PUTRAJAYA (Jan 23): The Court of Appeal on Tuesday agreed that the Cabinet had no power to grant an extension for the controversial Lynas plant to operate for another six months in 2019, but dismissed the appeal of Save Malaysia, Stop Lynas activist Tan Bun Teet and two other Kuantan residents, ruling that their application to challenge the approval was superseded by events.

The court ruled that the challenge was rendered academic after Lynas Malaysia Sdn Bhd built a permanent disposal facility (PDF) next to the plant to store the radioactive waste.

A three-member bench led by Datuk Supang Lian, along with Datuk Seri Mariana Yahya and Datuk Azizul Azmi Adnan, noted that there was no remedy that the court could grant in this appeal.

“It [the appeal] is academic due to subsequent events. The decision by the High Court to dismiss the judicial review is affirmed,” Azizul, who read the unanimous decision, said.

The bench ruled that the trio’s legal action was not frivolous or vexatious, and the concerns raised were valid, noting the effects of rare earth processing in Bukit Merah, and hence made no order as to costs following the unsuccessful appeal.

The bench also agreed to a request by Tan’s counsel Datuk Malik Imtiaz Sarwar to remove the High Court’s order that the appellants pay RM20,000 in costs to Lynas and the other defendants. 

Tan, along with Kuantan residents Ismail Abu Bakar and G Ponusamy, on Nov 8, 2019 filed a judicial review against the then 28 Cabinet members, including then prime minister Tun Dr Mahathir Mohamad, Lynas, and the Atomic Energy Licensing Board (AELB) as respondents.

The three individuals, among other things, were seeking a declaration that Mahathir and the 27 ministers’ collective decision as the federal Cabinet on Aug 15, 2019 — to allow a licence extension of six months for the Lynas operation — was null and void.

Tan, also filed his objection to the environmental impact assessment by showing there were breaches to the licensing conditions and underground water pollution as included in the executive review committee report.

On July 28, 2021, High Court judge Datuk Ahmad Kamal Md Shahid dismissed the judicial review application by Tan, Ismail and Ponusamy, and ordered them to pay total costs of RM20,000, as the court then found the application to be frivolous and vexatious.

AELB had announced that the Cabinet approved the six-month extension. AELB then, in March 2023, further extended Lynas' operating licence for another three years, running until March 2026, provided that the PDF is constructed.

On the issue of the Cabinet’s directive for an extension, Azizul and the bench ruled that the senior federal counsel representing the Cabinet ministers had agreed that the decision to grant the extension was wrong, and it should have been first made by the AELB and the then science, technology, environment and innovation minister.

“It cannot be delegated by her [the minister and the AELB] to the Cabinet,” Azizul said.

However, Azizul said as the appellants conceded that what they appealed for had been superseded by events, the court had to dismiss the appeal.

Tan Sri Cecil Abraham appeared for Lynas while senior federal counsel Nur Irmawatie Daud represented the former ministers.