QUICK GUIDE ONJUDICIAL REVIEW CASES :

MALAYSIAN CONTEXT

Shahrin NordinLL.B (Hons) IIUM, LL.M (Commercial Laws) UiTM

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Published 2016

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INDEX

Judicial Review

Leave Stage

(1) Test at the leave stage(2) Right to appear during ex-parte leave stage

Grounds of judicial review 1

(1) Irrationality (‘Wednesbury unreasonableness’)(2) Procedural impropriety (‘Natural justice’)(3) Illegality

(a) mala fide (b) improper purpose, (c) failure to take into account relevant considerations (d) taking into account irrelevant considerations (e) non-exercise of discretion.

(4) Substantive fairness,(5) Proportionality(6) Substantive legitimate expectation.

Defending against judicial review

(1) Delay in filing(2) Decision on administrative appeal is not a “decision”(3) Pre-mature / absence of decision(4) No locus standi(5) Non-exhaustion of alternative remedy(6) Reviewing of decision-making process only(7) Non-reviewability of criminal investigative process(8) Non-reviewability of policy matter(9) No prejudice(10) Non-existence/non-pleading of “special circumstances”(11) Not suing the proper decision-making authority (12) Non-reviewability of non-decision(13) Purely commercial dealing(14) Mandamus for legal public duty not discretion(15) Matter has become academic(16) Non-reviewability of disciplinary punishment

Recommended Readings

(1) Sudha CKG Pillay, “The Changing Faces of Adminsitratives” [1999] 1 MLJ cxl

1 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) 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.

(ii) If the Judge is satisfied that there is no arguable case he should dismiss the application for leave to move for judicial review.

(iii) 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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Grounds For Judicial Review

Irrationality (‘Wednesbury unreasonableness’)

See Choo v. Suruhanjaya Sekuriti [2005] 2 CLJ 20 (COA)

“By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v. Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

Associated Provincial Picture Houses Ltd v. Wednesbury Corp [1948] 1 KB 223 (COA)

“The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.”

Procedural impropriety (‘Natural justice’)

Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan & Another Appeal [2002] 4 CLJ 105 (FC)

“I described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failing 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.”

Lim Siew Hong v. Contraves Advances Devices Sdn Bhd & Anor [2006] 8 CLJ 274 (HC)

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“… procedural impropriety covering failure:(a) to observe basic rules of natural justice;(b) to act with procedural fairness;(c) 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;…”

Mala fide (Illegality)

Mohamad Ezam bin Mohd Noor v Ketua Polis Negara & Other Appeals [2002] 4 MLJ 449 (FC)

“An order of detention was mala fide if it was made for a "collateral" or "ulterior" purpose, that is, a purpose other than what the legislature had in view in passing the law of preventive detention' (see Basu's Commentary on the Constitution of India (15th Ed) Vol 2 at p 153). The onus was on the appellants to prove mala fide on the part of the detaining authority. Where an order of detention was challenged on the ground of mala fide, what had to be made out were the want of bona fide as well as the non-application of mind on the part of the detaining authority.”

Karpal Singh v. Minister of Home Affairs [1988] 1 MLJ 468

“Mala fides does not mean at all a malicious intention. It normally means that a power is exercised for a collateral or ulterior purpose, for example for a purpose other than for which it is professed to have been exercised.”

Improper purpose (Illegality)

Lee Hay v. Yang Di Pertua Majlis Daerah Hulu Langat & Anor [1998] 5 CLJ 367 (HC)

“In Wade & Bradley's book on "Constitutional & Administrative Law" at p. 633 it is stated:

The exercise of a power for an improper purpose is invalid. Improper purposes include, but are not restricted to malice or personal dishonesty on the part of the officials or councillors making the decision; examples of this kind are rare. Most instances of improper purpose have arisen out of a mistaken interpretation by a public authority of what is empowered to do so, sometimes contributed to by an excess of zeal in the public interest. Thus a city council which was empowered to buy land compulsorily for the purpose of extending streets or improving the city could not validly

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buy land for the purpose of taking advantage of an anticipated increase in value of the land.”

