Judicial Control of Judicial Control of Administrative Action : Administrative Action :

Vistas in Malaysian Public Vistas in Malaysian Public LawLaw

Steven Thiru Steven Thiru Advocate & SolicitorAdvocate & Solicitor

Partner,Partner, Shook Lin & Bok, Kuala LumpurShook Lin & Bok, Kuala Lumpur

Judicial control of Judicial control of administrative actionadministrative action

““The courts are the only defence of the liberty of The courts are the only defence of the liberty of the subject against departmental aggression…that the subject against departmental aggression…that “public bodies must be compelled to observe the “public bodies must be compelled to observe the law and it is essential that bureaucracy should be law and it is essential that bureaucracy should be kept in its place”, kept in its place”, (per (per Raja Azlan Shah CJ in Raja Azlan Shah CJ in

Sri Lempah Enterprise Sdn BhdSri Lempah Enterprise Sdn Bhd [1979] 1 MLJ [1979] 1 MLJ 135135

The evolution of judicial control The evolution of judicial control of administrative action:-of administrative action:-

Common law-Statute-Federal Common law-Statute-Federal ConstitutionConstitution

The emergence of administrative law has been commended The emergence of administrative law has been commended by various quarters in the legal fraternity and has even been by various quarters in the legal fraternity and has even been described as “described as “… the greatest achievement of the English … the greatest achievement of the English courts in my judicial lifetime.courts in my judicial lifetime.””(per Lord Diplock in (per Lord Diplock in Inland Revenue CommissionersInland Revenue Commissioners v v National Federation of Self-employed and Small National Federation of Self-employed and Small Businesses LtdBusinesses Ltd [1982] AC 617 at p. 641[1982] AC 617 at p. 641))

At the heart of this epochal development is the judicial control At the heart of this epochal development is the judicial control of administrative action that the courts exercise through of administrative action that the courts exercise through judicial review.judicial review.

Judicial review is today a potent weapon in the armoury of the Judicial review is today a potent weapon in the armoury of the courts to protect the fundamental rights of private citizens courts to protect the fundamental rights of private citizens from capricious behaviour on the part of administrative from capricious behaviour on the part of administrative bodies.bodies.

The common law courts were quick to The common law courts were quick to recognize that the rule of law required that recognize that the rule of law required that unbridled powers in the hands of the unbridled powers in the hands of the administration should be subject to judicial administration should be subject to judicial control to balance individual rights and control to balance individual rights and legitimate administrative endeavours.legitimate administrative endeavours.

It was decided that the mechanism through It was decided that the mechanism through which this was to be achieved was judicial which this was to be achieved was judicial review.review.

““Governments are not notorious for Governments are not notorious for introducing legislation which limits their introducing legislation which limits their own powers. Happily, the common law has own powers. Happily, the common law has proved to be fertile not impotent.proved to be fertile not impotent.””(Lord Browne-Wilkinson, Foreword to (Lord Browne-Wilkinson, Foreword to Supperstone & Goudie, Judicial Review, Supperstone & Goudie, Judicial Review, (Butterworths, 1992)).(Butterworths, 1992)).

The common law doctrine of The common law doctrine of ultra viresultra vires is the is the foundation of judicial review and it is broadly applied foundation of judicial review and it is broadly applied to every executive action, or inaction, which affects to every executive action, or inaction, which affects the rights of citizens.the rights of citizens.

A whole range of administrative activities were A whole range of administrative activities were therefore brought within the compass of judicial therefore brought within the compass of judicial control control as to their viresas to their vires, on the footing that:-, on the footing that:-

(1) every executive action must have a legal basis to (1) every executive action must have a legal basis to it, and,it, and,

(2) every legal power must be exercised within its (2) every legal power must be exercised within its limits, in good faith and limits, in good faith and reasonably to achieve reasonably to achieve the objective of the power.the objective of the power.

The Malaysian judiciary, like their English counter-parts, have The Malaysian judiciary, like their English counter-parts, have been largely alive to this threat of unbridled administrative been largely alive to this threat of unbridled administrative powers and our courts have developed a system of judicial powers and our courts have developed a system of judicial control, through a vibrant judicial review jurisdiction, to control, through a vibrant judicial review jurisdiction, to repulse the threat.repulse the threat.

