Chapter 34 - Judicial Review

Question 1

JUDICIAL REVIEW

Overview

Answer 1

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

Question 2

GENERAL PRINCIPLES ON JUDICIAL REVIEW

Overview

Answer 2

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

Question 3

GENERAL PRINCIPLES ON JUDICIAL REVIEW

What is judicial review

Answer 3

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.

Question 4

GENERAL PRINCIPLES ON JUDICIAL REVIEW

Powers to review

Answer 4

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.

Question 5

GENERAL PRINCIPLES ON JUDICIAL REVIEW

Reliefs for judicial review - general

Answer 5

• 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.

Question 6

GENERAL PRINCIPLES ON JUDICIAL REVIEW

Reliefs under CJA

Answer 6

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).

Question 7

GENERAL PRINCIPLES ON JUDICIAL REVIEW

Reliefs under Rules

Answer 7

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.

Question 8

GENERAL PRINCIPLES ON JUDICIAL REVIEW

Reliefs under SRA

Answer 8

Chapter VIII SRA 1950

Question 9

GENERAL PRINCIPLES ON JUDICIAL REVIEW

Recent case on principles of judicial review

FC, 2012

Answer 9

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.

Question 10

GENERAL PRINCIPLES ON JUDICIAL REVIEW

Who is entitled to apply for judicial review

Answer 10

The person entitled to make an application for judicial review has to be any person who is adversely affected by the decision.

Question 11

GENERAL PRINCIPLES ON JUDICIAL REVIEW

What decision is subjected to judicial review

Answer 11

By virtue of O. 53 RHC, only a decision made by a public authority is amenable to judicial review.

Question 12

WHO CAN SUE

Overview

Answer 12

1) Adversely affected test

2) Real & genuine interest

Question 13

WHO CAN SUE

Adversely affected test

Answer 13

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.

Question 14

WHO CAN SUE

Real & genuine interest

Answer 14

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.

Question 15

WHO CAN BE SUBJECTED TO JUDICIAL REVIEW

Overview

Answer 15

1) General
2) Exercise of public function
3) Meaning of public function

Question 16

WHO CAN BE SUBJECTED TO JUDICIAL REVIEW

General

Answer 16

By virtue of O. 53 RHC, only a decision made by a public authority is amenable to judicial review.

Question 17

WHO CAN BE SUBJECTED TO JUDICIAL REVIEW

Exercise of public function

Answer 17

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”.

Question 18

WHO CAN BE SUBJECTED TO JUDICIAL REVIEW

Meaning of public function

Answer 18

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.

Question 19

WHAT DECISIONS IS SUBJECTED TO JUDICIAL REVIEW

Overview

Answer 19

1) General
2) Amenable decisions
3) Correct procedures
4) Recent application

Question 20

WHAT DECISIONS IS SUBJECTED TO JUDICIAL REVIEW

General

Answer 20

By virtue of O. 53 RHC, only a decision made by a public authority is amenable to judicial review.

Question 21

WHAT DECISIONS IS SUBJECTED TO JUDICIAL REVIEW

Amenable decisions

Answer 21

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.

Question 22

WHAT DECISIONS IS SUBJECTED TO JUDICIAL REVIEW

Correct procedures

Answer 22

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.

Question 23

WHAT DECISIONS IS SUBJECTED TO JUDICIAL REVIEW

Recent application

Answer 23

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.

Question 24

GROUNDS FOR JUDICIAL REVIEW

Overview

Answer 24

1) General
2) Scope of grounds
3) Test for grounds

Question 25

GROUNDS FOR JUDICIAL REVIEW

General

Answer 25

General grounds:
Illegality, i.e. error of law affecting jurisdiction;
Irrationality, i.e. unreasonableness or improper purposes;
Procedural impropriety, i.e. breach of natural justice;
Proportionality, i.e. excessive sanction or punishment which intrude on individual rights.

Question 26

GROUNDS FOR JUDICIAL REVIEW

Scope of grounds

Answer 26

Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri:

• A judicial review is only concerned with the decision making process and not the decision itself.
• Thus, a judicial review the court cannot substitute the decision by the decision maker under review for its own decision.

