Judical Review

Lim Lay Yee, Eizlan Farhan bin Nakhrowi, Deanna Ternisha and Choong Xin Xian

 

A. INTRODUCTION

A judicial review is a court process where decisions or actions of public bodies which adversely affect the rights of individuals are challenged, examined, and corrected if required. It serves a constitutional function – to ensure that the Executive and Legislative act only according to law. It upholds the rule of law and practises the doctrine of separation of powers.

The constitutional origin of the judicial review jurisdiction has been traced to Article 121(1) of the Federal Constitution which declares that the judicial power of the Federation is vested in the Judiciary.[1] The substantive contents of judicial power include the judiciary’s role as the ultimate arbiter of the lawfulness of state action.[2] Further, the origin of the power in a judicial review to strike down a written law for violating the Federal Constitution has been traced to both Article 4(1) and Article 121(1) of the Federal Constitution.[3]

Statutorily, section 25(2) read with paragraph 1 of the Schedule to the Courts of Judicature Act 1964 (‘CJA 1964’) affirms the judicial review powers of the Judiciary by legislating in a non-exclusive fashion the directions, orders or writs that may be issued by the High Court which includes the directions, orders or writs that may be given in a judicial review application at common law such mandamus, prohibition, quo warranto and certiorari.[4]

Order 53 of the Rules of Court 2012 (‘ROC 2012’) then provides the procedural provisions that must be met in respect of judicial review proceedings.[5]

Judicial Review application is divided into a 2-stage process. First, the leave stage, which is governed by Order 53 rule 3. Second, the substantive stage of the judicial review. This 2-stage process is in place to ensure that a judicial review proceeding will only be permitted within the specified parameters. It acts as a layer of protection to prevent groundless and unnecessary disturbance against public authorities’ decision or actions.

B. THE LEAVE STAGE

The cause papers in the leave stages involves 3 documents – (i) Application for Judicial Review, (ii) Statement and (iii) Affidavit in Support. The Application for Judicial Review shall be in Form 109 and supported by a statement and an affidavit verifying the facts. Further, this application shall be made ex parte.[6] However, the leave application must be served on the Attorney General’s Chambers (‘AGC’)[7] who may appear to object to the leave application. The leave application must be filed promptly within 3 months from the date when the grounds of challenge first arose or when the decision in question was first communicated to the applicant.[8] If an applicant wishes to file a judicial review application outside the stipulated time 3 months, he or she needs to make an application to the Court.[9] However, this application for extension of time shall be heard inter partes.[10]

In the statement, the applicant must set out the name and the description of the applicant, relief sought and the grounds on which the relief is sought. The statement must also contain the grounds of challenge. Similar to principles in relation to the normal court proceedings, the applicant is bound by the pleaded grounds of judicial review and is not allowed to traverse beyond them.

As for the affidavit, it is not a substitute for the Statement. It is to verify the facts in the judicial review application, therefore, the facts must be detailed and comprehensive. An inadequate affidavit can be a ground for dismissal of the application.

The threshold to obtain leave is ‘very low’.[11] To obtain leave for judicial review, the applicant is only required to establish that it has an arguable case in the proposed judicial review challenge and that the challenge is not frivolous or vexatious.[12] The applicant shall establish an arguable case based on all material put forward at the leave stage.

 

Notwithstanding the ex-parte nature of the leave application, the AGC may appear at the hearing and raise objections against the leave application. Below are some instances of objections which might be raised by the AGC:

(i) Failure to establish arguable case: The Court will refuse to grant the leave if the applicant has failed to demonstrate that there is an arguable case.[13]

(ii) Delay: Leave application filed beyond the 3-month time limit.

(iii) Lack of locus standi: The Court will dismiss the leave application if the applicant lacks the locus standi to challenge the impugned decision.

(iv) Non-amenability to judicial review: The applicant must first show that the impugned decision is amenable or susceptible to judicial review. The amenability depends on the character of the impugned decision in law or its nature and the circumstances under which it had been made.