Congreve v Home Office [1976] QB 629 (COA)

“It is said that the power of revocation is a discretionary power, and one which can only lawfully be exercised for the purpose for which it was conferred, and cannot be exercised for an unlawful purpose. It is said that the exercise here, or the threatened exercise, of the power is not a lawful exercise of the discretion, because it is a disguised and, indeed, according to counsel for the plaintiff, not a very well disguised, threat, as an indirect method of levying money the recovery of which is unlawful.”

Failure to take into account relevant considerations or taking into account irrelevant considerations (Illegality)

Menteri Sumber Manusia v Association of Bank Officers, Peninsular Malaysia [1999] 2 MLJ 337 (FC)

“While the Minister’s affidavit did give reasons which focussed on the nature of the job functions of the relevant officers, they did not extend into the area of ABOM’s legal objections. The reasons were not adequate for, apart from a bare denial, there was no suggestion in them that the Minister had directed his mind to the substantial points of Law which had been raised by ABOM or formed any reasoned view about them.

… A mandamus must go directing the Minister to consider the dispute afresh according to Law, adequate regard being had to all relevant matters both of Fact and Law to which the Court had referred when considering the decision-making process under s 9(5) of the Act.”

Liew Fook Chuan v Menteri Sumber Manusia & Anor 1995 3 MLJ 740 (HC)

“They are principles which the court looks to in considering any question of discretion of this kind. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion, it must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act makes it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters.”

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Non-exercise of discretion (Illegality)

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

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art. 8(1) read together with art 5(1) of the Federal Constitution. The Court also relied on R. Rama Chandran.

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

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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 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….

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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 involved in the vice-chancellor's decision declining to reappoint the applicant dean. In such circumstances, I regarded the applicant as having no more than a pious 'hope' of being reappointed dean; 'nothing was being taken away, and in all normal circumstances there are no charges, and so no requirement of an opportunity of being heard in answer to the charges' (see McInnes v. Onslow-Fane [1978] 1 WLR 1520 at pp 1529-30) and also, Paterson v. Dunedin City Council [1981] 2 NZLR 619 where the width of the discretion defeated any legitimate expectation).”

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Defending Against Judicial Review

Delay in Filing

Mersing Omnibus Co Sdn Bhd v. Minister of Labour and Manpower & Anor [1983] [1983] 2 CLJ 7 (FC)

“Leave should not have been granted to the appellant to apply for certiorari without the time prescribed in O. 53 r. 1A and neither sought an extension of time nor accounted for the delay to the satisfaction of the learned Judge within its explicit requirements. The learned Judge had no jurisdiction to do so.”

Ravindran v. Malaysian Examinations Council [1984] 1 CLJ 320 (Rep); [1984] 1 CLJ 232 (FC)

"The Judge dealt with two aspects of what he thought was the issue before him. First he dealt with the reason for the delay in applying for an enlargement of time. Secondly he dealt with the merits of the case if the explanation for the delay was accepted.

In our view the whole issue is clearly one of jurisdiction. In the event only the first consideration of the Judge is relevant. Since the Judge rejected the explanation for the delay it follows that the Court had no jurisdiction to hear the application for leave for an order of certiorari. Whether the application for an order of certiorari had merits or not was irrelevant. This principle is implicit in Mersing Omnibus Co. Sdn. Bhd. v. Minister of Labour and Manpower. There had been no jurisdiction to hear the application for certiorari because Order 53 Rule 1A of the Rules of the High Court 1980 expressly directs that leave shall not be granted "unless the application is made within six weeks after the date of the proceeding".

Decision on Administrative Appeal Is Not A “Decision”

Arrow Vista Sdn Bhd v. Jawatankuasa Kerja Tanah Wilayah Persekutuan [1999] 7 CLJ 309 (HC)

“The second issue deals with the question of whether this application was made within the period as stipulated under s. 418 of the National Land Code. Section 418(1) states that such appeal must be made at any time within three(3) months from the date the decision was communicated to the plaintiff. The question is when was such decision communicated to the plaintiff. As had been mentioned above the application under s. 124 and s. 200 of the National Land Code was made by the previous owner of the said land on 28 August 1995. The decision to reject it was made by the Prime Minister on 27 July 1996 and such decision was sent by letter to the previous owner of the said land on 25 September 1996.