Question 27

GROUNDS FOR JUDICIAL REVIEW

Test for grounds

Answer 27

Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri:

• whether the decision is valid and lawful; and
• whether it has passed the test of Wednesbury principle of reasonableness in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation; and
• whether it has not contravened the principles of illegality, procedural impropriety, proportionality and irrationality as enunciated in Council of Civil Service Unions & Ors v. Minister for the Civil Service.

Question 28

EXISTENCE OF STATUTORY APPEAL

Overview

Answer 28

1) General issue

2) Whether existence of statutory appeal oust jurisdiction for judicial review

Question 29

EXISTENCE OF STATUTORY APPEAL

General issue

Answer 29

Whether existence of statutory appeal will exclude judicial review.

Question 30

EXISTENCE OF STATUTORY APPEAL

Whether existence of statutory appeal oust jurisdiction for judicial review

• very exceptional circumstances
• limitation of the issuance of certiorari

Answer 30

Government of Malaysia v Jagdis Singh:

• it is not a rigid rule that whenever there is an appeal procedure available to the applicant he should be denied judicial review.
• Judicial review is always at the discretion of the court;
• But, where there is another avenue or remedy open to the applicant, discretion will only be exercised in very exceptional circumstances.

Issuance of certiorari:

• where there is an appeal provision available, certiorari should not normally issue unless:
• (i) there is a clear lack of jurisdiction;
• (ii) a blatant failure to perform some statutory duty; or
• (iii) in appropriate cases, there is a serious breach of the principles of natural justice.

Question 31

EXISTENCE OF STATUTORY APPEAL

Whether existence of statutory appeal oust jurisdiction for judicial review

• may be a ground for setting aside leave

Answer 31

Majlis Perbandaran Pulau Pinang v Syarikat Berkerjasama Serbaguna Sungai Gelugor (FC):

• There was no hard and fast rule as to when the question of an alternative remedy should be dealt with and reiterated that an internal appeal procedure does not, per se, bar judicial review.
• However, it may be a ground for setting aside a grant of leave given earlier.

Question 32

EXISTENCE OF STATUTORY APPEAL

Whether existence of statutory appeal oust jurisdiction for judicial review

Recent, 2019

requirement of very exceptional circumstances

Answer 32

Iskandar Coast Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri (2019):

• The availability of a domestic appeal procedure did not mean that the appellant could have no recourse to judicial review.
• However, there is the requirement to show ‘very exceptional circumstances’.
• ’Very exceptional circumstances’ means very unusual circumstances.

Ref. Government of Malaysia & Anor v Jagdish Singh, the Supreme Court held that, where there is an appeal provision available, certiorari should not normally issue unless:

• (i) there is a clear lack of jurisdiction;
• (ii) a blatant failure to perform some statutory duty; or
• (iii) in appropriate cases, there is a serious breach of the principles of natural justice.
• OTF, since there was another avenue open to the appellant to ventilate its dissatisfaction over the decision of the respondent, the court would only exercise its judicial review jurisdiction in very exceptional cases.

Question 33

PROCEDURES FOR JUDICIAL REVIEW

Overview

Answer 33

1) Procedures overview
2) Leave application
3) Time limit
4) Extension of time
5) Intervention by stranger

Question 34

PROCEDURES FOR JUDICIAL REVIEW

Procedures overview

Answer 34

1) Stage 1 - leave - O.53, r.3:
- Ex parte application of leave;
2) Stage 2 - application for judicial review - O.53, r.4:

• Notice in Form 110;
• Service of Form 110, statement & all affidavits in support on persons directly affected.

3) Stage 3 - hearing.

Question 35

PROCEDURES FOR JUDICIAL REVIEW

Leave application

Answer 35

Threshold - Members of the Commission of Enquiry on the Video Clip Recording of Images of A Person Purported to be an Advocate and Solicitor Speaking on Telephone on Matters of Appointment of Judges v Tun Dato’ Seri Ahmad Fairuz:

• the threshold for the granting of such leave is very low.
• Leave is normally granted if the application is neither frivolous nor vexatious and it justifies further argument on a substantive motion.
• therefore, as long as the application is not frivolous or vexatious, leave will be granted.

