Judicial review (JR) is a specific procedure to challenge government decisions, actions or policies. It is an important legal tool and one that citizens should understand and appreciate. This Citizen’s Guide to Judicial Review is written to provide the minimum a citizen needs to know about it to be effective.
In Part One of this Guide, in explaining this legal tool, three questions will be considered:
First, What is a public authority? This question is important because JRs are generally directed at public authorities only, not private citizens or companies. It is vital to know what a public authority is.
Second, What is JR? In answering this question, the purpose of JR will be explained.
Third, What are JR’s sources of law? It is important to know what the legal basis for JR is when challenged.
What is a public authority?
A public authority is basically any government authority. It includes government departments, positions or organisation created by law. A public authority always derives its authority from law, such as an Act of Parliament, State Legislature Enactment, or secondary legislation. A public authority cannot exist without an enabling law, and all public authorities’ powers and processes are limited by law.
Laws must be made known to the public by publishing them in a gazette by Percetakan Negara Malaysia Berhad (PNMB), the Government Printer. A gazette is an official publication of Government notices. Enforcing a law not made known to the general public against a person is unjust. Laws, therefore, generally come into force after they are gazetted. After that, everyone is presumed to know them.
No public authority has unlimited powers or is immune from accountability —in theory, that is. The classic Raja Azlan Shah statement about this, which is essential reading for each citizen, is as follows:
Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene. The courts are the only defence of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizen: so that the courts can see that these great powers and influence are exercised in accordance with law. I would once again emphasise what has often been said before, that ‘public bodies must be compelled to observe the law and it is essential that bureaucracy should be kept in its place’, (per Danckwerts L.J. in Bradbury v. London Borough of Enfield [1967] 3 All ER 434 442.)
Pengarah Tanah dan Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135, per Raja Azlan Shah AG (CJ Malaya)
Since public authorities are restrained by law, there will always be occasions when they stray beyond it. For this reason it is also always important for the courts to remember its role: to defend a citizen’s liberty and rights against government aggression and senseless bureaucracy, not to justify it.
Many of the actions, decisions and rules imposed by little Napoleans, i.e. whimsical, unreasonable government or local authority officers, when measured against the law, are often found to go beyond their boundaries. An example is the unreasonable dress code imposed on the public, especially women, in government departments. More examples will be discussed in the Part Two of this Guide.
To sum up on this Public authorites are government organisations or positions. Public authorities must carry out their duties according to the law.
So, what happens when they don’t?
What is Judicial Review?
JR is a specific procedure for challenging a public authority’s decision, policy, or action. The affected citizen or organisation would file a JR application in the High Court and cite the relevant public authority. A JR is essentially a request to the High Court to review the acts and decisions of public authorities and to have them set aside, corrected, or their authority questioned.
JR is essential because it keeps public authorities, i.e. the Executive, in check. In that way, JR is fundamental to maintaining law and order. It provides balance to the three organs of government. Or so the theory goes. If the judiciary (judicial branch) does not keep the executive branch in check, the law created by the legislature (law-making branch) becomes worthless. It is pointless to enact laws that are not obeyed. A judiciary reluctant to judicial review public authorities emboldens a reckless executive and mocks the laws of a legislature.
The passage below summarizes the importance of JR.
Judicial review is a core tenet of the rule of law which is inextricably linked to the notion of constitutional supremacy in a democratic form of Government. This was because a core feature of the rule of law is the doctrine of separation of powers, a corollary to which is the concept of check and balance. Judicial review – whether constitutional review or statutory review – is a fundamental aspect of check and balance and is the vehicle through which the judicial branch of Government can perform its constitutional function vis-à-vis the other branches of Government. The judicial power of the Federation which includes judicial review (constitutional and statutory) is vested by constitutional design solely in the two High Courts.
SIS Forum (Malaysia) v Kerajaan Negeri Selangor; Majlis Agama Islam Selangor (Intervener) [2022] 3 CLJ 339, per Tengku Maimun Tuan Mat CJ
What are the legal sources of the Judicial Review?
There are four sources.
The passage above mentions two types of JRs: constitutional (CJR) and statutory (SJR).
