Vous êtes sur la page 1sur 22

QUICK GUIDE ON

JUDICIAL REVIEW CASES :


MALAYSIAN CONTEXT

Shahrin Nordin
LL.B (Hons) IIUM, LL.M (Commercial Laws) UiTM
Published 2016

1
Copyright Reserved 2016 Shahrin Nordin

INDEX
Judicial Review
Leave Stage
(1)
(2)

Test at the leave stage


Right to appear during ex-parte leave stage

Grounds of judicial review1


(1)
(2)
(3)

(4)
(5)
(6)

Irrationality (Wednesbury unreasonableness)


Procedural impropriety (Natural justice)
Illegality
(a) mala fide
(b) improper purpose,
(c) failure to take into account relevant considerations
(d) taking into account irrelevant considerations
(e) non-exercise of discretion.
Substantive fairness,
Proportionality
Substantive legitimate expectation.

Defending against judicial review


(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)

Delay in filing
Decision on administrative appeal is not a decision
Pre-mature / absence of decision
No locus standi
Non-exhaustion of alternative remedy
Reviewing of decision-making process only
Non-reviewability of criminal investigative process
Non-reviewability of policy matter
No prejudice
Non-existence/non-pleading of special circumstances
Not suing the proper decision-making authority
Non-reviewability of non-decision
Purely commercial dealing
Mandamus for legal public duty not discretion
Matter has become academic
Non-reviewability of disciplinary punishment

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

Grounds no. (1), (2) and (3) are traditional grounds as founded from HOL cases of Council of Civil
Service Union & Anor v Minister for Civil Service [1985] AC 374. While, grounds no. (4), (5) and (6) are
recently established from case laws.

2
Copyright Reserved 2016 Shahrin Nordin

Leave Stage
Test for leave to be granted
Chin Mee Keong & Ors v. Pesuruhjaya Sukan [2007] 5 CLJ 363 (COA)
So the question to be asked in our instant case is whether the appellants'
application is frivolous and vexatious to justify refusal of leave in limine.
To summarily assign this issue of an alternative remedy to a subsequent stage
for consideration after leave has been granted would, in my view, mean that even
cases which are bound to fail in limine on the issue of availability of an alternative
remedy would automatically be permitted at leave stage.
Clear Water Sanctuary Golf Management Bhd v Ketua Pengarah Perhubungan
Perusahaan & Anor [2007] 6 MLJ 446 (HC)
The approach in an application for leave under O 53 r 1(3) of the RHC is merely
to obtain permission to bring the proceedings by way of judicial review and the
onus is on the applicant to actually show or demonstrate a prima facie case. It is
essentially akin to a vetting process, first, to ensure that the applicant has a locus
standi and is not a mere busy body or mischief maker which does not have
sufficient interest to challenge the decision or the process of the decision making
by way of judicial review and secondly, the applicant has demonstrated a prima
facie case for leave to be granted.

It is settled law that leave to apply for an order to file proceedings for judicial
review should not be refused unless the application is frivolous or vexatious. In
other words, the sole questions at the leave stage is whether the application is
frivolous (per Gopal Sri Ram JCA in QSR Brands Bhd v Suruhanjaya Sekuriti &
Anor [2006] 3 MLJ 164; [2006] CLJ 532 at p 537). Frivolous or vexatious action
or statement is generally referred to as groundless action or statement with no
prospect of success or wanting in bona fide or when it is not calculated to lead to
any practical result. It is often raised to embarrass or annoy the other party to the
action.
Tuan Hj Sarip Hamid & Anor v. Patco Malaysia Bhd. [1995] 3 CLJ 627 (SC)
In R. v. Secretary of State for the Home Department, ex parte Rukshanda Begum
[1990] Crown Office Digest 109, Dip, the Court of Appeal in England correctly
laid down guidelines to be followed by the Court when considering an application
for leave, in the following terms:

3
Copyright Reserved 2016 Shahrin Nordin

(i)
(ii)
(iii)

The Judge should grant leave if it is clear that there is a point for further
investigation on a full inter partes basis with all such evidence as is
necessary on the facts and all such argument as is necessary on the law.
If the Judge is satisfied that there is no arguable case he should dismiss the
application for leave to move for judicial review.
If on considering the papers, the Judge comes to the conclusion that he
really does not know whether there is or is not an arguable case, the right
course is for the Judge to invite the putative respondent to attend and make
representations as to whether or not leave should be granted. That inter
partes leave hearing should not be anywhere near so extensive as a full
substantive judicial review hearing.

The test to be applied by the Judge at that inter partes leave hearing should be
analogous to the approach adopted in deciding whether to grant leave to appeal
against an arbitrator's award ... namely: if, taking account of a brief argument on
either side, the Judge is satisfied that there is a case fit for further consideration,
then he should grant leave.
Right to appear during ex-parte leave stage
George John v. Goh Eng Wah Bros. Filem Sdn Bhd & 2 Ors [1988] 1 MLJ 319
Be that as it may, I cannot accede to the objection of the applicant for the simple
reason that an ex parte application merely means that such an application is
permitted to be made by one party in the absence of the other. It does not
preclude any person who has an interest or who may be adversely affected by
the decision of the court in the matter which is to be litigated from appearing
to raise any legitimate objection against or for that matter any legitimate
ground in support of the application. At any rate, it is idle to challenge the
standing of the learned Senior Federal Counsel to appear at this hearing to oppose
the application on behalf of the Attorney General for the further reasons as stated
hereinafter. It is to be noted that notice of an application for leave to apply for an
order of mandamus, prohibition or certiorari must be given to the Attorney
General pursuant to Order 53 rule 1(3).
The reason for this requirement is obvious since the grant of leave to apply for
any one of these prerogative orders will invariably have the effect of placing the
public officer or authority who made the impugned decision and the member of
the public who would benefit from the decision so made in a state of uncertainty
as to whether he or it should proceed to implement the administrative decision
while proceedings for judicial review of it are pending even though misconceived.
It is therefore essential that the Attorney General should be given an opportunity
to intervene to remove this uncertainty if there is good ground for him to do so in
the interest of the government in particular and the public in general.
4
Copyright Reserved 2016 Shahrin Nordin

