Aggrieved By Decisions Of A Public Authority? Here’s What You Can Do (Part 2)

In Part 1 of the article, we have discussed about locus standi of an applicant in judicial review and matters that are amenable to judicial review. We have also looked into the issue as to who can be made a respondent in judicial review. Briefly, only an applicant who has real and genuine interest in the subject matter is allowed to make an application to invite the court review decisions made by a public authority. 

You’d need the court’s permission to make a judicial review application

The procedure of a judicial review application is different from that of a civil action. Leave is a statutory requirement and cannot be dispensed with. A leave of court is required before an application for judicial review can be made. An application for judicial review must be made ex parte application of leave, supported by a statement setting out the name and description of the application, as well as the reliefs sought and the grounds on which it is sought by the applicants. There must also be an affidavit verifying the facts relied on.  The clear wordings of O 53 r 3(1) and (2) that the application for leave is only ex parte indicates that the respondent does not have a right of appearance.

At the leave stage, the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application, as held by Ajaib Singh SCJ in Association of Bank Officers, Peninsular Malaysia v Malayan Commercial Banks Association [1990] 3 MLJ 22. 

To ensure the public interest is well taken care of, the leave for judicial review has a very low threshold. It was not necessary to go into the merits at the stage of the leave stage. The test was merely to determine whether the applicants had an arguable case and that the application was not frivolous, as held by the Court of Appeal in Jerry WA Dusing @ Jerry W Patel v Menteri Keselamatan Dalam Negeri Malaysia [2015] 1 MLJ 675.

However, at this preliminary stage, the court shall refrain from examining the disputed facts in great detail. It shall only be looking at the ex parte application and is concerned to see whether prima facie there is a genuine case for review. The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage, as opined by Lord Diplock in IRC v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617. 

Now that you’ve obtained leave of court, what’s next? 

Within 14 days after the leave for judicial review has been granted, the applicant shall file a notice in Form 110, as specified in O 53 r 4(1) of the ROC. 

Pursuant to O 53 r 4(2) of the ROC, once the sealed copy of the Form 110 is extracted, the applicant shall then serve a sealed copy of the form, statement and affidavit in support on all persons directly affected by the application not later than 1 day before the date of hearing stipulated in the form. 

Grounds for Judicial Review 

There are generally three grounds for bringing judicial review proceedings, namely illegality, irrationality and procedural impropriety. There could also possibly be a forth ground for review, which is proportionality. This arises when there has been excessive sanction or punishment which intrude on individual rights.

To illustrate the four grounds as mentioned above, it is pertinent to set out the oft-quoted authority on judicial review as set out in the case of Council of Civil Service Unions and others v Minister for the Civil Service [1985] AC 374 where at pp 410-411 Lord Diplock provided an explanation to the respective grounds as below:-

1. Illegality: The decision-maker must understand correctly the law that regulates hi decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, those persons, the Judges, by whom the judicial power of the state is exercisable.

2. Irrationality: This was referred to as ‘Wednesbury unreasonableness’ as set out in Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223. It applies to a decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it.

3. Procedural Impropriety: This ground covers not only failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision, but also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred even where such failure does not involve any denial of natural justice. 

4. Proportionality is also a possible fourth ground of review which called for development. Under this ground, it enables the court to review an impugned decision for substance as well as process.

Now, let’s look at the approach taken by Malaysian court in a recent case on judicial review. In Selangor State Government & Anor v Kuala Lumpur Kepong Bhd [2017] 3 MLJ 205 (COA) , it involves an applicant who owned two adjoining pieces of land that was held under agricultural title but zoned partly for ‘infrastructure and utilities’ use and partly for agricultural use. The state authority compulsorily acquired part of the scheduled land and the adjoining land under the Land Acquisition Act 1960 for the purpose of extending the landfill. The respondent objected and applied to quash the acquisition by way of judicial review application in High Court.

In determining the validity of the land acquisition exercise, the Court of Appeal look into different authorities such as Rancangan Tempatan Majlis Daerah Kuala Selangor 2025 and the Land Acuiqisition Act 1960 for the purpose of acquisition and the discretion conferred to the state. With reference to the grounds for judicial review as set out in the case of Council of Civil Service Unions and others v Minister for the Civil Service above, the Court held that the acquisition of the scheduled land did not suffer from illegality, irrationality or procedural impropriety which warrant judicial review by the court. 

What are the reliefs available under the judicial review application? 

O 53 r 1(1) of the ROC empowers the High Court to issue to any person or authority directions, orders or writs, including writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. The court also has discretion to grant other type of relief, which include monetary compensation and injunction.  

1. Declaration 

• By way of declaration, the court may declare the rights of the parties. 
• Jerry WA Dusing @ Jerry W Patel v Menteri Keselamatan Dalam Negeri Malaysia [2015] 1 MLJ 675, CA
• Based on the repealed RHC O 53 r 2(2) (now RC O 53 r 2(2)), declaratory relief could not be sought on its own in an application for judicial review and the appellants should have sought the declaratory relief under the repealed RHC O 15 r 16
• Even though the prayers for an order for certiorari an mandamus were withdrawn, declaration may be granted by the court even if it was not prayed for jointly or in the alternative with other remedies.

2. The relief of Certiorari enables the Court to quash the decision made by the authority 

In Members of the Commission of Enquiry on the Video Clip Recording of Images of A Person Purported to be an Advocate and Solicitor Speaking on Telephone on Matters of Appointment of Judges v Tun Dato’ Seri Ahmad Fairuz bin Dato’ Sheikh Abdul Halim [2011] 6 MLJ 490 (FC), a video clip containing a controversial material relating to the judiciary surfaced on the internet, which depicted images of a person engaged in a telephone conversation relating to the appointment of judges. The government then set up a Commission pursuant to Section 2 of the Commission of Enquiry Act 1950 to investigate the authenticity and content of the video. The Commission later submitted its report which was made available to the public. Aggrieved by the findings of the Commission, the respondents applied for leave for an order of certiorari to quash the findings of the Commission implicated them and claimed that the findings were tainted due to bias and prejudice, as well as contrary to the principle of law. 

3. Mandamus – Compel the government to do something 

• Ee Kim Kin v The Collector of Land Revenue, Alor Gajah [1967] 2 MLJ 89 (application for mandamus)

4. Prohibition – Prohibits the government from doing something 

• The same distinctive public element consideration was emphasised in relation to the Kuala Lumpur Stock Exchange which was held to be subject to judicial review, being a ‘statutorily regulated entity under the overall direction and control of the Minister in fundamental respects’, and its management committee is thus under a duty in respect of disciplinary matters to act judicially, the failure of which may attract certiorari and prohibition. (OSK & Partners v Tengku Noone Aziz [1983] 1 MLJ 179, FC)

5. Quo warranto – force the government to show their authority

Other reliefs

Apart from the above, the Court also has additional powers to award damages to the applicant provided that the conditions in Order 53 Rule 5(1) (a) of the ROC 2012 are satisfied. 

Apart from the reliefs above, the court also has discretion to injunction. Nevertheless, the power to grant an injunction is to be exercised in accordance with the relevant provisions of the Government Proceedings Act 1956 and the Specific Relief Act 1950 (Government Proceedings Act 1956 (Act 359) s 29 and the Specific Relief Act 1950 (Act 137) s 54: RC O 53 r 2(3) proviso)