Malaysian Public Law

Judicial Review in Malaysia 101

What is Judicial Review?

Judicial review is a court action specifically designed to challenge “decisions, actions or omissions” of public bodies.

Public bodies are government organs which perform a public function: Ministers, the Federal Government, State Governments, Royal Malaysian Police, the Commissions which regulate various industries, Tribunals, Industrial Courts, local authorities, land offices, public universities, etc.

Must every decision of a public body be challenged by Judicial Review?

No. There are 2 main exceptions.

First, if the complaint against a public body is not based on principles of public law, or is a mixture of both private & public law, a Court may rule that a proper action would be by writ or originating summons (which are court actions for private parties). For example, if there is a fallout in a joint venture agreement between a construction company with a State Government to develop a land, it is essentially a contractual dispute involving private law. Similarly, if a patient suffers complications in a public hospital, it is a medical negligence case revolving private law. Both are unsuitable for judicial review.

Second, if there is a specific statutory procedure to challenge the public body, the same must be adhered to first. For instance, if you are unhappy with an income tax assessment imposed by the Inland Revenue Board, you must appeal to the Special Commissioners for Income Tax. If you are unhappy of a fine imposed by the Competition Commission, you must appeal to the Competition Appeal Tribunal. Having said that, if the decisions of the above appellate tribunals are still unsatisfactory, you can then proceed to file a Judicial Review.

Who can file a Judicial Review?

Any person who is “adversely affected”. In legal jargon, you must possess “locus standi” (a place of standing).

You are “adversely affected” as long as you can show you have “a real and genuine interest in the subject matter”.

You don’t necessarily need to be personally affected by a public law decision. The law recognises the concept of “public interest litigation”. “Public interest litigation” will be entertained by Courts if it is meant to redress public injury, enforce a public duty, protect social rights and vindicate public interest. It ensures access to justice to economically weaker classes.

On what grounds can you challenge a public decision?

The usual grounds are as follows:

(1) Ultra vires : when a public body acts beyond one’s statutory or legal power

(2) Unconstitutionality : when a public body does something which is against the Constitution

(3) Unreasonableness : when a public body acts in a manner where no reasonable public body would have done the same

(4) Disproportionality : when the decision arrived at is disproportionate to the objective sought to be achieved

(5) Breach of legitimate expectation : when a public body reneges on a policy, promise or representation made to a person or group of persons

(6) Denial of the right to be heard : when you are not given the opportunity to present your explanation/story before a decision is made

(7) Procedural unfairness : when a specific procedure provided in the law/regulations/rules is not followed in arriving at a decision

(8) Bias : when the public body has a vested personal interest in the outcome of a decision

(9) Failure to give reasons for decision

What remedies can you obtain if you succeed in a Judicial Review?

The usual remedies sought for are:

(1) Certiorari : an order to quash or nullify the decision of a public body.

(2) Declaration : a court pronouncement on the legal rights and obligations of parties

(3) Mandamus : an order for the public body to do something

(4) Prohibition : an order to prohibit the public body from doing something

(5) Damages : monetary compensation for the losses you have suffered

Is there a time limit for you to file a Judicial Review?

Yes, a Judicial Review should be filed 3 months from the date (i) when the grounds of application first arose or (ii) when the decision is first communicated to you.

If you have filed a Judicial Review outside the 3 months timeframe, you have to apply for an extension of time. The Court will only allow the extension of time if there are “good reasons for doing so”.

Must I exhaust all alternative remedies before filing a Judicial Review?

Generally, yes.

For example, if a trade union is dissatisfied of the Director-General of Trade Unions’ decision to revoke its registration, it should appeal to the Minister pursuant to a specific provision under the Trade Unions Act 1959, instead of filing a Judicial Review beforehand.

However, failure to exhaust alternative remedies does not automatically preclude one from seeking relief from the Courts through Judicial Review – it depends on among others the futility of such alternative remedy.

How is the court process like for Judicial Review?

A Judicial Review must be filed at a High Court.

There is a 2 stage process. The first stage is called the leave stage . The Court sieves out frivolous and vexatious cases (eg: if a matter is a private law dispute, if the applicant is not “adversely affected”, if the 3 month time limit is exceeded, etc.). At this stage, only the Attorney General’s Chambers appear and not the public body itself.

The second stage is the substantive stage . This is where the full merits of your case gets ventilated and decided by the Court.

A Judicial Review is conducted by affidavit evidence. This means you don’t appear as witnesses in a trial. The matter will be decided by documentary evidence. In rare circumstances, one can apply to cross-examine witnesses.

If you lose, you may be asked to pay costs to the public body concerned, and vice versa.

If you lose, you also have the opportunity to appeal to the Court of Appeal and may seek leave to appeal to the Federal Court thereafter.

Do I need to engage a lawyer to file a Judicial Review?

It is not mandatory.

But ideally, one should engage a lawyer to file a Judicial Review.

All of the above principles are general statements – nuances, caveats and exceptions govern such general principles, which are ordinarily only appreciated by those trained in the law. A lawyer is also more familiar with court procedure, forms and cause papers – an omission could result in cases being struck out on technicalities.

As a whole, it may be very challenging to face off alone unaided against a government lawyer representing the public body.

Disclaimer: The above is merely a brief summary of the principles and procedures relating to Judicial Review. It does not constitute legal advice. If you are affected by a public body’s decision, kindly seek legal advice from a qualified lawyer.

Judicial Review: Redress Against Wrongly Acted Public Authorities

By yeoh ean cheen ~ 27 may 2021.

Judicial Review: Redress Against Wrongly Acted Public Authorities

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Yeoh Ean Cheen (Associate)

The expression judicial review may be taken to refer to a mechanism by which judicial control of administrative action is exercised. It seeks to ensure that bodies exercising public law functions act lawfully. This is a constitutionally important aspect of our law; it provides an essential foundation for good governance under the rule of law. 

“In my judgment, the true principle may be stated 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 decisions will not be immunized from judicial review by an ouster clause however widely drafted.” 

– Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers' Union [1995] 2 MLJ 317 at p. 341. 

Historically, this power of judicial supervision as administered by the High Court was only concerned with the decision-making process, i.e., where the impugned decision is flawed on the ground of procedural impropriety. However, over the years, our courts have made inroad into this field of administrative law. R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 is the mother of all those cases. In this landmark decision, the Federal Court held that the decision of inferior tribunal may be reviewed on the grounds of 'illegality', 'irrationality' and possibly 'proportionality' which permits the courts to scrutinise the decision not only for process but also for substance.

As it stands today, the Malaysian court, in a judicial review proceeding, can now go into merit of the decision and may even replace the decision of the administration body. 

The Statutory Requirements?

In Malaysia, an application for judicial review is governed by Order 53 of the Rules of the Court 2012. It is a two-stage process. 

The first stage, governed under Order 53 rule 3 of the Rules of Court 2012, is called the leave stage. It is essentially akin to a vetting process. Generally, leave may be granted – if the leave application is not thought of as frivolous; and if leave is granted, an arguable case in favour of granting the reliefs sought at the substantive hearing may be the resultant outcome. [ see WRP Asia Pacific Sdn. Bhd. v Tenaga Nasional Bhd [2012] 4 MLJ 296 .]

If leave is granted, the claim proceeds to a full hearing. This is where the merits of the applicant’s case are to be deliberated upon in the Court. 

The two-stage process is intended to protect public authorities against groundless harassment and to reduce delays in resolving applications in the interest of good administration. 

Is The Decision Susceptible To Judicial Review?

It is widely accepted that not all decisions made by a public authority are amenable for judicial review. In Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145 , the Federal Court held that it is necessary for a judge when deciding on such a matter to first ascertain whether there is a public law element in the dispute. For this, it is necessary to examine, amongst others, the source of the power and the nature of the decision made. 

If the matter is under private law, though concerning a public authority, it would be inappropriate to commence the action under Order 53. Take the case of WRP Asia Pacific Sdn. Bhd. v Tenaga Nasional Bhd [2012] 4 MLJ 296 . In that case, the Federal Court held that the relationship between the consumer and TNB is commercial and contractual in nature, thus it comes within an environment regulated by private law. Accordingly, it would not be open to the consumer to invoke Order 53 to challenge the decision of TNB as remedies available under Order 53 is intended to cover only the domain of public law.

What if the complaint against a public authority involves a mixture of both private and public law?

In Ahmad Jefri (supra), it was propounded court must then ascertain which of the two is predominant. When the element of public law is satisfied, the mode of commencement of claims must be made by way of a judicial review, otherwise it may be set aside on the ground that it abuses the court’s process. [ See TR Lampoh Ak Dana & Ors v Government Of Sarawak [2005] 6 MLJ 371 ; and Soonly Limes Factory Sdn Bhd v Pengarah Jabatan Pengangkutan Negeri Perak [2006] 2 CLJ 676 .]

Who May Apply For Judicial Review?

In QSR Brands Bhd v Suruhanjaya Sekuriti & Anor [2006] 3 MLJ 164 , the Court of Appeal held that there is a single test of threshold locus standi for all the remedies that are available under Order 53. It is that the applicant should be “adversely affected by the decision of any public authority”. [ See Order 53 rule 2(4) of the Rules of Court 2012. ] 

The phrase calls for a flexible approach. It is for the applicant to show that he falls within the factual spectrum that is covered by the words 'adversely affected'. At one end of the spectrum are cases where the particular applicant has an obviously sufficient personal interest in the legality of the action impugned. At the other end of the spectrum are cases where the nexus between the applicant and the legality of the action under challenge is so tenuous that the court may be entitled to disregard it as de minimis . 

The Malaysian position on locus standi was considered by the Federal Court in Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145 where it was held that “ 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 ”.

The low threshold of procedural locus standi under Order 53 rule 2(4) of the Rules of Court is, we believe, in recognition of the concept of public interest litigation – that it is desirable that the court allows, in appropriate cases, responsible citizens to bring claims for the benefit of the public. 

What Are The Grounds For Applying Judicial Review?

As mentioned earlier, the main grounds for judicial review include illegality, irrationality, procedural impropriety. It is pertinent to note that these categories are not exhaustive nor mutually exclusive.

What Remedies Are Available In Judicial Review Proceedings?

Paragraph 1 of the Schedule to the Courts of Judicature Act 1964 gives the High Court power to issue to any person or authority directions, orders or writs, including 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 for any purpose. The applicant may also claim for a declaration, injunction and damages as well as seek discovery and interrogatories in the judicial review application. See Order 53 rule 2(2), Order 53 rule 5(1) and Order 53 rule 6 of the Rules of Court 2012. 

What Are The Time Limits?

An applicant who seeks to impugn a decision of a public authority ought to act promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant: Order 53, rule 3(6) of the Rules of Court 2012. The failure to comply with the statutory time limit was not merely a technical non-compliance, it goes to jurisdiction. Extension of time is only to be granted where the delay is satisfactorily accounted for, failing which application for leave to move for judicial review would be dismissed. It is immaterial whether the delay does not occasion any prejudice to the respondent or a third party. See Mohd Ismail bin Abd Ghani (would like to be known in the identity card as Saravanan a/l Balakrishnan) v Ketua Pengarah Pendaftaran Negara & Anor [2012] 1 MLJ 70 .

As such, we urge people to seek legal advice urgently when a decision that concerns them is made – or, better still, may be made in the future. Don’t sleep on your rights.

Judicial review is undoubtedly one of the most fundamental duties of the courts and an integral and inseparable part of the constitutional scheme without which the rule of law will become illusionary. It is a directly accessible check on abuse of power, a means of providing redress when public authorities act unlawfully; holding the public entities to account; increasing transparency; and enforcing public duty. It represents not only the vindication of an interest of a mere private individual, but also the promoting of a public good. 

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The Growing Trends of Judicial Review Against Government: Overview

February 1, 2021 > Malaysia > Litigation/Dispute Resolution

Azmi & Associates | View firm profile

INTRODUCTION

The guiding principles of Judicial Review were clearly pronounced in the Federal Court case of  Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. & Anor [1] .  “A judicial review is a court proceeding where a challenge is made on the decision of the relevant authority or entity by challenging the lawfulness of the decision-making process.”[2] Generally, the court dealing with the judicial review has the power to strike down the law, quash the decision of the relevant authority or under a public official to act in a certain manner if it believes the law or act to be unconstitutional or to be contrary to law in a free and democratic society.