Grounds For Judicial Review


Irrationality (Wednesbury unreasonableness)
See Choo v. Suruhanjaya Sekuriti [2005] 2 CLJ 20 (COA)
By 'irrationality' I mean what can by now be succinctly referred to as
'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v.
Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so
outrageous in its defiance of logic or of accepted moral standards that no sensible
person who had applied his mind to the question to be decided could have arrived
at it.
Associated Provincial Picture Houses Ltd v. Wednesbury Corp [1948] 1 KB 223 (COA)
The court is entitled to investigate the action of the local authority with a view to
seeing whether they have taken into account matters which they ought not to take
into account, or, conversely, have refused to take into account or neglected to take
into account matters which they ought to take into account. Once that question is
answered in favour of the local authority, it may be still possible to say that,
although the local authority have kept within the four corners of the matters which
they ought to consider, they have nevertheless come to a conclusion so
unreasonable that no reasonable authority could ever have come to it. In such a
case, again, I think the court can interfere. The power of the court to interfere in
each case is not as an appellate authority to override a decision of the local
authority, but as a judicial authority which is concerned, and concerned only, to
see whether the local authority have contravened the law by acting in excess of
the powers which Parliament has confided in them.
Procedural impropriety (Natural justice)
Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan & Another Appeal [2002] 4 CLJ
105 (FC)
I described the third head as 'procedural impropriety' rather than failure to
observe basic rules of natural justice or failing to act with procedural fairness
towards the person who will be affected by the decision. This is because
susceptibility to Judicial Review under this head covers also failure by an
administrative tribunal to observe procedural rules that are expressly laid down in
the legislative instrument by which its jurisdiction is conferred, even where such
failure does not involve any denial of natural justice.
Lim Siew Hong v. Contraves Advances Devices Sdn Bhd & Anor [2006] 8 CLJ 274 (HC)

5
Copyright Reserved 2016 Shahrin Nordin

procedural impropriety covering failure:


(a)
to observe basic rules of natural justice;
(b)
to act with procedural fairness;
(c)
to observe procedural rules that are expressly laid down in the legislative
instrument by which its jurisdiction is conferred, even where such failure does not
involve any denial of natural justice;
Mala fide (Illegality)
Mohamad Ezam bin Mohd Noor v Ketua Polis Negara & Other Appeals [2002] 4 MLJ
449 (FC)
An order of detention was mala fide if it was made for a "collateral" or "ulterior"
purpose, that is, a purpose other than what the legislature had in view in passing
the law of preventive detention' (see Basu's Commentary on the Constitution of
India (15th Ed) Vol 2 at p 153). The onus was on the appellants to prove mala fide
on the part of the detaining authority. Where an order of detention was challenged
on the ground of mala fide, what had to be made out were the want of bona fide as
well as the non-application of mind on the part of the detaining authority.
Karpal Singh v. Minister of Home Affairs [1988] 1 MLJ 468
Mala fides does not mean at all a malicious intention. It normally means that a
power is exercised for a collateral or ulterior purpose, for example for a purpose
other than for which it is professed to have been exercised.
Improper purpose (Illegality)
Lee Hay v. Yang Di Pertua Majlis Daerah Hulu Langat & Anor [1998] 5 CLJ 367 (HC)
In Wade & Bradley's book on "Constitutional & Administrative Law" at p. 633 it
is stated:
The exercise of a power for an improper purpose is invalid. Improper
purposes include, but are not restricted to malice or personal dishonesty on
the part of the officials or councillors making the decision; examples of
this kind are rare. Most instances of improper purpose have arisen out of a
mistaken interpretation by a public authority of what is empowered to do
so, sometimes contributed to by an excess of zeal in the public interest.
Thus a city council which was empowered to buy land compulsorily for
the purpose of extending streets or improving the city could not validly
buy land for the purpose of taking advantage of an anticipated increase in
value of the land.