For a long time, our administrative law was primarily based on For a long time, our administrative law was primarily based on the common law.the common law.

Thus, the locus classicus English cases are all today firmly Thus, the locus classicus English cases are all today firmly embedded in Malaysian administrative law. These cases embedded in Malaysian administrative law. These cases include include RidgeRidge v v BaldwinBaldwin [1963] 2 All ER 66 [1963] 2 All ER 66 (on procedural (on procedural fairness) and fairness) and Associated Provincial Picture Houses LtdAssociated Provincial Picture Houses Ltd v v Wednesbury CorporationWednesbury Corporation [1947] 2 All ER 680 and [1947] 2 All ER 680 and Anisminic LtdAnisminic Ltd v v Foreign Compensation CommissionForeign Compensation Commission [1969] 2 AC 147[1969] 2 AC 147 (on jurisdictional errors of law) to name a (on jurisdictional errors of law) to name a

few.few.

The statutory basis of judicial review actions in Malaysia is provided The statutory basis of judicial review actions in Malaysia is provided by in Section 25(2) read with Para 1 the Courts of Judicature Act by in Section 25(2) read with Para 1 the Courts of Judicature Act (CJA) 1964.(CJA) 1964.

Section 25(2) CJASection 25(2) CJAWithout prejudice to the generality of subsection (1), the High Court Without prejudice to the generality of subsection (1), the High Court shall have the shall have the additional powersadditional powers set out in the Schedule. set out in the Schedule.Provided that all such powers shall be exercised in accordance with Provided that all such powers shall be exercised in accordance with any written law or rules of court relating to the same.any written law or rules of court relating to the same.

Para 1Para 1Additional Powers of High CourtAdditional Powers of High CourtPrerogative writsPrerogative writsPower to issue to Power to issue to any person or authorityany person or authority, directions, orders, writs, , directions, orders, writs, including writs including writs of the nature ofof the nature of habeas corpus, mandamus, habeas corpus, mandamus, prohibition, quo warranto and certiorari, prohibition, quo warranto and certiorari, or any othersor any others, for the , for the enforcement of the rights conferred by enforcement of the rights conferred by Part II of the ConstitutionPart II of the Constitution, or , or any of them, or for any purpose.any of them, or for any purpose.

The dawn of a new era : The dawn of a new era : A constitutional dimension to A constitutional dimension to

judicial review in Malaysiajudicial review in Malaysia

Judicial control of administrative action in Judicial control of administrative action in Malaysia enjoyed a renaissance period in the Malaysia enjoyed a renaissance period in the late 1990’s when our late 1990’s when our ““trail-blazingtrail-blazing”” Court of Court of Appeal established a constitutional foundation Appeal established a constitutional foundation for judicial review actions.for judicial review actions.

In a Westminister-style constitution, In a Westminister-style constitution, judicial judicial powerpower is vested in the hands of is vested in the hands of the judiciarythe judiciary and it is this judicial power that enables the and it is this judicial power that enables the judiciary to ensure, in the exercise of its judiciary to ensure, in the exercise of its supervisory jurisdiction, that the executive acts supervisory jurisdiction, that the executive acts in accordance with law. in accordance with law.

However, there were a raft of judicial review cases in Malaysia in the late However, there were a raft of judicial review cases in Malaysia in the late 1980’s where the courts repeatedly impugned the exercise of 1980’s where the courts repeatedly impugned the exercise of discretionary powers by the executive (discretionary powers by the executive (see, for eg, see, for eg, J.P BerthelesenJ.P Berthelesen v v Director General of ImmigrationDirector General of Immigration [1987] 1 MLJ 184 [1987] 1 MLJ 184). The executive ). The executive responded by responded by amending Article 121amending Article 121 and the reference to the vesting of and the reference to the vesting of judicial power on the judiciary was removed.judicial power on the judiciary was removed.

Article 121Article 121 of the Malaysian Constitution previously provided that the of the Malaysian Constitution previously provided that the judicial power of the Federation vested in the two High Courts and such judicial power of the Federation vested in the two High Courts and such inferior courts as might be provided by federal law.inferior courts as might be provided by federal law.

