KHAIRUDDIN BIN ABU HASSAN v TAN SRI IDRIS HARUN DALAM KAPASITI

SEBAGAI PEGUAM NEGARA MALAYSIA

HIGH COURT (KUALA LUMPUR)

AHMAD KAMAL MD SHAHID J
PERMOHONAN SEMAKAN KEHAKIMAN NO WA-25-40-02 TAHUN 2021
16 June 2021

Mohd Haniff Khatri Abdullah (Nurul Huda Razali with him) (Haniff Khatri) for the applicant.
Narkunavathy Sundareson (Low Wen Zhen and Noor Atiqah bt Zainal Abidin with her) (Federal Counsel,
Jabatan Peguam Negara) for the Attorney General’s Chambers.

Judgment Introduction

[1]The Applicant had on 03.02.2021 filed an application for leave to commence judicial review (encl. 1) proceedings
pursuant to Order 53 of the Rules of Court 2012 (ROC 2012) seeking, inter alia, the following orders:-
(i) a declaration that the Respondent as the Attorney General of Malaysia is constitutionally obligated under
Article 145(2) of the Federal Constitution (FC), to advise the Yang di-Pertuan Agong (YDPA) and the Prime
Minister aiong with the Cabinet Ministers upon such legal matters, to uphold the FC and the rule of law;
(ii) a declaration that in his capacity as the Attorney General of Malaysia, the Respondent’s action in joining
the Prime Minister’s entourage to meet the YDPA on 11.01.2021, for the purpose of seeking the YDPA to
issue a proclamation of emergency, is unconstitutional and unlawful because as at 11.01.2021, it is prima
facie evident and ought to be apparent to the Respondent that Tan Sri Muhyiddin Yassin as the Prime
Minister had ceased to command the confidence of the majority of the members of the House of
Representatives to remain as the Prime Minister, as provided for under Article 43(4) of the FC;
(iii) a declaration that from 09.01.2021 and thereafter, the Respondent as the Attorney General of Malaysia
failed to perform his duty to advise Tan Sri Muhyiddin Yassin as the Prime Minister, to seek audience of
the YDPA, for the purpose of either to tender his resignation as the Prime Minister or to request that the
YDPA dissolves Parliament, under Article 43(4) of the FC;
(iv) a declaration that from 09.01.2021 and thereafter, the Respondent as the Attorney General of Malaysia
failed to perform his duty to seek audience and advise the YDPA, that Tan Sri Muhyiddin Yassin as the
Prime Minister had ceased to command the confidence of the majority of the members of the House of
Representatives to remain as the Prime Minister, as at 09.01.2021, and that he was no longer in a
constitutional position to give advice to the YDPA in his capacity as the Prime Minister under the FC;
(v) an order of mandamus that the Respondent as the Attorney General of Malaysia advises the Prime
Minister that pursuant to the revocation of support that were earlier given to the Prime Minister, by a
member of parliament for Machang, Datuk Ahmad Jazlan bin Yaakub on 09.01.2021 and member of
parliament for Padang Rengas, Dato’ Sri Mohamed Nazri bin Abdul Aziz on 12.01.2021, it became prima
facie evident that the Prime Minister, Tan Sri Muhyiddin Yassin, had ceased to command the confidence of
the majority of the members of the House of Representatives to remain as the Prime Minister;
(vi) an order of mandamus that the Respondent as the Attorney General of Malaysia, advises Tan Sri
Muhyiddin Yassin as the Prime Minister, who no longer enjoys the confidence of the majority of the
members of Dewan Rakyat, that the Prime Minister is legally obligated to seek audience with the YDPA to
tender resignation along with his cabinet ministers’ unless at his request the YDPA dissolves Parliament,
and the same be read together with the Oath of Office and Allegiance that was affirmed by him when
appointed as the Prime Minister on 01.03.2020, that he will preserve, protect and defend the FC.

[2]The learned Senior Federal Counsel (SFC) from the Attorney General’s Chambers (AGC) who appeared at the
hearing objected to the leave application. The objection was premised on the following grounds:-
 (i) there is no decision, action or omission that is amenable to judicial review;
(ii) the Applicant has no locus standi to apply for judicial review;
(iii) the Application is founded on a factual assumption that is dubious and not established; and
(iv) the relief sought have no practical utility.

[3]After detailed considerations of the Application (encl.1), the affidavits, the SFC’s objection, written submissions
as well as oral submissions by both parties, I allow the objection raised by the learned SFC and dismissed the leave
application (encl. 1) with no order as to costs. This judgment contains the full reasons for my decision.

