Professional Documents
Culture Documents
Shahrin Nordin
LL.B (Hons) IIUM, LL.M (Commercial Laws) UiTM
Published 2016
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INDEX
Judicial Review
Leave Stage
(1)
(2)
(4)
(5)
(6)
Delay in filing
Decision on administrative appeal is not a decision
Pre-mature / absence of decision
No locus standi
Non-exhaustion of alternative remedy
Reviewing of decision-making process only
Non-reviewability of criminal investigative process
Non-reviewability of policy matter
No prejudice
Non-existence/non-pleading of special circumstances
Not suing the proper decision-making authority
Non-reviewability of non-decision
Purely commercial dealing
Mandamus for legal public duty not discretion
Matter has become academic
Non-reviewability of disciplinary punishment
Recommended Readings
(1) Sudha CKG Pillay, The Changing Faces of Adminsitratives [1999] 1 MLJ cxl
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Grounds no. (1), (2) and (3) are traditional grounds as founded from HOL cases of Council of Civil
Service Union & Anor v Minister for Civil Service [1985] AC 374. While, grounds no. (4), (5) and (6) are
recently established from case laws.
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Leave Stage
Test for leave to be granted
Chin Mee Keong & Ors v. Pesuruhjaya Sukan [2007] 5 CLJ 363 (COA)
So the question to be asked in our instant case is whether the appellants'
application is frivolous and vexatious to justify refusal of leave in limine.
To summarily assign this issue of an alternative remedy to a subsequent stage
for consideration after leave has been granted would, in my view, mean that even
cases which are bound to fail in limine on the issue of availability of an alternative
remedy would automatically be permitted at leave stage.
Clear Water Sanctuary Golf Management Bhd v Ketua Pengarah Perhubungan
Perusahaan & Anor [2007] 6 MLJ 446 (HC)
The approach in an application for leave under O 53 r 1(3) of the RHC is merely
to obtain permission to bring the proceedings by way of judicial review and the
onus is on the applicant to actually show or demonstrate a prima facie case. It is
essentially akin to a vetting process, first, to ensure that the applicant has a locus
standi and is not a mere busy body or mischief maker which does not have
sufficient interest to challenge the decision or the process of the decision making
by way of judicial review and secondly, the applicant has demonstrated a prima
facie case for leave to be granted.
It is settled law that leave to apply for an order to file proceedings for judicial
review should not be refused unless the application is frivolous or vexatious. In
other words, the sole questions at the leave stage is whether the application is
frivolous (per Gopal Sri Ram JCA in QSR Brands Bhd v Suruhanjaya Sekuriti &
Anor [2006] 3 MLJ 164; [2006] CLJ 532 at p 537). Frivolous or vexatious action
or statement is generally referred to as groundless action or statement with no
prospect of success or wanting in bona fide or when it is not calculated to lead to
any practical result. It is often raised to embarrass or annoy the other party to the
action.
Tuan Hj Sarip Hamid & Anor v. Patco Malaysia Bhd. [1995] 3 CLJ 627 (SC)
In R. v. Secretary of State for the Home Department, ex parte Rukshanda Begum
[1990] Crown Office Digest 109, Dip, the Court of Appeal in England correctly
laid down guidelines to be followed by the Court when considering an application
for leave, in the following terms:
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(i)
(ii)
(iii)
The Judge should grant leave if it is clear that there is a point for further
investigation on a full inter partes basis with all such evidence as is
necessary on the facts and all such argument as is necessary on the law.
If the Judge is satisfied that there is no arguable case he should dismiss the
application for leave to move for judicial review.
If on considering the papers, the Judge comes to the conclusion that he
really does not know whether there is or is not an arguable case, the right
course is for the Judge to invite the putative respondent to attend and make
representations as to whether or not leave should be granted. That inter
partes leave hearing should not be anywhere near so extensive as a full
substantive judicial review hearing.
The test to be applied by the Judge at that inter partes leave hearing should be
analogous to the approach adopted in deciding whether to grant leave to appeal
against an arbitrator's award ... namely: if, taking account of a brief argument on
either side, the Judge is satisfied that there is a case fit for further consideration,
then he should grant leave.