CJR is the process that allows for challenges against the validity of the law itself—an Act of Parliament, State Enactment, or a provision in them —because it is inconsistent with the Federal Constitution (FC), Malaysia’s supreme law. It is a challenge against legislated law. This is how the judiciary ensures parliament passes laws that comply with the Federal Constitution.
The source of CJR is the FC, specifically Article 4(1) FC. This is the first legal source. This Article declares the FC as the Supreme Law of Malaysia. Any laws passed after Merdeka that are inconsistent with the FC are void. FC is, therefore, the grundnorm. All laws by Parliament and State Legislatures must be consistent with the Federal Constitution. If they are not, they are void. It is the ultimate law by which all other laws are ‘established and annulled, receive or lose their validity.’
Another important implication of Article 4(1) FC is that the power to confirm a law’s constitutional validity naturally encompasses the power to review executive action. A successful challenge to the validity of a law would invalidate the decisions, powers, or actions taken under it.
This essay will say nothing more about CJR because it is deserves to be addressed on its own.
SJR is the process that allows for challenges against acts and decisions made according to law—be it an Act of Parliament or State Enactment. Here, we are not challenging the law but the actions and decisions taken under it. This is how the judiciary ensures the executive complies with the law in actions and decision-making.
Statutory judicial review, as opposed to constitutional judicial review, is also labelled “statutory judicial review” because the specified powers to afford redress, …. Are substantively in statutory law, foremost of which is section 25(2) of the CJA 1964 read with para 1 of the Schedule and regulated procedurally by o. 53 of the Rules of Court 2012.
SIS Forum (Malaysia) v Kerajaan Negeri Selangor; Majlis Agama Islam Selangor (Intervener) [2022] 3 CLJ 339, per Tengku Maimun Tuan Mat CJ
So, the legal source of SJR is section 25(2) CJA64, which is read with para 1 of the Schedule. This is the second legal source.
The quote also mentions Order 53 Rules of Court 2012 (RC12), the third legal source. That provision sets out the procedure for SJR applications.
Briefly, the process is as follows:
First, we must apply for leave for JR within three months of the decision or action: see Order 53 r 3(6) RC2012. If we are late, the court may extend the time if there is a good reason: see Order 53 r 3(7) RC2012. However, if no time extension is obtained, the court has no jurisdiction to entertain JR on the merits: see Mersing Omnibus Co Sdn Bhd v Minister of Labour & Manpower & Anor [1983] 2 MLJ 54. A time extension is unnecessary for a ‘rolling judicial review’: see Ban Yin How v Lembaga Pencegahan Jenayah & Ors [2022] 1 LNS 150, HC, Wan Ahmad Farid Wan Salleh J. A rolling JR is where the ‘public authorities have ongoing functions, where open-minded re-evaluation and reconsideration are a reality and a virtue.’
Second, we must satisfy the leave test, i.e., the court’s permission. The threshold for leave for JR is low. So long as a person can show they are genuinely interested in the matter and the complaint is not frivolous, the court will give leave/permission to hear the JR. Only after that will the court consider the JR complaint.
Third, the court will hear the JR application once we pass the leave threshold stage. However, before doing so, it will allow the Respondents and Applicants to exchange affidavits (sworn statements) explaining their respective factual and legal positions. Once completed, the parties will submit their legal arguments to the court for its decision. A JR application should not ordinarily take more than two years. It should be far quicker, but we understand the courts are overloaded.
The last source of JR, but no less critical, is decided case law. The domestic and Commonwealth courts have worked out and articulated the scope and function of JR for hundreds of years worth of cumulative consideration. Decided case law is vital for putting the meat to the bones of the Constitutional and statutory provisions relating to JR.
To sum up, there are four important sources of JR.
1. Article 4(1) of the Federal Constitution
2. Section 25(2) and the Schedule of the Courts of Judicature Act 1964
3. Order 53 of the Rules of Court 2012
4. Decided Case Law.
In Part Two of this Guide, we will consider the grounds for SJR, which will be far more interesting. Part One is essential to establish an overview to JR before descending into its substance. In the next part, I hope to provide tools to help citizens probe and evaluate whether a public authority has acted within the law.
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