Grounds for Judicial Review

It is trite law that the principles of unreasonableness, or irrationality,which is also known as the “Wednesbury principle”, derived from the celebrated case of  Associated Provincial Picture Houses Ltd v Wednesbury corp [3]  (“Wednesbury”).  In short, it is a situation where the public authority has acted so unreasonably that no reasonable authority would have made such a decision. Lord Greene in the case of  Wednesbury  explained that the court cannot set up its own view as to what is reasonable and what is not.[4]

The court can only interfere if it is shown that the authority has contravened the law. And the authority is said to be contravening the law if it has taken into account matters which it ought not to take into account, or it has not taken into account matters which it ought to take into account.[5]

In other words, the court can also interfere if, the public authority, despite conforming to the requirements of the law, has become to a decision unreasonable that not reasonable authority could ever have come to it.[6]

In  Sheila Sangar v. Proton Edar Sdn Bhd & Anor [7] the principles governing judicial review was neatly encapsulated as follows: “The first principle of judicial review concerned the decision making process and not the merits, substance or justification. The second principle is that there can be an exception to the first principle where the court could examine the substance or justification to satisfy itself that the decision maker had not transgressed the principles of procedural impropriety, illegality or irrationality”.

The House of Lords in  R (Daly) v. Secretary of State for the Home Department [8] demonstrated how the traditional test of Wednesbury unreasonableness has moved towards the doctrine of necessity and proportionality. Lord Steyn noted that the criteria for proportionality are more precise and more sophisticated than traditional grounds of review. Therefore, judicial review can be initiated in accordance to the basis of necessity of the issue and proportionality on the acts of the government.

This article will provide an insight as to the growing trend of Judicial Review against the government by exploring the Federal Court case of  Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal [2019] 3 MLJ 443 (“PNM v CCK”) and two (2) recent news article.

JUDICIAL REVIEW AGAINST GOVERNMENT

Case Study: Peguam Negara Malaysia v Chin Chee Kow [2019] 3 MLJ 443

Brief facts of PNM v CCK

A testator had willed funds and lands to trustees under a public charitable trust to build a pagoda for worshippers of a particular Buddhist deity.

a) When, after many years, nothing was done by the trustees to carry out the testator’s wishes and all funds that were allocated for that purpose were spent, the association representing the followers of the deity sought public funding to build the pagoda.

b) As interested donors wanted the association to become a trustee of the funds to ensure the project was well-managed, the association sought the attorney general’s (“AG”) consent under section 9(1) of the Government Proceedings Act 1965 (“GPA”) to its proposed application to the High Court to be made a trustee. However, the AG refused to give his consent.

c) The respondent sought leave of court to file proceedings to quash the AG’s refusal and order him to grant the consent. The AG objected to the leave application on the ground his refusal was non-justiciable.

d) The High Court disagreed with the AG and granted the association leave to file for judicial review. The Court of Appeal upheld the decision.

e) Aggrieved with the decision of the Court of Appeal, the AG had applied for and obtained leave to appeal from the Federal Court.

Federal Court’s decision

The Federal Court in its judgment had mentioned the English case of Brown v Executors of the Estate of Her Majesty Queen Elizabeth the Queen Mother[9], which stated that:

a) “The conclusion (of the House of Lords in Gouriet’s case) that, in the absence of the consent of the Attorney-General, Mr Gouriet was barred from pursuing the proceeding was based the analysis of the statutory provisions in issue. By contract,  there is nothing on the face of section 124 of the Supreme Court Act 1981 to suggest that the court may only exercise its powers under it on an application by the Attorney-General. The general effect of section 124 may be relied on by any person. “[10]

Furthermore, the Federal Court also mentioned and referred to a Singapore case affirming the position that all AG’s powers are subject to legal limits as:

a) the Singapore Court of Appeal in  Tan Seet Eng v Attorney-General [11] stated “under the law, the AG’S discretionary power is not absolute and he must act according to law, as his prosecutorial power is subject to legal limits. Prosecutorial discretion cannot be exercised in bad faith, or in a manner contrary to the quality guaranteed under Article 12 of the Constitution”.[12]

The Federal Court, keeping in mind the principles of law on the subject as propounded by the courts in other jurisdiction, found that the Court of Appeal[13] had no flaw in its reasoning in holding that the power of the AG to give or refuse consent under section9(1) GPA 1965 is amendable to judicial review.[14]

Lastly, before delivery its judgement, the Federal Court reiterate the important pronouncement in  Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case  [15] in which the court declared that the power of judicial review ‘cannot be changed or altered by Parliament by way of a constitutional amendment’ [16] and ‘the power of judicial review is essential to the constitutional role of the courts, and inherent in basic structure of the constitution'[17]. In summary, the Federal Court held that unfettered discretion is contradictory to the rule of law and hereby dismissed the AG’s appeal as the AG’s power to give consent or otherwise under section 9(1) GPA 1965 is not absolute and is subject to legal limits[18] which is amenable to judicial review.

News Article 1: High Court grants Petronas, TNB interim stay against IRB for multi-billion tax claims[19]

Petroliam Nasional Berhad (“Petronas”)

On the 10th August 2020, the High Court granted Petronas an interim stay against the Inland Revenue Board (LHDN) for imposing additional tax assessments amounting to RM3.6 billion on the national oil company.

Petronas and three of its subsidiaries have filled three judicial review proceedings against LHDN alleging that LHDN’s action was ‘ultre vires, illegal, void, in excess of authority and irrational in making the additional tax assessments of RM3.6 billion’.[20] As of the date of writing this article, the date has fixed for 19th September 2020 to hear Petronas’ leave application for the judicial review.

Tenaga Nasional Berhad (“TNB”)

In another court, a similar stay order against LHDN’s assessment of RM1.8 billion on similar grounds concerning its reinvestment tax allowance was granted to TNB pending the outcome of a judicial review. The legal representative for TNB told the media that “the judge accepted our submission that the judicial review must be heard and disposed of before a decision on payment is made”.[21]

As of the date of writing this article, the court will hear the leave for judicial review on the 21st September 2020.

News Article 2: High Court allows construction company to move judicial review[22]

Wabina Construction & Engineering Sdn Bhd (“Wabina”)

Wabina filed the legal suit in May 2020 against the Malaysian government, Domestic Trade and Consumer Affairs, the Companies Commission of Malaysia and its debtor Seal Properties (KL) Sdn Bhd, challenging the government’s decision to gazette the Companies (Exemption) Order 2020 during the Movement Control Order (MCO) that effectively exempted companies from having to pay their creditors for six months.[23]

Wabina alleged that the ministry had acted beyond their powers in issuing the 2020 Order, which it claimed is illogical and void [24] to the extent of being  inconsistent with the Companies Act because it was gazetted without going through the Dewan Rakyat for debate.[25] On the 29th June 2020, the Penang High Court has granted leave to Wabina to have the full merits of its judicial review application heard. This is the first such challenge by a company over the government’s directive, which was gazetted as an order on 23rd April without having been passed by Parliament. [26] Wabina said it had, since 27th March, a statutory right to serve a winding-up notice on Seal Properties. However, due to the gazetted order from the government, it has been prevented from doing so. Thus, its constitutional right as a creditor to recover the sum it was owed has been violated.[27]

Judicial review against the Government is recognised as a basic structure of the Malaysian constitution where under Article 121 (1)[28] the civil courts constitutional role is as a check and balance mechanism. Therefore, the judiciary is thus entrusted with keeping every organ and institution of the state within its legal boundary. Hence the concept of the independence of the judiciary is the foundation of the principles of the separation of powers. As held by Justice Zainun FC in the Federal Court’s decision of Indira Gandhi’s case.[29] “This is essentially the basis upon which rests the edifice of judicial power. The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework.”

To conclude, judicial review against the Government is the ultimate solution in preventing blatant misuse of powers by the Government in dealing with their actions and accountability.

——-

1 Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. & Anor [2017] 1MLJ 563 2 [Para 29] Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. & Anor [2017] 1 MLJ 563 3 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 4 [Para 233], Wednesbury [1948] 1 KB 223 5 [Para 32], Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. & Anor [2017] 1 MLJ 563 6 [Para 33], Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. & Anor [2017] 1 MLJ 563 7 Sheila Sangar v. Proton Edar Sdn Bhd & Anor 4 MLJ 285 (2009) 8 R (Daly) v. Secretary of State for the Home Department 2 AC 532 (2001) 9 Brown v Executors of the Estate of Her Majesty Queen Elizabeth the Queen Mother [2008] 1 WLR 2327 10 [Para 38], Brown [2008] 1 WLR 2327 11 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 12 [Para 1-2] Tan Seet Eng v Attorney-General [2016] 1 SLR 779 13 PNM v CCK [2019] 1 MLJ 307 14 [Para 77], PNM v CCK [2019] 3 MLJ 443 15 Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 16 [Para 81], PNM v CCK [2019] 3 MLJ 443 17 [Para 81], PNM v CCK [2019] 3 MLJ 443 18 [Para 83], PNM v CCK [2019] 3 MLJ 443 19 https://www.theedgemarkets.com/article/high-court-grants-petronas-tnb-interim-stayagainst-irb-multibillion-tax-claims 20 https://www.theedgemarkets.com/article/high-court-grants-petronas-tnb-interim-stayagainst-irb-multibillion-tax-claims 21 https://www.freemalaysiatoday.com/category/nation/2020/08/10/petronas-tnbobtain-interim-stay-from-paying-rm5-4-bil-intaxes/ 22 https://www.nst.com.my/news/crime-courts/2020/06/604381/high-court-allows-construction-company-move-judicial-review-nsttv 23 https://www.theedgemarkets.com/article/court-allows-merits-companys-challengegovts-move-allowing-deferred-payments 24 https://www.thestar.com.my/news/nation/2020/06/29/court-allows-company-tochallenge-mco-order-granting-six-monthdebt-extension 25 https://www.nst.com.my/news/crime-courts/2020/06/604381/high-court-allows-construction-company-move-judicial-review-nsttv

26 https://www.theedgemarkets.com/article/court-allows-merits-companys-challengegovts-move-allowing-deferred-payments 27 https://www.theedgemarkets.com/article/court-allows-merits-companys-challengegovts-move-allowing-deferred-payments 28 Article 121 (1) of the Federal Constitution 29 Indira Gandhi v. Pengarah Jabatan AgamaIslam Negeri Perak and 2 Ors. (2018) 1 MLJ 545.

