Judicial Control of Administrative Action : Vistas in Malaysian Public Law

1. Judicial Control of Administrative Action : Vistas in Malaysian Public Law Steven Thiru Advocate & Solicitor Partner, Shook Lin & Bok, Kuala Lumpur

2. Judicial control of administrative action “The courts are the only defence of the liberty of the subject against departmental aggression…that “public bodies must be compelled to observe the law and it is essential that bureaucracy should be kept in its place”, (per Raja Azlan Shah CJ in Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135

3. The evolution of judicial control of administrative action:-Common law-Statute-Federal Constitution

4. The emergence of administrative law has been commended by various quarters in the legal fraternity and has even been described as “… the greatest achievement of the English courts in my judicial lifetime.” (per Lord Diplock in Inland Revenue Commissioners v National Federation of Self-employed and Small Businesses Ltd[1982] AC 617 at p. 641) • At the heart of this epochal development is the judicial control of administrative action that the courts exercise through judicial review. • Judicial review is today a potent weapon in the armoury of the courts to protect the fundamental rights of private citizens from capricious behaviour on the part of administrative bodies.

5. The common law courts were quick to recognize that the rule of law required that unbridled powers in the hands of the administration should be subject to judicial control to balance individual rights and legitimate administrative endeavours. • It was decided that the mechanism through which this was to be achieved was judicial review. • “Governments are not notorious for introducing legislation which limits their own powers. Happily, the common law has proved to be fertile not impotent.” (Lord Browne-Wilkinson, Foreword to Supperstone & Goudie, Judicial Review, (Butterworths, 1992)).

6. The common law doctrine of ultra vires is the foundation of judicial review and it is broadly applied to every executive action, or inaction, which affects the rights of citizens. • A whole range of administrative activities were therefore brought within the compass of judicial control as to their vires, on the footing that:- (1) every executive action must have a legal basis to it, and, (2) every legal power must be exercised within its limits, in good faith and reasonably to achieve the objective of the power.

7. The Malaysian judiciary, like their English counter-parts, have been largely alive to this threat of unbridled administrative powers and our courts have developed a system of judicial control, through a vibrant judicial review jurisdiction, to repulse the threat. • For a long time, our administrative law was primarily based on the common law. • Thus, the locus classicus English cases are all today firmly embedded in Malaysian administrative law. These cases include Ridge v Baldwin[1963] 2 All ER 66 (on procedural fairness) and Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 andAnisminic Ltd v Foreign Compensation Commission[1969] 2 AC 147 (on jurisdictional errors of law) to name a few.

8. The statutory basis of judicial review actions in Malaysia is provided by in Section 25(2) read with Para 1 the Courts of Judicature Act (CJA) 1964. Section 25(2) CJA Without prejudice to the generality of subsection (1), the High Court shall have the additional powers set out in the Schedule. Provided that all such powers shall be exercised in accordance with any written law or rules of court relating to the same. Para 1 Additional Powers of High Court Prerogative writs Power to issue to any person or authority, directions, orders, writs, including writs of the nature of 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 any of them, or for any purpose.

9. The dawn of a new era : A constitutional dimension to judicial review in Malaysia

10. Judicial control of administrative action in Malaysia enjoyed a renaissance period in the late 1990’s when our “trail-blazing” Court of Appeal established a constitutional foundation for judicial review actions. • In a Westminister-style constitution, judicial power is vested in the hands of the judiciary and it is this judicial power that enables the judiciary to ensure, in the exercise of its supervisory jurisdiction, that the executive acts in accordance with law.

11. However, there were a raft of judicial review cases in Malaysia in the late 1980’s where the courts repeatedly impugned the exercise of discretionary powers by the executive (see, for eg, J.P Berthelesen v Director General of Immigration [1987] 1 MLJ 184). The executive responded by amending Article 121 and the reference to the vesting of judicial power on the judiciary was removed. • Article 121 of the Malaysian Constitution previously provided that the judicial power of the Federation vested in the two High Courts and such inferior courts as might be provided by federal law. • This attempt to whittle down judicial power, and hence the scope of judicial review, failed because of a basic canon of constitutional interpretation. It was alluded to by the Privy Council in Liyange v The Queen [1967] 1 AC 259 at p. 287 (per Lord Pearce) :- “…. Manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They are wholly appropriate in a constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a constitution by which it was intended that judicial power should be shared by the executive or the legislature. The constitution’s silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century in the hands of the judicature. It is not consistent with any intention that henceforth it should pass to or be shared by the executive or the legislature.”

12. Next, the Federal Constitution contains a chapter (Part II) on fundamental liberties, which includes two important humanizing provisions that house the right to judicial review.These are Article 5(1), which enshrines the right to livelihood, and Article 8(1), which codifies the right to equality. • Importantly, our Court of Appeal has held that judicial review of administrative action in Malaysia is a constitutional right :- “[We] are of the view that the liberty of an aggrieved person to go to court and seek relief, including judicial review of administrative action, is one of the many facets of the personal liberty guaranteed by Article 5(1) of the Federal Constitution.” (see the Court of Appeal in theSugumar Balakrishnan case [1998] 3 MLJ 289 at p. 308) • Further, the Federal Court in the recent case of Palm Oil Research and Development Board Malaysia [2005] 3 MLJ 97 at 119 made the following pronouncement on the constitutional basis of judicial review in Malaysia: “The relevant source of public law in our jurisdiction is the Federal Constitution, for it declares by its own terms in art 4(1) that it is the supreme law. It follows that what English lawyers refer to as 'administrative law' or 'public law' has no separate existence dehors the Constitution in our jurisdiction. All principles of administrative law or public law must find their place within the Constitution.”

