JUDICIAL REVIEW

INTRODUCTION• Judicial review is the backbone of

administrative law, the judicial weapon available to an aggrieved individual to challenge the validity of the decision-making process of public authorities.

• The aim is not to allow those authorities to act outside their true legal limit.

• General definition: judicial review is a process by which the courts exercise their supervisory jurisdiction to see that public authorities do not act outside the remit of their powers.

Definition by Halsbury’s Laws of Malaysia: Judicial review is the process by which the high

court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties.

The nature of judicial function under the judicial review jurisdiction: the court is there to determine whether the law is being obeyed or not, and it is thus not a judicial function to substitute the decision of the relevant decision-making authority with its own.

INTENSITY OF REVIEWHalsbury’s Laws of Malaysia explains the

relevance of the expression “intensity of review” in the following manner;

‘The intensity of scrutiny will vary according to the statutory context.

Where interests in life, liberty or private property are liable to be directly affected by the exercise of a discretionary power, the court will examine the decision-makers’ actions more rigorously than where such interests are not directly affected by the action or where there is a large policy element in the exercise of a discretion.

Nevertheless, different considerations may apply in respect of administrative decisions by authorities or persons who are charged with the performance of public acts or duties. Scrutiny of administrative action may be less intense where the statutory powers are required to be exercised in emergencies, or where they are subject to political controls.

A review may be refused in cases where the executive had exclusive information, and substitution of views may be inappropriate on account of public policy, national interest, public safety or national security’.

JUDICIAL REVIEW & APPEALDistinction between appeal & review; Hotel Equatorial (M) Sdn Bhd v National Union of

Hotel, Bar & Restaurant Workers and Industrial Court of M’sia

FC explained that under judicial review, ‘the high court, it must be observed, has no jurisdiction to consider the merits of the case, its only function is to consider whether the inferior tribunal has performed its duties according to law. A clear distinction must be maintained between want of jurisdiction and the manner of its exercise, otherwise review for jurisdictional error will be equivalent to review on merit’.

1. Judicial review: The discretion is conferred by written law on the executive, and it is not part of the court’s function to replace decisions of executive agencies with its own. 2. Appeal: The right to appeal is dependent on statutory provision. Provisions may have been made so as to require the court with which the appellate jurisdiction has been conferred to conduct a rehearing and to empower it to substitute its decision for the decision of the authority against which the appeal had been lodged.

APPLICATION FOR JUDICIAL REVIEWApplication for judicial review is

provided under Order 53 of the Rules of the High Court 1980.

By means of this procedure, the court may grant the prerogative remedies of certiorari, prohibition and mandamus. Damages may also be awarded in certain prescribed circumstances.

GROUNDS FOR JUDICIAL REVIEW1. The authority had used the power for improper purpose2. The authority had failed to take into account a relevant factor, or had taken into account an irrelevant factor3. The authority had exercised the power unreasonably, irrationally or perversely4. The authority had failed to comply with procedural requirements imposed under the applicable written law5. The authority had failed to comply with principles of procedural fairness

6. The authority had committed jurisdictional error7. The authority had fettered its discretion8. The authority had unlawfully delegated its decision-making power9. The authority had reached a decision on no evidence.

AUTHORITIES SUBJECT TO JUDICIAL REVIEW• What is ‘public authorities’?1. Source of power is written law: The

decisions and determination of public authorities are subject to judicial review if the source of the decision-making power are constitutional or legislative provisions.

2. Source of power is not written law: Where the source of power is not written law, review will still be available if the authority in question exercises functions of a public nature

The test: ‘A ‘public element’ suggests a governmental or quasi-governmental element, though extending to indirect governmental connection..’

R v Disciplinary Committee of The Jockey Club, ex p Aga Khan

Fact: the jockey club decided to disqualify a horse from racing after it failed a dope test.

Held: that decision was a matter of private law and thus not susceptible to judicial review.

• OSK & Partners Sdn Bhd v Tengku Noone Aziz & anor

Q: whether the Kuala Lumpur Stock Exchange are subject to judicial review.

Abdool Cader J ,’ the KLSE is a hybrid corporation – a company incorporated under the Companies Act but recognised and regulated by legislation and subject to its governance and authority with therefore an element of public flavour superimposed on the contractual element in relation to its members. It is statutory regulated entity under the overall direction and control of the minister in fundamental respects, thus manifesting a distinctive public element…’

• Tang Kwor Ham v Pengurusan Danaharta Nasional Berhad

Q: the position of several entities created by the Pengurusan Danaharta Nasional Berhad Act 1998.

Fact: Pengurusan Danaharta Nasional Berhad was incorporated under the Companies Act 1965. it is a company limited by shares, all of which are held by the minister of finance and is publicly funded.

HC: Danaharta was not a ‘public authority’ under O53 r2(4) of the Rules of the High Court as one look at the source rather than the character of the power. Danaharta was essentially a private entity falling under the field of private law and did not have the character of public law, and thus should not subject to judicial review.

COA: even if the public body is subject to judicial review, the matter decided by it may not be suitable for judicial review.

In relation to GLC, Gopal Sri Ram JCA observed that 3 types of them;

1. Companies incorported under companies act 1965 which perform purely private function and in which the federal/state government or both own substantial shares (eg. MAS) – not amenable to judicial review

2. Publicly owned service providers (eg. TNB), that was corporatised under the privatisation schemes – hybrids & regulated by Acts of parliament: amenable to judicial review depends on the nature and character of the act complained of.

3. Companies owned by the government as the sole shareholder, which are funded entirely with public money and have either statutory powers or duties conferred upon them – amenable to judicial review.Held: Danaharta Nasional fell under the 3rd type of companies & was therefore subject to judicial review.