(v) Non-justiciable: When the judicial review involves issues that are not appropriate for determination by the judiciary, it will be not justiciable.[14]

(vi) Proper judicial forum: This concerns the question of whether a court of a different division is better placed to enquire into the challenge or in the case of a dispute that could fall under the jurisdiction of the Courts of East or West Malaysia, which is the proper court to hear the matter.[15]

(vii) Academic: There is no longer a need for the judicial review to proceed to full argument. [16]

(viii) Premature: The application had been filed before an actionable decision had been made by the respondents.[17]

(ix) Failure to exhaust internal remedies / pursue alternative remedies: Where the statute might prescribe an internal / alternative remedy, the applicant should not be permitted to circumvent the statutorily prescribed avenue to obtain redress by instituting a judicial review application.[5] However, this position is not absolute as an application for judicial review could be allowed when the statute does not provide an equal convenient remedy for the applicant.[19]

(x) Misjoinder: The leave application will be dismissed when wrong party is cited by the applicant.[20]

(xi) Res judicata: The Court will dismiss the leave application if the subject issue of the judicial review challenge has been previously determined.[21]

 

However, in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2002] 2 MLJ 413, the Court recognised that applications should not be disposed of on purely technical and procedural ground. Gopal Sri Ram (JCA then) in delivering the judgment of the Court, stated as follows:

 

“I must be forgiven for expressing my amazement and equal disappointment that in this day and age, applications and suits are disposed of on purely technical and procedural ground without even slightest attempt to ensure that justice according to the merits of a particular case is done. I cannot help feeling that somewhere in the performance of our duty as judges to decide according to law we have forgotten our duty to do justice according to law and the substantial merits of each case.”

 

C. LOCUS STANDI OF THE APPLICANT

 

Before commencing a Judicial Review, it is pertinent to determine the question of “who can commence a judicial review?”. Order 53 rule 2(4) of the ROC 2012 states that individuals who are “adversely affected” due to the actions of a public authority have the right to file an application for a judicial review. This establishes that the locus standi of that individual. The reason for this is to guarantee and ensure that only individuals with a valid legal grievance from the public authority’s decision are allowed to move forward with the judicial review.

The test for locus standi

An applicant to a judicial review has to establish and show that they have a “real and genuine interest” in the subject matter of the action. This is illustrated in the Federal Court case of Malaysian Trade Union Congress Ors v Menteri Tenaga, Air Dan Komunikasi & Anor [2014] 2 CLJ 525 (‘MTUC’) whereby it was held that the requirement for an applicant to demonstrate that they are “adversely affected” by the impugned decision by a public authority is to show to the court that there exist a “real and genuine interest” in the subject matter of the application. It is not necessary for the applicant to show injury to a private right. The Federal Court in MTUC took this approach by liberalising the scope of an individual standing.

In deciding MTUC, the Federal Court distinguished Government of Malaysia v Lim Kit Siang; United Engineers (M) Bhd v Lim Kit Siang [1988] 2 MLJ 12, on the basis that the latter was not decided in respect of judicial review proceedings. The Supreme Court in Lim Kit Siang had held that a party may only have a locus standi if he seeks for compensation for an infringement on his private or personal rights or, in the case of an infringement on a right that the public as a whole shares, if he sustains unique and particular damages.

 

Locus standi in public interest litigation

However, a judicial review may be initiated by a person or a body of persons who are not personally affected by the public authority’s decision due to public interest.[22]

D. DECISIONS AMENABLE TO JUDICIAL REVIEW

 

It is a recognised rule that not all decisions made by a public body are amenable or susceptible to judicial review. Whether a decision is amenable to judicial review is dependent upon the character of the decision in law or contingent on the nature of the decision and the circumstances under which it had been made. In Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145, it was observed by the Federal Court that “for the appellant to be amenable for judicial review there must be the presence of a public law element necessary to attract the remedies of administrative law… “. As such, it is inferred that only decisions underpinned by an element of public law are reviewable. It would be inappropriate to commence a judicial review in a matter under private law although it involves public authority.

Further, a decision must have the element of finality and reflect a determinative finding on an issue or matter to be amenable to judicial review.[23]

 

E. JUSTICIABILITY

 

A judicial review challenge would not lie against conduct that is non-justiciable. A non-justiciable matter means that the matter is not suitable for judicial determination. When it is not suitable for judicial determination, it means no court is able or suited to decide on the issue. In 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, the Federal Court decided as follows:

[49]     The issue of justiciability in an application for leave for judicial review was considered in great detail by Mohamad Ariff Md Yusuf J (as he then was) in Tengku Muhammad Fakhry Petra Ibni Sultan Ismail Petra v Yang Maha Mulia Pemangku Raja Kelantan & Ors [2011] 1 MLJ 128:

Non-justiciable Issues

In connection with the unconstitutionality of legislation, we have seen that even where a fundamental right has been invaded by a statute, the individual who is affected thereby may not have a remedy from a Court of Law, because the issue involved is not justiciable.

