Chapter 2(a): Judicial Review (Discretionary Power)

Question 1

Why is judicial review used in administrative law?

Answer 1

It is a mechanism to ensure rule of law and improving the quality of decision-making by public bodies.

Question 2

What does the judicial review process involve?

Answer 2

The process involves the court reviewing the actions of public bodies in terms of:-
* The decisions made by them when they exercise their powers; or
* To review the constitutionality of a statute; or
* To review an administrative regulation for consistency with a statute or the Constitution itself.

Question 3

What is the outcome of a judicial review?

Answer 3

An administrative decision would be upheld if the public authority exercises such powers (Legislative, Judicial, Executive) within the limits that have been legally conferred on him (substantive requirement) and complies with the procedures required by law (procedural requirement).

Question 4

How to determine the grounds of review?

Answer 4

Determination of the grounds for review that may render an administrative decision as unlawful/illegal could be examined and categorized based on:
1. Whether these administrative actions or decisions are authorised (substantively); or/and
2. Whether it was exercised according to the required procedures (procedurally)?

Question 5

What is ‘substantive’ in administrative law?

Answer 5

• What the power authorises to be done
• The content of the law/requirements itself
• The part of thelawthat creates, defines, and regulates certain rights

Question 6

What is ‘procedural’ in administrative law?

Answer 6

• How the power is exercised
• The procedure/procedures requirements involved in implementing the substantive part of the law,especiallyofacourtof law,legislativebody,orlawenforcement agency

Question 7

What is ultra vires?

Answer 7

• Any actions of public authority outside of its powers (ultra vires) is void.
• In order to be valid, any administrative action needs statutory authorisation, and if it is not within the powers given by the act, it has no legality.
• The doctrine has become the juristic basic of judicial review in administrative law. Once the court has declared that an administrative decision as void, the situation is as if nothing has happened.
• Invalidating an ultra vires act ensures that every administrative action or decision is in conformity with the law; indirectly guaranteeing the observance of rule of law.

Question 8

Background to an administrator’s rule-making power

Answer 8

• Delegation of legislative powers by the legislature is clearly against the principle of separation of powers.
• The grant of the rule-making power to administrative bodies is a relaxation of the principle of separation of powers and is an exception to the non-delegation of legislative powers.
• It is justified on practical grounds.

Question 9

What is subsidiary legislation?

Answer 9

“…any proclamation, rule, regulation, order, notification, by-law or other instrument made under any ordinance, enactment or other lawful authority and having legislative effect…”

– Interpretation Act 1967.

Question 10

What are the grounds of judicial review on subsidiary legislation?

Answer 10

1. Substantive ultra vires:
   * The court may examine the scope, extent and range of power delegated to a public authority by the statute to make subsidiary legislation.
   * If the power is conferred to legislate (i) only with respect to certain topics, or (ii) for certain purposes, or (iii) in certain circumstances the limits of the power must has not been adhered to, these are grounds for review due to substantive ultra vires.
2. Procedural ultra vires:
   * In the process of making a subsidiary legislation, i.e. other control mechanism that the public body/administrator must follow, includes certain procedures laid down by the parent statute so that the subsidiary legislation made will not be challenged in the courts of law.
   * These procedures could either be through: Legislative Control, Consultation, or Publication

Question 11

What are the grounds for substantive ultra vires of subsidiary legislation?

Answer 11

1. Parent act ultra vires the Federal Constitution
2. Subsidiary legislation ultra vires the Federal Constitution
3. Subsidiary legislation ultra vires the parent act

Question 12

What are the case laws for parent act ultra vires the Federal Constitution?

Answer 12

• Johnson Tan Han Seng v Public Prosecutor

Question 13

What are the case laws for subsidiary legislation ultra vires the Federal Constitution?

Answer 13

• Osman v Public Prosecutor
• Teh Cheng Poh v Public Prosecutor
• YB Khalid bin Abdul Samad v Majlis Agama Islam Selangor [2016] MLJU 338

Question 14

What are the case law for subsidiary legislation ultra vires the parent act?

Answer 14

• Ghazali v Public Prosecutor
• Port Swettenham Authority v TW Wu & Co
• Re: Lee Kian Soon
• Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele Martin & Anor Appeal

Question 15

What are the three grounds for procedural ultra vires for subsidiary legislation?

Answer 15

1. Legislative control: Requiring the subsidiary legislation made to be laid before the legislature. Subsidiary legislation ceases to have effect unless, within the prescribed period, the legislature passes a resolution affirming it.
2. Consultation: No general statutory provision to make a prior consultation as a formal requirement for the making of subsidiary legislation. Some Acts make it mandatory, but the numbers are few.
3. Publication: No general statutory provision that make publication of subsidiary legislation a formal requirement. However, some enabling Acts may require publication and if there is such requirement, non-compliance makes the subsidiary legislation void.