Right to appear during ex-parte leave stage
George John v. Goh Eng Wah Bros. Filem Sdn Bhd & 2 Ors [1988] 1 MLJ 319
Be that as it may, I cannot accede to the objection of the applicant for the simple
reason that an ex parte application merely means that such an application is
permitted to be made by one party in the absence of the other. It does not
preclude any person who has an interest or who may be adversely affected by
the decision of the court in the matter which is to be litigated from appearing
to raise any legitimate objection against or for that matter any legitimate
ground in support of the application. At any rate, it is idle to challenge the
standing of the learned Senior Federal Counsel to appear at this hearing to oppose
the application on behalf of the Attorney General for the further reasons as stated
hereinafter. It is to be noted that notice of an application for leave to apply for an
order of mandamus, prohibition or certiorari must be given to the Attorney
General pursuant to Order 53 rule 1(3).
The reason for this requirement is obvious since the grant of leave to apply for
any one of these prerogative orders will invariably have the effect of placing the
public officer or authority who made the impugned decision and the member of
the public who would benefit from the decision so made in a state of uncertainty
as to whether he or it should proceed to implement the administrative decision
while proceedings for judicial review of it are pending even though misconceived.
It is therefore essential that the Attorney General should be given an opportunity
to intervene to remove this uncertainty if there is good ground for him to do so in
the interest of the government in particular and the public in general.
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Awang Tengah Ag Amin v. Sabah Public Service Commission & Anor [1998] 2 CLJ 409
(HC)
Now, in order to consider such contentions it is necessary for me to examine the
governing principles of law in those areas as well as the evidence presented in this
action.
In his book entitled Administrative Law of Malaysia and Singapore(3rd edn,)
Professor MP Jain listed the grounds which come under the category of
nonexercise of discretion. However these grounds have one common factor, that
is, non-application of an authority's mind when making its purported decision.
Such situation may arise when an authority:
(i) acted under dictation;
(ii) acted mechanically; or
(iii) fettered its discretion.
The aforementioned category has also been classified to come under the heading
of "illegality" in Lord Diplock's classic restatement of the potential grounds for
challenging decisions pursuant to discretionary power.
Substantive Fairness
Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah dan Pihak Berkuasa Negeri
[1998] 3 MLJ 289 (COA)
The doctrine of substantive fairness requires a public decision-maker to arrive at
a reasonable decision and to ensure that any punishment he imposes is not
disproportionate to the wrongdoing complained of. It follows that if in arriving at
a public law decision, the decision-maker metes out procedural fairness, the
decision may nevertheless be struck down if it is found to be unfair in substance.
Datuk Amar James Wong Kim Min & Anor v. Pendaftar Pertubuhan [2006] 8 CLJ 106
(HC)
The ROS submitted that "substantive fairness" cannot be a ground to challenge
an administrative decision. The case of Pihak Berkuasa Negeri Sabah v. Sugumar
Balakrishnan & Anor Appeal [2002] 4 CLJ 105 FC, was cited to support the
argument, where Mohamed Dzaiddin 'FCJ' (as he then was) said:
We pause to note here that the Court of Appeal seems to introduce the
doctrine of substantive fairness as a separate ground in its review of the
administrative decision of the State Authority under the Act by invoking
art. 8(1) read together with art 5(1) of the Federal Constitution. The Court
also relied on R. Rama Chandran.
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In our view, Parliament having excluded judicial review under the Act, it is not
permissible for our courts to intervene and disturb a statutorily unreviewable
decision on the basis of a new amorphous and wide ranging concept of
substantive unfairness as a separate ground of judicial review which even the
English courts in common law have not recognized.
The above authority, clearly support ROS's position and I am in no position to
disagree with the Federal Court's decision
Proportionality
Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 (COA)
The second category comprises of those cases in which the punishment imposed
is found to be disproportionate to the nature of the misconduct found to have been
committed in a given case.
Thus, the requirement of fairness which is the essence of Article 8(1), when read
together with Article 5(1), goes to ensure not only that a fair procedure is adopted
in each case based on its own facts, but also that a fair and just punishment is
imposed according to the facts of a particular case.
Airspace Management Services Sdn Bhd v. Col (B) Harbans Singh Chingar Singh [2000]
4 CLJ 77 (COA)
We agree. In our judgment, the Industrial Court ought to have held that the
punishment of dismissal was wholly disproportionate to the nature and quality of
the alleged wrongdoing on the respondent's part. It is, we think, now too well
established that the dismissal of an employee may be set aside on the ground of
proportionality.