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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 applicant’s 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 Minister’s decision is not in the applicant’s 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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“Apart from the respondent's power to decide on their jurisdiction, under s. 20 of the said Act, there is an appeal process, where the appellant can appeal to an Appeal Board chaired by a High Court judge. We are of the view that the appellant's application to the court, in the circumstances of this case, is premature.”

Govt of M’sia & Anor v. Jagdis Singh [1987] CLJ 110 (Rep) (SC)

“Certiorari is always at the discretion of the Court. But where there is an appeal provision available to the applicant, certiorari should not issue unless there is a clear lack of jurisdiction or blatant failure to perform some statutory duty or serious breach of principles of natural justice.”

Reviewing of decision-making process only

Michael Lee Fook Wah v. Minister of Human Resources Malaysia & Anor [1998] 1 CLJ 227 (COA)

“In hearing an application for an order of certiorari, the High Court sits not in its appellate jurisdiction but in its supervisory jurisdiction. The court is, thus, concerned with the decision-making process and not with the decision itself. It should not readily question the administrative decision of a Minister as that is his absolute discretion. The courts will interfere only if the Minister has acted ultra vires, unfairly or unjustly in the exercise of his discretion.”

Harpers Trading (M) Sdn. Bhd. v. National Union of Commercial Workers [1991] 1 CLJ 159 (Rep) (SC)

“Orders of certiorari and prohibition are concerned principally with public order, it being part of the duty of the High Court to see that inferior Courts confine themselves to their own limited sphere. They also afford speedy and effective remedy to a person aggrieved by a clear excess of jurisdiction by an inferior tribunal. But they are not designed to raise issues of fact for the High Court to determine de novo. Accordingly, it has never been the practice to put the party who asserts that the inferior Court has jurisdiction to proof of the facts upon which he relies. It is recognized that the inferior Court will have made a preliminary inquiry itself and the superior Court is generally content to act upon the materials disclosed at that inquiry and to review in the light of them the decision to assume jurisdiction. This is possible only because the Court is not, as I conceive it, finally determining the validity of the tribunal's order as between the parties themselves (except, perhaps, in a case such as Symons v. Rees [1876] 1 Ex. D. 416, where the Court investigated for itself the facts and pronounced upon them), but is merely deciding whether there has been a plain excess of jurisdiction or not. Where the question of jurisdiction turns solely on a disputed point of law, it is obviously convenient that the Court should determine it then and there. But

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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 M’sia [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 court’s 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 setting-up 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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Matter Has Become Academic

Wong Sang Giap v. Wong Keng Giap [1999] 2 CLJ 618 (HC)

“The law is clear that the power of the court to make a binding declaration is discretionary and the court will not make a declaratory judgment where the question raised is purely academic or the declaration will be useless or embarrassing or where an adequate alternative remedy is available.”

Lee Kok Wai & Anor v. Securities Commission Malaysia [2015] 4 CLJ 260 (HC)

“Likewise, the current application before me was also academic as by the time the issues were ventilated before me there was nothing to be reviewed. The notice to show cause had required the first applicant to provide an explanation to the AOB pertaining to the matters raised in the said notice to show cause. The first applicant had in fact submitted his explanation on 3 October 2014 in response to the notice to show cause. In view of the aforesaid there was nothing further relating to the show cause to be reviewed. Hence, this application would fall on the ground that the relief sought had become academic.”

Non-Reviewability of Disciplinary Punishment

Ng Hock Chen v. Pengarah Am Penjara & Ors [1998] 1 CLJ 405 (FC)

“Consequently, both the High Court and the Court of Appeal, after having upheld the 2nd respondent's finding of misconduct against the appellant, were right in refusing to judicially review or otherwise interfere with the order of dismissal meted out by the 2nd respondent.

The disciplinary tribunal of a professional body is the best judge of the seriousness of the misconduct of its members; it would require an exceptional case to enable a court to interfere with its decision in respect of punishment. Likewise, an employer, including a government, is the best person to judge the seriousness of the misconduct of its employees.”

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