judicial review case malaysia

Malaysian Public Law

Judicial Review in Malaysia 101

What is Judicial Review?

Judicial review is a court action specifically designed to challenge “decisions, actions or omissions” of public bodies.

Public bodies are government organs which perform a public function: Ministers, the Federal Government, State Governments, Royal Malaysian Police, the Commissions which regulate various industries, Tribunals, Industrial Courts, local authorities, land offices, public universities, etc.

Must every decision of a public body be challenged by Judicial Review?

No. There are 2 main exceptions.

First, if the complaint against a public body is not based on principles of public law, or is a mixture of both private & public law, a Court may rule that a proper action would be by writ or originating summons (which are court actions for private parties). For example, if there is a fallout in a joint venture agreement between a construction company with a State Government to develop a land, it is essentially a contractual dispute involving private law. Similarly, if a patient suffers complications in a public hospital, it is a medical negligence case revolving private law. Both are unsuitable for judicial review.

Second, if there is a specific statutory procedure to challenge the public body, the same must be adhered to first. For instance, if you are unhappy with an income tax assessment imposed by the Inland Revenue Board, you must appeal to the Special Commissioners for Income Tax. If you are unhappy of a fine imposed by the Competition Commission, you must appeal to the Competition Appeal Tribunal. Having said that, if the decisions of the above appellate tribunals are still unsatisfactory, you can then proceed to file a Judicial Review.

Who can file a Judicial Review?

Any person who is “adversely affected”. In legal jargon, you must possess “locus standi” (a place of standing).

You are “adversely affected” as long as you can show you have “a real and genuine interest in the subject matter”.

You don’t necessarily need to be personally affected by a public law decision. The law recognises the concept of “public interest litigation”. “Public interest litigation” will be entertained by Courts if it is meant to redress public injury, enforce a public duty, protect social rights and vindicate public interest. It ensures access to justice to economically weaker classes.

On what grounds can you challenge a public decision?

The usual grounds are as follows:

(1) Ultra vires : when a public body acts beyond one’s statutory or legal power

(2) Unconstitutionality : when a public body does something which is against the Constitution

(3) Unreasonableness : when a public body acts in a manner where no reasonable public body would have done the same

(4) Disproportionality : when the decision arrived at is disproportionate to the objective sought to be achieved

(5) Breach of legitimate expectation : when a public body reneges on a policy, promise or representation made to a person or group of persons

(6) Denial of the right to be heard : when you are not given the opportunity to present your explanation/story before a decision is made

(7) Procedural unfairness : when a specific procedure provided in the law/regulations/rules is not followed in arriving at a decision

(8) Bias : when the public body has a vested personal interest in the outcome of a decision

(9) Failure to give reasons for decision

What remedies can you obtain if you succeed in a Judicial Review?

The usual remedies sought for are:

(1) Certiorari : an order to quash or nullify the decision of a public body.

(2) Declaration : a court pronouncement on the legal rights and obligations of parties

(3) Mandamus : an order for the public body to do something

(4) Prohibition : an order to prohibit the public body from doing something

(5) Damages : monetary compensation for the losses you have suffered

Is there a time limit for you to file a Judicial Review?

Yes, a Judicial Review should be filed 3 months from the date (i) when the grounds of application first arose or (ii) when the decision is first communicated to you.

If you have filed a Judicial Review outside the 3 months timeframe, you have to apply for an extension of time. The Court will only allow the extension of time if there are “good reasons for doing so”.

Must I exhaust all alternative remedies before filing a Judicial Review?

Generally, yes.

For example, if a trade union is dissatisfied of the Director-General of Trade Unions’ decision to revoke its registration, it should appeal to the Minister pursuant to a specific provision under the Trade Unions Act 1959, instead of filing a Judicial Review beforehand.

However, failure to exhaust alternative remedies does not automatically preclude one from seeking relief from the Courts through Judicial Review – it depends on among others the futility of such alternative remedy.

How is the court process like for Judicial Review?

A Judicial Review must be filed at a High Court.

There is a 2 stage process. The first stage is called the leave stage . The Court sieves out frivolous and vexatious cases (eg: if a matter is a private law dispute, if the applicant is not “adversely affected”, if the 3 month time limit is exceeded, etc.). At this stage, only the Attorney General’s Chambers appear and not the public body itself.

The second stage is the substantive stage . This is where the full merits of your case gets ventilated and decided by the Court.

A Judicial Review is conducted by affidavit evidence. This means you don’t appear as witnesses in a trial. The matter will be decided by documentary evidence. In rare circumstances, one can apply to cross-examine witnesses.

If you lose, you may be asked to pay costs to the public body concerned, and vice versa.

If you lose, you also have the opportunity to appeal to the Court of Appeal and may seek leave to appeal to the Federal Court thereafter.

Do I need to engage a lawyer to file a Judicial Review?

It is not mandatory.

But ideally, one should engage a lawyer to file a Judicial Review.

All of the above principles are general statements – nuances, caveats and exceptions govern such general principles, which are ordinarily only appreciated by those trained in the law. A lawyer is also more familiar with court procedure, forms and cause papers – an omission could result in cases being struck out on technicalities.

As a whole, it may be very challenging to face off alone unaided against a government lawyer representing the public body.

Disclaimer: The above is merely a brief summary of the principles and procedures relating to Judicial Review. It does not constitute legal advice. If you are affected by a public body’s decision, kindly seek legal advice from a qualified lawyer.

The Growing Trends of Judicial Review Against Government: Overview

February 1, 2021 > Malaysia > Litigation/Dispute Resolution

Azmi & Associates | View firm profile

INTRODUCTION

The guiding principles of Judicial Review were clearly pronounced in the Federal Court case of Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. & Anor [1] . “A judicial review is a court proceeding where a challenge is made on the decision of the relevant authority or entity by challenging the lawfulness of the decision-making process.”[2] Generally, the court dealing with the judicial review has the power to strike down the law, quash the decision of the relevant authority or under a public official to act in a certain manner if it believes the law or act to be unconstitutional or to be contrary to law in a free and democratic society.

Grounds for Judicial Review

It is trite law that the principles of unreasonableness, or irrationality,which is also known as the “Wednesbury principle”, derived from the celebrated case of Associated Provincial Picture Houses Ltd v Wednesbury corp [3] (“Wednesbury”). In short, it is a situation where the public authority has acted so unreasonably that no reasonable authority would have made such a decision. Lord Greene in the case of Wednesbury explained that the court cannot set up its own view as to what is reasonable and what is not.[4]

The court can only interfere if it is shown that the authority has contravened the law. And the authority is said to be contravening the law if it has taken into account matters which it ought not to take into account, or it has not taken into account matters which it ought to take into account.[5]

In other words, the court can also interfere if, the public authority, despite conforming to the requirements of the law, has become to a decision unreasonable that not reasonable authority could ever have come to it.[6]

In Sheila Sangar v. Proton Edar Sdn Bhd & Anor [7] the principles governing judicial review was neatly encapsulated as follows: “The first principle of judicial review concerned the decision making process and not the merits, substance or justification. The second principle is that there can be an exception to the first principle where the court could examine the substance or justification to satisfy itself that the decision maker had not transgressed the principles of procedural impropriety, illegality or irrationality”.

The House of Lords in R (Daly) v. Secretary of State for the Home Department [8] demonstrated how the traditional test of Wednesbury unreasonableness has moved towards the doctrine of necessity and proportionality. Lord Steyn noted that the criteria for proportionality are more precise and more sophisticated than traditional grounds of review. Therefore, judicial review can be initiated in accordance to the basis of necessity of the issue and proportionality on the acts of the government.

