KIT SIANG; UNITED ENGINEERS (M)

GOVERNMENT OF MALAYSIA v LIM KIT SIANG [1988] 2 MLJ 12

UNITED ENGINEERS (M) BERHAD v LIM KIT SIANG

The following questions, inter alia, arose on the appeal:

[Per Salleh Abas L.P.]:

(1) Letang v. Cooper (folld).

(3) Boyce v. Paddington Borough Council (folld).

(4) Gouriet v. Union of Post Office Workers & Ors. (folld).

(9) Inland Revenue Commissioners v. National Federation of Self-Employed and Small

(10) Reg. v. H.M. Treasury, ex parte Smedley (distd).

[Per Abdul Hamid C.J. Malaya)]:

(3) Boyce v. Paddington Borough Council (folld).

(4) Gouriet v. Union of Post Office Workers and Others (folld).

(9) Inland Revenue Commissioners v. National Federation of Self-Employed and Small

[Per Hashim Yeop A. Sani S.C.J.]:

(3) Boyce v. Paddington Borough Council (folld).

Seah and Abdoolcader S.C.JJ. dissented and dismissed the appeals.

[Per Seah S.C.J.]:

(3) Boyce v. Paddington Borough Council (distd).

(4) Gouriet v. Union of Post Office Workers And Others (distd).

(30) Duke v. Reliance Systems Ltd. (folld).

(32) Guaranty Trust Co. of New York v. Hannay (cited)

[Per Abdoolcader S.C.J.]:

(4) Gouriet v. Union of Post Office Workers & Ors. (distd).

(9) Inland Revenue Commissioners v. National Federation of Self-Employed and Small

(10) Reg. v. H.M. Treasury, ex parte Smedley (folld).

(46) Finlay v. Canada (folld).

Complete list of cases referred to

Letang v Cooper [1965] 1 QB 232

Boyce v Paddington Borough Council [1903] 1 Ch 109

Blackburn v Attorney-General [1971] 1 WLR 1037

Reg v HM Treasury, ex parte Smedley [1985] 1 All ER 589; [1985] 1 QB 657

Dyson v Attorney-General [1911] 1 KB 410

Baker v Carr (1961) 369 US 186

Williams v Fawcett [1986] 1 QB 604

Young v Bristol Aeroplane Co Ltd [1944] KB 718; [1946] AC 163

Morelle Ltd v Wakeling [1955] 2 QB 379

Attorney-General for Ontario v Canada Temperance Federation [1946] AC 193

O'Reilly v Mackman [1983] 2 AC 237

American Cyanamid v Ethicon Ltd [1975] AC 396

Amalgamated Society of Railway Servants v Osborne [1910] AC 87

Morris v Burdett (1813) 105 ER 361

Datuk Ong Kee Hui v Sinyium Anak Mutit [1983] 1 MLJ 36

Chief Constable of North Wales Police v Evans [*18]

Duke v Reliance Systems Ltd [1987] 2 WLR 1225

Guaranty Trust Co of New York v Hannay & Company [1915] 2 KB 536

Great Western Railway Co v Owners of SS Mostyn [1928] AC 57

Practice Statement (Judicial Precedent) [1966] 1 WLR 1234

Public Prosecutor v Tai Chai Geok [1978] 1 MLJ 166

Australian Conservation Foundation v Commonwealth of Australia (1979–80) 28 ALR 257

Reg v Felixstowe Justices, ex parte Leigh & Another [1987] 1 QB 582

Fitzgerald v Muldoon [1976] 2 NZLR 615

Reg v Hereford Corporation, ex parte Harrower [1970] 1 WLR 1424

Waddell v Schreyer [1981] 126 DLR (3d) 431