Prepared By: Adly Zulfadhly Zulkefly & Gabriel Yee Full Yek

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© LoyarBurok (Used by permission) by Ern Nian Yaw This post is reproduced from  here A concise, comprehensible explanation of the law on judicial review. Have you ever come across the term “judicial review”? If you do, have you then questioned what is judicial review? What are the remedies? Or perhaps, wherein lies the differences between appeal and judicial review? Judicial review, does it sound Greek to you? To address these questions, we must first take a look at the constitutional doctrine of separation of powers, or in short, the SOP. Lord Acton is famously quoted as having said “Power corrupts, absolute power corrupts absolutely”. It is therefore noted that the doctrine of separation of powers is practised in our nation to limit the powers of the three institutions, namely the Legislature, Executive and Judiciary with checks and balances in order to protect liberty and to prevent abuse of power. In Malaysia, Parliament which is made up of Dewan Rakyat and Dewan Negara is a democratically elected legislature that legislates the laws. The Government which is made up of the Prime Minister and the Cabinet sits in the executive then executes the laws passed by the Parliament. Judiciary, lastly, decides and interprets the laws by upholding the rule of law. To achieve a complete separation of powers is practically impossible, and thus powers can only be separated with checks and balances. To put it in layman’s terms, with checks and balances, each of the three branches can limit or control the powers of the others. The judicial branch, for example, checks on the government through judicial review. It now leads to the first question, what is judicial review? Judicial review, in general, is concerned with legality of the decision–making process of the executive (government), not with the merits of the decision. To put it in a nutshell, the application concerns review, not appeal. The court will not substitute its decision; it will only review the legality. An appeal is as of right whereas certain conditions must be fulfilled for one to seek leave for judicial review. In Malaysia, An application for judicial review is governed by Order 53 Rules of the High Court 1980. Such an application must be supported by an affidavit (a formal sworn statement of fact). If the authority acts against or fails to act according to the will of the Parliament, it is therefore said to be acting ultra vires and is unlawful. In that case, the court will interfere by reviewing the decision to determine the lawfulness of the decision, actions or omission. Having said that, there must be a decision from the Minister (or the government) before an application for judicial review can be made. There are three grounds for judicial review, namely illegality, unreasonableness or irrationality, and procedural impropriety. Let’s take an example. A Minister by the powers rested in him, makes a decision denying X’s application to join a club without any reasons given. In this situation, the Minister cannot be charged in court as he or she was merely exercising his discretions by rejecting X’s application “as he deems fit”. Nevertheless, X can then apply for judicial review to challenge the decision made by the Minister, arguing that the rejection of the Minister is illegal as the power is not conferred on him, unreasonable as no reasons were given, and tainted by procedural non–compliance with the provisions of the Act. One will then ask, what are the available remedies for judicial review? In Administrative Law, there are 2 types of common law remedies, namely private law remedies and public law remedies. Among the private law remedies are damages, injunctions, and declarations. One can claim for damages as compensation. Injunctions, on the other hand, are prohibitory in nature and forbid the commission of some unlawful act. Declarations, in addition, aim to state or declare the legal position of the parties and to challenge the action of the public authority. It is however noted that such remedy is not enforceable per se, but it can be used with other remedies if successful. Among the public law remedies are habeas corpus, certiorari, prohibition and mandamus. In Malaysia, habeas corpus is a well known prerogative writ commonly used in connection with ISA detention to challenge the legality of the decision. Such writ can be appealed by anyone or by someone acting on his or her behalf regardless of nationality. In general, a writ of habeas corpus will be granted if the applicant is able to prove that the detention is ultra vires and there is an excessive delay in bringing the prisoner up for trial. It is noted that one must be brought before the Magistrate within 24 hours of the detention. Certiorari, Latin for quashing order, is a retrospective order that brings a decision made by the authority before the court and prays that such decision to be quashed. Prohibition, on the other hand, is a prospective order to quash a decision which is going to be made. One must bear in mind that failure to comply with such order amounts to contempt of court, which is criminal in nature. Mandamus, meanwhile, is used to enforce public duties by the decision–making body which it has failed to perform. It is enforced to ensure that the public duties are performed by the public authorities. Both certiorari and mandamus can be claimed together. In Malaysia, an application for judicial review is often denied due to ouster clauses. Ouster clauses are finality clauses attempt to completely exclude judicial review. Words such as “final and/or shall not be questioned” are often seen in Acts of Parliament to deem the decision made by the Government be conclusive and does not subject to review. Unfortunately, unlike United Kingdom, we are not prepared to ignore absolute ouster clauses. Malaysia is a God–gifted country in which the land is blessed with natural resources and free from natural disasters. Embracing the concept of constitutional supremacy or keluhuran perlembagaan, it is therefore noticed that public authorities must act in such a way that is compatible with the provisions of the Federal Constitution, failing which the act will be rendered unconstitutional and illegal. Thomas Fuller once said that “be you ever so high, the law is above you”; herein lies the significance of judicial review to ensure that Acts of Parliament are correctly interpreted. Government must be held responsible not only to the Parliament but to the people as a whole!

  • A Organization of the Year Award 2012 (24 Oct 2012)
  • Acceptance Speech by Lim Chee Wee, President, Malaysian Bar, at the United Nations Malaysia Organization of the Year Award 2012 Presentation Ceremony, Renaissance Hotel, Kuala Lumpur (24 Oct 2012)
  • United Nations celebrates 67th anniversary (News Release: The Malaysian Bar presented UN Malaysia Award for its pivotal role in Malaysias democratic development)

What are the international justice norms? written by Tan Peek Guat, Sunday, July 20 2014 12:10 am

judicial review case malaysia

Constitution

How to take Malaysia's government to court if they mess up?

This article was written for the dilemma that the TTDI residents faced but it can also be used for the residents of Penang as they are currently in the midst of appealing the development plan for four 40 storeys tall apartment blocks after the recent Tanjung Bungah landslide . The cause of the landslide is still under investigation . 

Have you ever been mad at the Malaysian government for something? Maybe you were mad over the unfixed, months-old potholes that loiter the road outside your house. Or maybe you were mad that a government department rejected your application for no reason. Or you were mad because you felt like they exceeded the powers that were given to them, like in the case of Lina Joy who contested that the National Registration Department had no power to question whether or not she has been confirmed to have left Islam by the Syariah courts. 

Or maybe you were mad because the government decided to build houses in your favorite park. 

The residents of Taman Tun Dr Ismail have recently brought a case against the Mayor of Kuala Lumpur and DBKL for their proposed housing development project in Taman Rimba Kiara. Basically, what the residents of TTDI are protesting is the fact that DBKL has approved the development plan to build not only about  1,800 units  of apartments  but also a whole  bunch of new highways. The Federal Territories Minister, Tengku Adnan has stated, earlier on in May, that the project would go on regardless of any protests . The residents are pretty upset because apparently the proposed developments would cut into a huge part of the existing Taman Rimba Kiara   and  it goes against the initial plans in DBKL’s 2020 plan . 

We managed to speak to some residents from TTDI and they told us that they have decided to take the issue to court. Leon Koay explains to us why they chose to do so:

”This action is for the public park, which is open for the enjoyment of everyone. It is symbolic of the challenge to make life liveable, in the middle of our bustling city. It is about preserving the carefully cultivated flora and the rare species of fauna that chose to make Taman Rimba Kiara their home, such as the wild hornbills.” – Leon Koay, Committee Coordinator, Save Taman Rimba Kiara Working Group and 14-year TTDI resident.

The action that they have decided to take is called a  judicial review action . If you are wondering what is exactly is this judicial review and the superpowers it has to hold the government responsible, keep on reading. We do have to warn you that the process for judicial review is complicated and this article would be a long one. So, you might want to grab some cookies before you tackle this. 

What you need to know first is that the government is actually divided into three branches

judicial review case malaysia

Eh wait. What do you mean divided into three? Isn’t it just made up of the government and the opposition? Well, yes. Members of the ruling government party and the opposition party do make up the government but the government that we view as single entity is actually divided into three different branches of government. 

The three branches are the   executive, the legislature, and the judiciary . Basically the executive arm carries out and administers laws which are passed by the legislature. The executive in Malaysia consists of members of the Cabinet, led by the Prime Minister and the Council of Rulers, including the Yang di-Pertuan Agong. 

On the other hand, the legislature is in charge of passing laws in Malaysia and consist of the two Houses in Parliament, the Dewan Rakyat (House of Representatives) and Dewan Negara (Senate). The judiciary , on the other hand, is meant to interpret the law and uphold the rule of law (this is a very abstract concept with many different theories but the rule of law, in its simplest form, means to uphold justice). 

The reason why there are three branches of government is to ensure the separation of powers. This means that the existence of the three branches of government is meant to ensure that no one person or body ever has the absolute power to do anything (because that would lead to an tyrannical system). However, because the separation of powers is not perfect (for example, members of the legislature also sit in the executive), there exists a system of checks and balances. This is where judicial review comes in. 

Judicial review  is the process where the  judiciary   checks on the legality of the government’s (executive) actions . This means that the courts will not look at the reasons why the government acted in that way but they would only look at whether the decision-making process was done in a legal way. Judicial review is different from appealing your case because you actually have to satisfy certain requirements and adhere to proper procedures before you are able to bring a judicial review case. 

The first thing you need to know about a judicial review is…

There is a particular way to bring a judicial review action

The rules governing how a judicial review action can be brought are numerous but we will deal with this briefly just to give you guys a general idea. Order 53 of the Rules of Court 2012  governs applications for judicial reviews. Basically, among other things, in order to proceed with a judicial review application, you need to first gain leave (permission) from the High Court. 

The application for judicial review must also be brought within 3 months from the date you first had reason to bring a judicial review action (Order 53, Rule 3(6)). 

The part which we want to focus on can be found in Order 53, Rule 2(4):

“Any person who is adversely affected by the decision of any public authority shall be entitled to make the application.”

Er. What does adversely affected mean? Does this mean that if you got a shock from watching your neighbour crash his car into the other neighbour’s house, would you be “adversely affected”? Not really, but to explain this, we need to look at something called a locus standi .

judicial review case malaysia

You must have a “standing” to bring an action

Locus standi is not a fancy word for locusts nor is it a word to describe how to get a new stand (this writer is fresh out of good jokes due to sleep deprivation). In its simplest form, locus standi means the right to bring a case or an action. If you are confused because you think that everyone has the right to access the court system, you are NOT wrong. Everyone has the right to access the court system but locus standi is meant to ensure that the system is not abused through claims brought in by people who have no interest in the case. 

For an example of how locus standi works, imagine this scenario. If you decided to bring a case against your neighbour for crashing his car against another neighbour’s house, you would most definitely get your case thrown out of court simply because you have no interest in the matter (it was not your car or your house).

But how do you know if you have legal standing to bring the case against the government when generally, the government’s decisions affect everyone?

This is where the Federal Court case of  Malaysian Trade Union Congress & 13 Ors v Menteri Tenaga, Air dan Komunikasi & Anor (which is actually a major groundbreaking case in Malaysia but we won’t bore you with legal history) needs to be looked at. To state the facts of the case briefly, the case was brought by the Malaysian Trade Union Congress (“MTUC”) after their request for SYABAS’ documents concerning the increase in water tariffs was rejected by the Minister in charge. 

The Federal Court (which is essentially the Yoda of Malaysian Courts) then decided that in order to pass the “adversely affected” test, you would have to prove that you have a  real and genuine interest in the subject matter . Okay. We are aware that we just replaced one weird English phrase with another  longer  weird lawyer speak. What “real and genuine interest” basically means is that all you have to prove to the courts is that the matter relates to you in some way. For example, if the government declares that all motorcycle riders cannot be on the road during peak hours, the decision affects all motorcyclists and if you are a motorcyclist, you would have a real and genuine interest in such a ruling. 

Assuming you have the locus standi (impress your friends with this Latin phrase), now you have to decide which grounds of judicial review you would want to take an action under. 

Basically, the government cannot be too “over” in what they do

judicial review case malaysia

As mentioned above, judicial review is looking at the legality of the government’s actions but not the reason why they came to that decision in the first place. With this being said, basically judicial review steps in when the government has, for the ease of explanation, gone bonkers in their actions. This is why there are  four grounds for judicial review . They are:

This is where the government’s actions breaks the law, such as the Federal Constitution or the any Acts of Parliament. For example, the new Insolvency Act 1967 states you can be discharged from bankruptcy after 3 years if you fulfil the two requirements. So, if the Director General of Insolvency refuses to release you from bankruptcy even after you have fulfilled the two requirements, then you might have a ground for judicial review. 

[ READ MORE:   5 new changes to Malaysia’s bankruptcy laws that makes it harder for you to become a bankrupt ]

This ground came from the UK case of  Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] and was reiterated in another famous case, Council for Civil Service Unions v Minister for Civil Service,  where the judge essentially stated that irrationality can be relied on when the government has acted in a way that makes even your local kopitiam uncle recoil in horror because it  just doesn’t make sense . Lord Diplock puts it in a nicer way than we do (ah, the English gentleman):

“So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” – Lord Diplock, Council for Civil Service Unions v Minister for Civil Service

An example of an unreasonable decision given by the courts include where a red-haired teacher is fired for having red hair . 

judicial review case malaysia

This is where the government’s decision-making process was tainted with unfairness or that it breached the principles of natural justice (this basically means the rule against bias –  nemo judex in causa sua and the right to a fair hearing –  audi alteram partem ). 

An example of this would be where a government official decides to award a tender to their family member purely because they are related and not based on the proper procedures set out by the government such as opening up the tender process to the public. 

Proportionality is basically where the government is not allowed to take extreme methods in carrying out and administering the law. For example, if you are caught disseminating insults about our Yang di-Pertuan Agong, the government would probably have the right to seize your electronics to assist in their investigation but they are probably not allowed to seize your entire house. 

If you succeed in your claim, you can stick it to the man

judicial review case malaysia

We don’t mean that you get to march up to Parliament when they are in session and literally uh, throw a stick at the minister (Please don’t). What we mean is that a successful judicial review action will get awarded with remedies that are meant to rectify the situation at hand. This is unlike normal civil suits such as breach of contract where you would usually get a remedy of damages (such as monetary compensation).

The remedies that can be awarded are as follows:

A declaration is basically where the court just declares what rights each party has. This is one of the simpler forms of remedies that the court can award as it technically has no force of application. It would not change the government’s decision unlike the other remedies but it  clarifies  the position of each party and hopes that the parties involved would act in accordance with their rights and not exceed them. 

Basically, this is where the court states what the law is and it is done with the belief that the government would not act in a manner that goes against the law.