6
Copyright Reserved 2016 Shahrin Nordin

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


It is said that the power of revocation is a discretionary power, and one which
can only lawfully be exercised for the purpose for which it was conferred, and
cannot be exercised for an unlawful purpose. It is said that the exercise here, or
the threatened exercise, of the power is not a lawful exercise of the discretion,
because it is a disguised and, indeed, according to counsel for the plaintiff, not a
very well disguised, threat, as an indirect method of levying money the recovery
of which is unlawful.
Failure to take into account relevant considerations or taking into account
irrelevant considerations (Illegality)
Menteri Sumber Manusia v Association of Bank Officers, Peninsular Malaysia [1999] 2
MLJ 337 (FC)
While the Ministers affidavit did give reasons which focussed on the nature of
the job functions of the relevant officers, they did not extend into the area of
ABOMs legal objections. The reasons were not adequate for, apart from a bare
denial, there was no suggestion in them that the Minister had directed his mind to
the substantial points of Law which had been raised by ABOM or formed any
reasoned view about them.
A mandamus must go directing the Minister to consider the dispute afresh
according to Law, adequate regard being had to all relevant matters both of Fact
and Law to which the Court had referred when considering the decision-making
process under s 9(5) of the Act.
Liew Fook Chuan v Menteri Sumber Manusia & Anor 1995 3 MLJ 740 (HC)
They are principles which the court looks to in considering any question of
discretion of this kind. The exercise of such a discretion must be a real exercise of
the discretion. If, in the statute conferring the discretion, there is to be found
expressly or by implication matters which the authority exercising the discretion
ought to have regard to, then in exercising the discretion, it must have regard to
those matters. Conversely, if the nature of the subject matter and the general
interpretation of the Act makes it clear that certain matters would not be germane
to the matter in question, the authority must disregard those irrelevant collateral
matters.
Non-exercise of discretion (Illegality)

7
Copyright Reserved 2016 Shahrin Nordin

Awang Tengah Ag Amin v. Sabah Public Service Commission & Anor [1998] 2 CLJ 409
(HC)
Now, in order to consider such contentions it is necessary for me to examine the
governing principles of law in those areas as well as the evidence presented in this
action.
In his book entitled Administrative Law of Malaysia and Singapore(3rd edn,)
Professor MP Jain listed the grounds which come under the category of
nonexercise of discretion. However these grounds have one common factor, that
is, non-application of an authority's mind when making its purported decision.
Such situation may arise when an authority:
(i) acted under dictation;
(ii) acted mechanically; or
(iii) fettered its discretion.
The aforementioned category has also been classified to come under the heading
of "illegality" in Lord Diplock's classic restatement of the potential grounds for
challenging decisions pursuant to discretionary power.
Substantive Fairness
Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah dan Pihak Berkuasa Negeri
[1998] 3 MLJ 289 (COA)
The doctrine of substantive fairness requires a public decision-maker to arrive at
a reasonable decision and to ensure that any punishment he imposes is not
disproportionate to the wrongdoing complained of. It follows that if in arriving at
a public law decision, the decision-maker metes out procedural fairness, the
decision may nevertheless be struck down if it is found to be unfair in substance.
Datuk Amar James Wong Kim Min & Anor v. Pendaftar Pertubuhan [2006] 8 CLJ 106
(HC)
The ROS submitted that "substantive fairness" cannot be a ground to challenge
an administrative decision. The case of Pihak Berkuasa Negeri Sabah v. Sugumar
Balakrishnan & Anor Appeal [2002] 4 CLJ 105 FC, was cited to support the
argument, where Mohamed Dzaiddin 'FCJ' (as he then was) said:
We pause to note here that the Court of Appeal seems to introduce the
doctrine of substantive fairness as a separate ground in its review of the
administrative decision of the State Authority under the Act by invoking
art. 8(1) read together with art 5(1) of the Federal Constitution. The Court
also relied on R. Rama Chandran.

8
Copyright Reserved 2016 Shahrin Nordin

In our view, Parliament having excluded judicial review under the Act, it is not
permissible for our courts to intervene and disturb a statutorily unreviewable
decision on the basis of a new amorphous and wide ranging concept of
substantive unfairness as a separate ground of judicial review which even the
English courts in common law have not recognized.
The above authority, clearly support ROS's position and I am in no position to
disagree with the Federal Court's decision

Proportionality
Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 (COA)
The second category comprises of those cases in which the punishment imposed
is found to be disproportionate to the nature of the misconduct found to have been
committed in a given case.
Thus, the requirement of fairness which is the essence of Article 8(1), when read
together with Article 5(1), goes to ensure not only that a fair procedure is adopted
in each case based on its own facts, but also that a fair and just punishment is
imposed according to the facts of a particular case.
Airspace Management Services Sdn Bhd v. Col (B) Harbans Singh Chingar Singh [2000]
4 CLJ 77 (COA)
We agree. In our judgment, the Industrial Court ought to have held that the
punishment of dismissal was wholly disproportionate to the nature and quality of
the alleged wrongdoing on the respondent's part. It is, we think, now too well
established that the dismissal of an employee may be set aside on the ground of
proportionality.
Substantive Legitimate Expectation
Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor Dengan Tanggungan Bhd v
Majlis Perbandaran Pulau Pinang [1996] 2 MLJ 697
The concept of legitimate expectation has not only an impact on procedure but
also a substantive impact. In the circumstances, the Court of Appeal was right
when, touching upon how the legitimate expectation of the Society had a
procedural impact, the court held that the Council should have given advance
notice of its intention to impose the disputed condition because the rules of
natural justice demanded it. As a matter of fairness, reasons should have been
9
Copyright Reserved 2016 Shahrin Nordin

