In Part One of this Guide, we discussed what a public authority is, i.e., a government or state authority, a statutory tribunal, or any authority, and that Judicial Review (JR) is a procedure to challenge public authority decisions, actions, or policies (DAPs).

In this Part, we consider the accepted legal reasons for challenging the validity of public authority DAPs. There are 4 of them: illegality, procedural impropriety, irrationality, disporportionality. What will be discussed here is JR under statutory judicial review (SJR). I will use JR to refer to judicial review, not SJR.

When considering a public authority DAPs, we should consider them within the matrix of these four legal reasons. Each legal reason will be considered separately but following the sequence I mentioned earlier. The initial question that should prompt further queries is will also be suggested to facilitate and to provide structure in our consideration of public authority DAPs.

Once I have introduced them, I will explain why the 4 legal reasons should be used in that sequence when considering public authority DAPs.

(1) Illegality

The first ground a public authority DAP can be challenged on is its illegality. Another popular description for this challenge is Ultra vires, which is Latin for exercising legal authority without a legal basis. Illegality = Ultra vires.

It must be understood that a public authority cannot exist without an enabling law. There must be a law that establishes (i) the public authority and its purpose, (ii) the powers it can exercise in carrying out its purpose, and (iii) who is responsible for the public authority and those managing its affairs. If there isn’t one, that purported public authority is illegal. For example, the Employees Provident Fund (EPF) cannot exist without the Employees Provident Fund Act 1991.

There are two dimensions to the challenge of illegality.

The first is whether there is a law establishing the public authority. Ini ada undang-undang ke? Is there a law for this? If no law establishes the asserted public authority, their existence is illegal.

If there is a law, the second dimension is determining that the public authority acted within the limits of its purpose and power. All public authorities are limited in their power. It is important to ensure they do not stray beyond it. For example, a policeman cannot exercise the powers of a fireman or simply arrest who they like without reasonable suspicion (I am talking theory, of course). If they do, their actions can be set aside or corrected.

The courts have held that ‘the decision maker must understand correctly the law regulating his decision-making power and give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.’

In the Federal Court decision of Rokiah Mohd Noor v Menteri Perdagangan Dalam Negeri Koperasi & Kepenggunaan Malaysia & Ors [2018] 5 CLJ 162, the court held the Minister of Domestic Trade, Cooperative and Consumerism acted beyond his power under the Companies Commission Act 2001 when he dismissed the appellant from her employment with the Companies Commission of Malaysia. The court found no legislation giving the Minister power to dismiss the appellant. He could only accept or reject the recommendation of the Disciplinary Committee. The Minister’s decision was declared to be void and set aside.

It held that “the Second Respondent [CCM] was the appointing and therefore the dismissing authority. Pursuant to s. 6 and reg. 39 of Act 605, the power of dismissal was delegated to the DC. Only the DC could dismiss the appellant. The Minister was empowered to accept or turn down the recommendation of the DC to appoint or revoke the appointment of the appellant as the Deputy CEO. The Minister had no actual or delegated power to dismiss the appellant. The DC found the appellant guilty and made the recommendation to the Minister to revoke the appointment of the appellant as the Deputy CEO and to dismiss the appellant, which the Minister accepted. In the absence of such power to execute the will of the DC with respect to dismissal, the appellant’s dismissal by the Minister was void.” [Emphasis mine]

The illegality of a public authority DAP can be probed with these two questions:

1. Where is the statutory/enactment provision that allows the public authority to decide, act or enact policy?
2. If there is such a provision, is the decision, act or policy within the parameters of that provision?

(2) Procedural Impropriety

The second ground to challenge a public authority DAP is procedural impropriety. Again, there are two dimensions to this.

Firstly, sometimes, the law will require something to be done in a particular way. When the law sets says a public authority has to act according to a specific procedure, their failure to do so will render their DAP procedurally improper. For example, the law says that to do X, you must carry out A, B, C, and D in that order. We do X, but in the sequence of D, A, B, and C, which is considered procedurally improper and vulnerable to being set aside.