[4]The relevant cause papers before this court are as follows:-

(i) the application for leave to commence judicial review proceedings dated 03.02.2021 (encl. 1);
(ii) the Applicant’s affidavit in support dated 03.02.2021 (encl. 2); and
(iii) the Statement pursuant to Order 53 rule 3(2) of the ROC 2012 dated 02.02.2021 (encl. 3).

Background Facts

[5]Malaysia’s 14th General Election was held on 09.05.2018 (14th General Election), and pursuant thereto, the
YDPA appointed Tun Dr. Mahathir bin Mohamed as the 7th Prime Minister of Malaysia (7th Prime Minister) under
Article 43(2) of the FC.

[6]However, by the end of February 2020, due to political instability within various parties forming the Government
at that time, the 7th Prime Minister’s Government collapsed for having lost the majority support, and thereafter the
7th Prime Minister resigned on 24.02.2020, as required of him under Article 43(4) of the FC.

[7]The YDPA had thereafter took several actions and steps to inquire as to which member of parliament in his
judgment is likely to command the confidence of the majority of the members of the Dewan Rakyat to be appointed
as the new Prime Minister.

[8]On 01.03.2020, Tan Sri Muhyiddin Yassin was appointed as the 8th Prime Minister (8th Prime Minister),
thereafter and pursuant thereto, the 8th Prime Minister advised the YDPA on the appointment of the other Ministers
in his cabinet.

[9]While the total number of the Dewan Rakyat seats are 222 as at the 14th General Election, but currently there are
only 220 members of Parliaments, because there are two vacant seats after the demise of the Batu Sapi Member of
Parliament, Datuk Lew Vui Keong on 02.10.2020 and Gerik Member of Parliament, Datuk Hasbullah Osman on
16.11.2020.

[10]Considering the proclamation of emergency in Batu Sapi on 17.11.2020 and in Grik on 16.12.2020 upon the
advice of the 8th Prime Minister, there had been no need for a by-election to be held in those constituencies to fill in
the vacancies, until the proclamations of emergency cease to be in force. Therefore, the number of Dewan Rakyat
members that are material in determining the majority support to the current Government would be 220, which
mean that the numbers needed to prove that the 8th Prime Minister enjoys the confidence of the majority of the
members of the Dewan Rakyat would be 110 + 1 =111.

[11]On 15.12.2020, on the third reading of the 2021 Budget (Belanjawan 2021), through a split vote, the Speaker
of the Dewan Rakyat had announced that the Belanjawan 2021 was supported by 111 members of the Dewan
Rakyat, which support could be taken as an objective that as at 15.12.2020, the 8th Prime Minister had the support
of 111 members of the Dewan Rakyat.

[12]However, on 09.01.2021, the member of parliament for Machang, Datuk Ahmad Jazlan bin Yaakub had
declared that he had revoked his support that was earlier given to the 8th Prime Minister.
[13]On 11.01.2021, the 8th Prime Minister met the YDPA along with his entourage which included the Respondent
herein in his capacity as the Attorney General of Malaysia, to advice the YDPA to proclaim an Emergency due to
the Covid-19 pandemic situation (The Cabinet Ministers’ Advice for Covid-19 Proclamation of Emergency).

[14]Further, on 12.01.2021 a member of parliament for Padang Rengas, Dato’ Sri Mohamed Nazri bin Abdul Aziz,
had also declared that he revokes his support that was earlier given to the 8th Prime Minister.
The Law

[15]The Federal Court in WRP Asia Pacific Sdn Bhd v. Tenaga Nasionai Bhd [2012] 4 CLJ 478; [2012] 4 MLRA
257; [2012] 4 MLJ 296 at 303, speaking through Suriyadi Halim Omar FCJ (as he then was) held:

“..Leave may be granted if the leave application is not thought of as frivolous, and if leave is granted, an arguable case in
favour of granting the relief sought at the substantive hearing may be the resultant outcome. A rider must be attached to the
application though ie unless the matter for judicial review is amenable to judicial review absolutely no success may be
envisaged

[16]The test laid down for leave to commence a judicial review in WRP Asia Pacific Sdn Bhd (supra) are as
follows:
(i) whether the subject matter is amenable to judicial review; and if so
(ii) from the materials available, whether the application is frivolous and if not thought as frivolous, to consider
that the applicant has an arguable case to obtain the relief sought at the substantive hearing.

