Is Public Interest Litigation Becoming More Prevalent In Malaysia?

• Published date: 12 May 2023
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: Azmi & Associates
• Author: Ms Gabrielle Lim Wai Yee and Heu Wen Yen

Public interest is a branch of administrative law which involves judicial review of administrative actions plays a pivotal role in an administrative state such as Malaysia, particularly in the promotion of good governance. In fact, in an administrative state, one of the benefits of public interest litigation will be its contribution towards improving the quality of public administration as well as the system of accountability and transparency in government decision-making¹. Providing a stimulus to the growth of a good public administration should in turn benefit the citizens as a whole in their dealings with public authorities².

In this regard, public interest litigation can bring greater awareness of the benefits of good governance to the public. It does not matter if an activist or NGO fails in their attempts to do so³. As public interest litigation actions often generate wide publicity, the impact of it in the minds of the public is sufficient to promote the importance of good governance⁴. This will help complement the government's efforts in achieving a good public administration which provides the check and balance against executive actions in Malaysia. The traditional view of locus standi permits that only an aggrieved individual having personally suffered a legal injury by reason of a violation of his rights or legally protected interest can file a lawsuit for the redress of his grievances⁵. Although this standing rule assists the Court in filtering applications to prevent unnecessary litigation against the public bodies, but the Court's jurisdiction to supervise administrative authorities would be substantially weakened if the accessibility of judicial review is confined on the sole ground what could be properly viewed as a personal interest⁶. Hence, the involvement of public interest litigation in judicial review proceedings plays a substantial part in maintaining the rule of law.

Since its formation, Malaysia had no strong tradition of public interest litigation despite the existence of a written Constitution containing a bill of rights. This was partly due to the impediment in the case of Government of Malaysia v Lim Kit Siang United Engineers (M) Berhad v Lim Kit Siang⁷ which marked the courts' fundamental shift from a liberal approach to a restrictive one in terms of the locus standi which required a public interest litigant to show that his private right had been infringed or he had suffered a special damage, before his action against the...