My first POST!!

Okay, so this would be my first post.. As such I think it would only be sufficient that I post whats currently foremost on my mind.. Yup.. It has something to do with the law.. This is something I'm reading for class.. Judicial Review.. Do we need judicial review? and if so.. What is it's importance.. Well, a brief intro on judicial review:

Judicial Review is one form of judicial control on the administration. This area looks at the general principles applied by the superior in reviewing the actions, inactions, and the decisions taken by the administration bodies. It was designed to protect the citizens from arbitrary and unfair actions and decisions by powerful bodies that exercise functions of public law significance, thus ensuring the application of rule of law. Basically, its outcome is to determine whether in making a decision or taking an action, a ‘public body’ has acted ‘within its power’ and in accordance to common law standards of fairness. To satisfy a judicial review proceeding, certain requirements need to be fulfilled; it must be of a public nature, it must have a public significance of the offending decision/action, it must be initiated by a person who must have an interest (locus standi), and lastly it needs to be specific on which grounds it wants the judicial revue is sought. In the case of Council of Civil Service Unions v Minister of Civil Service the court laid down the criteria which includes: illegality, irrationality, and procedural impropriety on the grounds for which judicial review may be proceeded. Lastly, judicial review is very important as it plays a significant role in upholding the principles of ‘rule of law’ and ‘separation of powers’. The rule of law is important as it contains three main ideas: the supremacy of the law, the regulation of government power, and equality before the law. This concept is vital as it entails equal protection for all its citizens, including against arbitrary state action and ensures that all citizens are subject to law. As for separation of powers, it is a doctrine where the individual organs of the government are controlled from imposing its powers upon the other organs. Separation of powers deals with the overlap in the spheres of power within a government. As such, it lays down the fundamental rule that each organ of the government should not be given unlimited or excessive powers, as it might lead towards the abuse of power.

In Malaysia there is no express provision that provides for judicial review. Most administrative statues have even to an extent been designed to remove judicial review. In the end what is left is that in certain statues judicial review is either to be totally removed or that is partially removed. What is left is up to the courts to decide as to what extent can there be judicial review. One must first seek leave from the court before one may bring an action with regards to judicial review. For an application to judicial review there are certain conditions that needs to be fulfilled. These conditions are: (a) the are of dispute must concern public law issues; (b) that the source of the decision/action against which the complaint is made must be a ‘public body’; (c) the application for the judicial review must concern a public law issue that is prima facie ‘justiciable’; (d) the court must recognise the applicant as having standing ‘locus standi’; (e) the standing of the individual or that of interest and pressure groups; (f) the time limit; (g) the successful applicant must have already exhausted all other avenues that statue may have already provided; (h) and finally, and most importantly, the applicant must at least seek one of the grounds which the court has deemed acceptable for the purpose of judicial review, i.e. illegality, irrationality, procedural impropriety.

As to the question in which the issue must arise, the courts have decided that it must concern public law. Thus one can see that in the case of Government of Malaysia v Loh Wai Kong the courts are able to extend or restrict the scope of review by deciding that a particular decision-maker is or is not within the public sphere. This can be seen in the case of Petaling Tin Bhd v Lee Kian Chan the court held that the Kuala Lumpur Stock Exchange is subject to judicial review when it exercise its disciplinary powers over its members. Another situation is that of a decision made by the Panel on Takeovers and Mergers under the Companies Act 1965.

Another condition that is related to the above is that the source of the decision/action is made by a ‘public body’. In determining whether a body is public or not the court will look into its function, and from there to whether it have public law consequences. The test is thus; ‘if the body in question did not exist would some government department assume its responsibilities’. Thus, in the case of R v City Panel of Takeovers and Mergers ex parte Datafin Ltd, the City Panel of Takeovers and Mergers was considered a ‘public body’ even though it was established on a voluntary basis. By contrast, one could look into the case of R v Disciplinary Committee of the Jockey Club ex parte Aga Khan, in which the court held that the relationship between horse-owners and the Jockey Club held no public law significance.