[17]The principles governing applications for leave to commence judicial review proceedings have also been set out
in Tang Kwor Ham & Ors v. Pengurusan Danaharta Nasional Bhd & Ors [2006] 1 MLRH 507; [2006] 1 CLJ 927;
[2006] 5 MLJ 60 at 69 where Gopal Sri Ram JCA (as he then was) held:

[10] “....the High Court should not go into the merits of the case at the leave stage. Its role is only to see if the application for
leave is frivolous.... So too will the court be entitled to refuse leave if it is a case where the subject matter of the review is
one which by settled law (either written law or the common law) is non-justiciable.”

[18]It is trite that the Applicant will have to satisfy the tests propounded in the abovementioned cases in order to
secure the leave to commence the judicial review proceedings. At this stage, the court need not go into merits of
the case, but only to see if the subject matter is amenable to judicial review or whether the application for leave is
frivolous.
Decision of the Court

[19]Having perused the cause papers, l am of the view that the issues to be determined are as follows:-
(i) Whether the decision, action or omission by the Respondent pursuant to Article 145(2) of the FC is
reviewable under Order 53 of the ROC 2012?
(ii) Whether the Applicant has fulfilled the procedural requirement of locus standi?

First issue: Whether the decision, action or omission by the Respondent pursuant to Article 145 (2) of the FC is
reviewable under Order 53 of the ROC 2012?

[20]The SFC in this matter submitted that the requirements of Order 53 of the ROC 2012 are mandatory and must
be complied with, failing which the application would not be entertained by the Court.

[21]Order 53 rule 2 (4) of the ROC 2012 reads as follows:

“(4) Any person who is adversely affected by the decision, action or omission in relation to the exercise of the public duty or
function shall be entitled to make the application.”
[22]The SFC claimed that the Applicant does not pass the threshold test since the Applicant failed to show that the
Respondent has made a “decision, action or omission” within the meaning of Order 53 rule 2(4) of the ROC 2012
and does not have an arguable case that needs further investigation on an inter partes basis.

[23]The SFC stated that the three purported “decision, action or omission” of the Respondent that the Applicant
seeks to challenge are:
(i) being together with the Prime Minister and his entourage during the audience with the YDPA;
(ii) failing to advise the Prime Minister to resign or request the dissolution of the Dewan Rakyat; and
(iii) failing to advise the YDPA on the Prime Minister’s purported loss of majority.

[24]The SFC further claimed that none of the three aforementioned “decision, act or omission” have any legal
effect. It has not been shown that the Respondent’s presence of “being together” and purported failure to advise
was binding on the Prime Minister, the YDPA or indeed anyone. These events are not in any way conclusive or
final. They do not directly affect any party, by either altering his legal rights or obligations or depriving him of the
benefits which he has been permitted to enjoy. Thus, there is no “decision, action or omission” that has “adversely
affected” the Applicant for the purposes of Order 53 rule 2 (4) of the ROC 2012. The acts sought to be reviewed by
the Applicant simply do not fall within the ambit of Order 53 of the ROC 2012.

[25]The Applicant in his affidavit and Statement did not state what is the legal effect, if any, or the three impugned
acts. There is no provision in the FC to suggest that these impugned acts are of any legal effect.

[26]The Applicant contended otherwise. It is the Applicant’s case that when the Respondent in his capacity joined
the Prime Minister, Tan Sri Muhyiddin Yassin entourage to meet and advice the YDPA to proclaim an Emergency
due to the Covid-19 pandemic situation, the Respondent had breached his constitutional duty as follows:
(i) for having omitted to advise the Prime Minister, as the Respondent in his capacity as the Attorney General
is required to do under Article 145 (2) of the FC, that the Prime Minister had ceased to command the
majority support of the members of the Dewan Rakyat as at 09.01.2021;
(ii) for having omitted to advise the Prime Minister, as the Respondent in his capacity as the Attorney General
is required to do under Article 145 (2) of the FC, that having evidently lost the command of the majority
support of the members of the Dewan Rakyat, the Prime Minister is required under the Article 43(4) of the
FC to tender his resignation to the YDPA, unless at his request the YDPA dissolves the Parliament;
(iii) for having omitted to advise the Prime Minister, as the Respondent in his capacity as the Attorney General
is required to do under Article 145 (2) of the FC, that having evidently lost the command of the majority
support of the members of the Dewan Rakyat, the Prime Minister or his Cabinet Ministers are not in the
position to provide the Cabinet Minister’s advice for Covid-19 Proclamation of Emergency to the YDPA, as
the Prime Minister and his Cabinet Ministers had lost their legitimacy to remain in the YDPA’s government;
and
(iv) for having omitted to advise the YDPA, as the Respondent in his capacity as the Attorney General is
required to do under Article 145 (2) of the FC, of all the above mentioned particulars and positions of law in
(i), (ii) and (iii) to the YDPA.