It like you going to your dad because your brother stole your toy car and he just “declares” that the toy car is yours but he doesn’t ask your brother to give it back to you (maybe he just evil eyes your brother until he hands your toy car back but doesn’t demand it from him). 

Ignoring the fancy Latin, to quash something basically means to invalidate the government’s decision (this writer remembers it by equating “quashing” to “squashing” – the court “squashes” the government’s decision and the government can no longer act that way). 

Once a decision has been  squashed  quashed, the matter would basically go back to the relevant authority for them to decide on the matter again (this time, in accordance with the law). Coincidentally, this is what the TTDI residents are seeking for in relation to the proposed development of Taman Rimba Kiara as DBKL has issued a development order for the park in question. 

An example of this is where you ask your aunt if you can catch a midnight screening of Kingsman 2 and she says yes but your parents find out and drag you home. Your parents’ decision has invalidated your aunt’s.

This order is used when the government was supposed to do something but they failed to do it. For example, if they were supposed to gazette a certain law but failed to do so, an order of mandamus would compel them to do it. 

Basically, this order is meant to make the government carry out the duties they were supposed to.

To put it into every day context, an order of mandamus is like a mother tearing her children a new one for failing to complete their household chores. The mother’s rage (order of mandamus) compels the children (government) to complete their chores (government’s duty). 

An order of prohibition is basically an order that stops the government from doing something . It is like its name states; it  prohibits  the government from acting in the way that resulted in a judicial review.

It is essentially you playing games until the crack of dawn every day and when your parents find out about it, you get  a whooping  prohibited from playing until the sun rises.

This is an order to force the government to show their authority for doing what they are doing . So, if the government alleges that some law or some order from the Yang di-Pertuan Agong allowed them to act in a certain way, they must produce this piece of document conferring authority.

It is like you hotly demanding that someone else took your seat in the cinema and they produce their ticket to prove their “authority” for being there. You then have to slink away in shame.

Does this mean that I can bring an action for whenever I want?

judicial review case malaysia

Well, if you feel that the government has acted in a way that allows you a ground for judicial review and that you have locus standi , you can always engage a lawyer to start the proceedings for you. However, the process for judicial review can be long and tedious as there are many hurdles to overcome. So, it might be best for you to attempt other methods of resolution first. 

The residents of TTDI only decided on a judicial review action because they felt like they have no other avenues . Further, if you think that a judicial review action can only be brought by the rich (because you have the perception that TTDI is full of bigwigs that can’t be messed with), some of the residents of TTDI told us why they were bringing this action in the first place:

”When we used to talk about “balik kampung”, we used to talk about going home to other states but for our children, when they speak of “balik kampung”, it is right here in TTDI. This action has been called politically motivated but we are not associated with any politicians. It is an action by the community, for the community. TTDI is our home and we wish to ensure that any developments that are carried out are done so in a responsible manner. And taking an already designated public park to make way for a condominium development is a very irresponsible thing to do.” – Abdul Hafiz Abu Bakar, Chairman, Taman Tun Dr Ismail Residents’ Association and 30-year TTDI resident.

So, there you have it, folks. The governance in Malaysia consists of a system of checks and balances to ensure that everyone acts responsibly because, as Spiderman’s uncle famously said, “With great power comes great responsibility”. 

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"No no I clean"

The Court of Appeal Erred vis-a-vis the Grounds for Judicial Review

by Joshua Wu Kai-Ming | Mar 18, 2020 | Law | 0 comments

In Sabah Forest Industries Sdn Bhd v The Honourable Minister of Human Resources Malaysia & Anor [2018] 1 MLJ 277 [“ Sabah Forest Industries ”], the Court of Appeal held:

“It is trite that the grounds to challenge the decision of an administrative authority are based on illegality, procedural impropriety and proportionality . The challenge by the applicant in this case before us are based on unreasonableness which is not the common accepted grounds to challenge the decision of an administrative authority . More so, the decision of the Minister shall be final and shall not be questioned in any court as envisaged by s 9(6) should be upheld. We find no material before us and before the court below of any impropriety or unreasonableness in the decision of the Minister. The issue on unreasonableness or irrationality had been answered by the Minister in his affidavit in opposition.” [1] (emphasis mine)

(hereinafter referred to as the “ Impugned Paragraph ”)

With all due respect to the coram of Sabah Forest Industries, the Impugned Paragraph is gravely inconsistent with established case law on judicial review.

Two propositions can be gleaned from the Impugned Paragraph. They are the following:

1. The grounds to challenge the decision of an authority are based on illegality, procedural impropriety, and proportionality; and

2. Unreasonableness is not a commonly accepted ground to challenge the decision of an administrative authority.

In fact, it is trite that the grounds to challenge the decision of an authority are actually (1) illegality, (2) procedural impropriety, and (3) irrationality/unreasonableness.

Previous Federal Court decisions

Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145:

“… The grounds for judicial review, as laid down by this court in R Rama Chandran v Industrial Court of Malaysia & Anor are illegality, irrationality and procedural impropriety which means, the court in practice is permitted to scrutinise a decision not only for process but also for substance.” [2] (emphasis mine)

R  Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 [“ R Rama Chandran ”]:

“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 for substance.” [3] (emphasis mine)

R Rama Chandran is a seminal judicial review case and has been referred to numerously, including by the Federal Court in Akira Sales & Services (M) Sdn Bhd v Nadiah Zee bt Abdullah and another appeal [2018] 2 MLJ 537.

Previous Court of Appeal decisions

RHB Bank Bhd v YB Menteri Sumber Manusia Malaysia & Anor [2017] 6 MLJ 239 [“ RHB Bank Bhd ”]:

“… the traditional view in respect of judicial review, in respect of executive decision which is still good law in the Malaysian context was expounded in the case of Council of Civil Service Unions & Ors v Minister for the Civil Service [1985] 1 AC 374. That case anchors the point to say judicial review is not an appeal from a decision, but a review of the manner in which the decision was made. In doing so, the court are obliged to consider the jurisprudence related to illegality, irrationality and procedural impropriety and when it relates to sentence or deprivation thereof of the subject then the proportionality principle need to be taken into consideration (see Menteri Kewangan & Anor v Wincor Nixdorf (M) Sdn Bhd and another appeal [2016] 4 MLJ 621; [2016] 6 CLJ 215).” [4] (emphasis mine)

The coram of Sabah Forest Industries, amongst others, cited the above paragraph from RHB Bank yet erred when it stated that irrationality (also referred to as unreasonableness) was not a commonly accepted ground to challenge the decision of an administrative authority.

Rokiah binti Mhd Noor v Menteri Perdagangan Dalam Negeri, Koperasi & Kepenggunaan Malaysia & Ors and another appeal [2016] MLJU 1765:

“A decision of a public body may of course be challenged in a judicial review if such decision is infected by an “error of law”: Syarikat Kenderaan Melayu Kelantan v Transport Workers Union [1995] 2 MLJ 317. Error of law is committed if the decision suffers from illegality, irrationality, procedural impropriety and proportionality : Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.” [5] (emphasis mine)

Salak Land Development Sdn Bhd v Pentadbir Tanah Kuala Langat & Ors [2015] 3 MLJ 487 [“ Salak Land Development ”]:

“The locus classicus on when the supervisory jurisdiction of judicial review is exercised is Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL). In that case, Lord Diplock reviewed the common law on judicial review and categorised the instances warranting judicial review as illegality, procedural impropriety and irrationality, with a possible fourth ground as proportionality.” [6]

Ambank (M) Bhd v Menteri Sumber Manusia & Anor and another appeal [2014] 6 MLJ 377 [“ Ambank (M) Bhd ”]:

“It has been accepted by the courts too that although as a matter of first principle judicial review was concerned primarily with the decision making process (not the merits, substance or justification), there was an exception to that rule where the court could still go behind the decision, where the allegations raised were to the effect that the decision maker had transgressed principles of procedural impropriety, illegality or irrationality (may be even proportionality) in arriving at the impugned decision.” [7]

Holiday Villages of Malaysia Sdn Bhd v YB Menteri Sumber Manusia & Anor [2009] 6 MLJ 402:

“ There are three categories upon which an administrative decision may be judicially reviewed, namely illegality, irrationality and procedural impropriety . Illegality refers to a situation where the administrative authority is guilty of an error of law in its action, such as exercising power it did not have. Irrationality refers to a situation where the authority exercises a power in a very unreasonable manner (‘Wednesbury unreasonableness’). Procedural impropriety refers to a situation where there is a failure on the part of the authority to observe procedural rules expressly set out in statutes or statutory instruments conferring upon such authority its jurisdiction (see paras 10–11); Council of Civil Service Union & Ors v Minister for the Civil Service [1985] 1 AC 374; [1984] 4 All ER 935 followed.” [8] (emphasis mine)

See also Raja Abdul Rahman Raja Abdul Aziz v Exxonmobil Exploration And Production Malaysia Inc [2012] 7 CLJ 141, at paragraph 24.

Subsequent Court of Appeal decisions

KAB Corp Sdn Bhd & Anor v Master Platform Sdn Bhd and another appeal [2019] 6 MLJ 752:

“The decisions of an inferior court, administrative tribunal or other public authority may be reviewed on the grounds of procedural impropriety, illegality, irrationality and possibly proportionality which permits the courts to scrutinise the decision not only for process but also for substance (R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 (FC)).” [9] (emphasis mine)

Peguam Negara Malaysia v Chan Tsu Chong & Ors [2018] 1 MLJ 409:

“In judicial review, the court is only to intervene where there is illegality, procedural impropriety or irrationality and possibly proportionality . The decision, action and/or omission of the public body must have the effect of altering the rights or obligations of the applicants and deprive them of some benefit or advantage. Therefore, the courts in a judicial review must scrutinise the reasoning of a decision and/or action and subsequently to decide if the decision is tainted with ‘illegality’, ‘irrationality’ and ‘procedural impropriety’ to merit curial intervention by the court.” [10] (emphasis mine)

What is clear from the above is that irrationality/unreasonableness is a commonly accepted ground to challenge the decision of an administrative authority.

The Court of Appeal decisions in inter alia Salak Land Development and Ambank (M) Bhd indicate that it is proportionality which has long been treated as a possible ground for judicial review rather than an accepted one.

It is highly disconcerting that the second highest court of the land could get such a fundamental point wrong. It is unfortunate that the Impugned Paragraph forms part of the ratio decidendi of Sabah Forest Industries and could be incorrectly relied upon by lower courts.

[1] Sabah Forest Industries Sdn Bhd v The Honourable Minister of Human Resources Malaysia & Anor [2018] 1 MLJ 277, at paragraph 33

[2] Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145, at paragraph 65

[3] R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145, at 186-187

[4] RHB Bank Bhd v YB Menteri Sumber Manusia Malaysia & Anor [2017] 6 MLJ 239, at paragraph 12(b)

[5] Rokiah binti Mhd Noor v Menteri Perdagangan Dalam Negeri, Koperasi & Kepenggunaan Malaysia & Ors and another appeal [2016] MLJU 1765, at paragraph 11

[6] Salak Land Development Sdn Bhd v Pentadbir Tanah Kuala Langat & Ors [2015] 3 MLJ 487, at paragraph 14

[7] Ambank (M) Bhd v Menteri Sumber Manusia & Anor and another appeal [2014] 6 MLJ 377, at paragraph 30

[8] Holiday Villages of Malaysia Sdn Bhd v YB Menteri Sumber Manusia & Anor [2009] 6 MLJ 402 at

[9] KAB Corp Sdn Bhd & Anor v Master Platform Sdn Bhd and another appeal [2019] 6 MLJ 752, at paragraph 23

[10] Peguam Negara Malaysia v Chan Tsu Chong & Ors [2018] 1 MLJ 409, at paragraph 34

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JUDICIAL REVIEW IN MALAYSIA

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Related Papers

Roland Engan

judicial review case malaysia

Srimurugan Alagan

The paper seeks to introduce a reader to some constitutional concepts such as the existing law, the basic structure doctrine, the powers of judiciary, the role of the Syariah Court, the principles relating to the interpretation of the Federal Constitution and the impact of the two recent decisions namely, Indira Gandi a/p Mutho v Pengarah Jabatan Agama Islam Perak 1 and Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat (and Another Reference). 2

Andrew Yong

This study examines the contest for judicial power in India and Malaysia, two countries with a shared legal and constitutional tradition, focusing in particular on the Indian Emergency of 1975-7 and the Malaysian constitutional crisis of 1988, in which the judiciary came under attack by the executive and legislature. Using a realist model of judicial power, it considers the factors that have enabled the Indian judiciary to survive the Emergency and emerge as one of the most activist and powerful judiciaries in the world, and conversely those factors that have caused the Malaysian judiciary to descend into executive subservience and disrepute. It concludes that while institutional and structural factors, as well as legal and political culture, have played a part, in the final analysis it is the concentration of political power of the two countries that has had a predominant effect on the two judiciaries, and that it is the electorate that must assume responsibility for creating the political space within which the judiciary can exercise its role in constitutional review and the protection of fundamental rights.