This attempt to whittle down judicial power, and hence the scope of This attempt to whittle down judicial power, and hence the scope of judicial review, judicial review, failedfailed because of a basic canon of constitutional because of a basic canon of constitutional interpretation. It was alluded to by the Privy Council in interpretation. It was alluded to by the Privy Council in LiyangeLiyange v v The The QueenQueen [1967] 1 AC 259 at p. 287 (per Lord Pearce) [1967] 1 AC 259 at p. 287 (per Lord Pearce) :- :-

““……. Manifest an intention to secure in the judiciary a freedom from . Manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They are wholly political, legislative and executive control. They are wholly appropriate in a constitution which intends that judicial power shall appropriate in a constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a be vested only in the judicature. They would be inappropriate in a constitution by which it was intended that judicial power should be constitution by which it was intended that judicial power should be shared by the executive or the legislature. shared by the executive or the legislature. The constitution’s The constitution’s silence as to the vesting of judicial power is consistent with its silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century in the hands of remaining, where it had lain for more than a century in the hands of the judicature. It is not consistent with any intention that the judicature. It is not consistent with any intention that henceforth it should pass to or be shared by the executive or the henceforth it should pass to or be shared by the executive or the legislaturelegislature..””

Next, the Federal Constitution contains a chapter (Part II) on fundamental liberties, Next, the Federal Constitution contains a chapter (Part II) on fundamental liberties, which includes two important humanizing provisions that house the right to judicial which includes two important humanizing provisions that house the right to judicial review.review. These are Article 5(1), which enshrines the right to livelihood, and Article These are Article 5(1), which enshrines the right to livelihood, and Article 8(1), which codifies the right to equality. 8(1), which codifies the right to equality.

Importantly, our Court of Appeal has held that judicial review of administrative action Importantly, our Court of Appeal has held that judicial review of administrative action in Malaysia is a constitutional right :-in Malaysia is a constitutional right :-

““[We] are of the view that the liberty of an aggrieved person to go to court and [We] are of the view that the liberty of an aggrieved person to go to court and seek relief, seek relief, including judicial review of administrative actionincluding judicial review of administrative action, is one of the , is one of the many facets of the personal liberty guaranteed by Article 5(1) of the Federal many facets of the personal liberty guaranteed by Article 5(1) of the Federal Constitution.Constitution.””((see the Court of Appeal in thesee the Court of Appeal in the Sugumar BalakrishnanSugumar Balakrishnan case [1998] 3 MLJ 289 at p. case [1998] 3 MLJ 289 at p. 308308))

Further, the Federal Court in the recent case of Further, the Federal Court in the recent case of Palm Oil Research and Palm Oil Research and Development Board MalaysiaDevelopment Board Malaysia [2005] 3 MLJ 97 at 119 [2005] 3 MLJ 97 at 119 made the following made the following pronouncement on the constitutional basis of judicial review in Malaysia:pronouncement on the constitutional basis of judicial review in Malaysia:

““The relevant source of public law in our jurisdiction is the Federal The relevant source of public law in our jurisdiction is the Federal Constitution, for it declares by its own terms in art 4(1) that it is the supreme Constitution, for it declares by its own terms in art 4(1) that it is the supreme law. It follows that what English lawyers refer to as 'administrative law' or law. It follows that what English lawyers refer to as 'administrative law' or 'public law' has no separate existence dehors the Constitution in our 'public law' has no separate existence dehors the Constitution in our jurisdiction. All principles of administrative law or public law must find their jurisdiction. All principles of administrative law or public law must find their place within the Constitution.”place within the Constitution.”