[27]Thus, the Applicant submitted that the failure of the Respondent in his capacity as the Attorney General of
Malaysia to perform his constitutional duty under Article 145(2) of the FC, as particularised in the above, had
adversely affected the Applicant.

[28]The Applicant further submitted that this is not a political case, the issue that is being raised in this application
for leave to review is purely legal and constitutional, namely the omissions of the Respondent to advise the Prime
Minister and his Cabinet Ministers, as well as the YDPA “upon such legal matters”, which must necessarily include
the provision of Article 43(4) of the FC, on the steps and actions required to be taken, when there are evidence of
prima facie nature that the Prime Minister having ceased to command the majority confidence of the Dewan Rakyat.
[29]It was further argued by the Applicant that there is a mandatory duty on the Respondent as the Attorney
General to advise the Prime Minister under Article 145(2) of the FC “upon such legal matters”, in fact the content of
the advice about Article 43(4) of the FC itself is so mandatory in nature upon the Prime Minister. It is mandatory
constitutional requirement in the power of two, and coupled further with the oath of office and allegiance subscribed
by the Prime Minister when he was appointed as the Prime Minister. When the Constitution provides that a duty is
mandatory, the Respondent cannot, constitutionally, use his discretion to omit from performing such mandatory
constitutional obligations.

[30]The Applicant added that this reason alone should be sufficient for this Court to allow leave to judicially review
the Respondent’s omissions and no way the Applicant’s application herein be categorized as to be frivolous and
vexatious and hopeless, trivial complaints, misconceived or unarguable or groundless.

[31]The issue is whether what the Respondent did as contended by the Applicant are decisions which are
amenable to judicial review. To start with, it is important that the duty of the Respondent under the FC be properly
understood. For convenience, the relevant provisions of Articles 145(2) of the FC is produced as follows:

“Attorney General

145. (1) The Yang di-Pertuan Agong shall, on the advice of the Prime Minister; appoint a person who is qualified to be a
judge of the Federal Court to be the Attorney General for the Federation.

(2) It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon
such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned
to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this
Constitution or any other written law.”

[32]Clearly, the duty of the Respondent under Article 145(2) of the FC is only to advise. The Federal Court
speaking through Raus Sharif FCJ (as he then was) in Members of the Commission of Enquiry on the Video dip
Recording of Images of A Person Purported to be an Advocate and Solicitor Speaking on Telephone on Matters of
Appointment of Judges v Tun Dato’ Seri Ahmad Fairuz bin Dato’Sheikh Abdul Halim [2011] 6 MLJ 490; [2012] 1
CLJ 805; [2012] 2 MLRA 197 had outlined the applicable principles with regards to the decision, action or omission
that must have adversely affected a person as enunciated through Order 53 rule 2(4) of the ROC 2012 as follows:
(i) to fall within the ambit of Order 53 rule 2(4) of the ROC 2012, a decision “must affect the aggrieved party
by either altering his rights or obligations or depriving him of the benefits which he has been permitted to
enjoy” (paragraph 26);
(ii) the decision must have the effect of directly affecting the Applicant’s legal rights (paragraph 28-29). It must
be a “legal and binding decision” (paragraph 38);
(iii) a mere finding or recommendation, which is not binding on anybody and has no legal effect on the right of
a subject, is not amenable to judicial review (paragraph 27, 39);
(iv) where the impugned acts are not decisions that affect the rights of the Applicants, the application should be
dismissed at leave stage. It is not necessary to grant leave to determine the issue at the substantive
hearing (paragraph 40).

[33]Article 145(2) of the FC was further discussed in Messrs Tai Choi Yu & Co, Advocates (suing as a firm and Tai
Choi Yu as sole proprietor) v Arifin bin Zakaria & Anor [2020] 5 MLJ 207 at 215

where Stephen Chung JCA (as he then was) delivering judgment of the court held that:

[16] “....Under art 145(2) of the Federal Constitution (‘the Constitution’), it shall be the duty of the AG to perform such other
duties of a legal character and to discharge the functions conferred on him by or under the Constitution or any written law.”

[34]It is obvious that the application made before this Court is based on the omissions of the Respondent to advise
the Prime Minister and his Cabinet Ministers, as well as the YDPA of the provision of Article 43(4) of the FC. It was
mentioned by the Applicant that it was evidently apparent the Prime Minister has ceased to command the majority
support of the members of the Dewan Rakyat.