Question 36

PROCEDURES FOR JUDICIAL REVIEW

Time limit

Answer 36

1) Time limit - O.53, r.3(6):

3 months from:
-The date when the grounds of application first arose; or
when the decision is first communicated to the applicant.

2) Non-compliance with time limit:

Wong Kin Hoong v Ketua Pengarah Jabatan Alam Sekitar:

• Application for leave must be filed within time;
• It is a fundamental rule & goes to jurisdiction.
• Once the trial judge had rejected the explanation for the delay for extension of time to apply for judicial review, it follows that the court no longer has the jurisdiction to hear the application for leave for judicial review.

cf. Omar Suhaimi Abu Hassan v Mahkamah Perusahaan:
- Delay in filing Form 111B is a mere technical non-compliance.

Question 37

PROCEDURES FOR JUDICIAL REVIEW

Extension of time

Answer 37

O.53, r.3(7):

• Good reasons must be demonstrated.

Question 38

PROCEDURES FOR JUDICIAL REVIEW

Intervention by stranger

Answer 38

1) The law - O.53, r.8(1):

• in opposition of the application; or
• appears as proper to be heard.

2) Applicability O.15, r.6(2) - Majlis Agama Islam Selangor v Bong Boon Chuen:

• Federal Court held that O.53, r.8 ousted the application of O.15, r.6(2) to judicial review proceedings.
• Therefore, O.15, r.6(2) does not apply to judicial review proceedings.

3) Principle of inclusivity - Advance Synergy Capital Sdn Bhd v The Minister of Finance, Malaysia (CA):

• The expression “an application for judicial review” in O.53 r.8 include the threshold leave stage.
• Therefore, there is no plausible reason to exclude a proper party or person to be granted leave to intervene as a respondent at the leave stage.
• In such circumstances, inclusivity rather than exclusivity should be the norm, so as to ensure fairness to the party who has a direct interest in the matter.

Question 39

RECENT CASES ON JUDICIAL REVIEW ON DIFFERENT GROUNDS

Overview

Answer 39

1) Error of law

2) Procedural unfairness & breach of natural justice

Question 40

RECENT CASES ON JUDICIAL REVIEW ON DIFFERENT GROUNDS

Error of law

Answer 40

Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers’ Union:

• Since an inferior tribunal has no jurisdiction to make an error of law, its decisions will not be immunized from judicial review by an ouster clause however widely drafted.

Meaning of error of law:

• Decision made with no jurisdiction or exceeding jurisdiction;
• Unfair procedure in reaching to the decision;
• Unreasonable decision reached.

An error of law would be disclosed if:

• the decision-maker asks himself the wrong question or takes into account irrelevant considerations or omits to take into account relevant considerations (what may be conveniently termed an Anisminic error); or
• if he misconstrues the terms of any relevant statute, or misapplies or misstates a principle of the general law.

Question 41

RECENT CASES ON JUDICIAL REVIEW ON DIFFERENT GROUNDS

Procedural unfairness & breach of natural justice

Answer 41

Malaysia Airline System Bhd v Wan Sa’adi Wan Mustafa (FC, 2015):

Rules of natural justice:

• the right to be heard, the rule against bias and the duty to act fairly.
• the scope of the ‘duty to act fairly’ should be considered on a case to case basis depending on the facts and circumstances governing the relationship of those involved.

Procedural fairness:

• Procedure used by a decision maker and not so much the actual decision itself.
• Requires a hearing that is appropriate to the facts and circumstances of the matter, the absence of bias, the availability of evidence and an inquiry into the issue before a decision is made.

Principles of natural justice:

• Should not be “unreasonably and unnaturally extended so as to frustrate the process of law”.
• It would suffice if the essential elements of the principles are followed;
• i.e. absence of bias, scope for a fair hearing, irrelevant materials are not be taken into account.