High Court strikes out lawyer's KL-SG HSR suit as matter is non-justiciable, beyond court's purview

• "The distinction between the roles of the court and the government is at the heart of the constitutional balance. Engaging the subject matter of the plaintiff's claim would set a precedent for the judiciary to interfere in areas that are fundamentally policy-driven and politically charged. This would lead to judicial overreach, when courts take on roles that are not within their judicial purview, potentially undermining the balance of powers within the government.”

KUALA LUMPUR (Dec 15): The High Court has struck out a civil suit by lawyer Mohd Hatta Sanuri against former prime ministers Tun Dr Mahathir Mohamad and Tan Sri Muhyiddin Yassin, the government of Malaysia and several others, over the cancellation of the Kuala Lumpur-Singapore high-speed rail (KL-SG HSR) project in 2021.

Judicial Commissioner Roz Mawar Rozain, in delivering her judgement on Friday, agreed with the defendants' submissions that the subject matter of the suit, involving public policy decisions made by the Cabinet, is non-justiciable and beyond the court's judicial purview.

"The distinction between the roles of the court and the government is at the heart of the constitutional balance.

"Engaging the subject matter of the plaintiff's claim would set a precedent for the judiciary to interfere in areas that are fundamentally policy-driven and politically charged. This would lead to judicial overreach, when courts take on roles that are not within their judicial purview, potentially undermining the balance of powers within the government.

"Judicial restraint is necessary here to maintain the integrity of the judiciary, and to ensure that it does not overstep its constitutional role," she said in her judgement.

Roz Mawar further argued that Mohd Hatta had no locus standi (legal right) to initiate the suit, as he had failed to establish a sufficient legal interest or direct personal injury resulting from the defendants' actions.

"The concept of locus standi, which is pivotal in our legal system, is to ensure that only those directly affected by a matter have a standing to bring the suit. In this case, the plaintiff's capacity to represent the interest of all Malaysian citizens in a legal capacity is not substantiated by the relevant legal standards in his statement of claim (SOC)," she said.

"Moreover, it is observed that [despite] the plaintiff's claim to represent the Malaysian public, [he] had failed to disclose in his SOC that he was indeed authorised or appointed to represent each Malaysian taxpayer or citizen," Roz Mawar added.

The JC also found that there was an abuse of the court process, contending that the suit was not filed by the plaintiff in good faith. As such, the court ordered costs of RM10,000 against Mohd Hatta.

"In his gallant fashion, the plaintiff claimed that the defendants had wrongfully used funds of the Malaysian public in the payment for compensation to Singapore for the termination of the HSR project. Yet, he embarked on this suit that incurred public costs, whereby precious judicial time and resources had to be spent to go through the plaintiff's lengthy and convoluted SOC, which did not disclose a reasonable course of action.

"The prayers sought for spelled out the motive of the plaintiff's action, which was immediate monetary gains. The plaintiff had monetary gains as the end goal, and that would be from the defendants' coffers, from the fifth defendant (the government of Malaysia), which would be from the public funds as well," Roz Mawar said.

Mohd Hatta was represented on Friday by counsel Nur Izatul Nabila Nazarudin, while the defendants were represented by senior federal counsel Donald Joseph Franklin. 

Mohd Hatta, a lawyer by profession, filed the suit in December last year for alleged negligence and misconduct over the suspension and cancellation of the RM110 billion KL-SG HSR project, naming the two former prime ministers, former minister in the Prime Minister’s Department in charge of economy Datuk Seri Mustapha Mohamed, former transport minister Datuk Seri Dr Wee Ka Siong, and the Malaysian government as defendants.

Among others, he was seeking for the KL-SG HSR project to be revived, and the defendants be ordered to pay RM1 million compensation to each Malaysian.

The project, which consisted of a 350km railway line, was to be completed in 2026, reducing travel time between both destinations to 90 minutes. The bilateral agreement was initially signed in December 2016, but was later put on hold in September 2018.

Both Malaysia and Singapore subsequently agreed to hit pause on the project until December 2020.

In January 2021, both countries jointly announced the termination of the project, as no agreement had been reached on the changes proposed by Malaysia, and the agreement expired on Dec 31, 2020.

Two months later in March 2021, Malaysia announced that it had paid S$102.8 million (RM330 million) to Singapore for the cost incurred by the republic for the development of the HSR and the delays involved.

In July this year, Malaysia attempted to revive the line by making a request for information (RFI) from international and local companies. MyHSR Corp Sdn Bhd, the project's asset owner and developer, extended the deadline for the RFI by two months to Jan 15, 2024 to allow these companies time to form their consortia and secure funding, said then deputy finance minister I Datuk Seri Ahmad Maslan, who is now the deputy works minister.

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