A case to illustrate this can be found in the Federal Court case of Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & Ors and Other Appeal [2018] 3 CLJ 145, the husband of Indira Gandhi converted to Islam then converted their three children before the Register of Muallafs. She succeeded in her JR to quash the conversion certificates on the grounds of procedural impropriety, i.e., the Jabatan Agama Islam Perak failed to comply with sections 96 and 106(b) of the Administration of the Religion of Islam (Perak) Enactment 2004 when he converted the children. The court held as follows:

“(9) The appellant’s children did not utter the two clauses of the affirmation of faith and were not present before the Registrar of Muallafs before the certificate of conversion was issued. The requirement in s. 96(1) had not been fulfilled. The issuance of the certificates despite the non-fulfilment of the mandatory statutory requirement was an act which the Registrar had no power to do under the Enactment. In so doing, the Registrar had misconstrued the limits of his power and acted beyond its scope. The lack of jurisdiction by the Registrar rendered the certificates issued a nullity….” [Emphasis mine]

Secondly, the law promotes fairness and reasonableness. Natural justice is always required for any legal procedure or process. Regardless of whether there are rules for them, all procedural processes must promote (i) the rule against bias (Nemo Judex in Sua Cause | No person shall be a judge in his cause) and (ii) a right to a fair hearing (Audi Alteram Partem | Hear the other side). These are fundamental to ensuring that the public authority behaves fairly.

Procedural impropriety can be probed with these questions:

1. What is the procedure laid down for this administrative decision or act to happen?
2. Was it complied with?

(3) Irrationality

Irrationality is about lacking common sense and logic in a public authority’s DAP. If an act or decision is incomprehensible, absurd, perverse or plain mad, that falls under irrationality. If it makes you wonder, how ah? There is a high likelihood the DAP is irrational (unless it is you that is irrational). This ground shows that all public authority DAPS are expected to be rational and sensible. If not, the act or decision can be set aside for irrationality.

The courts have said irrationality as ‘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. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system.’

There are two kinds of irrationality. The first is comprehensive unreasonableness. The second is ‘intrinsic’ unreasonableness.

Comprehensive unreasonableness was best articulated in the landmark decision of Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223. Lord Greene, in that case, described irrationality in these terms:

“For instance, a person entrusted with discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’.”

Comprehensive unreasonableness concerns how the decision maker arrived at its DAP. Given the facts and the applicable law, they must decide rationally and sensibly. If they consider irrelevant matters and decide against clear laws, the decision is vulnerable to being set aside on grounds of irrationality.

Intrinsic unreasonableness relates to the perversity or absurdity of the decision itself. The decision maker may be reasonable in its decision-making process but ‘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.’

There are many nuances to this ground of challenge. I will limit myself to two instances to illustrate how irrationality operates as I have described it.

Comprehensive unreasonableness. In the High Court decision of Nestle Products Sdn Bhd v Mahkamah Perusahaan Malaysia [2013] 8 CLJ 586, Justice Zakaria Sam quashed the Industrial Court award after finding that it was irrational for being comprehensively unreasonable. His Lordship held:

“(4) The Industrial Court had arrived at erroneous findings or acted on evidence which had no probative value and had not relied on material documents and evidence adduced before it. It had committed several errors of fact and law which warranted interference. It had failed, inter alia, to apply the correct principles of industrial law and jurisprudence, had applied the wrong tests and had taken into account irrelevant considerations. Hence, the award of the Industrial Court was irrational in the Wednesbury ‘s sense.” [Emphasis mine]

Intrinsic unreasonableness. In the High Court decision of Projek Lebuhraya Usahasama Bhd v Majlis Perbandaran Subang Jaya [2016] 9 CLJ 238, it was held that the local authority acted unreasonably and contrary to common sense when it considered each toll booth at a toll plaza to be a separate and independent business to issue a business licence to operate. Justice Asmabi Mohamad held:

“The entire toll plaza fell under the purview of the applicant, trading as one single entity. Therefore, it would be absurd to suggest that the applicant had to apply for several licences to operate the toll plaza. The respondent had no jurisdiction to encroach into the jurisdiction of the appellant and to compel the applicant to apply for licence.” [Emphasis mine]

Irrationality can be probed by asking these questions:

1. Did the public authority consider irrelevant facts and laws when deciding?
2. Is the decision offensive to common sense and logic or accepted moral standards?

