Judicial Control of
Administrative Action :
Vistas in Malaysian
Public Law
Steven Thiru
Advocate & Solicitor
Partner,
Shook Lin & Bok, Kuala Lumpur
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
The evolution of judicial control
of administrative action:Common law-Statute-Federal
Constitution

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.

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)).

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.

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 and
Anisminic Ltd v Foreign Compensation Commission
[1969] 2 AC 147 (on jurisdictional errors of law) to name a
few.

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.
The dawn of a new era :
A constitutional dimension to
judicial review in Malaysia

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.

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.”

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 the Sugumar 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.”
The grounds for judicial review

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]
The expansion of the scope of
judicial review powers :
the Ramachandran case

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.”

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 Jinggut v
Pendaftar 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).”
Ouster clauses and jurisdictional
errors.

The Syarikat Kenderaan Melayu Kelantan case (“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.”

The Court of Appeal went on to declare that the “categories of errors of 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).
Access to justice – A
Constitutional Right?

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…”

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.
Judicial Review: A Discretionary
Remedy

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.”
Order 53 of the Rules of Court
2012

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)).

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 Bhd v 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.”
Further Points to Note
1.
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.”
2.
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).
3.
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).
Conclusion