Can You Sue a Public Authority or
Government Body?
ALLIFF BENJAMIN SUHAIMI
What is judicial review?
 An inherent right of the courts to review the decision
making process of a public body provided under Order 53
Rules of Court 2012.
 The courts can also review the decision and analyze the
merits of the decision and replace the decision of the
administration body
 Under Judicial Review, the Courts can only grant public law
remedies provided under paragraph 1 of the Schedule
to the Court of Judicature Act 1964 and Chapter
VIII of Part 2 of the Specific Relief Act 1950.
Reliefs
Declaration
Declare rights of parties
Certiorari
Quash the decision made by the authority
Mandamus
Compel the government to do something
Prohibition
Prohibits the government from doing something
Quo warranto
Force the government to show their authority
Who can sue?
“Adversely affected” Test – O 53 r 2(4) Rules of Court 2012
 Any person adversely affected by the decision, action or
omission in relation to the exercise of the public duty or
function
 Real and genuine interest in the subject matter
 Malaysian Trade Union Congress & Ors v Menteri
Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ
145 (Federal Court)
“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.”
Who Can Be Made A Respondent
 The decision-maker and the public body that governs the
judicial maker.
 This includes public authorities themselves, tribunals and
other decision-making bodies exercising public functions.
 The Court of Appeal in Tenaga Nasional Bhd v Tekali
Prospecting Sdn Bhd [2002] 2 MLJ 707 has held that
when the activities and/or decisions of a decision-maker in
the private sector falls within a public law environment, the
same can be subjected to judicial review as well.
What Can Be
Subjected to Judicial Review
 An applicant can file a JR to challenge/review the
decisions, omissions and/or actions of a body exercising
‘public function’
 Following WRP Asia Pacific Sdn Bhd v Tenaga
Nasional Berhad [2011] MLJU 1298 (Federal
Court) , the interpretation of “public function” is based
on consideration of, inter alia, the following factors:1.
2.
3.
The powers conferred to the decision-maker under
existing statutes;
The extensive and/or monopolistic power of said
decision-maker;
The relationship between the aggrieved party and
the decision-maker in question.
Procedure of Judicial Review Application
Ex parte application of leave (O.53 r.3 ROC 2012)
File Notice in Form 110 (O.53 r. 4 ROC 2012)
Serve a sealed copy of Form 110, statement and all
affidavits in support on persons directly affected
Hearing
Time Limit
O 53 r 3 (6) Rules of Court 2012
3 months
from the date when
the
grounds
of
application first arose
when the decision is
first communicated to
the applicant
Non-compliance of prescribed timeline is fatal
Grounds for Judicial Review
Grounds
Illegality
Error of law affecting jurisdiction
Irrationality
Such as unreasonableness,
improper purposes
Procedural
Impropriety
Breach of Natural Justice
Proportionality
Excessive sanction or punishment
which intrude on individual rights
Additional Powers/Reliefs
Order 53 rule 5 Rules of Court 2012
The Court may award damages to the applicant if
(i) He has included in the statement in support of his
application a claim for damages; and
(ii) The Court is satisfied that, if the claim has been made in
an action begun by the applicant at the time of
making his application, he could have been
awarded damages
The Court may also apply to the Judge for discovery
and inspection of documents pursuant to Order 24,
to administer interrogatories, or to cross-examine
the deponent of affidavit pursuant to Order 38
Civil Suit against Government
 A party can also sue the government under a normal civil claim for breach
of contract / negligence.

In the event the plaintiff or the defendant is:
a)
Federal Government: the title “Government of Malaysia” will be used;
or
b)
State Government: e.g. Perak, the title would be “State of Perak”
(Section 21 & 22 Government Proceedings Act 1956)
 Acts
done in pursuance or execution of any written law/public
duty/authority
 Limitation Period: 36 months from the date of the breach or damage from
the negligent act
(Section 2 Public Authorities Protection Act 1948)
Limitation of Court’s power in granting reliefs
in Government Proceeding
Section 5 and 6 of GPA 1956 limits the liability of the
Government in relation to the act done by the public officer.
Section 29
Government Proceedings Act 1956
(“GPA 1956”) restricts the court’s power in granting the
following reliefs:
 Injunction
 Order for specific performance
 Order for recovery of land or delivery of property
Section 33(4) generally prohibits execution of judgement
against the government.
Rationale
No injunction against Government
 It was explained by Court of Appeal in Superintendent
of Lands and Surveys, Bahagian Mukah & Anor
v Bunyak Gadin & Ors and another appeal
[2016] 5 CLJ 558 that injunction cannot lie against the
Government to stop them from carrying out their public
duties.
 Although the court is prohibited from granting an
injunction, the aggrieved party is not deprived of certain
entitlement such as compensation. As such, damages
would be an adequate remedy and the balance of
convenience did not favour the grant of injunction