Khong MeiYan

The rule-of-law, in its simplest form, means a government by law as opposed to a government by men. The principles and values underlying the rule-of-law have percolated the Asian states that have embraced western legal systems. However, state adherence and reinforcement of these principles and values vary from one state to another depending on culture; governance; and the degree of state intervention in the economy. In 1996, Andrew Harding made the following observations: “Malaysia is approaching the problem of democracy from the opposite side of the spectrum from many of its neighbours, having succeeded previously in establishing democracy where other countries had failed. It is therefore to be expected that, in the long term, although perhaps not in the short term, the general trend in the region will be reflected in Malaysia too. If and when this happens, Malaysia will be well placed to advance the rule of law and democracy because it has the benefit of long-established traditions of constitutional government.” This essay will look at the extent to which the Malaysian constitutional system has upheld the principle of the rule-of-law.

Li-ann Thio 张黎衍

Ummu IrFan ArRasyid

Pursuing Good Governance ADMINISTRATIVE JUSTICE IN COMMON-LAW AFRICA

Hoolo Nyane

Administrative law in Lesotho, like constitutional law, is pre-eminently based on the English common law. That notwithstanding, the usual influence of South African law cannot be underestimated. Although the 1993 Constitution of Lesotho was adopted in the same year as the South African Interim Constitution which provided for the right to administrative justice, the Lesotho Constitution does not provide for the right to administrative justice. The Constitution provides for a bifurcated human rights structure wherein human rights are put into two categories — social and economic rights on the one hand, and civil and political rights on the other. The social and political rights are non-justiciable while political rights are legally enforceable. The country does not have a statute specifically codifying administrative law. As a result, judicial review has occupied the central stage as the single most important cornerstone of administrative justice in the country. Nevertheless, there is an unpleasant fluidity and inconsistency in the manner in which superior courts in Lesotho apply various aspects of judicial review in the area of administrative law. In the majority of cases, courts feel constricted by the narrow English law-based doctrine of ultra vires which is animated by the ‘intention-of-parliament’ principle. This ‘weak’ model of judicial review is the major shortfall of administrative law in Lesotho. The purpose of this chapter, therefore, is to evaluate the state of administrative justice in Lesotho. Using the scoping approach, the chapter evaluates major kingpins of administrative justice such as the Constitution, judicial review, ouster clauses and the role of extra-curial institutions like parliament and the office of the ombudsman. The ultimate contention is that the country must introduce the right to administrative justice in the Constitution and operationalise it through a statute.

Jaclyn L Neo

Ziyasa Johardeen

“There can to my mind be no doubts that the authors of the constitution intended that those rights should be enforceable by the courts of law. They could never have intended to confer a right without a remedy. The remedy is indeed, part and parcel of the right. ubi jus ibi remadium.”

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Malaysia: The Mode To Challenge An Industrial Court Award: Appeal Or Judicial Review

View Wong  Keat Ching Biography on their website

INTRODUCTION

Recently, the High Court of Penang has resolved the confusion on the correct mode to challenge an Industrial Court Award in the High Court by interpreting Sections 33C and 20(3) of the Industrial Relations Act 1967. This decision by Justice Anand Ponnudurai in Aneka Retail (M) Sdn Bhd v Industrial Court Malaysia & Ors explained the correct mode to challenge an Industrial Court Award in the High Court.

BACKGROUND FACTS

The two Respondents were former employees of the Applicant company. In April and May 2020, they did not receive their salaries at all and accordingly, they contended that they have been constructively dismissed from 8.6.2020. The Respondents made their representations pursuant to Section 20 of the Industrial Relations Act 1967 (" the IR Act "). The dispute was then referred to the Industrial Court by the Minister of Human Resources (" the HR Minister ") by a letter dated 6.1.2021 pursuant to Section 20(3) of the 1967 Act. The Industrial Court held the Respondents were constructively dismissed due to fundamental breaches of their employment contract and awarded back wages and compensation. The Applicant filed an application pursuant to Order 53 of the Rules of Court (" the ROC ") 2012 for leave to apply for an order of certiorari to quash the Industrial Court Award Nos. 1630 of 2022 and 1631 of 2022, both dated 25.7.2022. The application for leave was met with objection by the Attorney General's Chambers (" the AGC ") on the grounds that the Applicant should instead file an appeal under Section 33C of the 1967 Act.

Whether the Applicant had correctly utilised judicial review proceedings or ought to have filed an appeal under Section 33C of the IR Act as amended.

Essentially, the Industrial Relations (Amendment) Act 2020 (" the 2020 Amendment Act ") introduced several amendments to the principal IR Act which took effect on 1.1.2021. The amendments are, amongst others, as follows:

1. The amendment of Section 20(3) of the IR Act removed the HR Minister's discretion to refer any representation for unfair dismissal of a workman to the Industrial Court. Instead, the Director General of Industrial Relations ("the DG") shall refer the representations to the Industrial Court for an award where he is satisfied that there is no likelihood of the representations being settled; and

2. The insertion of Section 33C of the IR Act which allows the party dissatisfied with the Industrial Court Award to appeal to the High Court.

Section 33C of the IR Act (Appeal against an award to the High Court) provides as follows:

(1) If any person is dissatisfied with an award of the Court made under section 30 such person may appeal to the High Court within fourteen days from the date of receipt of the award.

(2) The procedure in an appeal to the High Court shall be the procedure in the Rules of Court 2012 [P.U.(A) 205/2012] for an appeal from a Sessions Court with such modifications as the circumstances may require.

(3) In dealing with such appeals, the High Court shall have like powers as if the appeal is from the Sessions Court.

DECISION OF THE HIGH COURT

The objection taken by the AGC was that Section 33C of the amended IR Act should apply as the HR Minister's reference (dated 6.1.2021) and the Industrial Court Award (dated 25.7.2022) were made after the amendment introduced by the 2020 Amendment Act (effective 1.1.2021).

In dismissing the AGC's objection and granting leave to the Applicant, the High Court held that the Applicant had correctly commenced the proceedings by way of judicial review. Prior to the amendment introduced by the 2020 Amendment Act, any party aggrieved by the Industrial Court Award would utilise judicial review proceedings to quash an Industrial Court Award. Subsequent to the amendment (effective 1.1.2021), Section 33C of the IR Act states that any person dissatisfied with the Industrial Court Award may appeal to the High Court. Further, the 2020 Amendment Act has also amended Section 20 of the IR Act in that the HR Minister's discretion to refer the workman's unfair dismissal representation to the Industrial Court for an award has been removed. Instead, the DG shall refer the representations to the Industrial Court for an award where he is satisfied that there is no likelihood of the representations being settled. Therefore, the High Court opined that if the representation was referred to the Industrial Court by the DG, then an appeal ought to be filed under Section 33C of the IR Act to challenge any Industrial Court Award. On the other hand, if the representation was referred by the HR Minister, then judicial review would be the proper application. In this present case, the date of the HR Minister's letter, i.e. 6.1.2021, is irrelevant as it was the HR Minister who was exercising his discretion in referring the representation. Further, the High Court referred to the saving and transitional provision in Section 35 of the 2020 Amendment Act and held that the Applicant was entitled to utilise judicial review proceedings as if the IR Act has not been amended.

Section 35 of the 2020 Amendment Act (Saving and transitional provisions) is reproduced as follows:

(1) Complaints made under section 8, disputes referred under subsection 9(1A), claims for recognition made under section 9, representations for reinstatement made under section 20 of the principal act , and all proceedings commenced or awards made before the Industrial Court in relation to a reference under subsection 8(2A), subsection 20(3) and section 26 before the coming into operation of this act shall proceed and have effect as if the principal act had not been amended by this act .

(2) All rules and regulations, forms, directions and letter of authorizations made, issued or granted under the principal act shall, to the extent that the rules and regulations, forms, directions and letter of authorizations are consistent with the principal act as amended by this act, continue to be in force until such rules and regulations, forms, directions and letter of authorizations are revoked or amended.

(3) Any investigation, trial or proceedings done, taken or commenced under the principal act immediately before the coming into operation of this act, shall be dealt with as if the principal act had not been amended by this act.

It is undisputed that the representations were made by the Respondents in 2020 prior to the amendments taking effect. Thus, the High Court, in applying Section 35 of the 2020 Amendment Act, opined that the Applicant was entitled to proceed via judicial review proceedings as if the IR Act had not been amended by the 2020 Amendment Act. Accordingly, the High Court dismissed the objection taken by the AGC.

KEY TAKEAWAYS

In determining the proper mode to challenge an Industrial Court Award in the High Court, the relevant factor would be to look at who had referred the representation to the Industrial Court. The fact that the HR Minister's reference was made after the amendment is irrelevant in determining the correct mode of challenge in the High Court. If the reference was made by the HR Minister, this meant that the HR Minister had exercised his powers under Section 20(3), pre-amendment and therefore, the mode of challenge would be by way of judicial review and not by way of appeal (post-amendment).

In any event, Section 35 of the 2020 Amendment Act allows the dissatisfied party to proceed via judicial review proceedings provided the representation was made before the 2020 Amendment Act takes effect.

Co-authored by John Bong Peng Chung (Pupil-in-Chambers)

The Mode To Challenge An Industrial Court Award: Appeal Or Judicial Review

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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judicial review case malaysia

Malaysian Litigator

Application for Judicial Review – The Procedure

Prior to the year 1996, the Malaysian courts referred to the rigid and technical common law rules governing judicial review of administrative actions. However the judicial trend shifted from referring to common law rules to the Federal Constitution.

Today, the court is empowered by Section 25(2) of the Courts of Judicature Act 1964 to enforce the rights conferred by Part II of the Federal Constitution with the objective of curbing unlawful administrative action.

In this article, readers will get an overview on the procedure when making a judicial review application.

First, we need to answer the following questions:

  • What is judicial review?

Who can apply for judicial review?

What are the orders granted in a judicial review application, what is judicial review.

Judicial review is a process in which the High Court exercises its supervisory jurisdiction over proceedings, decisions, acts and omission of public bodies, i.e. inferior courts, tribunals and other bodies or person who carry out a quasi-judicial function; any person or body who perform duties which involve a public element.

What does this mean?

For context, public bodies are entrusted with a function to make a decision in accordance with the written law in order to uphold the rules of natural justice. However where a decision made by the public body is found to be beyond its jurisdiction ( ultra vires ), illegal, or flawed in procedure, any party aggrieved by the decision may challenge the decision of the public body by applying for judicial review. 

As mentioned above, any party who is aggrieved or adversely affected by the decision of the public body may apply for judicial review.

Order 53 Rule 2 of the Rules of Court 2012 (“ ROC ”) provides that the High Court may order the reliefs specified in paragraph 1 of the Schedule to Courts of Judicature Act 1964 which includes an order in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. These orders are collectively referred to as the prerogative writ.

In addition to that, the High Court is empowered under Order 53 Rule 2 of the ROC to grant additional orders which includes an order of declaration, injunction or monetary compensation.

The infographic set out below summarizes the following:

  • The common grounds in which a judicial review application is made;
  • The reliefs available to applicants; and
  • The procedure in applying for judicial review.

judicial review case malaysia

The Federal Constitution coupled with the Courts of Judicature Act 1964 have allowed the courts to strike down an unlawful administrative action and as such, said to be reviving the combined effects of Articles 5 and 8 of the Federal Constitution.

“A fresh breath of life has been infused into Articles 5 and 8 of the Constitution and both articles have now become important weapons in the artillery of the judiciary to control the abuse of administrative power.”

The above quote was taken from Sridevi Thambapillay’s article titled, “ Recent Developments in Judicial Review of Administrative Action in Malaysia: A Shift From Grounds Based On Common Law Principles ”, in which the article discusses the developments on the grounds for judicial review.

