The court upheld that the proposed intervenor, having no legal interest in the judicial review proceedings, could not intervene under Order 15 r 6(2)(b) of the Rules of the High Courts.

Raus Sharif JCA (delivering majority judgment):

This is an appeal against the decision of Shah Alam High Court dismissing the Majlis Agama Islam Selangor’s (‘MAIS’) application for leave to intervene into the judicial review proceedings filed by owners of the residential units in Kota Kemuning and Kemuning Greenville, Shah Alam, Selangor (‘the applicants’).

In the judicial review proceedings the applicants were seeking before the High Court, inter alia, to review the decision of Majlis Bandaraya Shah Alam’s decision (‘MBSA’) in allowing a vacant land about 13.84 acres at No 5, Persiaran Anggerik Eria 31/22, Kota Kemuning, Shah Alam, Selangor (‘the vacant land’) to be used as a burial ground.

On 9 July 2008 we heard this appeal whereafter by majority, we dismissed it with costs (Abdul Malik Ishak JCA dissenting).

In essence MAIS’s application to intervene was based on the fact that MAIS had commenced an action in the Shariah High Court, Shah Alam vide Summons No 10200–07–0235 of 2007 (‘Shariah High Court Summons’) for a declaration that the vacant land is a wakaf land, and the Shariah High Court of having an exclusive jurisdiction to decide on the issue of wakaf. It was argued that under s 7(1) of the Administration of Religion of Islam (State of Selangor) Enactment 2003 MAIS has a duty ‘to promote, stimulate facilitate and undertake the economic and social development of the Muslim community in the State of Selangor consistent with hukum Syarak. In light of the aforesaid duties, MAIS has a legal interest in the judicial review proceedings. It was further argued that MAIS needed to be made a party in the judicial review proceedings in order to support the impugned decision of MBSA. This is to ensure that the Shah Alam Shariah High Court Summon will not be rendered otiose. [2008] 6 MLJ 488 at 494 MAIS’s application for leave to intervene was filed in pursuant to O 15 r 6(2)(b) of the Rules of the High Courts 1980 (‘RHC’). The rule reads as follows:

(2)At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application —

(b)order any of the following persons to be added as a party, namely —

(i)any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii)any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter. but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.

The learned High Court judge (‘the learned judge’) held that O 15 r 6(2) of the RHC is applicable to judicial review proceedings. However, she went on to hold that MAIS has failed to satisfy the requirements of O 15 r 6(2) of the RHC and that there is no necessity for MAIS to be joined as an intervener. Accordingly, she dismissed MAIS’s application with costs.

We are in agreement with the decision of the learned judge in dismissing MAIS’s application. However, we would like to take another step further by holding that O 15 r 6(2) of the RHC is not applicable to judicial review proceedings.

Under the RHC, applications for judicial review are governed by O 53. It is a specific order and there are provisions in the order which cater to parties wanting to be heard on matters in issue in a judicial review proceedings. This is found in O 53 r 8(1) which provides as follows:

Order 53 r 8

(1)Upon the hearing of an application for judicial review, any person who desires to be heard in opposition to the application and appears [2008] 6 MLJ 488 at 495 to the Judge to be