The grounds for judicial reviewThe grounds for judicial review

The classic enunciation of the grounds on which errors of law are committed and The classic enunciation of the grounds on which errors of law are committed and thus necessitating the judicial interference with the exercise of governmental thus necessitating the judicial interference with the exercise of governmental power was famously stated by Lord Diplock in the case of power was famously stated by Lord Diplock in the case of Council of Civil Council of Civil Service Union & Ors v Minister of Civil Service Service Union & Ors v Minister of Civil Service [19850 AC 374 at pp. 410-[19850 AC 374 at pp. 410-411:411:

““By By illegalityillegality…I mean that the decision-maker must understand correctly the law that …I mean that the decision-maker must understand correctly the law that regulates his decision-making power and give effect to it…by ‘regulates his decision-making power and give effect to it…by ‘irrationality’ irrationality’ I mean what I mean what can now be succinctly referred to as ‘Wednesbury unreasonableness’…It applies to can now be succinctly referred to as ‘Wednesbury unreasonableness’…It applies to decision which is so outrageous in its defiance of logic or of accepted moral standards decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied the scope his mind to the question to be decided that no sensible person who had applied the scope his mind to the question to be decided could have arrived at it…I have described the third head as ‘could have arrived at it…I have described the third head as ‘procedural improprietyprocedural impropriety’ ’ rather than the failure to observe basic rules of natural justice or failure to act with rather than the failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.”not involve any denial of natural justice.”

A further ground on which errors of law are committed and therefore creating the A further ground on which errors of law are committed and therefore creating the possibility of judicial intervention is possibility of judicial intervention is proportionalityproportionality [see: [see: R.Ramachandran v R.Ramachandran v The Industrial Court of Malaysia & Anor The Industrial Court of Malaysia & Anor [1997] 1 MLJ 45][1997] 1 MLJ 45]

The expansion of the scope of The expansion of the scope of judicial review powers :judicial review powers :the Ramachandran casethe Ramachandran case

Traditionally, the Malaysian courts have adopted the common law position settled Traditionally, the Malaysian courts have adopted the common law position settled by the House of Lords in by the House of Lords in Chief Constable of North Wales PoliceChief Constable of North Wales Police v v EvansEvans [1982] [1982] 1 WLR 1155, 1 WLR 1155, viz, that viz, that judicial review is concerned not with the decision but the judicial review is concerned not with the decision but the decision making processdecision making process ( (see see Tanjong JagaTanjong Jaga v v Minister of LabourMinister of Labour [1987] 1 MLJ [1987] 1 MLJ 125125).).

The underlying basis and scope of the judicial review powers of our courts was The underlying basis and scope of the judicial review powers of our courts was revolutionized by the Federal Court in revolutionized by the Federal Court in RamachandranRamachandran’s case [1997] 1 MLJ 145 ’s case [1997] 1 MLJ 145 (at pp. 186 – 187(at pp. 186 – 187).).

““It is often said that Judicial Review is concerned not with the decision but It is often said that Judicial Review is concerned not with the decision but the decision making process. (See eg Chief Constable of North Wales the decision making process. (See eg Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155). This proposition, at full face value, may Police v Evans [1982] 1 WLR 1155). This proposition, at full face value, may well convey the impression that the jurisdiction of the courts in Judicial well convey the impression that the jurisdiction of the courts in Judicial Review proceedings is confined to cases where the aggrieved party has not Review proceedings is confined to cases where the aggrieved party has not received fair treatment by the authority to which he has been subjected. Put received fair treatment by the authority to which he has been subjected. Put differently, in the words of Lord Diplock in Council of Civil Service Unions & differently, in the words of Lord Diplock in Council of Civil Service Unions & Ors v Minister for the Civil Service [1985] AC 374, where the impugned Ors v Minister for the Civil Service [1985] AC 374, where the impugned decision is flawed on the ground of procedural impropriety.decision is flawed on the ground of procedural impropriety.

But Lord Diplock’s other grounds for impugning a decision susceptible to But Lord Diplock’s other grounds for impugning a decision susceptible to Judicial Review make it abundantly clear that such a decision is also open Judicial Review make it abundantly clear that such a decision is also open to challenge to challenge on grounds of “illegality” and “irrationality” and , in practice, on grounds of “illegality” and “irrationality” and , in practice, this permits the courts to scrutinize such decisions not only for process, but this permits the courts to scrutinize such decisions not only for process, but also the substance.also the substance.””

The Federal Court therefore broke new ground in holding that The Federal Court therefore broke new ground in holding that when an administrative decision is impugned in a judicial when an administrative decision is impugned in a judicial review action for “review action for “irrationalityirrationality” or “” or “illegalityillegality”, the court is ”, the court is empowered to consider both the decision making process as empowered to consider both the decision making process as well as the well as the merits (substance)merits (substance) of the decision. of the decision.