This article will provide an insight as to the growing trend of Judicial Review against the government by exploring the Federal Court case of Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal [2019] 3 MLJ 443 (“PNM v CCK”) and two (2) recent news article.

JUDICIAL REVIEW AGAINST GOVERNMENT

Case Study: Peguam Negara Malaysia v Chin Chee Kow [2019] 3 MLJ 443

Brief facts of PNM v CCK

A testator had willed funds and lands to trustees under a public charitable trust to build a pagoda for worshippers of a particular Buddhist deity.

a) When, after many years, nothing was done by the trustees to carry out the testator’s wishes and all funds that were allocated for that purpose were spent, the association representing the followers of the deity sought public funding to build the pagoda.

b) As interested donors wanted the association to become a trustee of the funds to ensure the project was well-managed, the association sought the attorney general’s (“AG”) consent under section 9(1) of the Government Proceedings Act 1965 (“GPA”) to its proposed application to the High Court to be made a trustee. However, the AG refused to give his consent.

c) The respondent sought leave of court to file proceedings to quash the AG’s refusal and order him to grant the consent. The AG objected to the leave application on the ground his refusal was non-justiciable.

d) The High Court disagreed with the AG and granted the association leave to file for judicial review. The Court of Appeal upheld the decision.

e) Aggrieved with the decision of the Court of Appeal, the AG had applied for and obtained leave to appeal from the Federal Court.

Federal Court’s decision

The Federal Court in its judgment had mentioned the English case of Brown v Executors of the Estate of Her Majesty Queen Elizabeth the Queen Mother[9], which stated that:

a) “The conclusion (of the House of Lords in Gouriet’s case) that, in the absence of the consent of the Attorney-General, Mr Gouriet was barred from pursuing the proceeding was based the analysis of the statutory provisions in issue. By contract, there is nothing on the face of section 124 of the Supreme Court Act 1981 to suggest that the court may only exercise its powers under it on an application by the Attorney-General. The general effect of section 124 may be relied on by any person. “[10]

Furthermore, the Federal Court also mentioned and referred to a Singapore case affirming the position that all AG’s powers are subject to legal limits as:

a) the Singapore Court of Appeal in Tan Seet Eng v Attorney-General [11] stated “under the law, the AG’S discretionary power is not absolute and he must act according to law, as his prosecutorial power is subject to legal limits. Prosecutorial discretion cannot be exercised in bad faith, or in a manner contrary to the quality guaranteed under Article 12 of the Constitution”.[12]

The Federal Court, keeping in mind the principles of law on the subject as propounded by the courts in other jurisdiction, found that the Court of Appeal[13] had no flaw in its reasoning in holding that the power of the AG to give or refuse consent under section9(1) GPA 1965 is amendable to judicial review.[14]

Lastly, before delivery its judgement, the Federal Court reiterate the important pronouncement in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [15] in which the court declared that the power of judicial review ‘cannot be changed or altered by Parliament by way of a constitutional amendment’ [16] and ‘the power of judicial review is essential to the constitutional role of the courts, and inherent in basic structure of the constitution'[17]. In summary, the Federal Court held that unfettered discretion is contradictory to the rule of law and hereby dismissed the AG’s appeal as the AG’s power to give consent or otherwise under section 9(1) GPA 1965 is not absolute and is subject to legal limits[18] which is amenable to judicial review.

News Article 1: High Court grants Petronas, TNB interim stay against IRB for multi-billion tax claims[19]

Petroliam Nasional Berhad (“Petronas”)

On the 10th August 2020, the High Court granted Petronas an interim stay against the Inland Revenue Board (LHDN) for imposing additional tax assessments amounting to RM3.6 billion on the national oil company.

Petronas and three of its subsidiaries have filled three judicial review proceedings against LHDN alleging that LHDN’s action was ‘ultre vires, illegal, void, in excess of authority and irrational in making the additional tax assessments of RM3.6 billion’.[20] As of the date of writing this article, the date has fixed for 19th September 2020 to hear Petronas’ leave application for the judicial review.

Tenaga Nasional Berhad (“TNB”)

In another court, a similar stay order against LHDN’s assessment of RM1.8 billion on similar grounds concerning its reinvestment tax allowance was granted to TNB pending the outcome of a judicial review. The legal representative for TNB told the media that “the judge accepted our submission that the judicial review must be heard and disposed of before a decision on payment is made”.[21]

As of the date of writing this article, the court will hear the leave for judicial review on the 21st September 2020.

News Article 2: High Court allows construction company to move judicial review[22]

Wabina Construction & Engineering Sdn Bhd (“Wabina”)

Wabina filed the legal suit in May 2020 against the Malaysian government, Domestic Trade and Consumer Affairs, the Companies Commission of Malaysia and its debtor Seal Properties (KL) Sdn Bhd, challenging the government’s decision to gazette the Companies (Exemption) Order 2020 during the Movement Control Order (MCO) that effectively exempted companies from having to pay their creditors for six months.[23]

Wabina alleged that the ministry had acted beyond their powers in issuing the 2020 Order, which it claimed is illogical and void [24] to the extent of being inconsistent with the Companies Act because it was gazetted without going through the Dewan Rakyat for debate.[25] On the 29th June 2020, the Penang High Court has granted leave to Wabina to have the full merits of its judicial review application heard. This is the first such challenge by a company over the government’s directive, which was gazetted as an order on 23rd April without having been passed by Parliament. [26] Wabina said it had, since 27th March, a statutory right to serve a winding-up notice on Seal Properties. However, due to the gazetted order from the government, it has been prevented from doing so. Thus, its constitutional right as a creditor to recover the sum it was owed has been violated.[27]

Judicial review against the Government is recognised as a basic structure of the Malaysian constitution where under Article 121 (1)[28] the civil courts constitutional role is as a check and balance mechanism. Therefore, the judiciary is thus entrusted with keeping every organ and institution of the state within its legal boundary. Hence the concept of the independence of the judiciary is the foundation of the principles of the separation of powers. As held by Justice Zainun FC in the Federal Court’s decision of Indira Gandhi’s case.[29] “This is essentially the basis upon which rests the edifice of judicial power. The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework.”

To conclude, judicial review against the Government is the ultimate solution in preventing blatant misuse of powers by the Government in dealing with their actions and accountability.

——-

1 Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. & Anor [2017] 1MLJ 563 2 [Para 29] Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. & Anor [2017] 1 MLJ 563 3 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 4 [Para 233], Wednesbury [1948] 1 KB 223 5 [Para 32], Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. & Anor [2017] 1 MLJ 563 6 [Para 33], Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. & Anor [2017] 1 MLJ 563 7 Sheila Sangar v. Proton Edar Sdn Bhd & Anor 4 MLJ 285 (2009) 8 R (Daly) v. Secretary of State for the Home Department 2 AC 532 (2001) 9 Brown v Executors of the Estate of Her Majesty Queen Elizabeth the Queen Mother [2008] 1 WLR 2327 10 [Para 38], Brown [2008] 1 WLR 2327 11 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 12 [Para 1-2] Tan Seet Eng v Attorney-General [2016] 1 SLR 779 13 PNM v CCK [2019] 1 MLJ 307 14 [Para 77], PNM v CCK [2019] 3 MLJ 443 15 Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 16 [Para 81], PNM v CCK [2019] 3 MLJ 443 17 [Para 81], PNM v CCK [2019] 3 MLJ 443 18 [Para 83], PNM v CCK [2019] 3 MLJ 443 19 https://www.theedgemarkets.com/article/high-court-grants-petronas-tnb-interim-stayagainst-irb-multibillion-tax-claims 20 https://www.theedgemarkets.com/article/high-court-grants-petronas-tnb-interim-stayagainst-irb-multibillion-tax-claims 21 https://www.freemalaysiatoday.com/category/nation/2020/08/10/petronas-tnbobtain-interim-stay-from-paying-rm5-4-bil-intaxes/ 22 https://www.nst.com.my/news/crime-courts/2020/06/604381/high-court-allows-construction-company-move-judicial-review-nsttv 23 https://www.theedgemarkets.com/article/court-allows-merits-companys-challengegovts-move-allowing-deferred-payments 24 https://www.thestar.com.my/news/nation/2020/06/29/court-allows-company-tochallenge-mco-order-granting-six-monthdebt-extension 25 https://www.nst.com.my/news/crime-courts/2020/06/604381/high-court-allows-construction-company-move-judicial-review-nsttv

