Chapter 34 - Judicial Review Flashcards
JUDICIAL REVIEW
Overview
1) general principles
2) who can sue
3) who can be subjected to judicial review
4) what decision is subjected to judicial review
5) grounds for judicial review
6) existence of statutory appeal
7) procedures for judicial review
8) recent cases on judicial review
GENERAL PRINCIPLES ON JUDICIAL REVIEW
Overview
1) What is judicial review
2) Powers to review
3) Reliefs for judicial review - general
4) Reliefs under CJA
5) Reliefs under Rules
6) Reliefs under SRA
7) Recent case on general principles
8) Who is entitled to apply for judicial review
9) What decision is subjected to judicial review
GENERAL PRINCIPLES ON JUDICIAL REVIEW
What is judicial review
Judicial review is an application, the procedure of which is governed by O.53, brought by an aggrieved party to challenge the decision of a public authority.
GENERAL PRINCIPLES ON JUDICIAL REVIEW
Powers to review
O.53:
- An inherent right of the courts to review the decision making process of a public body is provided under O.53;
- Under judicial review, Court can only grant public law remedies provided under Para. 1 Schedule of CJA & Chapter VIII of SRA 1950.
GENERAL PRINCIPLES ON JUDICIAL REVIEW
Reliefs for judicial review - general
- Declare rights of parties;
- Quash the decision made by the authority;
- Compel the government to do something;
- Prohibits the government from doing something;
- Force the government to show their authority.
GENERAL PRINCIPLES ON JUDICIAL REVIEW
Reliefs under CJA
Part 1 Schedule CJA:
High Court shall have the power to issue to any person or authority:
1) directions, orders; or
writs, including writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari; or
2) any others, for the enforcement of the rights conferred by Part II of the Constitution (which deals with Fundamental Liberties).
GENERAL PRINCIPLES ON JUDICIAL REVIEW
Reliefs under Rules
1) O.53, r.2(2):
- A prayer of declaration, either jointly or in the alternative.
2) Scope of O.53, r.2(2) - Jerry Wa Dusing v Menteri KDN (CA)
- Court of Appeal held that, notwithstanding O.53, r.2(2), a declaration may be granted in appropriate cases even if it was not prayed for jointly or in the alternative with other remedies.
GENERAL PRINCIPLES ON JUDICIAL REVIEW
Reliefs under SRA
Chapter VIII SRA 1950
GENERAL PRINCIPLES ON JUDICIAL REVIEW
Recent case on principles of judicial review
FC, 2012
WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd (FC, 2012):
1) What is judicial review:
- An application for judicial review is a procedure by which an aggrieved person may seek to review a public authority’s decision, with judicial review referring to the power to supervise the activities, inclusive of the latter’s decision.
2) Power to deal with judicial review:
- Express statutory power is vested in the High Court by the Courts of Judicature Act 1964, the Specific Relief Act 1950 and the RHC to deal with this supervisory power.
3) Who is subjected to judicial review:
- Whether an entity is subject to judicial review depends on whether its activities are subject to supervision according to the rules and principles of public law.
GENERAL PRINCIPLES ON JUDICIAL REVIEW
Who is entitled to apply for judicial review
The person entitled to make an application for judicial review has to be any person who is adversely affected by the decision.
GENERAL PRINCIPLES ON JUDICIAL REVIEW
What decision is subjected to judicial review
By virtue of O. 53 RHC, only a decision made by a public authority is amenable to judicial review.
WHO CAN SUE
Overview
1) Adversely affected test
2) Real & genuine interest
WHO CAN SUE
Adversely affected test
O.53, r.2(4):
- Any person adversely affected by the decision, action or omission in relation to the exercise of the public duty or function.
WHO CAN SUE
Real & genuine interest
Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor (FC):
- To pass the adversely affected test, the applicant has to show that he has a real and genuine interest in the subject matter;
- It is unnecessary for the applicant to establish infringement of a private right or the suffering of special damage.
WHO CAN BE SUBJECTED TO JUDICIAL REVIEW
Overview
1) General
2) Exercise of public function
3) Meaning of public function
WHO CAN BE SUBJECTED TO JUDICIAL REVIEW
General
By virtue of O. 53 RHC, only a decision made by a public authority is amenable to judicial review.
WHO CAN BE SUBJECTED TO JUDICIAL REVIEW
Exercise of public function
Tenaga Nasional Bhd v Tekali Prospecting Sdn Bhd (CA, 2002):
JR can be filed to challenge or review the decisions, omissions and/or actions of a body exercising “public function”.
WHO CAN BE SUBJECTED TO JUDICIAL REVIEW
Meaning of public function
WRP Asia Pacific Sdn Bhd v Tenaga Nasional Berhad (FC, 2011):
- Interpretation of public function is based on consideration of, inter alia:
1) The powers conferred to the decision-maker under existing statutes;
2) The extensive and/or monopolistic power of said decision-maker;
3) The relationship between the aggrieved party and the decision-maker in question.
WHAT DECISIONS IS SUBJECTED TO JUDICIAL REVIEW
Overview
1) General
2) Amenable decisions
3) Correct procedures
4) Recent application
WHAT DECISIONS IS SUBJECTED TO JUDICIAL REVIEW
General
By virtue of O. 53 RHC, only a decision made by a public authority is amenable to judicial review.
WHAT DECISIONS IS SUBJECTED TO JUDICIAL REVIEW
Amenable decisions
Ahmad Jefri v Pengarah Kebudayaan & Kesenian Johor:
- There must be sufficient public law element in the decision made;
- It is necessary to examine both the source of the power & the nature of the decision made, i.e. whether the decision was made under a statutory power.
- OTF, it is held that the decision to dismiss the appellant was made under a statutory law by a body who acted within the scope of such statutory power.
WHAT DECISIONS IS SUBJECTED TO JUDICIAL REVIEW
Correct procedures
Ahmad Jefri v Pengarah Kebudayaan & Kesenian Johor:
- Solely on substantive principles of public law: O.53 procedures;
- Mixture of public & private law: the court must ascertain which of the two is more predominant;
- Substantial public law element: O.53 must be adopted or it amounts to abuse of court’s process.
- Private law: O.53 procedure is not suitable.
WHAT DECISIONS IS SUBJECTED TO JUDICIAL REVIEW
Recent application
Native customary right - Superintedent of Lands and Surveys, Samarahan Division v Abas Naun (FC, 2015):
1) The question posed for the court:
- whether a suit filed by a person claiming NCR to challenge the decision of a public authority which supposedly infringes the claimant’s alleged rights is an exception to the general rule enunciated by the Federal Court in Ahmad Jefri bin Mohd Jahri @ Md Johari v. Pengarah Kebudayaan & Kesenian Johor & Ors?
2) Held:
- NCR claims are disputes between private individuals claiming a private law right on one hand and with the public authority refusing to recognise their NCR at the other end.
- The present appeals related essentially to questions of fact relating to private law of the respondents though enmeshed with public law.
- Generally, the mode of O.53 was unsuitable for cases of this genus.
- Having considered the bigger picture, in light of constitutional, statutory and common law recognition of NCR, compounded by the injustice that may befall the respondents, on account of their disadvantaged predicament, the respondents’ writ actions qualified as an exception to the norm.
- The question posed was thus answered in the positive.
GROUNDS FOR JUDICIAL REVIEW
Overview
1) General
2) Scope of grounds
3) Test for grounds