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The Law and Practice of Judicial Review in Malaysia has broken new grounds as the first practitioner’s text exclusively on the law, practice and procedure of judicial review applications in this jurisdiction. The book adopts a case-based approach and features a comprehensive exposition of the principles on the subject in Malaysia with references to leading and recent decisions from across the Commonwealth. The text presents a complete discourse on the principles in judicial review from issues of theory and procedure to the substantive matters of the grounds of challenge and remedies. As such, the book serves as an indispensable resource for public law practitioners and also proposes to be an instructive read for those with an interest in the law on public administration and the interactions between the State and the individual.

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The Growing Trends of Judicial Review Against Government: Overview

INTRODUCTION

The guiding principles of Judicial Review were clearly pronounced in the Federal Court case of Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. & Anor [1] . “A judicial review is a court proceeding where a challenge is made on the decision of the relevant authority or entity by challenging the lawfulness of the decision-making process.”[2] Generally, the court dealing with the judicial review has the power to strike down the law, quash the decision of the relevant authority or under a public official to act in a certain manner if it believes the law or act to be unconstitutional or to be contrary to law in a free and democratic society.

Grounds for Judicial Review

It is trite law that the principles of unreasonableness, or irrationality,which is also known as the “Wednesbury principle”, derived from the celebrated case of Associated Provincial Picture Houses Ltd v Wednesbury Corp [3] (“Wednesbury”). In short, it is a situation where the public authority has acted so unreasonably that no reasonable authority would have made such a decision. Lord Greene in the case of Wednesbury explained that the court cannot set up its own view as to what is reasonable and what is not.[4]

The court can only interfere if it is shown that the authority has contravened the law. And the authority is said to be contravening the law if it has taken into account matters which it ought not to take into account, or it has not taken into account matters which it ought to take into account.[5]

In other words, the court can also interfere if, the public authority, despite conforming to the requirements of the law, has become to a decision unreasonable that not reasonable authority could ever have come to it.[6]

In Sheila Sangar v. Proton Edar Sdn Bhd & Anor [7] the principles governing judicial review was neatly encapsulated as follows: “The first principle of judicial review concerned the decision making process and not the merits, substance or justification. The second principle is that there can be an exception to the first principle where the court could examine the substance or justification to satisfy itself that the decision maker had not transgressed the principles of procedural impropriety, illegality or irrationality”.

The House of Lords in R (Daly) v. Secretary of State for the Home Department [8] demonstrated how the traditional test of Wednesbury unreasonableness has moved towards the doctrine of necessity and proportionality. Lord Steyn noted that the criteria for proportionality are more precise and more sophisticated than traditional grounds of review. Therefore, judicial review can be initiated in accordance to the basis of necessity of the issue and proportionality on the acts of the government.

This article will provide an insight as to the growing trend of Judicial Review against the government by exploring the Federal Court case of Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal [2019] 3 MLJ 443 (“PNM v CCK”) and two (2) recent news article.

JUDICIAL REVIEW AGAINST GOVERNMENT

Case Study: Peguam Negara Malaysia v Chin Chee Kow [2019] 3 MLJ 443

Brief facts of PNM v CCK

A testator had willed funds and lands to trustees under a public charitable trust to build a pagoda for worshippers of a particular Buddhist deity.

a) When, after many years, nothing was done by the trustees to carry out the testator’s wishes and all funds that were allocated for that purpose were spent, the association representing the followers of the deity sought public funding to build the pagoda.

b) As interested donors wanted the association to become a trustee of the funds to ensure the project was well-managed, the association sought the attorney general’s (“AG”) consent under section 9(1) of the Government Proceedings Act 1965 (“GPA”) to its proposed application to the High Court to be made a trustee. However, the AG refused to give his consent.

c) The respondent sought leave of court to file proceedings to quash the AG’s refusal and order him to grant the consent. The AG objected to the leave application on the ground his refusal was non-justiciable.

d) The High Court disagreed with the AG and granted the association leave to file for judicial review. The Court of Appeal upheld the decision.

e) Aggrieved with the decision of the Court of Appeal, the AG had applied for and obtained leave to appeal from the Federal Court.

Federal Court’s decision

The Federal Court in its judgment had mentioned the English case of Brown v Executors of the Estate of Her Majesty Queen Elizabeth the Queen Mother [9], which stated that:

a) “The conclusion (of the House of Lords in Gouriet’s case) that, in the absence of the consent of the Attorney-General, Mr Gouriet was barred from pursuing the proceeding was based the analysis of the statutory provisions in issue. By contract, there is nothing on the face of section 124 of the Supreme Court Act 1981 to suggest that the court may only exercise its powers under it on an application by the Attorney-General. The general effect of section 124 may be relied on by any person. ”[10]

Furthermore, the Federal Court also mentioned and referred to a Singapore case affirming the position that all AG’s powers are subject to legal limits as:

a) the Singapore Court of Appeal in Tan Seet Eng v Attorney-General [11] stated “under the law, the AG’S discretionary power is not absolute and he must act according to law, as his prosecutorial power is subject to legal limits. Prosecutorial discretion cannot be exercised in bad faith, or in a manner contrary to the quality guaranteed under Article 12 of the Constitution”.[12]

The Federal Court, keeping in mind the principles of law on the subject as propounded by the courts in other jurisdiction, found that the Court of Appeal[13] had no flaw in its reasoning in holding that the power of the AG to give or refuse consent under section9(1) GPA 1965 is amendable to judicial review.[14]

Lastly, before delivery its judgement, the Federal Court reiterate the important pronouncement in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [15] in which the court declared that the power of judicial review ‘cannot be changed or altered by Parliament by way of a constitutional amendment’ [16] and ‘the power of judicial review is essential to the constitutional role of the courts, and inherent in basic structure of the constitution’[17]. In summary, the Federal Court held that unfettered discretion is contradictory to the rule of law and hereby dismissed the AG’s appeal as the AG’s power to give consent or otherwise under section 9(1) GPA 1965 is not absolute and is subject to legal limits[18] which is amenable to judicial review.

News Article 1: High Court grants Petronas, TNB interim stay against IRB for multi-billion tax claims [19]

Petroliam Nasional Berhad (“ Petronas ”)

On the 10th August 2020, the High Court granted Petronas an interim stay against the Inland Revenue Board (LHDN) for imposing additional tax assessments amounting to RM3.6 billion on the national oil company.

Petronas and three of its subsidiaries have filled three judicial review proceedings against LHDN alleging that LHDN’s action was ‘ultre vires, illegal, void, in excess of authority and irrational in making the additional tax assessments of RM3.6 billion’.[20] As of the date of writing this article, the date has fixed for 19th September 2020 to hear Petronas’ leave application for the judicial review.

Tenaga Nasional Berhad (“ TNB ”)

In another court, a similar stay order against LHDN’s assessment of RM1.8 billion on similar grounds concerning its reinvestment tax allowance was granted to TNB pending the outcome of a judicial review. The legal representative for TNB told the media that “the judge accepted our submission that the judicial review must be heard and disposed of before a decision on payment is made”.[21]

As of the date of writing this article, the court will hear the leave for judicial review on the 21st September 2020.

News Article 2: High Court allows construction company to move judicial review [22]

Wabina Construction & Engineering Sdn Bhd (“ Wabina ”)

Wabina filed the legal suit in May 2020 against the Malaysian government, Domestic Trade and Consumer Affairs, the Companies Commission of Malaysia and its debtor Seal Properties (KL) Sdn Bhd, challenging the government’s decision to gazette the Companies (Exemption) Order 2020 during the Movement Control Order (MCO) that effectively exempted companies from having to pay their creditors for six months.[23]

Wabina alleged that the ministry had acted beyond their powers in issuing the 2020 Order, which it claimed is illogical and void [24] to the extent of being  inconsistent with the Companies Act because it was gazetted without going through the Dewan Rakyat for debate.[25] On the 29th June 2020, the Penang High Court has granted leave to Wabina to have the full merits of its judicial review application heard. This is the first such challenge by a company over the government’s directive, which was gazetted as an order on 23rd April without having been passed by Parliament. [26] Wabina said it had, since 27th March, a statutory right to serve a winding-up notice on Seal Properties. However, due to the gazetted order from the government, it has been prevented from doing so. Thus, its constitutional right as a creditor to recover the sum it was owed has been violated.[27]

Judicial review against the Government is recognised as a basic structure of the Malaysian constitution where under Article 121 (1)[28] the civil courts constitutional role is as a check and balance mechanism. Therefore, the judiciary is thus entrusted with keeping every organ and institution of the state within its legal boundary. Hence the concept of the independence of the judiciary is the foundation of the principles of the separation of powers. As held by Justice Zainun FC in the Federal Court’s decision of Indira Gandhi’s case.[29] “This is essentially the basis upon which rests the edifice of judicial power. The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework.”

To conclude, judicial review against the Government is the ultimate solution in preventing blatant misuse of powers by the Government in dealing with their actions and accountability.

——————–

1 Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. & Anor [2017] 1MLJ 563 2 [Para 29] Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. & Anor [2017] 1 MLJ 563 3 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 4 [Para 233], Wednesbury [1948] 1 KB 223 5 [Para 32], Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. & Anor [2017] 1 MLJ 563 6 [Para 33], Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. & Anor [2017] 1 MLJ 563 7 Sheila Sangar v. Proton Edar Sdn Bhd & Anor 4 MLJ 285 (2009) 8 R (Daly) v. Secretary of State for the Home Department 2 AC 532 (2001) 9 Brown v Executors of the Estate of Her Majesty Queen Elizabeth the Queen Mother [2008] 1 WLR 2327 10 [Para 38], Brown [2008] 1 WLR 2327 11 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 12 [Para 1-2] Tan Seet Eng v Attorney-General [2016] 1 SLR 779 13 PNM v CCK [2019] 1 MLJ 307 14 [Para 77], PNM v CCK [2019] 3 MLJ 443 15 Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 16 [Para 81], PNM v CCK [2019] 3 MLJ 443 17 [Para 81], PNM v CCK [2019] 3 MLJ 443 18 [Para 83], PNM v CCK [2019] 3 MLJ 443 19 https://www.theedgemarkets.com/article/high-court-grants-petronas-tnb-interim-stayagainst-irb-multibillion-tax-claims 20 https://www.theedgemarkets.com/article/high-court-grants-petronas-tnb-interim-stayagainst-irb-multibillion-tax-claims 21 https://www.freemalaysiatoday.com/category/nation/2020/08/10/petronas-tnbobtain-interim-stay-from-paying-rm5-4-bil-intaxes/ 22 https://www.nst.com.my/news/crime-courts/2020/06/604381/high-court-allows-construction-company-move-judicial-review-nsttv 23 https://www.theedgemarkets.com/article/court-allows-merits-companys-challengegovts-move-allowing-deferred-payments 24 https://www.thestar.com.my/news/nation/2020/06/29/court-allows-company-tochallenge-mco-order-granting-six-monthdebt-extension 25 https://www.nst.com.my/news/crime-courts/2020/06/604381/high-court-allows-construction-company-move-judicial-review-nsttv

26 https://www.theedgemarkets.com/article/court-allows-merits-companys-challengegovts-move-allowing-deferred-payments 27 https://www.theedgemarkets.com/article/court-allows-merits-companys-challengegovts-move-allowing-deferred-payments 28 Article 121 (1) of the Federal Constitution 29 Indira Gandhi v. Pengarah Jabatan AgamaIslam Negeri Perak and 2 Ors. (2018) 1 MLJ 545.

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International Journal of Academic Research in Business and Social Sciences

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ISSN: 2222-6990

An Overview of Judicial Review in The Malaysian Court

Norazlina abdul aziz, mazlina mohamad mangsor, nur ezan rahmat, mastika nasrun, rosa ristawati.

  • Pages 336-352
  • Received: 09 Nov, 2022
  • Revised: 11 Dec, 2022
  • Published Online: 14 Jan, 2023

http://dx.doi.org/10.6007/IJARBSS/v13-i1/16182

Open access

Judicial review is the power of court to revise the decision and act of the administrative power and legislative action which had acted in exceeds of their power. However, interpretation of ‘exceeding their power’ may differ from one case to another to which the courts are given the discretionary power to decide. This leave uncertainty on the interpretation of the judiciary power to review and may lead to the collapse of the rule of check and balance and the concept of good governance. This study aims to examine the principles and approaches adopted in the judicial review process in Malaysia. These concepts and theories serve as the threshold to the cases of judicial review in Malaysia. The study adopts a qualitative method utilising doctrinal and case study. Analysing cases decided by the Malaysian court on Judicial Review forms a major part of the data analysis. The study found that the Malaysian judiciary has made significant efforts to preserve the rule of law, protect the fundamental rights of the people, and uphold the good governance concept through the function of judicial review. The principles of cases involving judicial review in Malaysia have served as a guideline in describing the rules and restrictions that a judge should follow when exercising the judicial review function. The findings of the study may form a summarised development of judicial review in Malaysia that may be referred to by the policymakers, academicians, and future researchers.