26 https://www.theedgemarkets.com/article/court-allows-merits-companys-challengegovts-move-allowing-deferred-payments 27 https://www.theedgemarkets.com/article/court-allows-merits-companys-challengegovts-move-allowing-deferred-payments 28 Article 121 (1) of the Federal Constitution 29 Indira Gandhi v. Pengarah Jabatan AgamaIslam Negeri Perak and 2 Ors. (2018) 1 MLJ 545.

Prepared By: Adly Zulfadhly Zulkefly & Gabriel Yee Full Yek

International Journal of Academic Research in Business and Social Sciences

Open access journal.

ISSN: 2222-6990

An Overview of Judicial Review in The Malaysian Court

Norazlina abdul aziz, mazlina mohamad mangsor, nur ezan rahmat, mastika nasrun, rosa ristawati.

Pages 336-352
Received: 09 Nov, 2022
Revised: 11 Dec, 2022
Published Online: 14 Jan, 2023

http://dx.doi.org/10.6007/IJARBSS/v13-i1/16182

Open access

Judicial review is the power of court to revise the decision and act of the administrative power and legislative action which had acted in exceeds of their power. However, interpretation of ‘exceeding their power’ may differ from one case to another to which the courts are given the discretionary power to decide. This leave uncertainty on the interpretation of the judiciary power to review and may lead to the collapse of the rule of check and balance and the concept of good governance. This study aims to examine the principles and approaches adopted in the judicial review process in Malaysia. These concepts and theories serve as the threshold to the cases of judicial review in Malaysia. The study adopts a qualitative method utilising doctrinal and case study. Analysing cases decided by the Malaysian court on Judicial Review forms a major part of the data analysis. The study found that the Malaysian judiciary has made significant efforts to preserve the rule of law, protect the fundamental rights of the people, and uphold the good governance concept through the function of judicial review. The principles of cases involving judicial review in Malaysia have served as a guideline in describing the rules and restrictions that a judge should follow when exercising the judicial review function. The findings of the study may form a summarised development of judicial review in Malaysia that may be referred to by the policymakers, academicians, and future researchers.

Journal/Conference Proceeding Abu Backer, H. S. (2018). Constitutional Oath, Rule of Law and Judicial Review: An Alternative Approach to Basic Structure Jurisprudence. Current Law Journal. Anantaraman, V. (1994). Judicial Review: The Malaysian Experience (11). Malayan Law Journal, 1, lxv. Anushka. (2017). Relevance of the Doctrine of Separation of Power in Modern India. Journal of Contemporary Issues of Law, 3(11), 1–5. Brice, E. A. (2021). Judicial Review: Myths and Realities in the Malaysian Legal System. https://www.researchgate.net/publication/354809742_Judicial_Review_Myths_and_Realities_in_the_Malaysian_Legal_System Devi, P. S., & Van Huizen, M. J. (2021). A Review of ’Social Justice?: Constitutional Oath, Rule of Law and Judicial Review - Justice Datuk Dr Hj Hamid Sultan bin Abu Backer [2021] 1 MLJ cclxxiii. Malayan Law Journal, 1–5. Dyson, Lord. (2016). Is Judicial Review a Threat to Democracy. Current Law Journal, 1–4. Goel, P. (2014). Doctrine of Separation of Powers?: Global and Indian Perspective. International Journal of Research in Humanities and Social Sciences, 2(4), 34–38. Hamid, N. A., & Ahmad, R. (2010). Judicial Review of the Executive Discretionary Powers: Judicial Activism Vis-À-Vis Judicial Self- Restraint of Maintaining a Dividing Line Between Supervisory and Appellate Jurisdiction. International Conference on Public Policies & Social Sciences: E-Proceedings, 1–10. Hogan, G. (1993).Constitutional and Administrative Law in a Nutshell, Sweet & Maxwell. 74. Kadouf, H.A & Sambo, A.O.(2013). Justiciability of Legislative Proceedings: A Legal Analysis of the Malaysian Courts’ Approach. International Islamic University Malaysia Legal Journal, 21, 233-245. Jafar, M. (2020). Exploring the Effectiveness of the Judicial Review Practices within Malaysian Legal System. Journal of Social Science Advanced Research (JOSSAR), 1(2), 182–193. https://doi.org/10.1016/s0140-6736(85)92693-5 Lemieux, S. E. (2017). Judicial Supremacy, Judicial Power, and the Finality of Constitutional Rulings. Perspectives on Politics, Cambridge University Press, 15(4), 1067–1081. https://doi.org/10.1017/S153759271700216X Lobo, B. (2000). Appellate Powers and Consequential Relief in 'Judicial Review - R Rama Chandran Revisited. 3 Malayan Law Journal, ccxxv. Okpaluba, C. (2017). Judicial Review of Executive Power: Legality, Rationality and Reasonableness. Southern African Public Law, 30(2), 379–405. https://doi.org/10.25159/2522-6800/3586 Peng Kwang, H., Sabaruddin, J. S., & Dhanapal, S. (2017). A Judicial Review in Security Offence Cases?: The Malaysian Experience. Current Law Journal, 1–5. Shahizam, S. (2020). Whither Non-Justiciability? An Argument for Judicial Review of Prosecutorial Discretion in Light of the Basic Structure [2020] 2 MLJ cxli. Malayan Law Journal, 2(1), cxli. Sharif, M. R. (2017). Judicial Review: The Malaysian Experience. Journal of the Malaysian Judiciary, July, 1–286. Soni, M. (2020). Critical Essay on Application of Doctrine of Separation of Power in India. The Law Brigade, 6(6), 164–173. Sultana, T. (2012). Montesquieu ’ s Doctrine of Separation of Powers: A Case Study of Pakistan. Journal of European Studies, 28(2), 55–71. Thambapillay, S. (2007). Recent Developments in Judicial Review of Administrative Action in Malaysia: a Shift From Grounds Based on Common Law Principles To the Federal Constitution. Persidangan Undang-Undang Tuanku Ja’afar, 4(2), 275–289. Cases Johari, A. J. M. J. @ M., Kebudayaan, P., & Johor, K. (2010). 3 MLJ 145, FC. Ah Thian v. Government of Malaysia. (1976). 2 MLJ 112. Atenza, A. N., & Another Appeal. (2019). 5 CLJ 780. Asia Pacific Education Holdings Sdn Bhd & Negeri, K. P. H. D. (2022). 1 LNS 1442. Thuan, C. S., and another appeal. (2019). 4 CLJ 561; [2019] MLJU 202. Ibrahim, D. S. A., Yassin, T. S. M. B. & Anor. (2021). 7 CLJ 894. Ayub, D, S. S., Menteri, O. V. P., Yasin, T. S. D. H. M. M., & Anor. (2021). 8 CLJ 260. Undangan, K. D. N., Salleh, A. N. bin., & Anor. (1992). 1 MLJ 697. Selangor, D. U. N., & Harun, O. V. M. H. (2016). 7 CLJ 143, FC. Bhd, G. C. G. T. S., v Ketua Pengarah Jabatan Pengangkutan Jalan Malaysia. (2012). 2 CLJ 389. Mei, H. S., Ketua Pengarah Jabatan Pendaftaran Negara & Ors. (2022). 1 LNS 1361. Iki Putra Mubarak v. Kerajaan Negeri Selangor & Anor. (2021). 1 MLRA. Kumpulan Perangsang Selangor Bhd v Zaid Noh. (1997) 1 MLJ 789. Laguna De Bay Sdn Bhd v Majlis Perbandaran Subang Jaya. (2014). 7 MLJ 545 (HC). Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor Dengan Tanggungan. (1999). 3 CLJ 65. Mamat bin Daud & Ors v Government of Malaysia. (1988). 1 MLJ 119. Mohamed Tawfik bin Tun Dr Ismail v Pandikar Amin bin Haji Mulia (disaman sebagai Yang di Pertua Dewan Rakyat, Parlimen Malaysia) & Anor. (2018) MLJU 552, HC. Muhammad Juzaili bin Mohd Khamis and Ors. v. State of the government of Negeri Sembilan and Ors. (2015). MLJU 65. Oxygen Bhd v Soh Tong Wah and another appeal. (2015). 3 MLJ 730. Peguam Negara Malaysia v. Chin Chee Kow (sebagai Setiausaha Kebajikan dan Amal Liam Hood Thong . Pengarah Tanah dan Galian,Wilayah Persekutuan v. Sri Lempah Enterprise Sdn Bhd. (1979). 1 MLJ 135. R.Rama Chandran v. Industrial Court of Malaysian & Anor. (1997). 1 MLJ 145. Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn Bhd. (2010). 6 MLJ 1. Shaikh Mohd Ibrahim Shaikh Omar v. Tan Sri Dr Haili Dolhan & Ors. (2022). 1 LNS 1397. SIS Forum (Malaysia) v Dato’ Seri Syed Hamid bin Syed Jaafar Albar (Menteri Dalam Negeri). (2010). 2 MLJ 377. Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam. (2010). 7 MLJ 355. SWW v. Ketua Pengarah Hasil Dalam Negeri. (2020). 1 LNS(A) cxxxiv. Teh Guat Hong v. Perbadanan Tabung Pendidikan Tinggi Nasional. (2018). 2 CLJ 762. Telic Farm Sdn Bhd v. Majlis Bandaraya Melaka Bersejarah. (2008). 5 MLJ 452. Tun Dr Mahathir Mohamad & Ors v. Datuk Azhar Azizan Harun & Ors. (2021) 3 CLJ 852. 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In-Text Citation: (Aziz et al., 2023) To Cite this Article: Aziz, N. A., Mangsor, M. M., Rahmat, N. E., Nasrun, M., & Ristawati, R. (2023). An Overview of Judicial Review in The Malaysian Court. International Journal of Academic Research in Business and Social Sciences, 13(1), 336 – 352.