given by the Council as to why it was imposing the disputed condition and thus
resiling from the original approval of planning permission which was free from
any pricing condition.
Dr. Amir Hussein bin Baharuddin v. Universiti Sains Malaysia [1989] 3 MLJ 298 (HC)
The more difficult question was whether it was arguable that the applicant had a
legitimate expectation of being reappointed dean. If so, it would be arguable that
he should have been given the opportunity of making representations.
However, to qualify as an expectation which attracts procedural protection, it
must be 'legitimate'. The closest the courts have come to explaining the idea of
legitimacy is that the expectation must be reasonable. The epithet most frequently
used by the courts as a substitute for 'legitimate' is 'reasonable', although reference
has also been made to 'well founded'.
'Reasonableness' connotes that the expectation must be objectively justified. A
subjective hope is therefore not enough. However, its use has been discouraged
recently by the House of Lords (see Council of Civil Service Unions v. Minister
for the Civil Service [1985] AC 374 per Lord Fraser, Lord Dicplock and Lord
Roskill). The chief reason advanced being that some expectations, although they
might well be entertained by reasonable persons will not necessarily have
consequences to which effect will be given in public law (at pp 408-409 per Lord
Diplock). Furthermore, the possibility that there may be some reasonable
expectations which are not 'legitimate' has emerged with the extension of the
concept of legitimate expectation into areas other than procedural fairness; for
example, standing to bring an application for judicial review.
Now, in the area of employment, the concept of legitimate expectation is elusive
at least where used in relation to the expectation of promotion. Indeed, it has
been held that the decision of a health authority not to appoint to the post of
consultant orthopaedic surgeon a candidate recommended by the advisory
appointment committee was not justiciable at all and so not susceptible of judicial
review (see R v. Trent Regional Health Authority, ex p Jones [1986] The Times, 19
June 342).
More to the point, the reluctance of courts to interfere in all matters concerning
the domestic affairs and internal management of a university stems from their
enthusiasm for the jurisdiction of the university visitor (equivalent in this country
to that of vice-chancellor) in such matters.
Thus, in the present case, the question whether the applicant should have been
reappointed dean following the expiry of his term, by the vice-chancellor pursuant
to the powers conferred by s. 18 of the Constitution was exclusively a domestic
matter involving academic judgment, to be resolved internally. No economic loss,
social stigma, difficulty in securing future employment or dislocation was
10
Copyright Reserved 2016 Shahrin Nordin

involved in the vice-chancellor's decision declining to reappoint the applicant


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

11
Copyright Reserved 2016 Shahrin Nordin

Defending Against Judicial Review


Delay in Filing
Mersing Omnibus Co Sdn Bhd v. Minister of Labour and Manpower & Anor [1983]
[1983] 2 CLJ 7 (FC)
Leave should not have been granted to the appellant to apply for certiorari
without the time prescribed in O. 53 r. 1A and neither sought an extension of time
nor accounted for the delay to the satisfaction of the learned Judge within its
explicit requirements. The learned Judge had no jurisdiction to do so.
Ravindran v. Malaysian Examinations Council [1984] 1 CLJ 320 (Rep); [1984] 1 CLJ
232 (FC)
"The Judge dealt with two aspects of what he thought was the issue before him.
First he dealt with the reason for the delay in applying for an enlargement of time.
Secondly he dealt with the merits of the case if the explanation for the delay was
accepted.
In our view the whole issue is clearly one of jurisdiction. In the event only the
first consideration of the Judge is relevant. Since the Judge rejected the
explanation for the delay it follows that the Court had no jurisdiction to hear the
application for leave for an order of certiorari. Whether the application for an
order of certiorari had merits or not was irrelevant. This principle is implicit in
Mersing Omnibus Co. Sdn. Bhd. v. Minister of Labour and Manpower. There had
been no jurisdiction to hear the application for certiorari because Order 53 Rule
1A of the Rules of the High Court 1980 expressly directs that leave shall not be
granted "unless the application is made within six weeks after the date of the
proceeding".
Decision on Administrative Appeal Is Not A Decision
Arrow Vista Sdn Bhd v. Jawatankuasa Kerja Tanah Wilayah Persekutuan [1999] 7 CLJ
309 (HC)
The second issue deals with the question of whether this application was made
within the period as stipulated under s. 418 of the National Land Code. Section
418(1) states that such appeal must be made at any time within three(3) months
from the date the decision was communicated to the plaintiff. The question is
when was such decision communicated to the plaintiff. As had been mentioned
above the application under s. 124 and s. 200 of the National Land Code was
made by the previous owner of the said land on 28 August 1995. The decision to
reject it was made by the Prime Minister on 27 July 1996 and such decision was
sent by letter to the previous owner of the said land on 25 September 1996.
12
Copyright Reserved 2016 Shahrin Nordin