Last year, the Court of Appeal in Last year, the Court of Appeal in Datuk Justine JinggutDatuk Justine Jinggut vv Pendaftar PertubuhanPendaftar Pertubuhan [2012] 3 MLJ 212[2012] 3 MLJ 212 reaffirmed the reaffirmed the application of the Ramachandran principle in the following application of the Ramachandran principle in the following terms (at para. 56):terms (at para. 56):

““The court has the power to scrutinise the authority's The court has the power to scrutinise the authority's decision not only for process, but also for substancedecision not only for process, but also for substance (R (R Ramachandran  v The Industrial Court of Malaysia & Ramachandran  v The Industrial Court of Malaysia &

Anor [1997] 1 MLJ 145; [1997] 1 CLJ 147).”Anor [1997] 1 MLJ 145; [1997] 1 CLJ 147).”

Ouster clauses and jurisdictional Ouster clauses and jurisdictional errors.errors.

The The Syarikat Kenderaan Melayu KelantanSyarikat Kenderaan Melayu Kelantan case (“case (“SKMKSKMK”) in 1995 was ”) in 1995 was the first of a series of cases where our resurgent Court of Appeal began the first of a series of cases where our resurgent Court of Appeal began to change the face of administrative law in Malaysia.to change the face of administrative law in Malaysia.

The Court of Appeal in The Court of Appeal in SKMKSKMK, relying on the House of Lords cases of , relying on the House of Lords cases of Re Racal CommunicationsRe Racal Communications [1981] AC 374 [1981] AC 374 and and O’ReillyO’Reilly v v MackmanMackman, , recast our common law as follows :-recast our common law as follows :-

““An An inferior tribunalinferior tribunal or or other decision-making authorityother decision-making authority, whether , whether exercising a quasi-judicial function or purely an administrative exercising a quasi-judicial function or purely an administrative functionfunction, has no jurisdiction to commit an error of law, has no jurisdiction to commit an error of law. Henceforth, . Henceforth, it is no longer of concern whether the error of law is jurisdictional or it is no longer of concern whether the error of law is jurisdictional or notnot. If an inferior tribunal or other public decision-taker . If an inferior tribunal or other public decision-taker does make does make such an error, then he exceeds his jurisdictionsuch an error, then he exceeds his jurisdiction. So too is . So too is jurisdiction exceeded,jurisdiction exceeded, where resort is had to an unfair procedure (see Raja Abdul Malek where resort is had to an unfair procedure (see Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman v Setiausaha Suruhanjaya Muzaffar Shah bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis [1995] 1 MLJ 308), or where the decision reached is Pasukan Polis [1995] 1 MLJ 308), or where the decision reached is unreasonable, in the sense that no reasonable tribunal similarly unreasonable, in the sense that no reasonable tribunal similarly circumstanced would have arrived at the impugned decision.circumstanced would have arrived at the impugned decision.…………………………Since an inferior tribunal Since an inferior tribunal has no jurisdiction to make an error of lawhas no jurisdiction to make an error of law, , its decision will not be immunized from judicial review by an ouster its decision will not be immunized from judicial review by an ouster clause however widely drafted.clause however widely drafted.””

The Court of Appeal went on to declare that the “The Court of Appeal went on to declare that the “categoriescategories ofof errorserrors of law are not of law are not closedclosed” :-” :-

““It is neither feasible nor desirable to attempt an exhaustive definition of It is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law, what amounts to an error of law, for the categories of such an error are not for the categories of such an error are not closedclosed. But it may be safely said that an error of law would be disclosed if . But it may be safely said that an error of law would be disclosed if the decision-maker asks himself the wrong question or takes into account the decision-maker asks himself the wrong question or takes into account irrelevant considerations or omits to take into account relevant irrelevant considerations or omits to take into account relevant considerations (what may be conveniently termed an Anisminic error) or if considerations (what may be conveniently termed an Anisminic error) or if he misconstrues the terms of any relevant statute, or misapplies or he misconstrues the terms of any relevant statute, or misapplies or misstates a principle of the general law.misstates a principle of the general law.””

