Judicial Review: Redress Against Wrongly Acted Public Authorities

The expression judicial review may be taken to refer to a mechanism by which judicial control of administrative action is exercised. It seeks to ensure that bodies exercising public law functions act lawfully. This is a constitutionally important aspect of our law; it provides an essential foundation for good governance under the rule of law. 

“In my judgment, the true principle may be stated as follows. An inferior tribunal or other decision-making authority, whether exercising a quasi-judicial function or purely an administrative function, has no jurisdiction to commit an error of law. Henceforth, it is no longer of concern whether the error of law is jurisdictional or not. If an inferior tribunal or other public decision-taker does make such an error, then he exceeds his jurisdiction. So too is jurisdiction exceeded, where resort is had to an unfair procedure (see Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis [1995] 1 MLJ 308), or where the decision reached is unreasonable, in the sense that no reasonable tribunal similarly circumstanced would have arrived at the impugned decision. 

… 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.” 

– Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers' Union [1995] 2 MLJ 317 at p. 341. 

Historically, this power of judicial supervision as administered by the High Court was only concerned with the decision-making process, i.e., where the impugned decision is flawed on the ground of procedural impropriety. However, over the years, our courts have made inroad into this field of administrative law. R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 is the mother of all those cases. In this landmark decision, the Federal Court held that the decision of inferior tribunal may be reviewed on the grounds of 'illegality', 'irrationality' and possibly 'proportionality' which permits the courts to scrutinise the decision not only for process but also for substance.

As it stands today, the Malaysian court, in a judicial review proceeding, can now go into merit of the decision and may even replace the decision of the administration body. 

The Statutory Requirements?

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. 

The first stage, governed under Order 53 rule 3 of the Rules of Court 2012, is called the leave stage. It is essentially akin to a vetting process. Generally, leave may be granted – if the leave application is not thought of as frivolous; and if leave is granted, an arguable case in favour of granting the reliefs sought at the substantive hearing may be the resultant outcome. [see WRP Asia Pacific Sdn. Bhd. v Tenaga Nasional Bhd [2012] 4 MLJ 296.]

If leave is granted, the claim proceeds to a full hearing. This is where the merits of the applicant’s case are to be deliberated upon in the Court. 

The two-stage process is intended to protect public authorities against groundless harassment and to reduce delays in resolving applications in the interest of good administration. 

Is The Decision Susceptible To Judicial Review?

It is widely accepted that not all decisions made by a public authority are amenable for judicial review. In Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145, the Federal Court held that it is necessary for a judge when deciding on such a matter to first ascertain whether there is a public law element in the dispute. For this, it is necessary to examine, amongst others, the source of the power and the nature of the decision made. 

If the matter is under private law, though concerning a public authority, it would be inappropriate to commence the action under Order 53. Take the case of WRP Asia Pacific Sdn. Bhd. v Tenaga Nasional Bhd [2012] 4 MLJ 296. 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 would not be open to the consumer to invoke Order 53 to challenge the decision of TNB as remedies available under Order 53 is intended to cover only the domain of public law.

What if the complaint against a public authority involves a mixture of both private and public law?

In Ahmad Jefri (supra), it was propounded court must then ascertain which of the two is predominant. When the element of public law is satisfied, the mode of commencement of claims must be made by way of a judicial review, otherwise it may be set aside on the ground that it abuses the court’s process. [See TR Lampoh Ak Dana & Ors v Government Of Sarawak [2005] 6 MLJ 371; and Soonly Limes Factory Sdn Bhd v Pengarah Jabatan Pengangkutan Negeri Perak [2006] 2 CLJ 676.]

Who May Apply For Judicial Review?

In QSR Brands Bhd v Suruhanjaya Sekuriti & Anor [2006] 3 MLJ 164, the Court of Appeal held that there is a single test of threshold locus standi for all the remedies that are available under Order 53. It is that the applicant should be “adversely affected by the decision of any public authority”. [See Order 53 rule 2(4) of the Rules of Court 2012.] 

The phrase calls for a flexible approach. It is for the applicant to show that he falls within the factual spectrum that is covered by the words 'adversely affected'. At one end of the spectrum are cases where the particular applicant has an obviously sufficient personal interest in the legality of the action impugned. At the other end of the spectrum are cases where the nexus between the applicant and the legality of the action under challenge is so tenuous that the court may be entitled to disregard it as de minimis. 

The Malaysian position on locus standi was considered by the Federal Court in Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145 where it was held that “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 low threshold of procedural locus standi under Order 53 rule 2(4) of the Rules of Court is, we believe, in recognition of the concept of public interest litigation – that it is desirable that the court allows, in appropriate cases, responsible citizens to bring claims for the benefit of the public. 

What Are The Grounds For Applying Judicial Review?

As mentioned earlier, the main grounds for judicial review include illegality, irrationality, procedural impropriety. It is pertinent to note that these categories are not exhaustive nor mutually exclusive.

What Remedies Are Available In Judicial Review Proceedings?

Paragraph 1 of the Schedule to the Courts of Judicature Act 1964 gives the High Court power to issue to any person or authority directions, orders or writs, including habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others for the enforcement of the rights conferred by Part II of the Constitution or for any purpose. The applicant may also claim for a declaration, injunction and damages as well as seek discovery and interrogatories in the judicial review application. See Order 53 rule 2(2), Order 53 rule 5(1) and Order 53 rule 6 of the Rules of Court 2012. 

What Are The Time Limits?

An applicant who seeks to impugn a decision of a public authority ought to act promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant: Order 53, rule 3(6) of the Rules of Court 2012. The failure to comply with the statutory time limit was not merely a technical non-compliance, it goes to jurisdiction. Extension of time is only to be granted where the delay is satisfactorily accounted for, failing which application for leave to move for judicial review would be dismissed. It is immaterial whether the delay does not occasion any prejudice to the respondent or a third party. See Mohd Ismail bin Abd Ghani (would like to be known in the identity card as Saravanan a/l Balakrishnan) v Ketua Pengarah Pendaftaran Negara & Anor [2012] 1 MLJ 70.

As such, we urge people to seek legal advice urgently when a decision that concerns them is made – or, better still, may be made in the future. Don’t sleep on your rights.

Conclusion

Judicial review is undoubtedly one of the most fundamental duties of the courts and an integral and inseparable part of the constitutional scheme without which the rule of law will become illusionary. It is a directly accessible check on abuse of power, a means of providing redress when public authorities act unlawfully; holding the public entities to account; increasing transparency; and enforcing public duty. It represents not only the vindication of an interest of a mere private individual, but also the promoting of a public good.