Journal/Conference Proceeding Abu Backer, H. S. (2018). Constitutional Oath, Rule of Law and Judicial Review: An Alternative Approach to Basic Structure Jurisprudence. Current Law Journal. Anantaraman, V. (1994). Judicial Review: The Malaysian Experience (11). Malayan Law Journal, 1, lxv. Anushka. (2017). Relevance of the Doctrine of Separation of Power in Modern India. Journal of Contemporary Issues of Law, 3(11), 1–5. Brice, E. A. (2021). Judicial Review: Myths and Realities in the Malaysian Legal System. https://www.researchgate.net/publication/354809742_Judicial_Review_Myths_and_Realities_in_the_Malaysian_Legal_System Devi, P. S., & Van Huizen, M. J. (2021). A Review of ’Social Justice?: Constitutional Oath, Rule of Law and Judicial Review - Justice Datuk Dr Hj Hamid Sultan bin Abu Backer [2021] 1 MLJ cclxxiii. Malayan Law Journal, 1–5. Dyson, Lord. (2016). Is Judicial Review a Threat to Democracy. Current Law Journal, 1–4. Goel, P. (2014). Doctrine of Separation of Powers?: Global and Indian Perspective. International Journal of Research in Humanities and Social Sciences, 2(4), 34–38. Hamid, N. A., & Ahmad, R. (2010). Judicial Review of the Executive Discretionary Powers: Judicial Activism Vis-À-Vis Judicial Self- Restraint of Maintaining a Dividing Line Between Supervisory and Appellate Jurisdiction. International Conference on Public Policies & Social Sciences: E-Proceedings, 1–10. Hogan, G. (1993).Constitutional and Administrative Law in a Nutshell, Sweet & Maxwell. 74. Kadouf, H.A & Sambo, A.O.(2013). Justiciability of Legislative Proceedings: A Legal Analysis of the Malaysian Courts’ Approach. International Islamic University Malaysia Legal Journal, 21, 233-245. Jafar, M. (2020). Exploring the Effectiveness of the Judicial Review Practices within Malaysian Legal System. Journal of Social Science Advanced Research (JOSSAR), 1(2), 182–193. https://doi.org/10.1016/s0140-6736(85)92693-5 Lemieux, S. E. (2017). Judicial Supremacy, Judicial Power, and the Finality of Constitutional Rulings. Perspectives on Politics, Cambridge University Press, 15(4), 1067–1081. https://doi.org/10.1017/S153759271700216X Lobo, B. (2000). Appellate Powers and Consequential Relief in 'Judicial Review - R Rama Chandran Revisited. 3 Malayan Law Journal, ccxxv. Okpaluba, C. (2017). Judicial Review of Executive Power: Legality, Rationality and Reasonableness. Southern African Public Law, 30(2), 379–405. https://doi.org/10.25159/2522-6800/3586 Peng Kwang, H., Sabaruddin, J. S., & Dhanapal, S. (2017). A Judicial Review in Security Offence Cases?: The Malaysian Experience. Current Law Journal, 1–5. Shahizam, S. (2020). Whither Non-Justiciability? An Argument for Judicial Review of Prosecutorial Discretion in Light of the Basic Structure [2020] 2 MLJ cxli. Malayan Law Journal, 2(1), cxli. Sharif, M. R. (2017). Judicial Review: The Malaysian Experience. Journal of the Malaysian Judiciary, July, 1–286. Soni, M. (2020). Critical Essay on Application of Doctrine of Separation of Power in India. The Law Brigade, 6(6), 164–173. Sultana, T. (2012). Montesquieu ’ s Doctrine of Separation of Powers: A Case Study of Pakistan. Journal of European Studies, 28(2), 55–71. Thambapillay, S. (2007). Recent Developments in Judicial Review of Administrative Action in Malaysia: a Shift From Grounds Based on Common Law Principles To the Federal Constitution. Persidangan Undang-Undang Tuanku Ja’afar, 4(2), 275–289. Cases Johari, A. J. M. J. @ M., Kebudayaan, P., & Johor, K. (2010). 3 MLJ 145, FC. Ah Thian v. Government of Malaysia. (1976). 2 MLJ 112. Atenza, A. N., & Another Appeal. (2019). 5 CLJ 780. Asia Pacific Education Holdings Sdn Bhd & Negeri, K. P. H. D. (2022). 1 LNS 1442. Thuan, C. S., and another appeal. (2019). 4 CLJ 561; [2019] MLJU 202. Ibrahim, D. S. A., Yassin, T. S. M. B. & Anor. (2021). 7 CLJ 894. Ayub, D, S. S., Menteri, O. V. P., Yasin, T. S. D. H. M. M., & Anor. (2021). 8 CLJ 260. Undangan, K. D. N., Salleh, A. N. bin., & Anor. (1992). 1 MLJ 697. Selangor, D. U. N., & Harun, O. V. M. H. (2016). 7 CLJ 143, FC. Bhd, G. C. G. T. S., v Ketua Pengarah Jabatan Pengangkutan Jalan Malaysia. (2012). 2 CLJ 389. Mei, H. S., Ketua Pengarah Jabatan Pendaftaran Negara & Ors. (2022). 1 LNS 1361. Iki Putra Mubarak v. Kerajaan Negeri Selangor & Anor. (2021). 1 MLRA. Kumpulan Perangsang Selangor Bhd v Zaid Noh. (1997) 1 MLJ 789. Laguna De Bay Sdn Bhd v Majlis Perbandaran Subang Jaya. (2014). 7 MLJ 545 (HC). Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor Dengan Tanggungan. (1999). 3 CLJ 65. Mamat bin Daud & Ors v Government of Malaysia. (1988). 1 MLJ 119. Mohamed Tawfik bin Tun Dr Ismail v Pandikar Amin bin Haji Mulia (disaman sebagai Yang di Pertua Dewan Rakyat, Parlimen Malaysia) & Anor. (2018) MLJU 552, HC. Muhammad Juzaili bin Mohd Khamis and Ors. v. State of the government of Negeri Sembilan and Ors. (2015). MLJU 65. Oxygen Bhd v Soh Tong Wah and another appeal. (2015). 3 MLJ 730. Peguam Negara Malaysia v. Chin Chee Kow (sebagai Setiausaha Kebajikan dan Amal Liam Hood Thong . Pengarah Tanah dan Galian,Wilayah Persekutuan v. Sri Lempah Enterprise Sdn Bhd. (1979). 1 MLJ 135. R.Rama Chandran v. Industrial Court of Malaysian & Anor. (1997). 1 MLJ 145. Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn Bhd. (2010). 6 MLJ 1. Shaikh Mohd Ibrahim Shaikh Omar v. Tan Sri Dr Haili Dolhan & Ors. (2022). 1 LNS 1397. SIS Forum (Malaysia) v Dato’ Seri Syed Hamid bin Syed Jaafar Albar (Menteri Dalam Negeri). (2010). 2 MLJ 377. Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam. (2010). 7 MLJ 355. SWW v. Ketua Pengarah Hasil Dalam Negeri. (2020). 1 LNS(A) cxxxiv. Teh Guat Hong v. Perbadanan Tabung Pendidikan Tinggi Nasional. (2018). 2 CLJ 762. Telic Farm Sdn Bhd v. Majlis Bandaraya Melaka Bersejarah. (2008). 5 MLJ 452. Tun Dr Mahathir Mohamad & Ors v. Datuk Azhar Azizan Harun & Ors. (2021) 3 CLJ 852. Wira Swire Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri. (2019). 1 LNS 1026. Dipertua, Y., Rakyat, D., Deo, G. S. (2014). 6 MLJ 812, FC.

In-Text Citation: (Aziz et al., 2023) To Cite this Article: Aziz, N. A., Mangsor, M. M., Rahmat, N. E., Nasrun, M., & Ristawati, R. (2023). An Overview of Judicial Review in The Malaysian Court. International Journal of Academic Research in Business and Social Sciences, 13(1), 336 – 352.

Copyright: © 2023 The Author(s) Published by HRMARS (www.hrmars.com) This article is published under the Creative Commons Attribution (CC BY 4.0) license. Anyone may reproduce, distribute, translate and create derivative works of this article (for both commercial and non-commercial purposes), subject to full attribution to the original publication and authors. The full terms of this license may be seen at: http://creativecommons.org/licences/by/4.0/legalcode

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The Unsettled Landscape Facing Judicial Review Of Tax Cases In Malaysia.

April 2, 2018 by Conventus Law

2 April, 2018

Pursuant to the Income Tax Act 1967 (“ITA”), a Malaysian taxpayer has the right to appeal any tax assessment raised on him to the Special Commissioners of Income Tax (“SCIT”). Over and above that, there is also the High Court’s discretionary power to review decisions of a public authority (including that of the Inland Revenue Board (“IRB”) upon the application of an affected person).   

Under the ITA, a taxpayer who is assessed to tax and is aggrieved by the assessment has a right to appeal to the SCIT should he so desire[1] (“the domestic remedy”). However, the lodgment of the right to appeal does not release him from the obligation to pay the amount so assessed[2]. This has led taxpayers to consider an application for Judicial Review (“JR”), as there is an opportunity to seek a stay of proceedings, which includes a stay of the obligation to pay the tax assessed, under a JR application.

It has long been recognised that JR is the remedy when a public authority had acted without any jurisdiction, failed to perform some statutory duty or where there was a serious breach of the principles of natural justice[3]. JR should not be resorted to merely to gain an opportunity to get a stay of the payment of the tax assessed. JR is not meant to be used to supplant the domestic remedy process and is reserved for the exceptional circumstances aforementioned[4].

Due to the indiscriminate use of JR applications in tax matters, the IRB and the Attorney General’s Chambers (“AGC”) have opposed applications for JR with greater tenacity in recent times.

The IRB and the AGC take the position that the superior courts of the country have not allowed JR on the merits where a domestic remedy exists and, therefore, taxpayers should not even be allowed leave to seek JR. Cases such as Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent Malaysia Sdn Bhd & Anor[5] (“Alcatel”) and Ketua Pengarah Hasil Dalam Negeri v Mudah.my Sdn Bhd[6] (“Mudah.my”) are often cited as examples in this regard.

However, that view is not an accurate description of the state of the law. Even in cases where the Court has found against a taxpayer for seeking JR even when a domestic remedy was available, great care was placed by the Court in emphasising that JR is still available should the circumstances warrant it.  

Idrus Harun JCA in the Court of Appeal in Mudah.my stated that supplanting the domestic remedy and seeking JR has led to the Court being flooded with frivolous cases and such was a clear abuse of Court process.

However the learned Judge did emphasise that JR is still available for the abovementioned exceptional circumstances and that “if the taxpayer can demonstrate illegality or unlawful treatment, then it would be wrong to insist on exhaustion of a local remedy”.

Suriyadi FCJ delivering judgment of the Court in Alcatel also stated that “… it is obvious that if the circumstances warrant it, and after having considered all the relevant factors, judicial interference is permissible”.

The influx of JR applications have given rise to differing views on the test to be applied in granting leave for JR. 

For instance in the Court of Appeal case of QSR Brands Bhd v Suruhanjaya Sekuriti & Anor[7], Gopal Sri Ram JCA stated that:

“it is manifestly clear that it is only at the hearing of the substantive motion for judicial review that the existence of an alternative remedy becomes relevant. A fortiori, it is a matter which does not fall to be considered on a leave application.”

In effect, the domestic remedy ought not to be considered at the leave stage.

James Foong JCA in the Court of Appeal case of Chin Mee Keong & Ors v Pesuruhjaya Sukan[8] took a more restrictive approach and stated that the relevance of the domestic remedy at the leave stage had to be considered to the same standard of “whether the application for leave is frivolous to merit the refusal of leave in limine”.

In Ta Wu Realty Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri & Anor[9] (“Tan Wu Realty”), Suriyadi JCA suggested that there must be an arguable case on the issue of whether exceptional circumstances exist (although in that case no exceptional circumstances were found to exist). However, the case of Mudah.my appears to take this even further by suggesting that Ta Wu Realty stands for the proposition that the exceptional circumstances have to be established even at the leave stage.  