Copyright: © 2023 The Author(s) Published by HRMARS (www.hrmars.com) This article is published under the Creative Commons Attribution (CC BY 4.0) license. Anyone may reproduce, distribute, translate and create derivative works of this article (for both commercial and non-commercial purposes), subject to full attribution to the original publication and authors. The full terms of this license may be seen at: http://creativecommons.org/licences/by/4.0/legalcode

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Pursuing Good Governance ADMINISTRATIVE JUSTICE IN COMMON-LAW AFRICA

Hoolo Nyane

Administrative law in Lesotho, like constitutional law, is pre-eminently based on the English common law. That notwithstanding, the usual influence of South African law cannot be underestimated. Although the 1993 Constitution of Lesotho was adopted in the same year as the South African Interim Constitution which provided for the right to administrative justice, the Lesotho Constitution does not provide for the right to administrative justice. The Constitution provides for a bifurcated human rights structure wherein human rights are put into two categories — social and economic rights on the one hand, and civil and political rights on the other. The social and political rights are non-justiciable while political rights are legally enforceable. The country does not have a statute specifically codifying administrative law. As a result, judicial review has occupied the central stage as the single most important cornerstone of administrative justice in the country. Nevertheless, there is an unpleasant fluidity and inconsistency in the manner in which superior courts in Lesotho apply various aspects of judicial review in the area of administrative law. In the majority of cases, courts feel constricted by the narrow English law-based doctrine of ultra vires which is animated by the ‘intention-of-parliament’ principle. This ‘weak’ model of judicial review is the major shortfall of administrative law in Lesotho. The purpose of this chapter, therefore, is to evaluate the state of administrative justice in Lesotho. Using the scoping approach, the chapter evaluates major kingpins of administrative justice such as the Constitution, judicial review, ouster clauses and the role of extra-curial institutions like parliament and the office of the ombudsman. The ultimate contention is that the country must introduce the right to administrative justice in the Constitution and operationalise it through a statute.

Jaclyn L Neo

Ziyasa Johardeen

“There can to my mind be no doubts that the authors of the constitution intended that those rights should be enforceable by the courts of law. They could never have intended to confer a right without a remedy. The remedy is indeed, part and parcel of the right. ubi jus ibi remadium.”

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Application for Judicial Review – The Procedure

Prior to the year 1996, the Malaysian courts referred to the rigid and technical common law rules governing judicial review of administrative actions. However the judicial trend shifted from referring to common law rules to the Federal Constitution.

Today, the court is empowered by Section 25(2) of the Courts of Judicature Act 1964 to enforce the rights conferred by Part II of the Federal Constitution with the objective of curbing unlawful administrative action.

In this article, readers will get an overview on the procedure when making a judicial review application.

First, we need to answer the following questions:

What is judicial review?

Who can apply for judicial review?

What are the orders granted in a judicial review application, what is judicial review.

Judicial review is a process in which the High Court exercises its supervisory jurisdiction over proceedings, decisions, acts and omission of public bodies, i.e. inferior courts, tribunals and other bodies or person who carry out a quasi-judicial function; any person or body who perform duties which involve a public element.

What does this mean?

For context, public bodies are entrusted with a function to make a decision in accordance with the written law in order to uphold the rules of natural justice. However where a decision made by the public body is found to be beyond its jurisdiction ( ultra vires ), illegal, or flawed in procedure, any party aggrieved by the decision may challenge the decision of the public body by applying for judicial review.

As mentioned above, any party who is aggrieved or adversely affected by the decision of the public body may apply for judicial review.

Order 53 Rule 2 of the Rules of Court 2012 (“ ROC ”) provides that the High Court may order the reliefs specified in paragraph 1 of the Schedule to Courts of Judicature Act 1964 which includes an order in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. These orders are collectively referred to as the prerogative writ.

In addition to that, the High Court is empowered under Order 53 Rule 2 of the ROC to grant additional orders which includes an order of declaration, injunction or monetary compensation.

The infographic set out below summarizes the following:

The common grounds in which a judicial review application is made;
The reliefs available to applicants; and
The procedure in applying for judicial review.

The Federal Constitution coupled with the Courts of Judicature Act 1964 have allowed the courts to strike down an unlawful administrative action and as such, said to be reviving the combined effects of Articles 5 and 8 of the Federal Constitution.

“A fresh breath of life has been infused into Articles 5 and 8 of the Constitution and both articles have now become important weapons in the artillery of the judiciary to control the abuse of administrative power.”

The above quote was taken from Sridevi Thambapillay’s article titled, “ Recent Developments in Judicial Review of Administrative Action in Malaysia: A Shift From Grounds Based On Common Law Principles ”, in which the article discusses the developments on the grounds for judicial review.