Substantive Legitimate Expectation
Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor Dengan Tanggungan Bhd v
Majlis Perbandaran Pulau Pinang [1996] 2 MLJ 697
The concept of legitimate expectation has not only an impact on procedure but
also a substantive impact. In the circumstances, the Court of Appeal was right
when, touching upon how the legitimate expectation of the Society had a
procedural impact, the court held that the Council should have given advance
notice of its intention to impose the disputed condition because the rules of
natural justice demanded it. As a matter of fairness, reasons should have been
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given by the Council as to why it was imposing the disputed condition and thus
resiling from the original approval of planning permission which was free from
any pricing condition.
Dr. Amir Hussein bin Baharuddin v. Universiti Sains Malaysia [1989] 3 MLJ 298 (HC)
The more difficult question was whether it was arguable that the applicant had a
legitimate expectation of being reappointed dean. If so, it would be arguable that
he should have been given the opportunity of making representations.
However, to qualify as an expectation which attracts procedural protection, it
must be 'legitimate'. The closest the courts have come to explaining the idea of
legitimacy is that the expectation must be reasonable. The epithet most frequently
used by the courts as a substitute for 'legitimate' is 'reasonable', although reference
has also been made to 'well founded'.
'Reasonableness' connotes that the expectation must be objectively justified. A
subjective hope is therefore not enough. However, its use has been discouraged
recently by the House of Lords (see Council of Civil Service Unions v. Minister
for the Civil Service [1985] AC 374 per Lord Fraser, Lord Dicplock and Lord
Roskill). The chief reason advanced being that some expectations, although they
might well be entertained by reasonable persons will not necessarily have
consequences to which effect will be given in public law (at pp 408-409 per Lord
Diplock). Furthermore, the possibility that there may be some reasonable
expectations which are not 'legitimate' has emerged with the extension of the
concept of legitimate expectation into areas other than procedural fairness; for
example, standing to bring an application for judicial review.
Now, in the area of employment, the concept of legitimate expectation is elusive
at least where used in relation to the expectation of promotion. Indeed, it has
been held that the decision of a health authority not to appoint to the post of
consultant orthopaedic surgeon a candidate recommended by the advisory
appointment committee was not justiciable at all and so not susceptible of judicial
review (see R v. Trent Regional Health Authority, ex p Jones [1986] The Times, 19
June 342).
More to the point, the reluctance of courts to interfere in all matters concerning
the domestic affairs and internal management of a university stems from their
enthusiasm for the jurisdiction of the university visitor (equivalent in this country
to that of vice-chancellor) in such matters.
Thus, in the present case, the question whether the applicant should have been
reappointed dean following the expiry of his term, by the vice-chancellor pursuant
to the powers conferred by s. 18 of the Constitution was exclusively a domestic
matter involving academic judgment, to be resolved internally. No economic loss,
social stigma, difficulty in securing future employment or dislocation was
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However no evidence of service of the letter effected to the previous owner of the
said land was produced. Yet on 16 November 1996 the plaintiff in making an
administrative appeal to the Ketua Setiausaha Negara produced a copy of the said
letter of rejection in its appeal application. In my view the production of that letter
showed clearly that the plaintiff as of that date had knowledge of the decision of
the defendant and as such the period of three month should begin from that date.
No amount of denial by the plaintiff including that the letter being addressed to
the previous owner of the said land would help to argue that the plaintiff had no
knowledge of the decision. In fact it was quite legitimate for the defendant to send
the letter to the previous owner of the said land because the original application
under s. 124 and s. 200 of the National Land Code were made by the previous
owner of the said land. And there was no evidence adduced that the previous
owner of the said land or the plaintiff had informed the defendant of the change of
ownership to the defendant. To argue that the change of ownership had been
registered in the register of title and as such the defendant should therefore have
knowledge is devoid of any merit. It was incumbent upon the plaintiff or the
previous owner of the said land to inform the defendant in writing of the change
of ownership in respect of the application under s. 124 and s. 200 of the National
Land Code especially for purposes of communication. Failure to inform the
defendant of the change of ownership gives the defendant the right to make
communication to the previous owner of the said land. In the circumstances I am
fully satisfied that the decision of the defendant dated 25 September 1995 had
been communicated to the plaintiff on or before 16 November 1996. Hence for
purposes of taking any action under s. 418(1) of the National Land Code the
period of three (3) month should commence on 16 November 1996.