However no evidence of service of the letter effected to the previous owner of the
said land was produced. Yet on 16 November 1996 the plaintiff in making an
administrative appeal to the Ketua Setiausaha Negara produced a copy of the said
letter of rejection in its appeal application. In my view the production of that letter
showed clearly that the plaintiff as of that date had knowledge of the decision of
the defendant and as such the period of three month should begin from that date.
No amount of denial by the plaintiff including that the letter being addressed to
the previous owner of the said land would help to argue that the plaintiff had no
knowledge of the decision. In fact it was quite legitimate for the defendant to send
the letter to the previous owner of the said land because the original application
under s. 124 and s. 200 of the National Land Code were made by the previous
owner of the said land. And there was no evidence adduced that the previous
owner of the said land or the plaintiff had informed the defendant of the change of
ownership to the defendant. To argue that the change of ownership had been
registered in the register of title and as such the defendant should therefore have
knowledge is devoid of any merit. It was incumbent upon the plaintiff or the
previous owner of the said land to inform the defendant in writing of the change
of ownership in respect of the application under s. 124 and s. 200 of the National
Land Code especially for purposes of communication. Failure to inform the
defendant of the change of ownership gives the defendant the right to make
communication to the previous owner of the said land. In the circumstances I am
fully satisfied that the decision of the defendant dated 25 September 1995 had
been communicated to the plaintiff on or before 16 November 1996. Hence for
purposes of taking any action under s. 418(1) of the National Land Code the
period of three (3) month should commence on 16 November 1996.
But the plaintiff only began this action in court under s. 418 of the National Land
Code on 10 April 1998. It had certainly passed the three months period, by almost
17 months. The plaintiff had therefore failed to comply with the requirement of s.
418(1) of the National Land Code. In its application the plaintiff had never
applied for any extension of time to file this action. As no such application for
extension of time was made by the plaintiff the question of granting any extension
of time does not arise. Hence this application should be struck off for want of
compliance with the provision of s. 418(1) of the National Land Code.
Chiharu Yabe (Zaugg) & Anor v. Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur
[2002] 4 CLJ 231 (HC)
There is, however, another point raised by the senior federal counsel on which, I
think, he must succeed, and that is that the appeal is out of time. According to s.
418, a person aggrieved by a decision may appeal from it "at any time within the
period of three months beginning with the date on which it was communicated to
him". The communication of the Land Executive Committee's decision of 25
August 2000 was received by the appellants' solicitors on 18 September 2000.
The appeal was filed on 23 April 2001, four months beyond the period for
13
Copyright Reserved 2016 Shahrin Nordin

appealing. The appellants' counsel argued that time should be reckoned from 14
February 2001, the date when the appellants' solicitors received a copy of the
letter of the land administrator to the vendor that disposed of the "appeal" as
regards the Land Executive Committee's decision of 25 April 2000.
I have, for the sake of completeness, stated the events leading to that letter and
made observations about the "appeal", particularly as to the involvement of the
vendor in it and as to whether the Land Executive Committee actually met again
to consider the appeal. But all that, as I said, is for the sake of completeness and
none of it needs to be taken into consideration in arriving at my decision on this
point, because I am of opinion that, in any case, time should be reckoned from 18
September 2000, the date when the original decision of the Land Executive
Committee was communicated to the appellants. That, in my opinion, is the
"decision" for the purposes of s. 418.There is in the legal sense no appeal from
that decision except to the court under s. 418 and any subsequent decision of the
Land Executive Committee made, shall I say, upon a plea to reconsider cannot be
recognised as a "decision" for the purposes of s. 418. An aggrieved person might
well wish to attempt to persuade the decision-maker to change his mind and the
decision-maker, as an administrator, might well administratively entertain the
request and not adopt a strictly legal stand and tell the person forthwith that he has
made his decision and if the person is aggrieved by it he should appeal under s.
418, but the person ought, to preserve his right to the legal appeal under that
section, at the same time file his appeal before the expiry of the period for
appealing, if he does not get, or it is not possible to get, a decision in his favour on
the plea for reconsideration before the expiry of the period.
For the reason that it is out of time, I have to dismiss the appeal
Pre-Mature / Absence of Decision
Kaneka Paste Polymers Sdn Bhd v. Director General of Industrial Relations & Ors [2005]
7 MLJ 132 (HC)
To me, for a decision to be subjected to judicial review, it must go beyond what
is merely administrative or procedural. Moreover in this case the process for the
Union recognition is midway before the decision of a Minister under s 9(5). To
entertain the applicants application would hamper the smooth workings of a
claim for recognition as it allows piece meal attacks at every stage of the decision
process. Thus, the process for recognition should be allowed to proceed to enable
the Minister to decide on the matter as provided by s 9(5).
In conclusion, I am of the view that the applicant should wait until the decision of
the Minister under s 9(5). If the Ministers decision is not in the applicants
favour, only then the applicant should make the challenge and in the process

14
Copyright Reserved 2016 Shahrin Nordin

challenge the decision of the DGIR and DGTU on the issue of competency check.
There should only be one challenge and not several challenges.
M & W Zander (M) Sdn Bhd v. Director General Of Inland Revenue [2005] 6 CLJ 336
(HC)
For the reasons above, I agree with learned Senior Federal Counsel that in the
absence of a decision by the Director General, the applicant not only lacks a
sufficient interest or locus standi to make this application, but that its application
is premature in the circumstances.
As to Mr. Lau's submission that the court should not accede to purely technical
objections to defeat the rights of the applicant, I do not agree with this submission
or that this is what the learned Senior Federal Counsel or the court seeks to do in
this case. Far from being a mere technicality, the requirement for there to be a
decision or at the very least a sub-decision of some sort or the lack of it, or of an
existing right or status of some sort which is being denied or threatened, is a
matter that goes to the very foundation or basis of the application for judicial
review under O. 53 and so cannot be considered as a mere technicality.