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Judicial Review: Are you ‘adversely affected’ by the public authorities’ decision?

By phoebe loi yean wei ~ 5 july 2021.

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Introduction

Lately, the phrase “judicial review” has popped up in the news rather frequently and the context in which it appears are often in matters concerning public interest. Examples of such matters include the legal action brought by the residents of Taman Tun Dr Ismail to challenge the decision made by the Mayor of Kuala Lumpur (who approved a proposed development of 8 blocks of high-rise luxury condominium on the part of the well-known public park, Taman Rimba Kiara) and the recent Undi18 youth movement which sought for a review of the Election Commission’s decision to delay the implementation of a lowered voting age.

In essence, an application for judicial review is a mechanism which is utilized to review/examine the decisions and actions of public bodies. It serves as a check and balance for executive and legislative actions by ensuring that public bodies act within the bounds permissible by law.

Previously, the courts will usually look into the decision-making process and not at the merits of the decision itself. However, the law has developed to allow a decision to be challenged on the grounds of illegality and irrationality – which permits the courts to scrutinize the decision not only for process, but also for substance. Therefore, if a public authority acts (1) irrationally, (2) unreasonably, (3) unfairly (procedural impropriety) and/or (4) beyond the limits of its powers under the law (illegality), the court can intervene by issuing the necessary orders to correct these problems.

Under Order 53 Rule 2(4) of the Rules of Court 2012 (“Rules of Court”) and Schedule of the Courts of Judicature Act 1964 , any person who is ‘adversely affected’ by the decision, action or omission of a public authority is entitled to file an application for judicial review and seek for any of the following reliefs/orders:-

1. Certiorari – an order to quash the decision (including administrative actions) made by a tribunal or public authorit y.

2. Mandamus – an order to compel the performance of a legal duty imposed by law.

3. Prohibition – an order issued to prevent a public authority from proceeding without jurisdiction.

4. Quo warranto – a writ issued to question a public decision-taker’s authority to hold a particular public office by calling upon that person to show the court under what authority he holds that office.

5. Monetary compensation – compensation that a person is entitled to receive from the State for the breach of his fundamental right by any branch of Government, which is also known as “constitutional compensation”.

6. Declaration.

7. Injunction.

It must be highlighted that Order 53 Rule 2(4) of the Rules of Court only permits a person who is ‘ adversely affected ’ by the conduct of public authorities to file a judicial review application. These persons are said to have the locus standi (or legal standing) to pursue the action and such a requirement ensures that only those with legitimate legal grievances will be permitted to proceed with the challenge.

This article will discuss the test that is applied by the courts to determine whether a party has the necessary locus standi to file an application for Judicial Review.

The Test for Locus Standi – are you ‘adversely affected’?

There are two types of locus standi under the common law, namely, “threshold locus standi” and “substantive locus standi”. Threshold locus standi deals with an applicant’s legal standing to commence the proceedings in court, whereas substantive locus standi examines the merits of the case and whether the applicant is entitled to the reliefs sought.

Previously, an applicant for judicial review was required to establish that there was an infringement of a private right resulting in special damages (in addition to the violation of a public right), in order to have the necessary locus standi to pursue the action. In other words, the previous legal position required both threshold and substantive locus standi to be established for an applicant to be entitled to pursue an action for judicial review.

However, a major change in the law occurred when the Federal Court delivered its judgment in Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145 (“MTUC”) .

In MTUC , the Federal Court held that there was only a single test for locus standi in judicial review applications under Order 53 of the Rules of Court , which is that an applicant only needs to show that he is ‘adversely affected’ by the decision of the public authority. To pass this ‘adversely affected’ test, an applicant will need to show that he has a ‘real and genuine interest’ in the subject matter of the application:-

“[58] … Therefore, in determining the locus standi to sue, the court has to exercise caution in applying the English cases. In our view for an applicant to pass the 'adversely affected' test, the applicant has to at least show he has a real and genuine interest in the subject matter. It is not necessary for the applicant to establish infringement of a private right or the suffering of special damage.”

The MTUC decision liberalised the rules on locus standi. In reaching its decision, the Federal Court adopted the approach taken by the Court of Appeal in QSR Brands Bhd v Suruhanjaya Sekuriti & Anor [2006] 3 MLJ 164 which explained that rules of court should not be interpreted in such a way as to result in unfairness or produce a manifest injustice. As such, a flexible approach ought to be taken here.

An application for judicial review will have to demonstrate that it falls within the factual spectrum that is covered by the words ‘adversely affected’. In this regard, the Court in QSR Brands gave examples of situations where an applicant may be adversely affected:-

1. Where an applicant has an obviously sufficient personal interest in the legality of the matter being reviewed. This includes cases where the complaint is that a fundamental right such as the right to life or personal liberty or property has been, is being or is about to be infringed. In all such cases, the court must, for the interest of justice or as a matter of right grant the applicant the right to proceed with the action.

2. Cases which are in the nature of a public interest litigation. Public interest litigation is usually entertained by a court for the purpose of redressing public injury, enforcing public duty, protecting social rights and vindicating public interest. In other words, the real purpose here is the vindication of the rule of law, effective access to justice by the economically weaker class and meaningful realisation of fundamental rights. The orders issued by the courts in public interest litigation are meant for the betterment of the society at large and not for benefiting any individual.

Application of the Test

An example of how the test for ‘adversely affected’ is applied can be seen from the Court of Appeal’s judgment of Perbadanan Pengurusan Trellises & Ors v Datuk Bandar Kuala Lumpur & Ors [2021] 3 MLJ 1 – a case which attracted wide media attention and public interest. Perbadanan Pengurusan Trellises concerned a decision made by the Mayor of Kuala Lumpur to grant a development order. Vide the development order, the Datuk Bandar had approved the proposed development of luxury condominiums on Taman Rimba Kiara, a public park.

In response, residents from Taman Tun Dr Ismail (consisting of a Residents’ Association, Management Corporations, Joint Management Body and 3 individuals) filed a judicial review application seeking for an order of certiorari to quash the decision of the Mayor. One of the issues raised in this case was whether these parties had the locus standi to file the judicial review application.

In a unanimous decision, the Court of Appeal applied the test laid down in MTUC and held that all of the applicants had real and genuine interests in the subject matter of the judicial review. It was clear that the proposed development on Taman Rimba Kiara would have an impact on the applicants in various ways: from the use of their properties, value of such properties, to the traffic or egress and ingress in relation to their properties and the impact directly on the density of population in the area. As such, the applicants clearly satisfied the test of being ‘adversely affected’. The development order issued by the Mayor of Kuala Lumpur was also quashed due to various other reasons. To read more about the Taman Rimba Kiara case, please refer to the article here .

Conclusion

With great power comes great responsibility. Whenever public bodies exercise the powers and discretion conferred on them, there is a legitimate expectation by the public that they will carry out their duty and exercise these powers fairly, reasonably and in accordance with the perimeters set by the law. When a public body commits an error or wrong which falls within the four heads described above (illegality, irrationality, unreasonableness and procedural impropriety), it makes sense that an aggrieved party would want to turn to the courts to seek for the necessary judicial remedies in order to right the wrongs.

As such, given that judicial review proceedings are brought in the area of public law for the purposes of attending to grievances of abuse or complaints of wrongs by public authorities, the rules of court must be read more liberally and with greater flexibility in order to offer redress of public injury. All persons who are adversely affected by the decisions or acts of public authorities must be allowed to challenge the same in a court of law.