But the plaintiff only began this action in court under s. 418 of the National Land
Code on 10 April 1998. It had certainly passed the three months period, by almost
17 months. The plaintiff had therefore failed to comply with the requirement of s.
418(1) of the National Land Code. In its application the plaintiff had never
applied for any extension of time to file this action. As no such application for
extension of time was made by the plaintiff the question of granting any extension
of time does not arise. Hence this application should be struck off for want of
compliance with the provision of s. 418(1) of the National Land Code.
Chiharu Yabe (Zaugg) & Anor v. Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur
[2002] 4 CLJ 231 (HC)
There is, however, another point raised by the senior federal counsel on which, I
think, he must succeed, and that is that the appeal is out of time. According to s.
418, a person aggrieved by a decision may appeal from it "at any time within the
period of three months beginning with the date on which it was communicated to
him". The communication of the Land Executive Committee's decision of 25
August 2000 was received by the appellants' solicitors on 18 September 2000.
The appeal was filed on 23 April 2001, four months beyond the period for
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appealing. The appellants' counsel argued that time should be reckoned from 14
February 2001, the date when the appellants' solicitors received a copy of the
letter of the land administrator to the vendor that disposed of the "appeal" as
regards the Land Executive Committee's decision of 25 April 2000.
I have, for the sake of completeness, stated the events leading to that letter and
made observations about the "appeal", particularly as to the involvement of the
vendor in it and as to whether the Land Executive Committee actually met again
to consider the appeal. But all that, as I said, is for the sake of completeness and
none of it needs to be taken into consideration in arriving at my decision on this
point, because I am of opinion that, in any case, time should be reckoned from 18
September 2000, the date when the original decision of the Land Executive
Committee was communicated to the appellants. That, in my opinion, is the
"decision" for the purposes of s. 418.There is in the legal sense no appeal from
that decision except to the court under s. 418 and any subsequent decision of the
Land Executive Committee made, shall I say, upon a plea to reconsider cannot be
recognised as a "decision" for the purposes of s. 418. An aggrieved person might
well wish to attempt to persuade the decision-maker to change his mind and the
decision-maker, as an administrator, might well administratively entertain the
request and not adopt a strictly legal stand and tell the person forthwith that he has
made his decision and if the person is aggrieved by it he should appeal under s.
418, but the person ought, to preserve his right to the legal appeal under that
section, at the same time file his appeal before the expiry of the period for
appealing, if he does not get, or it is not possible to get, a decision in his favour on
the plea for reconsideration before the expiry of the period.
For the reason that it is out of time, I have to dismiss the appeal
Pre-Mature / Absence of Decision
Kaneka Paste Polymers Sdn Bhd v. Director General of Industrial Relations & Ors [2005]
7 MLJ 132 (HC)
To me, for a decision to be subjected to judicial review, it must go beyond what
is merely administrative or procedural. Moreover in this case the process for the
Union recognition is midway before the decision of a Minister under s 9(5). To
entertain the applicants application would hamper the smooth workings of a
claim for recognition as it allows piece meal attacks at every stage of the decision
process. Thus, the process for recognition should be allowed to proceed to enable
the Minister to decide on the matter as provided by s 9(5).
In conclusion, I am of the view that the applicant should wait until the decision of
the Minister under s 9(5). If the Ministers decision is not in the applicants
favour, only then the applicant should make the challenge and in the process
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challenge the decision of the DGIR and DGTU on the issue of competency check.
There should only be one challenge and not several challenges.
M & W Zander (M) Sdn Bhd v. Director General Of Inland Revenue [2005] 6 CLJ 336
(HC)
For the reasons above, I agree with learned Senior Federal Counsel that in the
absence of a decision by the Director General, the applicant not only lacks a
sufficient interest or locus standi to make this application, but that its application
is premature in the circumstances.