No Locus Standi
QSR Brands Bhd v Suruhanjaya Sekuriti & Anor [2006] 3 MLJ 164 (COA)
In an ordinary case, if on a reading of the application for leave to issue judicial
review the court is satisfied that the applicant has neither a sufficient personal
interest in the legality of the impugned action in the sense already discussed, nor
is the application a public interest litigation, then leave may safely be refused on
the ground that the applicant is not a person "adversely affected."
Chin Mee Keong & Ors v. Pesuruhjaya Sukan [2007] 5 CLJ 363 (COA)
Further, under O. 53 r. 2(4) of the RHC there is no restriction on the capacity of
the person making an application for judicial review except that he must be
adversely affected by the decision of the public authority who made the decision
under review. The appellants being members of MTA are certainly persons who
are adversely affected by the decision of the respondent and as such they should
be allowed to seek relief from the court.
Non-Exhaustion of Alternative Remedy
Cheah Foong Chiew v. Lembaga Jurutera Malaysia [1999] 3 CLJ 242 (COA)

15
Copyright Reserved 2016 Shahrin Nordin

Apart from the respondent's power to decide on their jurisdiction, under s. 20 of


the said Act, there is an appeal process, where the appellant can appeal to an
Appeal Board chaired by a High Court judge. We are of the view that the
appellant's application to the court, in the circumstances of this case, is
premature.
Govt of Msia & Anor v. Jagdis Singh [1987] CLJ 110 (Rep) (SC)
Certiorari is always at the discretion of the Court. But where there is an appeal
provision available to the applicant, certiorari should not issue unless there is a
clear lack of jurisdiction or blatant failure to perform some statutory duty or
serious breach of principles of natural justice.
Reviewing of decision-making process only
Michael Lee Fook Wah v. Minister of Human Resources Malaysia & Anor [1998] 1 CLJ
227 (COA)
In hearing an application for an order of certiorari, the High Court sits not in its
appellate jurisdiction but in its supervisory jurisdiction. The court is, thus,
concerned with the decision-making process and not with the decision itself. It
should not readily question the administrative decision of a Minister as that is his
absolute discretion. The courts will interfere only if the Minister has acted ultra
vires, unfairly or unjustly in the exercise of his discretion.
Harpers Trading (M) Sdn. Bhd. v. National Union of Commercial Workers [1991] 1 CLJ
159 (Rep) (SC)
Orders of certiorari and prohibition are concerned principally with public order,
it being part of the duty of the High Court to see that inferior Courts confine
themselves to their own limited sphere. They also afford speedy and effective
remedy to a person aggrieved by a clear excess of jurisdiction by an inferior
tribunal. But they are not designed to raise issues of fact for the High Court to
determine de novo. Accordingly, it has never been the practice to put the party
who asserts that the inferior Court has jurisdiction to proof of the facts upon
which he relies. It is recognized that the inferior Court will have made a
preliminary inquiry itself and the superior Court is generally content to act upon
the materials disclosed at that inquiry and to review in the light of them the
decision to assume jurisdiction. This is possible only because the Court is not, as I
conceive it, finally determining the validity of the tribunal's order as between the
parties themselves (except, perhaps, in a case such as Symons v. Rees [1876] 1 Ex.
D. 416, where the Court investigated for itself the facts and pronounced upon
them), but is merely deciding whether there has been a plain excess of jurisdiction
or not. Where the question of jurisdiction turns solely on a disputed point of law,
it is obviously convenient that the Court should determine it then and there. But
16
Copyright Reserved 2016 Shahrin Nordin

where the dispute turns on a question of fact, about which there is a conflict of
evidence, the Court will generally decline to interfere.
Non-Reviewability of Criminal Investigative Process
City Growth Sdn Bhd & Anor v. The Govt of Msia [2005] 7 CLJ 422 (HC)
It has been said before that not all decisions and action of a public officer is
reviewable by the court. In R v. Sloan [1990] 1 NZLR 474, Justice Hardie Boys
said:
... it is not every decision made under statutory authority that is subject to
judicial review. A decision must go beyond what is merely administrative
or procedural ... or the exercise of a function rather than a power ... Quite
plainly, the conclusions reached by the inspector here are of this kind and
so are not reviewable. To hold otherwise would, as Mr Neave submitted,
open up the investigation process of all law enforcement agencies to
constant judicial review; and that cannot have been the intention of
Parliament.
Ahmad Azam bin Mohamed Salleh & Ors v. Jabatan Pembangunan Koperasi Malaysia &
Ors [2004] 4 MLJ 86 (HC)
The content of the letter issued on 6 December by the second respondent to the
third respondent pursuant to s 67 of the Cooperative Societies Act 1993 (the
Act) was not reviewable under O 53 RHC because the first respondent conducted
the inspection on the third respondent on the direction of the second respondent
which was merely exercising a function under s 64 of the Act. To hold such
process of inspection reviewable would open up the investigation process of all
enforcement agencies to constant judicial review.
Empayar Canggih Sdn Bhd v Ketua Pengarah Bahagian Penguatkuasa Kementerian
Perdagangan Dalam Negeri Dan Hal Ehwal Pengguna Malaysia &1 Lagi (Civil Appeal
No. 01(F)-21-09/2012(W))(Unreported)(FC)
Similarly in the present appeal, the seizure was made in the course of a criminal
investigation of an offence under Act 606 pursuant to the powers conferred under
the Act. Such seizure clearly is not amenable to judicial review. The Appellant
was not without redress. It could have filed a private law writ action for damages.
Indeed, section 48 of Act 606 provides for a cause of action for recovery of
damages if a seizure is made without reasonable cause.
Our answer to the first leave question as modified by us therefore is that, a
challenge to the exercise or a purported exercise of the power to seize the
machinery and equipment in this case should be made by way of an ordinary
17
Copyright Reserved 2016 Shahrin Nordin

