Judicial review is an application brought by an aggrieved party to challenge the decision of a public authority. It is an inherent right of the courts to review the decision making process of a public provided under Order 53 Rules of Court 2012 (“ROC”). The courts can also analyze the merits of the decision and replace the decision of the administration body.
Are you an “aggrieved person”?
You would need to satisfy the court of your locus standi to apply for judicial review. Order 53 Rule 2(4) of the ROC provides that the person who is allowed to bring an action against the public authority must be someone who is adversely affected by the decision, action or omission in relation to the exercise of the public duty or function.
The court does not allow any busybody to go to court and interfere the decision-making of public authorities. The test of locus standi was considered by Federal Court in Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145 as the “adversely affected” test, where the applicant has to show that he has real and genuine interest in the subject matter. The relevant portion of the judgment is extracted as below:-
‘Therefore, in determining the locus standi to sue, the court has to exercise caution in applying the English cases. In our view for an applicant to pass the ‘adversely affected’ test, the applicant has to at least show he has a real and genuine interest in the subject matter. It is not necessary for the applicant to establish infringement of a private right or the suffering of special damage.’
Who Can Be Made A Respondent?
Apart from the issue of locus standi of an applicant, it is also pertinent to determine the proper party who can be made a respondent in a judicial review application. An applicant can file a judicial review to challenge or review the decisions, omissions and/or actions of a body exercising ‘public function’.
In WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd [2011] 4 CLJ 836, the applicant applied for judicial review to quash the decision of Tenaga Nasional Berhad (‘TNB’), as contained in the notice issued pursuant to Section 38(1) of the Electricity Supply Act 190. The Court of Appeal held that the relationship between the consumer and TNB is commercial or contractual which comes within an environment regulated by private law. As such, there is no distinct public element to include the relationship between the consumer and TNB in the domain of a public law and public authority. It is thus not open to the consumer to challenge TNB pursuant to Order 53 rule 2(4) by way of judicial review which is a public law remedy.
Following the case of WRP, the Federal Court then held that the interpretation of “public function” is based on consideration of, inter alia, the following factors:-
- The powers conferred to the decision-maker under existing statutes;
- The extensive and/or monopolistic power of said decision-maker;
- The relationship between the aggrieved party and the decision-maker in question.
What Can Be Subjected to Judicial Review
Not all decisions made by a public authority are suitable for judicial review. There must be an infusion of a ‘public element’ for a body to become subject to review. If there is a mixture of public and private law, the court must ascertain which of the two is predominant. For an application under Order 53, the court will not entertain matters that fall solely under private law, even if there is public authority involved.
In Superintendent of Lands and Surveys, Samarahan Division & Anor v Abas ak Naun & 5 Ors and another appeal [2015] 6 MLJ 788 (FC), Suriyadi FCJ held that:
‘[25] Generally speaking when a decision is arrived at by a public body in performance of a public duty resulting in any infringement that affects substantive principles of public law, and which may affect members of the public, the proceedings that ensues is treated as public law proceedings. An aggrieved party may allude to judicial review under O 53 at the High Court for any reparation of injustice and may include a prayer for a declaration as in the current appeals (O 53 r 2(2) of the Rules of Court 2012).’
The Court of Appeal in Tenaga Nasional Bhd v Tekali Prospecting Sdn Bhd [2002] 2 MLJ 707 held that when the activities and/or decisions of a decision-maker in the private sector falls within a public law environment, the same can also be subjected to judicial review. It was decided that TNB was not exempted from judicial review. The court was however of the opinion that the proper time at which this should be done was after the exhaustion of the statutory appellate procedure.
Thus, issues such as the inappropriateness of the compensation element and the inapplicability of the Electricity Supply Act 1990 to the case where land had to be set aside were more appropriate for the hearing before the land administrator under the s 11(6) of the Act. Therefore, the learned High Court judge was wrong in issuing judicial review against the appellant and in quashing the s 11 notice.
You can’t take your own sweet time
The creation of the Rule intends to protect a public body or authority when their decision is being challenged. As such, there is a stringent rule regarding time limit imposed under Order 53. The applicant is required to file the application within three months from the date when the grounds of application first arose or when the decision is first communicated to the application. Generally, non-compliance of the prescribed timeline is fatal to the application. For instance, in Wong Kin Hoong v Ketua Pengarah Jabatan Alam Sekitar [2013] 4 MLJ 161 (FC), the court refused to grant leave for applicants of judicial review who had breached the statutory time limit.
The law is however not merciless. In an extremely rare circumstance in Superintendent of Lands and Surveys, Samarahan Division & Anor v Abas ak Naun & 5 Ors and another appeal [2015] 6 MLJ 788 where it involves native customary rights over tracts of land, the Federal Court gave leeway to the respondents who breached the statutory time limit by holding that, to expect the respondents who live deep in the hinterland to adhere to protocol fitnesse as fashioned out in O 53 would result in ‘irreparable injustice’.
Conclusion
The existence of a public authority serves to protect the interests of general public. The directions given by the courts of law in public interest litigation are for the interest of the society at large and not for benefitting any individual. It is never intended to punish any public authority in exercising their public duty, but to direct the authorities to comply with the law in their decision-making process. It serves an important addition to the system of “checks and balances” to prevent abuse of power of any branch under the parliamentary system.
Stay tuned for Part 2 of our article that wraps up the topic with necessary steps to be taken after leave has been granted, grounds for judicial review and available reliefs under Order 53.