Next is the question on whether the public law issue is, prima facie, justiciable. As such certain matter are excluded from judicial review because they are matters of public policy. In Malaysia a good example is that of the refusal of courts to review decisions based on national security. On this one can see that in relation to preventive detention cases the courts have refused to review the detention orders. A similar attitude can be seen towards emergency proclamations under Article 150. The courts in both instances refuse to review the executive decisions on the grounds of national security and they further state that as the executive, which alone has all the necessary evidence, is the best judge on the matter. This policy has further gone to decisions related to the administration of justice. Thus, in the case of Superintendent of Pudu Prison v Sim Kie Chon the court held that the exercise of prerogative of mercy is not a justifiable matter. In the case of Chio Thiam Guan v Superintendent of Pudu Prison the court held that the decision by the Attorney General to transfer a criminal case from a lower court to the High Court was unfettered (free from restraint) and so beyond judicial review. It is surprising however that on occasion the courts have take a liberal view. This can be seen as the court where the grant and refusal of a passport was reviewable as held in the case of Government of Malaysia v Loh Wai Kong. In the case of JP Berthelsen v Director-General of Immigration the Supreme Court struck down an administrative order expelling a foreign correspondent within 24 hours’ notice and without any opportunity to the case against his expulsion to the government.

Another condition is that the applicant must have standing (locus standi). In short the applicant must have ‘a sufficient interest in the matter to which the applicant relates’. In R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Business, the ‘sufficient interest test’ was laid down by the courts in two stages: the first being when the applicant applied for judicial review and secondly on whether there was still sufficient interest during the judicial review proceedings. Thus, sufficient interest to initiate a judicial review is not enough one must still have interest during the proceedings itself. From this, two issues arises that being the standing of an individual and that from interest and pressure groups. On the first issue, the courts will always recognised the sufficient interest in a case where someone’s personal rights and interest are allegedly directly affected by a public decision/action as can be seen in the case of Schmidt v Secretary of State for Home Affairs. The courts may also find sufficient interest if an individual were to challenge a public decision/action that allegedly harms the whole of society as can be seen in the case of R v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg. The court will always find that there is sufficient interest when organisations challenge administrative decisions which may affect their members individually as in the case of R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators’ Association. The court may also find sufficient interest where the organisation such as Greenpeace, which had several thousand members and experts that are united in a specific course seek to challenge a decision with serious environmental consequences as in the case of R v Secretary of State for the Environment ex parte Greenpeace Ltd. which sought judicial review as to constructing a nuclear processing plant near a national park.

A time limit may also be imposed to ensure that there are no excessive delays in matters of emergency. The usually time limit if not statutorily provided is said to be from three based from English cases though the courts have extended such time with reasons it deems fit. In the case of Smith v East Elloe Rural District Council the court enforced the time limitations strictly.

Another prerequisite is that the applicant has already exhausted all other alternative remedies that statue may have foreseen such as that of appeals. But, the exception is that judicial review may still be granted even if the alternative remedial proceedings have not been exhausted due to delays in the relevant processes.

Lastly, the final condition that needs to be fulfilled is that the applicant must seek judicial review on one of the grounds that the courts has deemed acceptable for the purpose of judicial review. These grounds could be illegality, irrationality or procedural impropriety as laid down by the court in the case of Council of Civil Service Unions v Minister of Civil Service.

It is interesting to note the existence of ‘ouster clauses’ where an Act of parliament or that of a subsidiary act through delegated legislation is made with a clause stating that such actions made through it is immune to judicial scrutiny. In the seminal case of Anisminic v Foreign Compensation Commission the relevant Act provided that the decision made by the public body named Foreign Compensation Commission ‘shall not be questioned’. But, the courts held in the above case that its jurisdiction was limited by the statue’s words only if the decision in question had been reached ‘correctly’, which was not the case. It is further seen in this case that if the judges are determined to the reach the rule of law, the can even do so in the face of relatively clear words that Parliament does not intend judicial review to take place.

Well, looks complicated.. bored me to hell.. but hey.. if u want to do well u gotta just keep ur head-on rite.. anyway.. see you guys around.. Gtg to the library..