The Court of Appeal’s decision in the The Court of Appeal’s decision in the SKMKSKMK has been endorsed by our Federal has been endorsed by our Federal Court (Court (see see Hoh Kiang NganHoh Kiang Ngan’s case [1995] 3 MLJ 369’s case [1995] 3 MLJ 369).).

Access to justice – A Access to justice – A Constitutional Right?Constitutional Right?

Our Court of Appeal has sought to emasculate ouster clauses from the Our Court of Appeal has sought to emasculate ouster clauses from the sphere of Malaysian public law on the basis that free access to an sphere of Malaysian public law on the basis that free access to an independent judiciary to obtain redress by way of judicial review is a independent judiciary to obtain redress by way of judicial review is a fundamental constitutional right, viz, fundamental constitutional right, viz, access to justice.access to justice.

An ouster clause that gives administrative finality and prevents access to An ouster clause that gives administrative finality and prevents access to justice would be void as it infringes a constitutional right.justice would be void as it infringes a constitutional right.

In In SugumarSugumar’s case, the Court of Appeal categorized access to justice to ’s case, the Court of Appeal categorized access to justice to seek judicial review of administrative action as an aspect of personal seek judicial review of administrative action as an aspect of personal liberty (life) guaranteed by Article 5(1) of the Malaysian constitution.liberty (life) guaranteed by Article 5(1) of the Malaysian constitution.

However, the Federal Court in However, the Federal Court in SugumarSugumar’s case (at page 101) disagreed:-’s case (at page 101) disagreed:-

““We therefore disagree with the Court of Appeal that the words We therefore disagree with the Court of Appeal that the words “personal liberty” should be generously interpreted to include all “personal liberty” should be generously interpreted to include all those facets that are an integral part of life itself and those matters those facets that are an integral part of life itself and those matters which go to form the quality of life… In our view, Parliament having which go to form the quality of life… In our view, Parliament having excluded judicial review under the Act, it is not permissible for our excluded judicial review under the Act, it is not permissible for our courts to intervene and disturb a statutorily unreviewable courts to intervene and disturb a statutorily unreviewable decision…”decision…”

The Court of Appeal however, in a different case, continued in its quest to The Court of Appeal however, in a different case, continued in its quest to place access to justice on a constitutional platform. In place access to justice on a constitutional platform. In KekatongKekatong v v DanahartaDanaharta [2003] 3 MLJ 1 (at pp 18 - 19) [2003] 3 MLJ 1 (at pp 18 - 19) it resorted the Article 8(1).it resorted the Article 8(1).

‘‘We would sum up our views on this part of the case as follows: (i) We would sum up our views on this part of the case as follows: (i) the expression “law” in art 8(1) refers to a system of law that the expression “law” in art 8(1) refers to a system of law that incorporates the fundamental principles of natural justice of the incorporates the fundamental principles of natural justice of the common law : Ong Ah Chuan v Public Prosecutor, (ii) the doctrine of common law : Ong Ah Chuan v Public Prosecutor, (ii) the doctrine of the rule of law which forms part of the common law demands the rule of law which forms part of the common law demands minimum standards of substantive and procedural fairness : Pierson minimum standards of substantive and procedural fairness : Pierson v Secretary of State for the Home Department; (iii) access to justice v Secretary of State for the Home Department; (iii) access to justice is part and parcel of the common law : R v Secretary of State for the is part and parcel of the common law : R v Secretary of State for the Home Department, ex parte Leech; (iv) the expression “law” in art Home Department, ex parte Leech; (iv) the expression “law” in art 8(1), by definition (contained in art 160(2)) includes the common law. 8(1), by definition (contained in art 160(2)) includes the common law. Therefore, access to justice is an intergral part of art 8(1). Therefore, access to justice is an intergral part of art 8(1).””

However, again, the Federal Court stood in the way (However, again, the Federal Court stood in the way (see [2004] 2 MLJ see [2004] 2 MLJ 257257). The Court concluded that access to justice was a mere common ). The Court concluded that access to justice was a mere common law right which may be ousted by an ordinary Act of Parliament and law right which may be ousted by an ordinary Act of Parliament and therefore the provision preventing access to the courts was not therefore the provision preventing access to the courts was not unconstitutional.unconstitutional.