… The most prominent amongst non-justiciable issues are those which are known in the U.S.A. as ‘political questions’, which means that the subject matter of the question is such that it is not capable of a judicial determination (at p 256).

…..

[50]    There are certain areas which the court is reluctant to delve into. These include the power of the state to enter into treaties and conduct of foreign policy, the defence of the realm and the control of the armed forces, the prerogative of mercy, the dissolution of Parliament and the appointment of Ministers. Such powers are governed by broader policy considerations which are more appropriately entrusted to the political branches of government, and which are unsuited to be examined by the courts. One such instance is the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) (‘the GCHQ case’).

 

F. SUBSTANTIVE HEARING OF JUDICIAL REVIEW

 

Once the leave is granted, the Court will proceed with the substantive hearing of the judicial review. Generally, there are 4 grounds to challenge a decision of a public body. The grounds were illustrated by the House of Lords in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

Ground 1: Illegality

The principal focus of this ground is whether a public authority had acted within its powers under the Constitution, governing legislative provision or had acted ultra vires of those powers. This ground of challenge also permits a review of the factors considered by the decision-maker in the making of the decision.[24]

Ground 2: Irrationality & Unreasonableness

This ground is invariably fact and circumstances based. Under this head of challenge, a decision that results from a flawed decision-making process or a decision that is incomprehensible, absurd and perverse would be quashed. The ground of irrationality and unreasonableness in public law is derived from the landmark English Court of Appeal decision of Associated Provincial Picture Houses Ltd. v Wednesbury Corp. [1948] 1 KB 223, where it was explained as follows:

‘It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation (1) gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.’.

Ground 3: Procedural Impropriety

Procedural impropriety calls for a review of whether the prescribed procedure was followed or generally the adoption of a procedure by the decision-maker which ensured fairness in the process. The Federal Court in Malaysia Airline System Bhd v Wan Sa’adi Wan Mustafa [2015] 1 CLJ 295 has given a useful tabulation of the circumstances when ‘procedural impropriety’ can occur.

 

Ground 4: Proportionality

This ground of challenge invites a review of whether the state action is proportionate to the gravity or seriousness of the alleged wrong it had sought to check or remedy. The principle of proportionality is fundamentally premised on the requirement of fairness in State conduct. It requires that the executive responds to an alleged wrong in a manner that is commensurate with the breach.[25]

G. REMEDIES OF JUDICIAL REVIEW

The High Courts have the powers to grant the remedies that are usually granted at common law in judicial review proceedings. However, in Malaysia, the High Courts are not confined to the remedies available at common law. These powers at common law have been enlarged pursuant to section 25(2), read with paragraph 1 of the Schedule to CJA 1964.[26]

In Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2002] 2 MLJ 413, our Court of Appeal observed that paragraph 1 of the Schedule to CJA 1964 is drawn from Article 226 of the Indian Constitution and applied the decisions of the Indian Supreme Court in Dwarka Nath v Income Tax Officer AIR 1966 SC 81 and PJ Irani v State of Madras AIR 1961 SC in holding on the availability of wider judicial review remedies under the Malaysian law compared to the English law.[27]

 

Secondly, the High Courts are not confined to the prayers sought by the Applicants and this is provided for in Order 53 rule 2(3).[28] This includes a situation where an applicant has asked for a remedy he is not entitled to where the High Court may grant another remedy instead.

There are 2 types of remedies for judicial review, namely private law remedies and public law remedies.

Public law remedies

Public law remedies are provided in paragraph 1 of the Schedule to CJA 1964.[29]

1. Certiorari

Certiorari is the most commonly invoked writ in modern Administrative Law. 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. The effect of granting certiorari is that the decision of the public authority is taken to have never existed.[30]

2. Mandamus

Mandamus, meanwhile, can be issued to require a public authority to perform public duty imposed upon it by law. It is enforced to ensure that the public duties are performed by the public authorities. Mandamus is a very wide remedy which is available against any type of body, quasi-judicial, legislative, administrative and in respect of any type of function.

What can be enforced through mandamus is a duty of a public nature, the performance of which is imperative and not optional or discretionary with the concerned authority.[31] Mandamus order can be granted under section 44 of the Specific Relief Act 1950. It is also worth noting that both certiorari and mandamus can be claimed together.