13. The grounds for judicial review

14. The classic enunciation of the grounds on which errors of law are committed and thus necessitating the judicial interference with the exercise of governmental power was famously stated by Lord Diplock in the case of Council of Civil Service Union & Ors v Minister of Civil Service [19850 AC 374 at pp. 410-411: “By illegality…I mean that the decision-maker must understand correctly the law that regulates his decision-making power and give effect to it…by ‘irrationality’ I mean what can now be succinctly referred to as ‘Wednesbury unreasonableness’…It applies to decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied the scope his mind to the question to be decided could have arrived at it…I have described the third head as ‘procedural impropriety’ rather than the failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.” • A further ground on which errors of law are committed and therefore creating the possibility of judicial intervention is proportionality [see: R.Ramachandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 45]

15. The expansion of the scope of judicial review powers :the Ramachandran case

16. Traditionally, the Malaysian courts have adopted the common law position settled by the House of Lords in Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155, viz, that judicial review is concerned not with the decision but the decision making process (see Tanjong Jaga v Minister of Labour [1987] 1 MLJ 125). • The underlying basis and scope of the judicial review powers of our courts was revolutionized by the Federal Court in Ramachandran’s case [1997] 1 MLJ 145 (at pp. 186 – 187). “It is often said that Judicial Review is concerned not with the decision but the decision making process. (See eg Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155). This proposition, at full face value, may well convey the impression that the jurisdiction of the courts in Judicial Review proceedings is confined to cases where the aggrieved party has not received fair treatment by the authority to which he has been subjected. Put differently, in the words of Lord Diplock in Council of Civil Service Unions & Ors v Minister for the Civil Service [1985] AC 374, where the impugned decision is flawed on the ground of procedural impropriety. But Lord Diplock’s other grounds for impugning a decision susceptible to Judicial Review make it abundantly clear that such a decision is also open to challenge on grounds of “illegality” and “irrationality” and , in practice, this permits the courts to scrutinize such decisions not only for process, but also the substance.”

17. The Federal Court therefore broke new ground in holding that when an administrative decision is impugned in a judicial review action for “irrationality” or “illegality”, the court is empowered to consider both the decision making process as well as the merits (substance) of the decision. • Last year, the Court of Appeal in Datuk Justine JinggutvPendaftar Pertubuhan[2012] 3 MLJ 212 reaffirmed the application of the Ramachandran principle in the following terms (at para. 56): “The court has the power to scrutinise the authority's decision not only for process, but also for substance (R Ramachandran  v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145; [1997] 1 CLJ 147).”

18. Ouster clauses and jurisdictional errors.

19. The Syarikat Kenderaan Melayu Kelantancase (“SKMK”) in 1995 was the first of a series of cases where our resurgent Court of Appeal began to change the face of administrative law in Malaysia. • The Court of Appeal in SKMK, relying on the House of Lords cases of Re Racal Communications [1981] AC 374 and O’Reilly v Mackman, recast our common law 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 decision will not be immunized from judicial review by an ouster clause however widely drafted.”

20. The Court of Appeal went on to declare that the “categoriesoferrorsof law are not closed” :- “It is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law, for the categories of such an error are not closed. But it may be safely said that an error of law would be disclosed if the decision-maker asks himself the wrong question or takes into account irrelevant considerations or omits to take into account relevant considerations (what may be conveniently termed an Anisminic error) or if he misconstrues the terms of any relevant statute, or misapplies or misstates a principle of the general law.” • The Court of Appeal’s decision in the SKMK has been endorsed by our Federal Court (see Hoh Kiang Ngan’s case [1995] 3 MLJ 369).

21. Access to justice – A Constitutional Right?

22. Our Court of Appeal has sought to emasculate ouster clauses from the sphere of Malaysian public law on the basis that free access to an independent judiciary to obtain redress by way of judicial review is a fundamental constitutional right, viz, access to justice. • An ouster clause that gives administrative finality and prevents access to justice would be void as it infringes a constitutional right. • In Sugumar’s case, the Court of Appeal categorized access to justice to seek judicial review of administrative action as an aspect of personal liberty (life) guaranteed by Article 5(1) of the Malaysian constitution. • However, the Federal Court in Sugumar’s case (at page 101) disagreed:- “We therefore disagree with the Court of Appeal that the words “personal liberty” should be generously interpreted to include all those facets that are an integral part of life itself and those matters which go to form the quality of life… 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…”