If the answer is positive for either of these questions, that DAP can be set aside for irrationality.

(iv) Proportionality

The Federal Court in R Rama Chandran v Industrial Court of Malaysia & Anor [1997] 1 CLJ 147 endorsed Proportionality as a ground for JR. The following passage explains what this means:

“In Assegai, one of the grounds upon which the Council’s resolutions, banning a person from all its property, irrespective of the circumstances, on account of his unacceptable behaviour at a private meeting, had been quashed was because the resolution was wholly out of proportion to the conduct complained of. Lord Justice Woolf LJ (as he then was) put the point thus:

“The banning resolution was in very wide terms and constituted reaction wholly out of proportion to what the applicant had done.”

An act or decision of a public authority can be set aside for being excessive or disproportionate to the purpose or objective it sought to achieve. In short, we don’t use a nuclear bomb to swat a mosquito; we use an electrical mosquito swatter. Whatever measure the public authority takes must be appropriate to the goal achieved. The law, therefore, discourages extreme or aggressive measures.

The significant thing about JR on proportionality is that it permits a review of the decision-making process – with which the first three tests are related – but the substance of the decision itself. It allows the courts to substitute their decisions instead of sending them back to the public authority for re-hearsing and deciding. Again, from R Rama Chandran:

“Lord Diplock’s fourth ground of judicial review, namely, proportionality there are cases in the United Kingdom which point to the conclusion that even where EEC law is not applicable, such a principle has been recognised as a general principle of English law, and when applied, it enables the Court to review an impugned decision for substance as well as process.” [Emphasis mine]

A case to illustrate this ground. In the High Court case of The Edge Communications Sdn Bhd v Ketua Setiausaha Kementerian Dalam Negeri & Anor [2016] 1 LNS 1845, the court held that the suspension of the entire operation of the applicant’s weekend newspaper by the Secretary General of the Home Ministry to prohibit them from publishing any articles relating to 1MDB was harsh and grossly disproportionate to the concern set out in the show cause notice.

‘Lastly by ordering the Applicant’s entire publications to be suspended merely because the Applicant had reported on the mismanagement of 1MDB, putting the whole of the operation of the Applicant to a halt is grossly disproportionate and excessive when the Respondent could have resorted to a fairer decision by merely prohibiting the Applicant from publishing any articles pertaining to 1MDB to address the Respondent’s concerns over the Applicant’s publication on 1MDB.’

Disproportionality can be probed by asking: Is the decision or act excessive or appropriate given the material or situation before it? Is there a more suitable way to achieve the intended objective?

Suggested Sequence for Analysing a Public Authoritiy’s DAP

I feel that going through the suggested questions in the sequence I suggested provides a structured way to evaluate whether the public authority’s DAP was lacking on the 4 legal grounds discussed.

We can ask many more questions, but I feel these are the broad ones that helped a line of inquiry as to whether a public authority behaved lawfully. I have laid them out in sequence below:

I call this list of questions the ‘JR Goggles’. These are the questions I ask when I read the newspapers and come across reports about public authority DAPs that initially and intuitively feel suspect. They help me analyse and probe the legality of a public authority DAP. With its volume of information, the internet makes it far easier to answer these questions.

In sum, JR is an inherent power of the court. It is a vital process because it allows the Judiciary to ensure that the other organs of government comply with the Federal Constitution and its law. Sources of JR are found in the FC, Parliamentary legislation, and case law. There are generally four grounds for JR: Illegality, Procedural Impropriety, Irrationality, and Disproportionality.

I end this guide by sharing Shan’s poem, which I found in his JR presentation. I think it is appropriate and true.

Yes, you can sue the government.
Sometimes, you might actually win.
Often, you will lose.
When you lose, you might have to pay costs to the government.
Whatever it is, clients should come and see a lawyer immediately since time limits are so short.
Government should see judicial review as an opportunity to test the legality of their actions, rather than as a threat to their authority.