private law action for damages. This would be sufficient to dispose of the present
appeal. There is no necessity for us to answer the rest of the leave questions.
Non-Reviewability of Policy Matter
Dr Michael Jeyakumar Devaraj v. Peguam Negara Malaysia [2013] 2 CLJ 1009 (FC)
(1) The Executive's discretion, whether by statute or prerogative is amenable to
judicial review. However, whether such discretion is amenable to judicial review
is dependent on the facts of each case. Further, courts must be wary of unduly
extending its judicial arms to policy matters which were exclusively within the
domain of the Executive. Unwarranted usurpation and transgression by the
Judiciary into the realm of the Executive and vice versa would bring about
disrepute to our system of government which upholds the separation of powers
between the three main components, vis-à-vis, the Executive, the
Legislature and the Judiciary. (paras 16 & 20)
(2) On the facts, the disbursement of the Special Constituency Allocation was a
policy matter which was not within the purview of the courts. The court was in no
position to evaluate the qualifications in the application for the Special
Constituency Allocation and to determine or decide on the policy made by the
Executive. This court took cognizance of the fact that government policies
emanate after consideration of a number of technical factors which were often
non-legal, and judges do not possess the necessary information and expertise to
evaluate these non-legal factors and to pass judgment on the appropriateness or
adequacy of a particular policy. (para 18)
(3) The second respondent had clearly explained as to why he decided the way he
did with regard to the distribution of the Special Constituency Allocation for the
Sungai Siput constituency. Clearly, what was decided by the second respondent
hinged on matters which related to policy and thus, the court dissuaded itself from
entering into the realm which belonged to the Executive. Further, the supporting
documents exhibited by the appellant clearly showed that the appellant had no
arguable case. (paras 20 & 23)
(4) The decision or exercise of discretion sought to be reviewed under judicial
review based on policy consideration or management prerogative may be
determined at the leave stage itself. It was not a requirement that the court must
only decide on the issue after hearing all the evidence at the substantive motion
for judicial review. Further, the justiciability of such decision is dependent on the
particular facts of the case. On the facts herein, the issues raised in the notice of
motion for leave were not judicially reviewable and hence, not justifiable. (paras
24 & 25).

18
Copyright Reserved 2016 Shahrin Nordin

No Prejudice
Mamat Talib (Timbalan Ketua Polis, Johor) & Anor v. Abdul Jalil Rashid [2005] 4 CLJ
892 (COA)
It was true that reg. 6(2)(c) and (6) of the Regulations was not complied with.
However, the non-compliance had occasioned no prejudice to the plaintiff. A
reasonable tribunal armed with the facts available would have come to the same
conclusion as the deciding authority in this case. Applying the 'consequences test'
formulated by Lord Woolf MR in R v. Immigration Tribunal, ex p Jeyeanthan, the
breach of reg. 6 had produced no adverse consequence for the plaintiff. It was not
enough that the rule of procedure had been breached. The breach must produce
consequences adverse to the party complaining of the breach. That requirement
was, on the facts, plainly absent.
Hoh Kiang Ngan v Mahkamah Perusahaan Malaysia [1995] 3 MLJ 369 (FC)
Suffice to say that in the circumstances of this case, the ultimate decision being
correct, no injustice of any sort, whether substantial or inconsequential, has been
occasioned because of the alleged wrong reasons.
Non-Existence/Non-Pleading of Special Circumstances
Nasioncom Holdings Bhd v. Suruhanjaya Sekuriti [2008] 7 CLJ 355 (HC)
It is trite that the grant of leave in judicial review proceedings is an exercise of
the courts discretion and consequently pursuant to O. 53 r. 3(5) of the RHC
which states, The grant of leave under this rule shall not, unless the judge so
directs, operate as a stay of the proceedings in question is likewise discretionary.
As to the proper exercise of this discretion, the court would need to consider
whether there are special circumstances which warrant a stay of the proceedings.
Not Suing the Proper Decision-Making Authority
Nik Ariff Nik Abd Ghani v. Ketua Jabatan Perlesenan Majlis Perbandaran Kota Bharu &
Anor [2002] 1 LNS 25 (HC)
Regardless of the crystal clear protection bestowed on the above-mentioned
personalities, the question that begs to be considered here is whether the vague
entity of Ketua Jabatan Pelesenan Majlis Perbandaran, Kota Bharu, may qualify
as a local authority, and be brought in as a party by the plaintiff. The answer
clearly is in the negative. A connected provision that promptly leaps to mind,
bearing in mind the impugn problem relates to the issuance of a license, is section
107. On a perusal, it is notable that the terminology adverted to by Parliament in
19
Copyright Reserved 2016 Shahrin Nordin