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The Growing Trends of Judicial Review Against Government: Overview

INTRODUCTION

Grounds for Judicial Review

It is trite law that the principles of unreasonableness, or irrationality,which is also known as the “Wednesbury principle”, derived from the celebrated case of Associated Provincial Picture Houses Ltd v Wednesbury Corp [3] (“Wednesbury”). In short, it is a situation where the public authority has acted so unreasonably that no reasonable authority would have made such a decision. Lord Greene in the case of Wednesbury explained that the court cannot set up its own view as to what is reasonable and what is not.[4]

JUDICIAL REVIEW AGAINST GOVERNMENT

Case Study: Peguam Negara Malaysia v Chin Chee Kow [2019] 3 MLJ 443

Brief facts of PNM v CCK

A testator had willed funds and lands to trustees under a public charitable trust to build a pagoda for worshippers of a particular Buddhist deity.

d) The High Court disagreed with the AG and granted the association leave to file for judicial review. The Court of Appeal upheld the decision.

e) Aggrieved with the decision of the Court of Appeal, the AG had applied for and obtained leave to appeal from the Federal Court.

Federal Court’s decision

The Federal Court in its judgment had mentioned the English case of Brown v Executors of the Estate of Her Majesty Queen Elizabeth the Queen Mother [9], which stated that:

Furthermore, the Federal Court also mentioned and referred to a Singapore case affirming the position that all AG’s powers are subject to legal limits as:

Lastly, before delivery its judgement, the Federal Court reiterate the important pronouncement in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [15] in which the court declared that the power of judicial review ‘cannot be changed or altered by Parliament by way of a constitutional amendment’ [16] and ‘the power of judicial review is essential to the constitutional role of the courts, and inherent in basic structure of the constitution’[17]. In summary, the Federal Court held that unfettered discretion is contradictory to the rule of law and hereby dismissed the AG’s appeal as the AG’s power to give consent or otherwise under section 9(1) GPA 1965 is not absolute and is subject to legal limits[18] which is amenable to judicial review.

News Article 1: High Court grants Petronas, TNB interim stay against IRB for multi-billion tax claims [19]

Petroliam Nasional Berhad (“ Petronas ”)

Tenaga Nasional Berhad (“ TNB ”)

As of the date of writing this article, the court will hear the leave for judicial review on the 21st September 2020.

News Article 2: High Court allows construction company to move judicial review [22]

Wabina Construction & Engineering Sdn Bhd (“ Wabina ”)

To conclude, judicial review against the Government is the ultimate solution in preventing blatant misuse of powers by the Government in dealing with their actions and accountability.

——————–

Written by:

Adly Zu l fadhly Zulkefly ( [email protected] )

Gabriel Yee Full Yek (Senior Associate) [email protected]

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Malaysia: The Mode To Challenge An Industrial Court Award: Appeal Or Judicial Review

INTRODUCTION

Recently, the High Court of Penang has resolved the confusion on the correct mode to challenge an Industrial Court Award in the High Court by interpreting Sections 33C and 20(3) of the Industrial Relations Act 1967. This decision by Justice Anand Ponnudurai in Aneka Retail (M) Sdn Bhd v Industrial Court Malaysia & Ors explained the correct mode to challenge an Industrial Court Award in the High Court.

BACKGROUND FACTS

The two Respondents were former employees of the Applicant company. In April and May 2020, they did not receive their salaries at all and accordingly, they contended that they have been constructively dismissed from 8.6.2020. The Respondents made their representations pursuant to Section 20 of the Industrial Relations Act 1967 (" the IR Act "). The dispute was then referred to the Industrial Court by the Minister of Human Resources (" the HR Minister ") by a letter dated 6.1.2021 pursuant to Section 20(3) of the 1967 Act. The Industrial Court held the Respondents were constructively dismissed due to fundamental breaches of their employment contract and awarded back wages and compensation. The Applicant filed an application pursuant to Order 53 of the Rules of Court (" the ROC ") 2012 for leave to apply for an order of certiorari to quash the Industrial Court Award Nos. 1630 of 2022 and 1631 of 2022, both dated 25.7.2022. The application for leave was met with objection by the Attorney General's Chambers (" the AGC ") on the grounds that the Applicant should instead file an appeal under Section 33C of the 1967 Act.

Whether the Applicant had correctly utilised judicial review proceedings or ought to have filed an appeal under Section 33C of the IR Act as amended.

Essentially, the Industrial Relations (Amendment) Act 2020 (" the 2020 Amendment Act ") introduced several amendments to the principal IR Act which took effect on 1.1.2021. The amendments are, amongst others, as follows:

1. The amendment of Section 20(3) of the IR Act removed the HR Minister's discretion to refer any representation for unfair dismissal of a workman to the Industrial Court. Instead, the Director General of Industrial Relations ("the DG") shall refer the representations to the Industrial Court for an award where he is satisfied that there is no likelihood of the representations being settled; and

2. The insertion of Section 33C of the IR Act which allows the party dissatisfied with the Industrial Court Award to appeal to the High Court.

Section 33C of the IR Act (Appeal against an award to the High Court) provides as follows:

(1) If any person is dissatisfied with an award of the Court made under section 30 such person may appeal to the High Court within fourteen days from the date of receipt of the award.

(2) The procedure in an appeal to the High Court shall be the procedure in the Rules of Court 2012 [P.U.(A) 205/2012] for an appeal from a Sessions Court with such modifications as the circumstances may require.

(3) In dealing with such appeals, the High Court shall have like powers as if the appeal is from the Sessions Court.

DECISION OF THE HIGH COURT

The objection taken by the AGC was that Section 33C of the amended IR Act should apply as the HR Minister's reference (dated 6.1.2021) and the Industrial Court Award (dated 25.7.2022) were made after the amendment introduced by the 2020 Amendment Act (effective 1.1.2021).

In dismissing the AGC's objection and granting leave to the Applicant, the High Court held that the Applicant had correctly commenced the proceedings by way of judicial review. Prior to the amendment introduced by the 2020 Amendment Act, any party aggrieved by the Industrial Court Award would utilise judicial review proceedings to quash an Industrial Court Award. Subsequent to the amendment (effective 1.1.2021), Section 33C of the IR Act states that any person dissatisfied with the Industrial Court Award may appeal to the High Court. Further, the 2020 Amendment Act has also amended Section 20 of the IR Act in that the HR Minister's discretion to refer the workman's unfair dismissal representation to the Industrial Court for an award has been removed. Instead, the DG shall refer the representations to the Industrial Court for an award where he is satisfied that there is no likelihood of the representations being settled. Therefore, the High Court opined that if the representation was referred to the Industrial Court by the DG, then an appeal ought to be filed under Section 33C of the IR Act to challenge any Industrial Court Award. On the other hand, if the representation was referred by the HR Minister, then judicial review would be the proper application. In this present case, the date of the HR Minister's letter, i.e. 6.1.2021, is irrelevant as it was the HR Minister who was exercising his discretion in referring the representation. Further, the High Court referred to the saving and transitional provision in Section 35 of the 2020 Amendment Act and held that the Applicant was entitled to utilise judicial review proceedings as if the IR Act has not been amended.

Section 35 of the 2020 Amendment Act (Saving and transitional provisions) is reproduced as follows:

(1) Complaints made under section 8, disputes referred under subsection 9(1A), claims for recognition made under section 9, representations for reinstatement made under section 20 of the principal act , and all proceedings commenced or awards made before the Industrial Court in relation to a reference under subsection 8(2A), subsection 20(3) and section 26 before the coming into operation of this act shall proceed and have effect as if the principal act had not been amended by this act .