Judicial Review: A Discretionary Judicial Review: A Discretionary RemedyRemedy

It is important to note that judicial review does not lie for every or any error of law.It is important to note that judicial review does not lie for every or any error of law.

It is a discretionary remedyIt is a discretionary remedy..

The Federal Court in The Federal Court in Hoh Kiang NganHoh Kiang Ngan v v Mahkamah Perusahaan MalaysiaMahkamah Perusahaan Malaysia [1996] 4 CLJ [1996] 4 CLJ 687 at 714687 at 714 had this to say about the discretionary nature of judicial review remedies: had this to say about the discretionary nature of judicial review remedies:

““For, it must not be forgotten that For, it must not be forgotten that these remedies are discretionary and are not these remedies are discretionary and are not available ex debito justitiae to an applicant who is able to demonstrate an error of available ex debito justitiae to an applicant who is able to demonstrate an error of law on the part of a public decision-takerlaw on the part of a public decision-taker.” .”

Further, an applicant for judicial review must show that some “Further, an applicant for judicial review must show that some “substantial injusticesubstantial injustice” has ” has been suffered to warrant the award of a judicial review remedy. On this point, the Court of been suffered to warrant the award of a judicial review remedy. On this point, the Court of Appeal in Appeal in Ngu Toh TungNgu Toh Tung v v Superintendent of Lands & SurveySuperintendent of Lands & Survey [2006] 1 CLJ 30 at 39 [2006] 1 CLJ 30 at 39 stated as follows:stated as follows:

““No doubt, the public law remedy of certiorari appears in the vast majority of cases to have No doubt, the public law remedy of certiorari appears in the vast majority of cases to have been granted as of right once an infringement of the law was demonstrated. So, one tends been granted as of right once an infringement of the law was demonstrated. So, one tends to assume that it is a remedy of right. But it is not. to assume that it is a remedy of right. But it is not. If you look carefully enough at those If you look carefully enough at those cases where the remedy was granted, you will find that they concerned applicants cases where the remedy was granted, you will find that they concerned applicants who had suffered or were likely to suffer a substantial injustice in consequence of a who had suffered or were likely to suffer a substantial injustice in consequence of a breach of lawbreach of law.”.”

Order 53 of the Rules of Court Order 53 of the Rules of Court 20122012

The present adjectival law governing judicial review applications came The present adjectival law governing judicial review applications came into effect on 1.8.2012 and it is embodied in the recently introduced Rules into effect on 1.8.2012 and it is embodied in the recently introduced Rules of Court 2012. of Court 2012.

All prerogative remedies (certiorari, mandamus, prohibition etc) that are All prerogative remedies (certiorari, mandamus, prohibition etc) that are available under common law and Para 1 of the Schedule to the CJA 1964 available under common law and Para 1 of the Schedule to the CJA 1964 may be claimed under an omnibus may be claimed under an omnibus ““Application for Judicial ReviewApplication for Judicial Review”” ( (see see Ord 53 r 1(1)Ord 53 r 1(1)))

The applicant may also claim for a declaration, injunction and damages The applicant may also claim for a declaration, injunction and damages as well as seek discovery and interrogatories in the judicial review as well as seek discovery and interrogatories in the judicial review application. (application. (see Ord 53 r 2(2), Ord 53 r 5(1) and Ord 53 r 6see Ord 53 r 2(2), Ord 53 r 5(1) and Ord 53 r 6))

The Court is not confined by the relief claimed and The Court is not confined by the relief claimed and it may mould a it may mould a remedy which is appropriate to the justice of the caseremedy which is appropriate to the justice of the case ( (see Ord 53 r 2(3) see Ord 53 r 2(3) RHC 1980RHC 1980).).

For the purposes of procedural locus standi, the applicant needs only to For the purposes of procedural locus standi, the applicant needs only to show that he is show that he is ““adversely affect by the decision of any public authorityadversely affect by the decision of any public authority”” ((see Ord 53 r 2(4)see Ord 53 r 2(4)).).

The applicant must obtain leave to commence judicial review (The applicant must obtain leave to commence judicial review (see see Order 53 r3(1)Order 53 r3(1)). The said application must be made promptly and in ). The said application must be made promptly and in any event within 3 months from the date when the grounds of the any event within 3 months from the date when the grounds of the application first arose or when the decision in first communicated application first arose or when the decision in first communicated ((see Ord 53 r 3(6)).see Ord 53 r 3(6)).