23. The Court of Appeal however, in a different case, continued in its quest to place access to justice on a constitutional platform. In Kekatong v Danaharta[2003] 3 MLJ 1 (at pp 18 - 19) it resorted the Article 8(1). ‘We would sum up our views on this part of the case as follows: (i) the expression “law” in art 8(1) refers to a system of law that incorporates the fundamental principles of natural justice of the common law : Ong Ah Chuan v Public Prosecutor, (ii) the doctrine of the rule of law which forms part of the common law demands minimum standards of substantive and procedural fairness : Pierson v Secretary of State for the Home Department; (iii) access to justice is part and parcel of the common law : R v Secretary of State for the Home Department, ex parte Leech; (iv) the expression “law” in art 8(1), by definition (contained in art 160(2)) includes the common law. Therefore, access to justice is an intergral part of art 8(1).” • However, again, the Federal Court stood in the way (see [2004] 2 MLJ 257). The Court concluded that access to justice was a mere common law right which may be ousted by an ordinary Act of Parliament and therefore the provision preventing access to the courts was not unconstitutional.

24. Judicial Review: A Discretionary Remedy

25. It is important to note that judicial review does not lie for every or any error of law. • It is a discretionary remedy. • The Federal Court in Hoh Kiang Ngan v Mahkamah Perusahaan Malaysia [1996] 4 CLJ 687 at 714 had this to say about the discretionary nature of judicial review remedies: “For, it must not be forgotten that these remedies are discretionary and are not available ex debito justitiae to an applicant who is able to demonstrate an error of law on the part of a public decision-taker.” • Further, an applicant for judicial review must show that some “substantial injustice” has been suffered to warrant the award of a judicial review remedy. On this point, the Court of Appeal in Ngu Toh Tung v Superintendent of Lands & Survey [2006] 1 CLJ 30 at 39 stated as follows: “No doubt, the public law remedy of certiorari appears in the vast majority of cases to have been granted as of right once an infringement of the law was demonstrated. So, one tends to assume that it is a remedy of right. But it is not. If you look carefully enough at those cases where the remedy was granted, you will find that they concerned applicants who had suffered or were likely to suffer a substantial injustice in consequence of a breach of law.”

26. Order 53 of the Rules of Court 2012

27. The present adjectival law governing judicial review applications came into effect on 1.8.2012 and it is embodied in the recently introduced Rules of Court 2012. • All prerogative remedies (certiorari, mandamus, prohibition etc) that are available under common law and Para 1 of the Schedule to the CJA 1964 may be claimed under an omnibus “Application for Judicial Review” (see Ord 53 r 1(1)) • The applicant may also claim for a declaration, injunction and damages as well as seek discovery and interrogatories in the judicial review application. (see Ord 53 r 2(2), Ord 53 r 5(1) and Ord 53 r 6) • The Court is not confined by the relief claimed and it may mould a remedy which is appropriate to the justice of the case (see Ord 53 r 2(3) RHC 1980). • For the purposes of procedural locus standi, the applicant needs only to show that he is “adversely affect by the decision of any public authority” (see Ord 53 r 2(4)). • The applicant must obtain leave to commence judicial review (see Order 53 r3(1)). The said application must be made promptly and in any event within 3 months from the date when the grounds of the application first arose or when the decision in first communicated (see Ord 53 r 3(6)).

28. Principles for Leave: (1) Threshold and the de minimis test - must show that the application is not frivolous and that there is an arguable case [see: QSR Brands Bhdv Securities Commission and Another[2006] 2 CLJ 532] (2) The Court must not go into the merits of the matter unless the leave application is coupled with an application for extension of time [see: Tang Kwor Ham & Ors v Pengurusan Danaharta Nasional Sdn Bhd & Ors [2006] 1 CLJ 927] (3) An important recent clarification on the test applicable for the granting of leave may be found in the Court of Appeal judgment in the Tun Dato’ Sri Ahmad Fairuz case [2011] 4 AMR 324 at 339 where the following was held: “In requiring the appellants to show that there is a prima facie case in their favour and that the application was not made vexatiously, the learned High Court judge had placed a higher threshold in the path of the applicant than they were required to cross… All that is required to be determined at the leave application stage is whether prima facie there is substance and merit in the grounds of the appellant’s application.”

29. Further Points to Note • The Federal Court in Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayan & Kesenian Johor [2010] 3 MLJ at 155 appropriately observed that the stringent conditions of Order 53 are in place to “protect those entrusted with the performance of public duties against groundless unmeritorious or tardy harassment.” • The phrase “adversely affected” in Ord 53 r 2(4) calls for a flexible approach and would cover cases where fundamental rights/personal liberty is at stake (see QSR Brands v Security Commission [2006] 3 MLJ 164 at pp. 171 – 172). • The procedural locus standi under Ord 53 r 2(4) is wider than restrictive test in Boyce v Paddington [1903] 1 Ch. 109 (per Buckley LJ) which was applied previously in Malaysia (see UEM v Lim Kit Siang [1988] 2 MLJ 12). This has been followed by advances in substantive locus standi as well (see Raja Segaran v Bar Council Malaysia [2004] 4 CLJ 239 at pp. 263 – 271).

30. Conclusion