As to Mr. Lau's submission that the court should not accede to purely technical
objections to defeat the rights of the applicant, I do not agree with this submission
or that this is what the learned Senior Federal Counsel or the court seeks to do in
this case. Far from being a mere technicality, the requirement for there to be a
decision or at the very least a sub-decision of some sort or the lack of it, or of an
existing right or status of some sort which is being denied or threatened, is a
matter that goes to the very foundation or basis of the application for judicial
review under O. 53 and so cannot be considered as a mere technicality.
No Locus Standi
QSR Brands Bhd v Suruhanjaya Sekuriti & Anor [2006] 3 MLJ 164 (COA)
In an ordinary case, if on a reading of the application for leave to issue judicial
review the court is satisfied that the applicant has neither a sufficient personal
interest in the legality of the impugned action in the sense already discussed, nor
is the application a public interest litigation, then leave may safely be refused on
the ground that the applicant is not a person "adversely affected."
Chin Mee Keong & Ors v. Pesuruhjaya Sukan [2007] 5 CLJ 363 (COA)
Further, under O. 53 r. 2(4) of the RHC there is no restriction on the capacity of
the person making an application for judicial review except that he must be
adversely affected by the decision of the public authority who made the decision
under review. The appellants being members of MTA are certainly persons who
are adversely affected by the decision of the respondent and as such they should
be allowed to seek relief from the court.
Non-Exhaustion of Alternative Remedy
Cheah Foong Chiew v. Lembaga Jurutera Malaysia [1999] 3 CLJ 242 (COA)
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where the dispute turns on a question of fact, about which there is a conflict of
evidence, the Court will generally decline to interfere.
Non-Reviewability of Criminal Investigative Process
City Growth Sdn Bhd & Anor v. The Govt of Msia [2005] 7 CLJ 422 (HC)
It has been said before that not all decisions and action of a public officer is
reviewable by the court. In R v. Sloan [1990] 1 NZLR 474, Justice Hardie Boys
said:
... it is not every decision made under statutory authority that is subject to
judicial review. A decision must go beyond what is merely administrative
or procedural ... or the exercise of a function rather than a power ... Quite
plainly, the conclusions reached by the inspector here are of this kind and
so are not reviewable. To hold otherwise would, as Mr Neave submitted,
open up the investigation process of all law enforcement agencies to
constant judicial review; and that cannot have been the intention of
Parliament.
Ahmad Azam bin Mohamed Salleh & Ors v. Jabatan Pembangunan Koperasi Malaysia &
Ors [2004] 4 MLJ 86 (HC)
The content of the letter issued on 6 December by the second respondent to the
third respondent pursuant to s 67 of the Cooperative Societies Act 1993 (the
Act) was not reviewable under O 53 RHC because the first respondent conducted
the inspection on the third respondent on the direction of the second respondent
which was merely exercising a function under s 64 of the Act. To hold such
process of inspection reviewable would open up the investigation process of all
enforcement agencies to constant judicial review.
Empayar Canggih Sdn Bhd v Ketua Pengarah Bahagian Penguatkuasa Kementerian
Perdagangan Dalam Negeri Dan Hal Ehwal Pengguna Malaysia &1 Lagi (Civil Appeal
No. 01(F)-21-09/2012(W))(Unreported)(FC)
Similarly in the present appeal, the seizure was made in the course of a criminal
investigation of an offence under Act 606 pursuant to the powers conferred under
the Act. Such seizure clearly is not amenable to judicial review. The Appellant
was not without redress. It could have filed a private law writ action for damages.
Indeed, section 48 of Act 606 provides for a cause of action for recovery of
damages if a seizure is made without reasonable cause.
Our answer to the first leave question as modified by us therefore is that, a
challenge to the exercise or a purported exercise of the power to seize the
machinery and equipment in this case should be made by way of an ordinary
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private law action for damages. This would be sufficient to dispose of the present
appeal. There is no necessity for us to answer the rest of the leave questions.