3. Prohibition

Prohibition, on the other hand, is a prospective order to stop a decision which is going to be made. It is issued to prohibit a body from continuing with the case further. For example, it can prohibit a licensing authority from making rules or granting licenses which permit conduct that is contrary to law. In the Federal Court’s case of Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209, the Appellant had applied to the High Court by way of judicial review for declarations recognising his immunity from prosecution and for orders of prohibition to stop his prosecution by the AG and the MACC. The Federal Court held that the High Court was correct when it allowed the Appellant’s application.

Prohibition and certiorari have much in common that they only differ from each other from a functional point of view. The function of certiorari is to quash. Certiorari is issued when the public authority concerned has completed its task, disposed of the matter and given its determination; certiorari is thus granted to quash such a determination. Prohibition is issued to prohibit an authority from continuing with the case further. It is issued when the body concerned is still functioning and has not yet completed its determination. There is thus a difference in the stages of proceedings when the two writs may be issued.

4. Habeas Corpus

The order of habeas corpus is used primarily to secure the release of a person who has been detained unlawfully or without any legal justification. In Malaysia, habeas corpus is a well-known prerogative writ (an official order directing the behaviour of another arm of government) commonly used to challenge detentions by the Executive under legislations permitting preventive detention without trial. The great value of habeas corpus lies in its ability to enable the court to immediately quash an illegal arrest of a person, giving them back their right to freedom.

Such writ can be applied by the detainee 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.[32]

In Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356, the Federal Court held that Article 5(2) of the Federal Constitution provided an additional constitutional basis for habeas corpus. This is a significant decision in the law of habeas corpus but will not be dealt with here as it requires a special write-up of its own.

5. Quo Warranto

Finally, the writ of quo warranto which is relatively uncommon. It is used to challenge the appointment of a person to a public office in case he is not qualified to hold that office, or if his appointment suffers from any legal flaw. This remedy allows any person to be restrained from acting in any office in which he is not entitled to act.

In Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato’ Dr Zambry bin Abd Kadir [2009] 1 LNS 316, a quo warranto writ was issued by the High Court against Zambry ordering Zambry to show cause and to provide information as to how and under what basis or power or authority is Zambry entitled to hold the post of Menteri Besar and to perform and/or carry out and/or discharge the obligations, functions and duties as the Menteri Besar.

In so deciding, the High Court held that for the issuance of a writ of quo warranto the applicant must satisfy three pre-conditions. The first condition is that the office in question must have been created by law ie, either by the Constitution or statute. The second condition is that the office is a public office and thirdly, the person proceeded against is not legally or properly qualified to hold the office, and has been in actual possession or user of the particular office. The High Court in this case held that all three pre-conditions had been satisfied. However, on appeal, the High Court’s decision was overturned for non-satisfaction of the third condition.

Private law remedies

The applicant may claim for private law remedies such as a declaration,[33] injunction[34] and damages[35] as well as seek discovery and interrogatories[36] in the judicial review application.

1. Declaration

“A declaratory judgment is a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs. It is to be contrasted with an executory, in other words coercive, judgment which can be enforced by the courts … A declaratory judgment … pronounces upon a legal relationship but does not contain any order which can be enforced …”[37]

Nonetheless, a declaratory order may effectively undermine the enforceability of an administrative act as ‘there is a constitutional convention that the Executive will comply with a declaration made by the court even though it does not have a coercive effect’.[38]

2. Injunction

Prohibitory injunction will usually be sought to restrain an administrative authority from an unlawful or ultra vires exercise of its powers. It is being used as a preventive measure to restrain a person from doing a wrongful act. For example, an injunction may be granted to restrain a local government from demolishing a house without giving a proper hearing to the owner. However, an injunction cannot be granted to interfere with the public duties of any department of any government in Malaysia.

Conclusion

In essence, the landscape of judicial review remedies in Malaysia embodies the critical balance between executive power and the protection of citizens’ rights. As explored, the judiciary’s role as a guardian of constitutional principles and the rule of law is evident in its multifaceted approach to remedies. The diverse array of remedies, ranging from declarations to injunctions, offers a nuanced means of addressing governmental overreach or unlawful actions. However, the efficacy of these remedies lies not only in their availability but in their consistent and judicious application. The evolution of judicial review remedies in Malaysia signifies a commitment to upholding the supremacy of the Constitution while ensuring a fair and just society for all. Moving forward, the continued refinement and application of these remedies will be crucial in maintaining the delicate equilibrium between state power and individual liberties, thereby reinforcing the foundations of a robust and democratic society in Malaysia.