(2) All rules and regulations, forms, directions and letter of authorizations made, issued or granted under the principal act shall, to the extent that the rules and regulations, forms, directions and letter of authorizations are consistent with the principal act as amended by this act, continue to be in force until such rules and regulations, forms, directions and letter of authorizations are revoked or amended.

(3) Any investigation, trial or proceedings done, taken or commenced under the principal act immediately before the coming into operation of this act, shall be dealt with as if the principal act had not been amended by this act.

It is undisputed that the representations were made by the Respondents in 2020 prior to the amendments taking effect. Thus, the High Court, in applying Section 35 of the 2020 Amendment Act, opined that the Applicant was entitled to proceed via judicial review proceedings as if the IR Act had not been amended by the 2020 Amendment Act. Accordingly, the High Court dismissed the objection taken by the AGC.

KEY TAKEAWAYS

In determining the proper mode to challenge an Industrial Court Award in the High Court, the relevant factor would be to look at who had referred the representation to the Industrial Court. The fact that the HR Minister's reference was made after the amendment is irrelevant in determining the correct mode of challenge in the High Court. If the reference was made by the HR Minister, this meant that the HR Minister had exercised his powers under Section 20(3), pre-amendment and therefore, the mode of challenge would be by way of judicial review and not by way of appeal (post-amendment).

In any event, Section 35 of the 2020 Amendment Act allows the dissatisfied party to proceed via judicial review proceedings provided the representation was made before the 2020 Amendment Act takes effect.

Co-authored by John Bong Peng Chung (Pupil-in-Chambers)

The Mode To Challenge An Industrial Court Award: Appeal Or Judicial Review

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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© LoyarBurok (Used by permission) by Ern Nian Yaw This post is reproduced from here A concise, comprehensible explanation of the law on judicial review. Have you ever come across the term “judicial review”? If you do, have you then questioned what is judicial review? What are the remedies? Or perhaps, wherein lies the differences between appeal and judicial review? Judicial review, does it sound Greek to you? To address these questions, we must first take a look at the constitutional doctrine of separation of powers, or in short, the SOP. Lord Acton is famously quoted as having said “Power corrupts, absolute power corrupts absolutely”. It is therefore noted that the doctrine of separation of powers is practised in our nation to limit the powers of the three institutions, namely the Legislature, Executive and Judiciary with checks and balances in order to protect liberty and to prevent abuse of power. In Malaysia, Parliament which is made up of Dewan Rakyat and Dewan Negara is a democratically elected legislature that legislates the laws. The Government which is made up of the Prime Minister and the Cabinet sits in the executive then executes the laws passed by the Parliament. Judiciary, lastly, decides and interprets the laws by upholding the rule of law. To achieve a complete separation of powers is practically impossible, and thus powers can only be separated with checks and balances. To put it in layman’s terms, with checks and balances, each of the three branches can limit or control the powers of the others. The judicial branch, for example, checks on the government through judicial review. It now leads to the first question, what is judicial review? Judicial review, in general, is concerned with legality of the decision–making process of the executive (government), not with the merits of the decision. To put it in a nutshell, the application concerns review, not appeal. The court will not substitute its decision; it will only review the legality. An appeal is as of right whereas certain conditions must be fulfilled for one to seek leave for judicial review. In Malaysia, An application for judicial review is governed by Order 53 Rules of the High Court 1980. Such an application must be supported by an affidavit (a formal sworn statement of fact). If the authority acts against or fails to act according to the will of the Parliament, it is therefore said to be acting ultra vires and is unlawful. In that case, the court will interfere by reviewing the decision to determine the lawfulness of the decision, actions or omission. Having said that, there must be a decision from the Minister (or the government) before an application for judicial review can be made. There are three grounds for judicial review, namely illegality, unreasonableness or irrationality, and procedural impropriety. Let’s take an example. A Minister by the powers rested in him, makes a decision denying X’s application to join a club without any reasons given. In this situation, the Minister cannot be charged in court as he or she was merely exercising his discretions by rejecting X’s application “as he deems fit”. Nevertheless, X can then apply for judicial review to challenge the decision made by the Minister, arguing that the rejection of the Minister is illegal as the power is not conferred on him, unreasonable as no reasons were given, and tainted by procedural non–compliance with the provisions of the Act. One will then ask, what are the available remedies for judicial review? In Administrative Law, there are 2 types of common law remedies, namely private law remedies and public law remedies. Among the private law remedies are damages, injunctions, and declarations. One can claim for damages as compensation. Injunctions, on the other hand, are prohibitory in nature and forbid the commission of some unlawful act. Declarations, in addition, aim to state or declare the legal position of the parties and to challenge the action of the public authority. It is however noted that such remedy is not enforceable per se, but it can be used with other remedies if successful. Among the public law remedies are habeas corpus, certiorari, prohibition and mandamus. In Malaysia, habeas corpus is a well known prerogative writ commonly used in connection with ISA detention to challenge the legality of the decision. Such writ can be appealed by anyone or by someone acting on his or her behalf regardless of nationality. In general, a writ of habeas corpus will be granted if the applicant is able to prove that the detention is ultra vires and there is an excessive delay in bringing the prisoner up for trial. It is noted that one must be brought before the Magistrate within 24 hours of the detention. Certiorari, Latin for quashing order, is a retrospective order that brings a decision made by the authority before the court and prays that such decision to be quashed. Prohibition, on the other hand, is a prospective order to quash a decision which is going to be made. One must bear in mind that failure to comply with such order amounts to contempt of court, which is criminal in nature. Mandamus, meanwhile, is used to enforce public duties by the decision–making body which it has failed to perform. It is enforced to ensure that the public duties are performed by the public authorities. Both certiorari and mandamus can be claimed together. In Malaysia, an application for judicial review is often denied due to ouster clauses. Ouster clauses are finality clauses attempt to completely exclude judicial review. Words such as “final and/or shall not be questioned” are often seen in Acts of Parliament to deem the decision made by the Government be conclusive and does not subject to review. Unfortunately, unlike United Kingdom, we are not prepared to ignore absolute ouster clauses. Malaysia is a God–gifted country in which the land is blessed with natural resources and free from natural disasters. Embracing the concept of constitutional supremacy or keluhuran perlembagaan, it is therefore noticed that public authorities must act in such a way that is compatible with the provisions of the Federal Constitution, failing which the act will be rendered unconstitutional and illegal. Thomas Fuller once said that “be you ever so high, the law is above you”; herein lies the significance of judicial review to ensure that Acts of Parliament are correctly interpreted. Government must be held responsible not only to the Parliament but to the people as a whole!

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Malaysian court rejects ex-PM Najib bid to review corruption case

Judge dismissed Najib Razak’s case review saying the ex-prime minister was ‘the author of his own misfortunes’.

Malaysia’s top court has dismissed a bid by jailed former Prime Minister Najib Razak to review his corruption conviction over the multi-billion dollar scandal at state fund 1MDB , ending Najib’s judicial efforts to challenge the guilty verdict.

Najib was jailed last year after Malaysia’s Federal Court upheld a guilty verdict and 12-year prison sentence handed down to him by a lower court.

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Najib, 69, claimed he had not received a fair hearing, alleging one judge had a conflict of interest and that his new legal team was not allowed enough time to study the case documents.

But the Federal Court on Friday dismissed the challenge.

“There has been no prejudice and no failure of justice,” Judge Vernon Ong said.

The former primer minister can no longer challenge the conviction in court but he has applied for a royal pardon which, if successful, could see him released without serving the full 12-year term.

Ong said that a five-member panel voted 4-1 to dismiss Najib’s application to review the conviction.