[35]It is my view that the Applicant’s assumption that the Prime Minister no longer has the confidence of a majority
of members in the Dewan Rakyat to maintain his position as the Prime Minister must be established. It must be
determined in any forum or by any authority which is not the case in this application. The assertion is presented as
a fait accompli to be accepted as an unquestionable statement of fact.

[36]In addition to that, I am of the opinion that all the reliefs sought for are subject to a common factual assumption
that is by definition unproven, and the factual issue itself is not even stated as a relief to be determined by this
Court. Since the underlying factual assumption has not been established, the reliefs sought cannot possibly be
granted by this Court. It is not the role of the Court to decide on abstract or hypothetical questions which do not
impact the legal rights and obligations of the parties before them. Reliefs will not be ordered if they are of no useful
purpose.

[37]The Federal Court in Bar Council Malaysia v Tun Dato’ Seri Arifin bin Zakaria & Ors (Persatuan Peguam-
Peguam Muslim Malaysia, intervener) and another appeal [2018] 5 MLRA 345; [2020] 4 MLJ 773 on references of
constitutional questions raised the issue of whether the appointments of the second and the third Respondents as
the Chief Justice of Malaysia and the President of the Court of Appeal respectively, after their mandatory
retirements, were valid and constitutional held at paragraph 63 as follows:

“[63] We agree with the attorney general chambers that the issues in the motion are academic and that a judgment need
not be issued by this court. We reiterate the view that it is not the function of the courts to decide hypothetical
questions which do not impact on the parties before them.

This point was well put by the Lord Justice Cierk (Thomson) in Macnaughton v Macnaughton Trustees 1953 SC 387 at p
392:

Our courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to
decide only live, practical questions, and that they have no concern with hypothetical, premature or academic
questions, nor do they exists to advise litigants as to the policy which they should adopt in the ordering of their affairs.
The courts are neither a debating club nor an advisory bureau. Just what is a live practical question is not always easy
to decide and must, in the long run, turn on the circumstances of the particular case.”

(emphasis added)

[38]I share the same view with the learned SFC that there is nothing to indicate the Respondent’s impugned acts
being together with the Prime Minister’s entourage, or omitting to advise the Prime Minister and/or the YDPA
pursuant to Article 145 (2) of the FC has any legal effect. The reliefs sought will also not affect the legal positions of
the parties. As an illustration, it would serve no practical utility if the Respondent is compelled by an order of
mandamus to advise the Prime Minister and the YDPA in the terms sought by the Applicant; such advice would
have no binding legal effect and will not alter the legal position of the Applicant or any other person.

[39]Accordingly, it is apparent that the said omission in this application does not fall within the ambit of Order 53
rule 2(4) of the ROC 2012 hence not amenable for judicial review. There were no decisions of the Respondent that
are amenable for judicial review.
Second issue: Whether the Applicant has fulfilled the procedural requirement of locus standi?

[40]To establish locus standi, the Applicant claimed that he is a Malaysian citizen and a tax payer therefore has
genuine and legitimate interest on the public affairs of Malaysia, particularly with regards to governance and
formation of government.

[41]The Applicant also claimed that he is a voter and therefore has a genuine and legitimate interest in the
accountability of the government to uphold the rule of law and the sanctity of the FC.
[42]It is clearly outlined in Order 53 rule 2(4) of the ROC 2012 that to have a locus standi in a judicial review
application, the Applicant must be ‘adversely affected’ by the decision, action or omission of any public authority in
relation to the exercise of its public duty or function.

[43]It should be stressed that where there is no decision, action or omission falling within the ambit of Order 53 rule
2(4) of the ROC 2012, the Applicant cannot be said to be a person “adversely affected” by the same. In the
absence of such a decision, the Applicant lacks locus standi to make the application.

[44]The Federal Court in Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor
[2014] 2 MLRA 1; ; [2014] 3 MLJ 145 held that the test laid down by the then Supreme Court in Government of
Malaysia v Lim Kit Siang [1988] 1 CLJ 63; ; [1988] 1 MLRA 178; [1988] 2 MLJ 12 to determine whether a claimant
has a locus standi to bring an action was no longer applicable in respect of judicial review proceedings.

