Judicial review in Malaysia was described as the process whereby the High Court exercises its supervisory jurisdiction over trials and judgments of lower courts

by arulnangainarenthirangmailcom (student)

Judicial review in Malaysia was described as the process whereby the High Court exercises its supervisory jurisdiction over trials and judgments of lower courts, tribunals and other bodies or individuals carrying out functions of a quasi-judicial who are responsible for carrying out the performance of public acts and duties. The jurisdiction initially came from the common law, and was exerted by the issue of the prerogative writs of mandamus, certiorari and prohibition, however is currently conferred and governed by statutes and the rules of court. Therefore, administrative law in Malaysia is recognized and practiced as part of the common law of England and by the approval of the Courts of Judicature Act 1964. Judicial review of civil proceedings or matters is governed by The Rules of the High Court, The Specific Relief Act 1950, and in accordance to the statutory powers bestowed on courts pursuant to para 1 of the Schedule to the Courts of Judicature Act 1964.

With respect to the traditional approach, 'Judicial review was an inherent right of the courts and not statutory. The courts were entitled only to supervisory jurisdiction and therefore cannot intervene the merits of the decision. The court can only review the decision-making proses, but the decision. The courts are not allowed to change the decision on their own. For the new approach however, after R Ramachandran v. Industrial Court of Malaysia and Anor’s case, the Federal Constitution granted the High Court additional powers under judicial review. The court can review the decision and the merits of the decision may be analyzed, the judgment of the admin body may be replaced by its own and even relief is given to the affected parties.

Natural justice is one of the grounds of judicial review invoked by the courts to annul the unauthorized administrative action. Firstly, the traditional garb of natural justice is confined to the twin ideas of right to be heard and rule against prejudice. It does not include the obligation of the administrator to explain the reasons for his decision. Secondly, natural justice can be easily and efficiently rejected by statute as a result of common law creation. Hence, Parliament at the command of the has the authority to rob the judiciary of one of its most significant weapons in the armory of judicial review. In the mid-1990s, the Malaysian courts stated to introduce a new and different version of Natural Justice in accordance with Procedural Fairness. Procedural Fairness was first proposed in the case of Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis & Ors, by His Lordship Gopal Sri Ram JCA ' where he claim that the term 'procedural fairness' was to be in favor to the 'traditional nomenclature "rules of Natural Justice".

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The next Ground is Substantive fairness. Substantive Fairness is the traditional common law approach to judicial review which is a reviewing court that applies solely to the decision-making process and not to the merits of the decision itself. The first acknowledgement of reception of substantive fairness into our legal system was present in the case of Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan although it is clear that the Court did not apply directly to the word 'substantive fairness.' In that case, the court ruled that, the requirement of fairness in Article 8(1) read along with Article 5(1) of the Federal Constitution guaranteed not only a fair procedure but also a just and equal punishment is given depending on the facts of a particular case. It is consequently obvious from the judgment that the requirement of fair and reasonable punishment was meant as an extra facet of fairness over and above that of fairness in the procedural sense. The only other context under which fairness can be expected to appear is substantive fairness.

The third ground is proportionality. The principle requires the public authority to keep up a sense of balance between their specific objectives and the methods they utilize to accomplish those objectives, ensuring that their acts impact the least necessary degree of the individual's rights to protect the public interest. The doctrine basically states that a court of review may interfere when it finds that the damage caused upon a specific exercise of power is unreasonable in relation to the profit it seeks. In Malaysia, this doctrine was applied for the first time in the landmark case of Tan Tek Seng. The Federal Court decision in Ng Hock Cheng v Pengarah Am Penjara & 2 Ors was nevertheless a reversal of that doctrine 's progress. In spite of the fact that the Federal Court didn't explicitly refer to the doctrine of proportionality as such, the cumulative effects of the ruling in this case is that no review of punishment can take place, and that the express overruling by Tan Tek Seng on the same narrow point of law, seems to have nothing to do with the proportionality doctrine as predicted by the Court of Appeal in the case of Tan Tek Seng.

Next is the procedures for judicial review. Order 53 of the Rules of Court 2012 governs the applications for judicial reviews. An application for a judicial review may be made seeking any relief as well as declaration which can be made jointly or alternatively in the same application as in Order 53, Rule 2(2). According to Order 53, Rule 2(3), The court is not confined by the relief claimed and may mould a remedy. Anyone who is adversely affected by the decision, action or omission in regard to exercise the public duty or function shall be entitled to make the application as stated in Order 53, Rule 2(4). Basically, we must first obtain leave (permission) from the High Court in order to proceed with a judicial review application as stated in Order 53, Rule 3(1). According to Order 53 Rule 3(2), the application for leave must be made ex parte to a Judge in Chambers, supported by a statement of details and by affidavits. The applicant must notify the application for leave to the Attorney General’s Chambers latest by three days before the hearing date as in Order 53, Rule 3(3).