this provision is indisputably local authority, ie, the Municipal Council of Kota
Bharu for the current case and nothing else.
Bearing in mind that the position of Ketua Jabatan Pelesenan is an unknown
entity under the Act, let alone under section 125 the statutory office bearers,
officers and employees are statutorily protected from any personal action, and
universally known that the culprit that refused the license was the local authority
(Municipal Council), the plaintiff thus was on shaky ground when the first
defendant was brought in as a party. The action against the latter therefore was an
abuse of the process of the Court. The action would have been on solid ground if
the entity of Ketua Jabatan Pelesenan had been dropped, leaving behind merely
Majlis Perbandaran Kota Bharu, as the first defendant.
To add to the predicament of the plaintiff, it is interesting to note that even though
the duty of issuing the license is on the local authority, that very body was not
even brought in as party. The second defendant, which is not even the employer of
the first defendant was instead co-opted into the proceedings. One must bear in
mind that the Majlis Perbandaran Kota Bharu and the State Government are two
totally different entities, with the latter not even involved in the direct
administrative rejection of the impugned licence application.
Non-Reviewability of Non-Decision
Ahli-Ahli Suruhanjaya Yang Membentuk Suruhanjaya Siasatan Mengenai Rakaman Klip
Video Yang Mengandungi Imej Seorang Yang Dikatakan Peguambela Dan Peguamcara
Berbual Melalui Telefon Mengenai Urusan Pelantikan Hakim-Hakim v. Tun Dato'' Seri
Ahmad Fairuz Dato'' Sheikh Abdul Halim & Other Appeals [2012] 1 CLJ 805 (FC)
(1a) Although the Commission had made strong findings that there was
'sufficient cause to invoke the Sedition Act 1972 and the Penal Code against
various individuals mentioned in the video clip' which implicate the respondents,
such findings remain mere findings. The Commission's findings had not affected
their legal rights and were therefore not amenable to judicial review. The
Commission merely investigates and does not decide. Thus, the findings and
recommendations of the Commission did not come within the ambit of O. 53
RHC and were not legal decisions that affected the rights of the respondents as
envisaged under O. 53 r. 2(4) RHC. (paras 28 & 29)
(2) The findings of any Commission established under Act 119 should not be
subjected to judicial review. If the proceedings of the Commission are allowed to
be challenged either at the outset or during its continuance by prohibition or at its
conclusion by certiorari, its purpose will come to naught. It will make the settingup of the Commission a meaningless exercise. Hence, it was against public policy
to subject the findings and recommendations of the Commission to judicial
review. Herein, the video clip circulation on the internet had sparked furious
20
Copyright Reserved 2016 Shahrin Nordin

debate questioning the independence of the judiciary. The image of the judiciary
was being ridiculed. Obviously it was not in the best interest of the judiciary and
the nation as a whole to allow such debate and bad perception to continue without
the public knowing the truth of the matter. It was for that purpose the Commission
comprising eminent persons of high standing, was set up to conduct a factual
investigation on behalf of the Government and to make the necessary
recommendations for the betterment of the judiciary. Now the Commission had
come out with its findings, it did not make any sense if such findings were
allowed to be reviewed by the courts. (paras 44 & 45)
Purely Commercial Dealing
Majlis Perbandaran Subang Jaya v. Laguna De Bay Sdn Bhd [2015] 1 CLJ 357 (CoA)
The public function of local authorities and its function as a body corporate
(legal entity) must be distinguished. The function of a body corporate is not
synonymous with the function of local authorities. The respondent's argument that
there is no single express provision allowing the appellant to enter into the
business of renting TOLs to billboard operators cannot be correct. Being a
separate legal entity, they can enter into commercial contracts but it will be
subject to the control of the State Government and/or State Authority itself and
the policy of the day. If such policy consideration relates to private contracting
parties as opposed to public then as a general rule it will not be amenable to
judicial review.
It is well established that judicial review of administrative actions is permissible
on the ground of illegality or irrationality or procedural impropriety. [See Chong
Chung Moi @ Christine Chong v The Government of State of Sabah & ors [2007]
5 MLJ 441]. Commercial contracts will not fall under the jurisprudence of judicial
review.
Mandamus for Legal Public Duty Not Discretion
Ketua Polis Negara v. Indira Gandhi Mutho [2015] 1 CLJ 443 (CoA)
It is trite law that an order of mandamus is issued whenever there is a public
duty imposed in law on a person or body and the purpose of the order was to
compel that person or body to carry out the duty required by law to be performed
by him or by it. An order of mandamus will be issued to enforce a public duty at
law for public good generally. However, an order of mandamus being a
discretionary order should not be readily issued when the parties, in enforcing
private rights, has a remedy available to it.

21
Copyright Reserved 2016 Shahrin Nordin

Matter Has Become Academic


Wong Sang Giap v. Wong Keng Giap [1999] 2 CLJ 618 (HC)
The law is clear that the power of the court to make a binding declaration is
discretionary and the court will not make a declaratory judgment where the
question raised is purely academic or the declaration will be useless or
embarrassing or where an adequate alternative remedy is available.
Lee Kok Wai & Anor v. Securities Commission Malaysia [2015] 4 CLJ 260 (HC)
Likewise, the current application before me was also academic as by the time
the issues were ventilated before me there was nothing to be reviewed. The notice
to show cause had required the first applicant to provide an explanation to the
AOB pertaining to the matters raised in the said notice to show cause. The first
applicant had in fact submitted his explanation on 3 October 2014 in response to
the notice to show cause. In view of the aforesaid there was nothing further
relating to the show cause to be reviewed. Hence, this application would fall on
the ground that the relief sought had become academic.
Non-Reviewability of Disciplinary Punishment
Ng Hock Chen v. Pengarah Am Penjara & Ors [1998] 1 CLJ 405 (FC)
Consequently, both the High Court and the Court of Appeal, after having upheld
the 2nd respondent's finding of misconduct against the appellant, were right in
refusing to judicially review or otherwise interfere with the order of dismissal
meted out by the 2nd respondent.
The disciplinary tribunal of a professional body is the best judge of the
seriousness of the misconduct of its members; it would require an exceptional
case to enable a court to interfere with its decision in respect of punishment.
Likewise, an employer, including a government, is the best person to judge the
seriousness of the misconduct of its employees.

22
Copyright Reserved 2016 Shahrin Nordin