There was no miscarriage of justice in the top court’s decision last year, he said, adding that a review was granted only in “very limited and exceptional circumstances”.

“In the final analysis, and having regard to all circumstances, we are constrained to say that the applicant (Najib) was the author of his own misfortunes,” Ong said.

Investigators have said some $4.5bn was stolen from 1Malaysia Development Berhad (1MDB) – co-founded by Najib during his first year as prime minister in 2009 – and that more than $1bn went to accounts linked to Najib.

Najib was charged after he lost a general election in 2018. He was found guilty by a high court in 2020 of criminal breach of trust, abuse of power and money laundering for illegally receiving about $10 million from SRC International, a former unit of 1MDB. He lost all his appeals.

The former premier has consistently pleaded innocence.

Al Jazeera’s Florence Looi, reporting from Kuala Lumpur, said the scale of the IMDB corruption scandal “not only shocked the world but angered people in Malaysia so much that they voted for political change”.

“It wasn’t just the scale of the corruption, it was how attempts to have the corruption investigated were constantly shutdown by those in power at the time that really led to people in 2018 casting their vote for the opposition leading to a change in political power for the first time in Malaysia’s history since it gained independence from British colonial rule in 1957,” Looi said.

Najib, who has been in prison since August, appeared dejected as the decision was read out. Earlier, he had arrived in court escorted by prison guards and was greeted by dozens of supporters.

His wife Rosmah Mansor, who was also found guilty of corruption last year, attended the proceedings.

Najib faces three other trials related to graft at 1MDB and other government agencies.

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Judicial Review in Malaysia 101
Judicial review is a court action specifically designed to challenge "decisions, actions or omissions" of public bodies. Public bodies are government organs which perform a public function: Ministers, the Federal Government, State Governments, Royal Malaysian Police, the Commissions which regulate various industries, Tribunals, Industrial ...
Judicial Review: Redress Against Wrongly Acted Public Authorities
In Malaysia, an application for judicial review is governed by Order 53 of the Rules of the Court 2012. It is a two-stage process. ... In that case, the Federal Court held that the relationship between the consumer and TNB is commercial and contractual in nature, thus it comes within an environment regulated by private law. Accordingly, it ...
The Growing Trends of Judicial Review Against Government: Overview
INTRODUCTION. The guiding principles of Judicial Review were clearly pronounced in the Federal Court case of Ketua Pengarah Hasil Dalam Negeri v Alcatel - Lucent Malaysia Sdn. Bhd. & Anor[1]. "A judicial review is a court proceeding where a challenge is made on the decision of the relevant authority or entity by challenging the lawfulness of the decision-making process."[2] Generally ...
PDF An Overview of Judicial Review in The Malaysian Court
the judicial review process in Malaysia. These concepts and theories serve as the threshold to the cases of judicial review in Malaysia. The study adopts a qualitative method utilising doctrinal and case study. Analysing cases decided by the Malaysian court on Judicial Review forms a major part of the data analysis.
Malaysia: The Growing Trends of Judicial Review Against Government
The guiding principles of Judicial Review were clearly pronounced in the Federal Court case of Ketua Pengarah Hasil Dalam Negeri v Alcatel - Lucent Malaysia Sdn. Bhd. & Anor[1]. "A judicial review is a court proceeding where a challenge is made on the decision of the relevant authority or entity by challenging the lawfulness of the decision ...
An Overview of Judicial Review in The Malaysian Court
the cases of judicial review in Malaysia. The study adopts a qualitative method utilising . doctrinal and case study. Analysing cases decided by the Malaysian court on Judicial Review .
An Overview of Judicial Review in The Malaysian Court
The principles of cases involving judicial review in Malaysia have served as a guideline in describing the rules and restrictions that a judge should follow when exercising the judicial review function. The findings of the study may form a summarised development of judicial review in Malaysia that may be referred to by the policymakers ...
PDF Journal
placed on judicial review and the probable grounds on which judicial review cannot be invoked. Background [2] Before addressing the position of judicial review in Malaysia, it is important to first understand the meaning of the term judicial review. [3] Judicial review as defined in Halsbury Laws of Malaysia, Volume 9 (paragraph 160.059) is:
Judicial Review: Myths and Realities in the Malaysian Legal System
Brice. In Malaysia, the Federal Constitution is supreme law of the land which came into force in 1957. Federal Constitution is the fundamental law of the land and a kind of 'higher law' which ...
(PDF) JUDICIAL REVIEW IN MALAYSIA
JUDICIAL REVIEW IN MALAYSIA By Zubli Quzairyl Bin Zubli (2021) 1. INTRODUCTION Judicial review is engraved in our basic structure of the Federal Constitution. Judicial review is crucial as Malaysia practiced separation of power among the branches of government. ... To correlate between judicial review and the decided case, it can be said that ...
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One of the issues raised in this case was whether these parties had the locus standi to file the judicial review application. In a unanimous decision, the Court of Appeal applied the test laid down in MTUC and held that all of the applicants had real and genuine interests in the subject matter of the judicial review. It was clear that the ...
Judicial review in Malaysia
Judicial review in Malaysia. Although Malaysia inherited the political system of British India based on the Westminster system, which made no provision for judicial review, the Federal Constitution of Malaysia instituted a system based on that of India which was in turn influenced by other constitutions including that of the United States.
The Growing Trends of Judicial Review Against Government: Overview
The guiding principles of Judicial Review were clearly pronounced in the Federal Court case of Ketua Pengarah Hasil Dalam Negeri v Alcatel - Lucent Malaysia Sdn. Bhd. & Anor[1]. "A judicial review is a court proceeding where a challenge is made on the decision of the relevant authority or entity by challenging the lawfulness of the decision ...
The Law And Practice Of Judicial Review In Malaysia
RM 380.00. 9 in stock. Add to basket. SKU: 6070 Category: CLJ Publications Tags: Best Seller, Judicial. More Information. The Law and Practice of Judicial Review in Malaysia has broken new grounds as the first practitioner's text exclusively on the law, practice and procedure of judicial review applications in this jurisdiction. The book ...
THE DEVELOPMENT OF JUDICIAL REVIEW IN MALAYSIA
5.1.2 Inconsistency of the Federal or the State written law with. The Federal Court of Malaysia. Article 1. Article 11. Freedom of religion. 43 Article 5 (1) of the FC reads: " (1) No person ...
The Mode To Challenge An Industrial Court Award: Appeal Or Judicial
This decision by Justice Anand Ponnudurai in Aneka Retail (M) Sdn Bhd v Industrial Court Malaysia & Ors explained the ... then judicial review would be the proper application. In this present case, the date of the HR Minister's letter, i.e. 6.1.2021, is irrelevant as it was the HR Minister who was exercising his discretion in referring the ...
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judicial review would help keep the rules of law sacrosanct. Delineating The Scope And Nature Of Judicial Review When Malaysia was facing judicial crisis in 1988 4 , art. 121(1) of the Federal
Legal Nutshell
To put it in a nutshell, the application concerns review, not appeal. The court will not substitute its decision; it will only review the legality. An appeal is as of right whereas certain conditions must be fulfilled for one to seek leave for judicial review. In Malaysia, An application for judicial review is governed by Order 53 Rules of the ...
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Judicial Review In Security Offence Cases: The Malaysian Experience
The principles of cases involving judicial review in Malaysia have served as a guideline in describing the rules and restrictions that a judge should follow when exercising the judicial review ...
Malaysian court rejects ex-PM Najib bid to review corruption case
31 Mar 2023. Malaysia's top court has dismissed a bid by jailed former Prime Minister Najib Razak to review his corruption conviction over the multi-billion dollar scandal at state fund 1MDB ...

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