These inconsistencies have led to complexities and difficulties in obtaining leave for JR applications. What must, however, be borne in mind in many of the cases raised by the AGC and the IRB to oppose leave, is that even though there may be cases where the existence of a domestic remedy prevented a finding in favour of a taxpayer on the merits of JR, there are still cases where leave was nevertheless granted and the merits considered.    

Ultimately, the appropriate forum for challenging tax assessments would depend on the specific facts of each case.

[1] Section 99(1) of the ITA. [2] Section 103(1) of the ITA. [3] Government Of Malaysia & Anor v Jagdis Singh [1987] 2 MLJ 185 [4] Government Of Malaysia & Anor v Jagdis Singh [1987] 2 MLJ 185,  Ta Wu Realty Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri & Anor [2009] 1 MLJ 555, Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent Malaysia Sdn Bhd & Anor [2017] 1 MLJ 563 [5] [2017] 1 MLJ 563 [6] [2017] 2 MLJ 197 [7] [2006] 3 MLJ 164 [8] [2007] 6 MLJ 193 [9] [2009] 1 MLJ 555  

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Malaysia’s top court rules some Islamic laws in Kelantan unconstitutional

Majority ruling could have major legal implications in multiethnic country that operates a dual judicial system.

Muslim women protest outside the Federal Court ahead of Friday's verdict. They are holding placards reading 'Pertahan Enakmen Syariah Kelantan' (Defend Kelantan sharia law)

Malaysia’s top court has ruled that 16 Islamic laws in the northeastern state of Kelantan are unconstitutional in a landmark decision that could have major implications for the country’s legal system.

By an 8-1 majority, the Federal Court ruled on Friday that the Kelantan state government did not have the power to enact the laws, on offences from sodomy to sexual harassment, possession of false information, intoxication and scale measurements, because they were already covered in civil law and were the responsibility of the federal parliament.

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Malaysia says it recovered $5m of stolen 1mdb assets over last 13 months, thailand, muslim separatists agree on new plan to end violence, in legal no-man’s land, refugees in malaysia struggle to eat, pay rent, malaysia halves ex-pm najib razak’s jail term in 1mdb corruption scandal.

Malaysia is a federal country where states have jurisdiction over laws related to Islam, the official religion. It also operates a dual legal system where Islamic law applies to Muslims, who make up just over 60 percent of the population, in personal and family matters, as well as the practice of their religion. All other offences are handled by the civil courts.

Kelantan, seen as the heartland of ethnic Malay Muslim culture, has been ruled by the opposition Parti Islam SeMalaysia (PAS) since 1990.

“The power of parliament and state legislatures are limited by the Federal Constitution and they cannot make any laws they like,” Chief Justice Tengku Maimun Tuan Mai was quoted as saying by Malaysia’s BFM radio as she delivered the findings of the nine-judge panel.

The case was brought in 2022 by Kelantan lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter after the state government passed a new set of laws on Islamic offences.

The two challenged the constitutionality of 18 of the laws arguing that they were beyond the jurisdiction of the state assembly and already covered by parliament.

The Federal Court did not strike down the two other laws and Chief Justice Tengku Maimun stressed that the two women had not brought the case to challenge the position of Islam or the Islamic legal system.

Nik Elin Zurina reiterated that point as she spoke to reporters afterwards.

“As lawyers, we are are officers of the court and I believe it is our duty as legal practitioners to uphold and defend the sovereignty of the law,” she said, according to the Malay Mail. “I did this not for myself, but all.”

About 1,000 people including PAS supporters and conservative Muslims gathered outside the court in Putrajaya ahead of the ruling.

Takiyuddin Hassan, PAS secretary-general and a member of parliament, criticised the ruling and said the party would raise the issue in parliament when it sits later this month.

“We are very sad today,” he said. “This is a Black Friday. Black Friday as the decision was against Islamic Shariah law.”

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  1. PDF An Overview of Judicial Review in The Malaysian Court

    the judicial review process in Malaysia. These concepts and theories serve as the threshold to the cases of judicial review in Malaysia. The study adopts a qualitative method utilising doctrinal and case study. Analysing cases decided by the Malaysian court on Judicial Review forms a major part of the data analysis.

  2. Judicial Review in Malaysia 101

    Judicial review is a court action specifically designed to challenge "decisions, actions or omissions" of public bodies. Public bodies are government organs which perform a public function: Ministers, the Federal Government, State Governments, Royal Malaysian Police, the Commissions which regulate various industries, Tribunals, Industrial ...

  3. Judicial Review: Redress Against Wrongly Acted Public Authorities

    In Malaysia, an application for judicial review is governed by Order 53 of the Rules of the Court 2012. It is a two-stage process. ... In that case, the Federal Court held that the relationship between the consumer and TNB is commercial and contractual in nature, thus it comes within an environment regulated by private law. Accordingly, it ...

  4. The Growing Trends of Judicial Review Against Government: Overview

    INTRODUCTION. The guiding principles of Judicial Review were clearly pronounced in the Federal Court case of Ketua Pengarah Hasil Dalam Negeri v Alcatel - Lucent Malaysia Sdn. Bhd. & Anor[1]. "A judicial review is a court proceeding where a challenge is made on the decision of the relevant authority or entity by challenging the lawfulness of the decision-making process."[2] Generally ...

  5. Legal Nutshell

    To put it in a nutshell, the application concerns review, not appeal. The court will not substitute its decision; it will only review the legality. An appeal is as of right whereas certain conditions must be fulfilled for one to seek leave for judicial review. In Malaysia, An application for judicial review is governed by Order 53 Rules of the ...

  6. Malaysia: The Growing Trends of Judicial Review Against Government

    The guiding principles of Judicial Review were clearly pronounced in the Federal Court case of Ketua Pengarah Hasil Dalam Negeri v Alcatel - Lucent Malaysia Sdn. Bhd. & Anor[1]. "A judicial review is a court proceeding where a challenge is made on the decision of the relevant authority or entity by challenging the lawfulness of the decision ...

  7. An Overview of Judicial Review in The Malaysian Court

    The principles of cases involving judicial review in Malaysia have served as a guideline in describing the rules and restrictions that a judge should follow when exercising the judicial review ...

  8. PDF IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION ...

    Civil Appeal No. 01(f) -5 03/2019(W) 2 . judicial review in respect of the decision of the Registrar of Muallafs. Semenyih Jaya and Indira Gandhi were then applied in Alma Nudo Atenza v Public Prosecutor and another appeal [2019] 4 MLJ 1 (' Alma Nudo') a criminal case, where the issue was whether the Court has the power to strike down the

  9. Judicial review in Malaysia

    Judicial review in Malaysia. Although Malaysia inherited the political system of British India based on the Westminster system, which made no provision for judicial review, the Federal Constitution of Malaysia instituted a system based on that of India which was in turn influenced by other constitutions including that of the United States.

  10. Judicial Review: Myths and Realities in the Malaysian Legal System

    Brice. In Malaysia, the Federal Constitution is supreme law of the land which came into force in 1957. Federal Constitution is the fundamental law of the land and a kind of 'higher law' which ...

  11. Malaysian court rejects ex-PM Najib bid to review corruption case

    Malaysia's ex-PM Najib acquitted of tampering with 1MDB audit. Najib, 69, claimed he had not received a fair hearing, alleging one judge had a conflict of interest and that his new legal team ...

  12. How to take Malaysia's government to court if they

    Basically, among other things, in order to proceed with a judicial review application, you need to first gain leave (permission) from the High Court. The application for judicial review must also be brought within 3 months from the date you first had reason to bring a judicial review action (Order 53, Rule 3 (6)).

  13. The Court of Appeal Erred vis-a-vis the Grounds for Judicial Review

    R Rama Chandran is a seminal judicial review case and has been referred to numerously, including by the Federal Court in Akira Sales & Services (M) Sdn Bhd v Nadiah Zee bt Abdullah and another appeal [2018] 2 MLJ 537. Previous Court of Appeal decisions. RHB Bank Bhd v YB Menteri Sumber Manusia Malaysia & Anor [2017] 6 MLJ 239 ["RHB Bank Bhd"]:

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    JUDICIAL REVIEW IN MALAYSIA By Zubli Quzairyl Bin Zubli (2021) 1. INTRODUCTION Judicial review is engraved in our basic structure of the Federal Constitution. Judicial review is crucial as Malaysia practiced separation of power among the branches of government. ... To correlate between judicial review and the decided case, it can be said that ...

  15. The Mode To Challenge An Industrial Court Award: Appeal Or Judicial

    This decision by Justice Anand Ponnudurai in Aneka Retail (M) Sdn Bhd v Industrial Court Malaysia & Ors explained the ... then judicial review would be the proper application. In this present case, the date of the HR Minister's letter, i.e. 6.1.2021, is irrelevant as it was the HR Minister who was exercising his discretion in referring the ...

  16. Application for Judicial Review

    Application for Judicial Review - The Procedure. Prior to the year 1996, the Malaysian courts referred to the rigid and technical common law rules governing judicial review of administrative actions. However the judicial trend shifted from referring to common law rules to the Federal Constitution. Today, the court is empowered by Section 25 ...

  17. The Law And Practice Of Judicial Review In Malaysia

    RM 380.00. Add to basket. SKU: 6070 Category: CLJ Publications Tags: Best Seller, Judicial. More Information. The Law and Practice of Judicial Review in Malaysia has broken new grounds as the first practitioner's text exclusively on the law, practice and procedure of judicial review applications in this jurisdiction. The book adopts a case ...

  18. The Growing Trends of Judicial Review Against Government: Overview

    The guiding principles of Judicial Review were clearly pronounced in the Federal Court case of Ketua Pengarah Hasil Dalam Negeri v Alcatel - Lucent Malaysia Sdn. Bhd. & Anor[1]. "A judicial review is a court proceeding where a challenge is made on the decision of the relevant authority or entity by challenging the lawfulness of the decision ...

  19. An Overview of Judicial Review in The Malaysian Court

    The principles of cases involving judicial review in Malaysia have served as a guideline in describing the rules and restrictions that a judge should follow when exercising the judicial review function. The findings of the study may form a summarised development of judicial review in Malaysia that may be referred to by the policymakers ...

  20. Court sets April 4 for Rumah Bonda judicial review decision

    On Nov 15, 2021, the High Court, in allowing an objection by the Attorney-General's Chambers, dismissed Rumah Bonda's filing for a judicial review of the social welfare department sealing its ...

  21. Judicial Review In Security Offence Cases: The Malaysian Experience

    The principles of cases involving judicial review in Malaysia have served as a guideline in describing the rules and restrictions that a judge should follow when exercising the judicial review ...

  22. Fishermen file judicial review to challenge approval of Penang South

    The Penang High Court granted leave for the applicants to proceed with the judicial review application on February 5 this year. The nine applicants named the Penang state director of town and country planning (PLANMalaysia) as the first respondent, Penang state planning committee as the second respondent, Penang state government as the third respondent and the project delivery partner, SRS ...

  23. The Unsettled Landscape Facing Judicial Review Of Tax Cases In Malaysia

    2 April, 2018. Pursuant to the Income Tax Act 1967 ("ITA"), a Malaysian taxpayer has the right to appeal any tax assessment raised on him to the Special Commissioners of Income Tax ("SCIT"). Over and above that, there is also the High Court's discretionary power to review decisions of a public authority (including that of the Inland ...

  24. Judicial Review In Malaysia

    Judicial Review In Malaysia judicial review in malaysia zubli quzairyl bin zubli (2021) introduction judicial review is engraved in our basic structure of the. Skip to document. ... To illustrate the function of Article 162(6) of the Federal Constitution, the case Surinder Singh Kanda v Government of Malaya [1962] 1 MLJ 169 must be cited. In ...

  25. Judge withdraws from hearing Beng Hock's parents' judicial review

    KUALA LUMPUR - High court judge Datuk Amarjeet Singh today recused himself from hearing a judicial review application by the parents of the late Teoh Beng Hock for a court order for the Royal Malaysia Police (RMP) to complete the investigation into their son's death almost 14 years ago. Senior federal counsel Ahmad Hanir Hambaly, when ...

  26. Malaysia's top court rules some Islamic laws in Kelantan

    Malaysia's top court has ruled that 16 Islamic laws in the northeastern state of Kelantan are unconstitutional in a landmark decision that could have major implications for the country's legal ...

  27. Federal Register :: Public Inspection: Antidumping or Countervailing

    This PDF is the current document as it appeared on Public Inspection on 02/14/2024 at 8:45 am.. If you are using public inspection listings for legal research, you should verify the contents of the documents against a final, official edition of the Federal Register.