Non-Reviewability of Policy Matter
Dr Michael Jeyakumar Devaraj v. Peguam Negara Malaysia [2013] 2 CLJ 1009 (FC)
(1) The Executive's discretion, whether by statute or prerogative is amenable to
judicial review. However, whether such discretion is amenable to judicial review
is dependent on the facts of each case. Further, courts must be wary of unduly
extending its judicial arms to policy matters which were exclusively within the
domain of the Executive. Unwarranted usurpation and transgression by the
Judiciary into the realm of the Executive and vice versa would bring about
disrepute to our system of government which upholds the separation of powers
between the three main components, vis-à-vis, the Executive, the
Legislature and the Judiciary. (paras 16 & 20)
(2) On the facts, the disbursement of the Special Constituency Allocation was a
policy matter which was not within the purview of the courts. The court was in no
position to evaluate the qualifications in the application for the Special
Constituency Allocation and to determine or decide on the policy made by the
Executive. This court took cognizance of the fact that government policies
emanate after consideration of a number of technical factors which were often
non-legal, and judges do not possess the necessary information and expertise to
evaluate these non-legal factors and to pass judgment on the appropriateness or
adequacy of a particular policy. (para 18)
(3) The second respondent had clearly explained as to why he decided the way he
did with regard to the distribution of the Special Constituency Allocation for the
Sungai Siput constituency. Clearly, what was decided by the second respondent
hinged on matters which related to policy and thus, the court dissuaded itself from
entering into the realm which belonged to the Executive. Further, the supporting
documents exhibited by the appellant clearly showed that the appellant had no
arguable case. (paras 20 & 23)
(4) The decision or exercise of discretion sought to be reviewed under judicial
review based on policy consideration or management prerogative may be
determined at the leave stage itself. It was not a requirement that the court must
only decide on the issue after hearing all the evidence at the substantive motion
for judicial review. Further, the justiciability of such decision is dependent on the
particular facts of the case. On the facts herein, the issues raised in the notice of
motion for leave were not judicially reviewable and hence, not justifiable. (paras
24 & 25).
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No Prejudice
Mamat Talib (Timbalan Ketua Polis, Johor) & Anor v. Abdul Jalil Rashid [2005] 4 CLJ
892 (COA)
It was true that reg. 6(2)(c) and (6) of the Regulations was not complied with.
However, the non-compliance had occasioned no prejudice to the plaintiff. A
reasonable tribunal armed with the facts available would have come to the same
conclusion as the deciding authority in this case. Applying the 'consequences test'
formulated by Lord Woolf MR in R v. Immigration Tribunal, ex p Jeyeanthan, the
breach of reg. 6 had produced no adverse consequence for the plaintiff. It was not
enough that the rule of procedure had been breached. The breach must produce
consequences adverse to the party complaining of the breach. That requirement
was, on the facts, plainly absent.
Hoh Kiang Ngan v Mahkamah Perusahaan Malaysia [1995] 3 MLJ 369 (FC)
Suffice to say that in the circumstances of this case, the ultimate decision being
correct, no injustice of any sort, whether substantial or inconsequential, has been
occasioned because of the alleged wrong reasons.
Non-Existence/Non-Pleading of Special Circumstances
Nasioncom Holdings Bhd v. Suruhanjaya Sekuriti [2008] 7 CLJ 355 (HC)
It is trite that the grant of leave in judicial review proceedings is an exercise of
the courts discretion and consequently pursuant to O. 53 r. 3(5) of the RHC
which states, The grant of leave under this rule shall not, unless the judge so
directs, operate as a stay of the proceedings in question is likewise discretionary.
As to the proper exercise of this discretion, the court would need to consider
whether there are special circumstances which warrant a stay of the proceedings.
Not Suing the Proper Decision-Making Authority
Nik Ariff Nik Abd Ghani v. Ketua Jabatan Perlesenan Majlis Perbandaran Kota Bharu &
Anor [2002] 1 LNS 25 (HC)
Regardless of the crystal clear protection bestowed on the above-mentioned
personalities, the question that begs to be considered here is whether the vague
entity of Ketua Jabatan Pelesenan Majlis Perbandaran, Kota Bharu, may qualify
as a local authority, and be brought in as a party by the plaintiff. The answer
clearly is in the negative. A connected provision that promptly leaps to mind,
bearing in mind the impugn problem relates to the issuance of a license, is section
107. On a perusal, it is notable that the terminology adverted to by Parliament in
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this provision is indisputably local authority, ie, the Municipal Council of Kota
Bharu for the current case and nothing else.