Principles for Leave:Principles for Leave:

(1)(1) Threshold and the de minimis test - must show that the application is not Threshold and the de minimis test - must show that the application is not frivolous and that there is an arguable casefrivolous and that there is an arguable case

[see: [see: QSR Brands BhdQSR Brands Bhd v v Securities Commission and AnotherSecurities Commission and Another [2006] 2 [2006] 2 CLJ 532CLJ 532]]

(2)(2) The Court must not go into the merits of the matter unless the leave The Court must not go into the merits of the matter unless the leave application application is coupled with an application for extension of time [see: is coupled with an application for extension of time [see: Tang Tang Kwor Ham & OrsKwor Ham & Ors v v Pengurusan Danaharta Nasional Sdn Bhd & Ors Pengurusan Danaharta Nasional Sdn Bhd & Ors [2006] 1 CLJ 927[2006] 1 CLJ 927]]

(3) (3) An important recent clarification on the test applicable for the An important recent clarification on the test applicable for the granting of leave may granting of leave may be found in the Court of Appeal judgment in the be found in the Court of Appeal judgment in the Tun Tun Dato’ Sri Ahmad FairuzDato’ Sri Ahmad Fairuz case case [2011] 4 AMR 324 at 339[2011] 4 AMR 324 at 339 where the where the following was held:following was held:

““In requiring the appellants to show that there is a prima facie case in their In requiring the appellants to show that there is a prima facie case in their favour and that the application was not made vexatiously, the learned High favour and that the application was not made vexatiously, the learned High Court Court judge had placed a higher threshold in the path of the applicant than judge had placed a higher threshold in the path of the applicant than they were required to they were required to cross…cross…

All that is required to be determined at the leave application stage is All that is required to be determined at the leave application stage is whether whether prima facie there is substance and merit in the grounds of the prima facie there is substance and merit in the grounds of the appellant’s applicationappellant’s application.”.”

Further Points to NoteFurther Points to Note

1.1. The Federal Court in The Federal Court in Ahmad Jefri bin Mohd Jahri @ Md JohariAhmad Jefri bin Mohd Jahri @ Md Johari v v Pengarah Kebudayan & Kesenian JohorPengarah Kebudayan & Kesenian Johor [2010] 3 MLJ at 155 [2010] 3 MLJ at 155 appropriately observed that the stringent conditions of Order 53 are in appropriately observed that the stringent conditions of Order 53 are in place to place to “protect those entrusted with the performance of public duties “protect those entrusted with the performance of public duties against groundless unmeritorious or tardy harassment.”against groundless unmeritorious or tardy harassment.”

2.2. The phrase “The phrase “adversely affectedadversely affected” in Ord 53 r 2(4) calls for a flexible ” in Ord 53 r 2(4) calls for a flexible approach and would cover cases where fundamental rights/personal approach and would cover cases where fundamental rights/personal liberty is at stake (liberty is at stake (see see QSR BrandsQSR Brands v v Security CommissionSecurity Commission [2006] 3 [2006] 3 MLJ 164 at pp. 171 – 172MLJ 164 at pp. 171 – 172).).

3.3. The procedural locus standi under Ord 53 r 2(4) is wider than restrictive The procedural locus standi under Ord 53 r 2(4) is wider than restrictive test in test in BoyceBoyce v v PaddingtonPaddington [1903] 1 Ch. 109 [1903] 1 Ch. 109 (per Buckley LJ) which was (per Buckley LJ) which was applied previously in Malaysia (applied previously in Malaysia (see see UEMUEM v v Lim Kit SiangLim Kit Siang [1988] 2 MLJ [1988] 2 MLJ 1212). This has been followed by advances in substantive locus standi as ). This has been followed by advances in substantive locus standi as well (well (see see Raja SegaranRaja Segaran v v Bar Council MalaysiaBar Council Malaysia [2004] 4 CLJ 239 at pp. [2004] 4 CLJ 239 at pp. 263 – 271263 – 271).).

ConclusionConclusion