[45]The Federal Court held at page 146 as follows:

“
(1) The test in Lim Kit Siang’s case was not propounded in respect of judicial review proceedings but to a claim
brought in private law. However, in the instant case, the appellants made the application under 053 of the ROC to
seek remedies which were classified as public law remedies. As such, the test propounded in the Lim Kit Siang’s
case was not applicable to the present proceedings. Instead the ‘adversely affected test’, a single test for all
the remedies provided for under O 53 of the ROC was to be preferred.
(2) In order for an applicant to pass the ‘adversely affected test’, the applicant had to show he had a real and
genuine interest in the subject matter, which was different from the ‘sufficient interest’ test applied to English
cases under the English Supreme Court Rules 1977. As the second to fourteenth appellants had not made a
request for access to the two documents, they were clearly strangers to the application by MTUC for disclosure of
and access to the two documents. Hence, the majority of the Court of Appeal had correctly decided that the
decision of the Minister in rejecting MTUC’s application did not make the second to fourteenth appellants persons
who were ‘adversely affected’ by the Minister’s decision. The second to 14th appellants had not satisfied the test
of threshold locus standi under O53 r 2(4) of the ROC and as such they were not entitled to the reliefs sought in
their application.
(3) As rightly observed by the majority of the Court of Appeal, MTUC’s cause of action was based upon its alleged
right of access to the two documents it had requested for to prove its claim that there was no transparency in the
Minister’s decision to increase the water tariffs by 15%. Upon looking at the whole legal and factual context of the
application, it was clear that MTUC had shown a real and genuine interest in the two documents. Hence, MTUC
was adversely affected by the Minister’s decision.
(4) The audit report had been tabled before and deliberated by the Cabinet in its meeting. As such, it was an official
secret document for the purposes of s 2 of the Official Secrets Act 1972 and the Minister was prevented from
disclosing it. With regard to the concession agreement, cl 45 of the agreement prohibited the respondents from
disclosing its contents to a third party without the agreement of the other parties. As such, the majority of the
Court of Appeal was correct in finding that the Minster was not wrong in his decision to refuse MTUC access to
the said agreement. MTUC had failed to show that the Minster’s decision was illegal, irrationai and flawed on the
ground of procedural impropriety. Hence, although MTUC had the locus standi to bring this action, it was not
entitled to obtain the reliefs it sought As this was a public interest litigation, there would be no order as to costs at
all levels.”

(emphasis added)

[46]Hasan Lah FCJ (as he then was) in delivering judgment of the Federal Court adopted the above principles laid
down in QSR Brands Bhd v Suruhanjaya Sekuriti & Anor [2006] 1 MLRA 516; [2006] 3 AMR 320; [2006] 3 MLJ
164; [2006] 2 CLJ 532 where the Court of Appeal held as follows:

“[16] It is to rid this dichotomous approach which often produced injustice that 0.53 in its present form was introduced.
There is a single test of threshold locus standi for all the remedies that are available under the order. It is that the
applicant should be “adversely affected”. The phrase calls for a flexible approach. It is for the applicant to show
 that he falls within the factual spectrum that is covered by the words “adversely affected” At one end of the
spectrum are cases where the particular applicant has an obviously sufficient personal interest in the legality of
the action impugned...

[17] At the other end of the spectrum are cases where the nexus between the applicant and the legality of the action under
challenge is so tenuous that the court may be entitled to disregard it as de minimis. In the middle of the spectrum are cases
which are in the nature of a public interest litigation. The test for determining whether an application is a public interest
litigation is that laid down by the Supreme Court of India in Malik Brothers v Narendra Dadhich AIR [1999] SC 3211,
where, when granting leave, it was said:

Public interest litigation is usually entertained by a court for the purpose of redressing public injury, enforcing public
duty, protecting social rights and vindicating public interest. The real purpose of entertaining such application is the
vindication of the rule of law, effective access to justice to the economically weaker class and meaningful realisation of
the fundamental rights. The directions and commands issued by the courts of law in public interest litigation are for
the betterment of the society at large and not for benefiting any individual. But if the Court finds that in the
garb of a public interest litigation actually an individual’s interest is sought to be carried out or protected, it
would be bounden duty of the court not to entertain such petition as otherwise the very purpose of innovation
of public interest litigation will be frustrated ”

(emphasis added)

[47]In another case, it was held that an Applicant in seeking the declaratory order must establish that he had
acquired a legal status or right against the Respondent which required to be protected by the declaratory order.
This was highlighted by the Court of Appeal in the case of Ketua Pengarah Hasii Daiam Negeri v Mudah.my Sdn
Bhd [2017] MLRAU 80; [2017] 2 MLJ 197 at 210 in the following:

“[15] The learned judge in the above case accepted the above contentions and decided that the action of the respondent in
computing the applicant’s chargeable income on certain principles and its refusal to budge from those principles did not
resemble a decision within the meaning of O 53r 2(4) of the Rules of the High Court 1980. The applicant had not acquired
any status or right against the respondent which required to be protected by declaratory orders. In the absence of a
decision by the respondent, the applicant not only lacked a sufficient interest or locus standi to make the
application, but that its application was premature. We accept that for there to be a judicial review of executive
action under O 53 of the ROC 2012, there must first be a decision by the public authority. That, we discern, is the
statutory requirement and well-established legal principle repeated and applied by our courts. Applying the above
decision, of which we were entirely in agreement, we would hold that in the absence of a decision by the appellant,
the respondent not only lacked a sufficient interest or locus standi to make the application, but that its application
was patently premature. More significantly, we would say that, as the audit findings and issues stated in the letter
of findings did not resemble a decision, there was consequently no decision from which this court could justifiably
say that the respondent was adversely affected and thus order it to be quashed. The learned judge had
erroneously found that the letter of findings was a decision and hence the application was not filed prematurely: We
could not therefore accede to the argument urged for the respondent that as the language of the letter of findings was very
clear the application was not premature.”

(emphasis added)

[48]In addition to that, for mandamus, conditions in section 44 of the Specific Relief Act 1950 (SRA 1950) must be
fulfilled by the Applicant. For ease of reference, section 44 of the SRA 1950 is produced herein:

“Power to order public servants and others to do certain specific acts

44, (1) A Judge may make an order requiring any specific act to be done or forborne, by any person holding a public office,
whether of a permanent or a temporary nature, or by any corporation or any court subordinate to the High Court:

Provided that—
(a) an application for such an order be made by some person whose property, franchise, or personal right would be
injured by the forbearing or doing, as the case may be, of the said specific act;
 (b) such doing or forbearing is, under any law for the time being in force, clearly incumbent on the person or court in
his or its public character, or on the corporation in its corporate character;
(c) in the opinion of the Judge the doing or forbearing is consonant to right and justice;
(d) the applicant has no other specific and adequate legal remedy; and
(e) the remedy given by the order applied for will be complete.

(2) Nothing in this section shall be deemed to authorize a Judge—

(a) to make any order binding on the Yang di-Pertuan Agong;
(b) to make any order on any servant of any Government in Malaysia, as such, merely to enforce the satisfaction of a
claim upon that Government; or
(c) to make any order which is otherwise expressly excluded by any law for the time being in force.”

[49]The Applicant must have a specific legal right to ask the Court to exercise its discretion to issue the order of
mandamus as provided in the case of Semantan Estate (1952) Sdn Bhd v Collector of Land Revenue Wilayah
Persekutuan [1987] 1 MLRA 140; [1987] 2 MLJ 346 at 349 where Lee Hun Hoe, CJ Borneo (as he then was) had
stated as follows:

“Then there is the important question of the appellant’s standing. He must have a specific legal right to ask the court to
exercise its discretion to issue the order of mandamus. Such discretion must be exercised judicially. If the
appellant has no such right then he is not entitled to mandamus. As has been pointed out he has a right of appeal
against the decision of the High Court in refusing to hear the reference. He has failed to avail himself of the alternative
remedy. This point was not seriously contended by the parties before the learned Judge. We think it is too late for him to
say he has no alternative remedy. Accordingly, we are of the view that he has no specific legal right to apply for mandamus
in this case.”

(emphasis added)

[50]The Applicant must also show in his affidavit in support that his personal right would be injured by the alleged
omission of the Respondent.

[51]In Karpal Singh Ram Singh v Ketua Hakim Negara [2011] 1 MLRH 23; [2011] 4 CLJ 179 at 189, the Applicant
applied, inter alia, for an order of mandamus to issue against the Respondent, the Chief Justice of Malaysia,
directing the Respondent to respond to the Applicant’s request vide letter dated 01.12.2010, that the Respondent
recuse himself from determining the merits of a complaint by the Applicant against the Respondent under section
13 of the Judges’ Code of Ethics 2009. Aziah Ali J (as she then was) had mentioned as follows:

“[9] Section 44(1) of the SRA empowers the court to make an order in the nature of mandamus against any person holding
public office requiring him to do certain specific acts subject to the fulfilment of the five conditions set out therein. However,
“The application must be founded on an affidavit of the person injured, stating his right in the matter in question, his
demand of justice and the denial thereof... The court must be satisfied that all the conditions laid down in the proviso to s.
44(1) of the Specific Relief Act are fulfilled...” (Ng Bee v. Chairman, Town Council, Kuala Pilah, supra). In Ta Wu Realty
Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri & Anor [2008] 6 CLJ 235 the Court of Appeal said:

An application for leave must be supported by a statement setting out the name and description of the applicant, the
relief sought and the grounds on which it is sought, and by affidavits verifying the facts relied on ... It is in this affidavit
too that the applicant must state the particular decision under attack. If the decision was arrived at not in accordance
with law then the facts or illegality must be stated in the affidavit. In a nutshell the supporting affidavit must be
sufficiently complete to persuade the judge that the application before him was not frivolous and vexatious and that
there was substance in the grounds to support the application, (emphasis added)

The applicant herein must show in his affidavit in support of his application that his personal right would be
injured by the alleged failure and/or refusal of the respondent to respond to his letter dated 1 December 2010. If the
applicant fails to show that he has a legal right to the relief sought then he is not entitled to mandamus (Semantan
 Estate [1952] Sdn Bhd v. Collector of Land Revenue Wilayah Persekutuan; Ng Bee v. Chairman, Town Council, Kuala
Pilah, supra).

[10] I have perused the applicant’s supporting affidavit in which the applicant avers that he is a Malaysian citizen and the
Member of Parliament for Bukit Gelugor. The applicant contends that as a citizen and advocate and solicitor he has the
locus standi to bring an action against a judge for misconduct as he is duty bound to ensure a judge does not contravene
the Code. In my considered opinion the right to lodge a complaint under s. 12 of the Code and the right to obtain an order of
mandamus as prayed for by the applicant ought to be distinguished. One is not synonymous with the other. To my mind
although the applicant has a right as a citizen, a Member of Parliament and an advocate and solicitor to lodge a
complaint under s. 12 of the Code, this alone does not ipso facto confer him with the locus standi to obtain the
relief prayed for unless the applicant satisfies the requirements of s. 44(1). I agree with the Attorney General that
insofar as the application for mandamus against the respondent is concerned, on the authority of Koon Hoi Chow
v. Pretam Singh (supra), the applicant must satisfy all of the five conditions under s. 44(1)(a).”

(emphasis added)

[52]Back to the present case, it is my view that the Applicant has not shown how he had been adversely affected by
the Respondent’s omission. There was no proof that the Applicant has any specific legal right or real and genuine
legal interest in this subject matter.

[53]The Applicant in his statement and his affidavit had claimed that he does not need to demonstrate locus standi
for judicial review because the phrase ‘adversely affected’ for obtaining prior permission to bring this case under the
FC is not required. The Applicant sought to anticipate the issue of locus standi by citing a previous action he
instituted wherein locus standi was not an issue.

[54]I am of the view that the above submission by the Applicant is without merit. The Federal Court’s decisions
have clearly provided for the requirement of locus standi and its threshold test. (See Members of the Commission
of Enquiry on the Video dip Recording of Images of A Person Purported to be an Advocate and Solicitor
Speaking on Telephone on Matters of Appointment of Judges v Tun Dato’ Seri Ahmad Fairuz bin Dato’
Sheikh Abdul Haiim (supra); Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi
& Anor (supra); QSR Brands Bhd v Suruhanjaya Sekuriti & Anor (supra)).

[55]To my mind, the Applicant has neither proved nor shown that he had been adversely affected, and that he has
real and genuine interest in the subject matter. The Applicant, therefore has no locus standi to bring the present
judicial review proceedings. More importantly, the legal threshold of locus standi set out under Order 53 of the ROC
2012 had not been satisfied.

[56]Lastly, I also wish to highlight that there is a spelling error in the Respondent’s name. The application was made
against Tan Sri Idris Harun, whereas it should be Tan Sri Idrus Harun. It could be argued that the Applicant has
brought an action against the wrong party. However, this is a minor issue since there is only one person who is
holding the post of Attorney General. There could not be any other person holding such post in the country.
Conclusion

[57]Bearing in mind that this is an application for leave to commence judicial review proceedings under Order 53 of
the ROC 2012, it is trite that test for leave to commence with judicial review be complied with.

[58]Having considered the application, I am of the opinion that the subject matter of this application is not amenable
to judicial review.

[59]Further, the Applicant has failed to show that he was adversely affected by the Respondent’s omission. There
was no proof that the Applicant has any specific legal right or real and genuine legal interest in this subject matter.
More importantly, the Applicant has failed the test of locus standi.

[60]In addition to that, I also reiterate that the Applicant has failed to show an arguable case in order to obtain the
order of declaration and mandamus at the substantive stage. The order sought by the Applicant is frivolous in
nature.

[61]Thus, it is my opinion that the Applicant has failed to cross the hurdle of the judicial review test. It is clear that
there is no arguable case for the Applicant. This application for leave is frivolous.

[62]Based on the above reasoning, this court allow the learned SFC’s objection and dismissed the Applicant’s
Application (encl. 1) with no order as to costs.