Bearing in mind that the position of Ketua Jabatan Pelesenan is an unknown
entity under the Act, let alone under section 125 the statutory office bearers,
officers and employees are statutorily protected from any personal action, and
universally known that the culprit that refused the license was the local authority
(Municipal Council), the plaintiff thus was on shaky ground when the first
defendant was brought in as a party. The action against the latter therefore was an
abuse of the process of the Court. The action would have been on solid ground if
the entity of Ketua Jabatan Pelesenan had been dropped, leaving behind merely
Majlis Perbandaran Kota Bharu, as the first defendant.
To add to the predicament of the plaintiff, it is interesting to note that even though
the duty of issuing the license is on the local authority, that very body was not
even brought in as party. The second defendant, which is not even the employer of
the first defendant was instead co-opted into the proceedings. One must bear in
mind that the Majlis Perbandaran Kota Bharu and the State Government are two
totally different entities, with the latter not even involved in the direct
administrative rejection of the impugned licence application.
Non-Reviewability of Non-Decision
Ahli-Ahli Suruhanjaya Yang Membentuk Suruhanjaya Siasatan Mengenai Rakaman Klip
Video Yang Mengandungi Imej Seorang Yang Dikatakan Peguambela Dan Peguamcara
Berbual Melalui Telefon Mengenai Urusan Pelantikan Hakim-Hakim v. Tun Dato'' Seri
Ahmad Fairuz Dato'' Sheikh Abdul Halim & Other Appeals [2012] 1 CLJ 805 (FC)
(1a) Although the Commission had made strong findings that there was
'sufficient cause to invoke the Sedition Act 1972 and the Penal Code against
various individuals mentioned in the video clip' which implicate the respondents,
such findings remain mere findings. The Commission's findings had not affected
their legal rights and were therefore not amenable to judicial review. The
Commission merely investigates and does not decide. Thus, the findings and
recommendations of the Commission did not come within the ambit of O. 53
RHC and were not legal decisions that affected the rights of the respondents as
envisaged under O. 53 r. 2(4) RHC. (paras 28 & 29)
(2) The findings of any Commission established under Act 119 should not be
subjected to judicial review. If the proceedings of the Commission are allowed to
be challenged either at the outset or during its continuance by prohibition or at its
conclusion by certiorari, its purpose will come to naught. It will make the settingup of the Commission a meaningless exercise. Hence, it was against public policy
to subject the findings and recommendations of the Commission to judicial
review. Herein, the video clip circulation on the internet had sparked furious
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debate questioning the independence of the judiciary. The image of the judiciary
was being ridiculed. Obviously it was not in the best interest of the judiciary and
the nation as a whole to allow such debate and bad perception to continue without
the public knowing the truth of the matter. It was for that purpose the Commission
comprising eminent persons of high standing, was set up to conduct a factual
investigation on behalf of the Government and to make the necessary
recommendations for the betterment of the judiciary. Now the Commission had
come out with its findings, it did not make any sense if such findings were
allowed to be reviewed by the courts. (paras 44 & 45)
Purely Commercial Dealing
Majlis Perbandaran Subang Jaya v. Laguna De Bay Sdn Bhd [2015] 1 CLJ 357 (CoA)
The public function of local authorities and its function as a body corporate
(legal entity) must be distinguished. The function of a body corporate is not
synonymous with the function of local authorities. The respondent's argument that
there is no single express provision allowing the appellant to enter into the
business of renting TOLs to billboard operators cannot be correct. Being a
separate legal entity, they can enter into commercial contracts but it will be
subject to the control of the State Government and/or State Authority itself and
the policy of the day. If such policy consideration relates to private contracting
parties as opposed to public then as a general rule it will not be amenable to
judicial review.
It is well established that judicial review of administrative actions is permissible
on the ground of illegality or irrationality or procedural impropriety. [See Chong
Chung Moi @ Christine Chong v The Government of State of Sabah & ors [2007]
5 MLJ 441]. Commercial contracts will not fall under the jurisprudence of judicial
review.
Mandamus for Legal Public Duty Not Discretion
Ketua Polis Negara v. Indira Gandhi Mutho [2015] 1 CLJ 443 (CoA)
It is trite law that an order of mandamus is issued whenever there is a public
duty imposed in law on a person or body and the purpose of the order was to
compel that person or body to carry out the duty required by law to be performed
by him or by it. An order of mandamus will be issued to enforce a public duty at
law for public good generally. However, an order of mandamus being a
discretionary order should not be readily issued when the parties, in enforcing
private rights, has a remedy available to it.
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