The application for judicial review should also be made within 3 months from the date on which a judicial review action was previously carried out as in Order 53, Rule 3(6). The grant or refusal of leave must however, fundamentally rely on the facts of the case. As stated in Order 53, Rule 4(1) If a leave for judicial review is granted, the applicant must, file a notice in the relevant form, within 14 days after granting such a leave. According to Order 53, Rule 5(1), Court has the power to grant damages. The Judge may allow to amend the statement, and may allow further affidavits to be used that if they deal with new issues emerging from any affidavit of any other party to the application, and where the applicant intends to amend his statement or use further affidavits, he should immediately notify his intention as well as any proposed amendment of his statement to every other party as in Order 53, Rule 7 (1).

Reference

THE ROLE OF JUDICIAL REVIEW IN MALAYSIA AS A TOOL OF CHECK AND BALANCE UNDER THE DOCTRINE OF SEPERATION OF POWERS (2018) <https://www.studocu.com/my/document/universiti-malaya/constitutional-law-i/other/the-role-of-judicial-review-in-malaysia-as-a-tool-of-check-and-balance-under-the-doctrine-of-seperation-of-powers/4362408/view> accessed 17 May 2020.
RECENT DEVELOPMENTS IN JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IN MALAYSIA: A SHIFT FROM GROUNDS BASED ON COMMON LAW PRINCIPLES TO THE FEDERAL CONSTITUTION (2007) <http://eprints.um.edu.my/id/eprint/13505> accessed 17 May 2020.
'LexisAdvance®SignIn|Lexisnexis'(Advance.lexis.com,2020)<https://advance.lexis.com/document/?pdmfid=1522468&crid=dcfb476c-8c84-4ff8-aa8e- a26f5b290d31&pddocfullpath=%2fshared%2fdocument%2fanalytical-materials-my%2furn%3acontentItem%3a5SD9-YKV1-JKPJ-G3CJ-00000-00&pdcontentcomponentid=347286&pdteaserkey=sr4&pdicsfeatureid=1521734&pditab=allpods&ecomp=-75wk&earg=sr4&prid=ccaf0554-a33f-43f9-8cc9-49f1d8114ad5&aci=la&cbc=0&lnsi=d04d1b54-a347-45dd-ba64-4f452aa847a0&rmflag=0&sit=null> accessed 17 May 2020.

THE ROLE OF JUDICIAL REVIEW IN MALAYSIA AS A TOOL OF CHECK AND BALANCE UNDER THE DOCTRINE OF SEPERATION OF POWERS (2018) <https://www.studocu.com/my/document/universiti-malaya/constitutional-law-i/other/the-role-of-judicial-review-in-malaysia-as-a-tool-of-check-and-balance-under-the-doctrine-of-seperation-of-powers/4362408/view> accessed 17 May 2020.

RECENT DEVELOPMENTS IN JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IN MALAYSIA: A SHIFT FROM GROUNDS BASED ON COMMON LAW PRINCIPLES TO THE FEDERAL CONSTITUTION (2007) <http://eprints.um.edu.my/id/eprint/13505> accessed 17 May 2020.

'LexisAdvance®SignIn|Lexisnexis'(Advance.lexis.com,2020)<https://advance.lexis.com/document/?pdmfid=1522468&crid=dcfb476c-8c84-4ff8-aa8e-a26f5b290d31&pddocfullpath=%2fshared%2fdocument%2fanalytical-materials-my%2furn%3acontentItem%3a5SD9-YKV1-JKPJ-G3CJ-00000-00&pdcontentcomponentid=347286&pdteaserkey=sr4&pdicsfeatureid=1521734&pditab=allpods&ecomp=-75wk&earg=sr4&prid=ccaf0554-a33f-43f9-8cc9-49f1d8114ad5&aci=la&cbc=0&lnsi=d04d1b54-a347-45dd-ba64-4f452aa847a0&rmflag=0&sit=null> accessed 17 May 2020.

Judicial review in Malaysia was described as the process whereby the High Court exercises its supervisory jurisdiction over trials and judgments of lower courts

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