Wednesday, September 1, 2010

TUTORIAL QUESTION


EXPLAIN THE NATURE AND PROCESS OF JUDICIAL REVIEW.IN YOUR DISCUSSION, INCLUDE THE CASES OF RAMACHANDRAN V INDUSTRIAL COURT OF MALAYSIA [1997] 1 MLJ 145 & DISTRICT PLANTATIONS SERVICES  SDN. BHD V AHMAD NAZRI ADNAN & ANOR [2001] 1 CLJ 25

Your answers should  not be less than 10 lines and  can be posted on this blog. Deadline - 2 weeks from 2-9-2010, inclusive of today.

50 comments:

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  2. Ng Chin Wern

    Judicial review is one of the judicial controls over the validity of an administrative action. Judicial review is originally vested or inherent in a court. It serves to re-examine the decision making process of a judgment or against the public body (depending on the nature of their power, ie. Function and consequence of the public body).

    The grounds for judicial review are first laid down in Wednesbury’s case and put forward in the case of CCSU. The said grounds are procedural impropriety, irrationality, illegality, and proportionality as a possible ground. Procedural impropriety refers to the breach of any procedural requirement prescribed by law. Irrationality or “super Wednesbury unreasonableness” means an extreme unreasonableness administrative decision, where no reasonable body will ever make such decision. Illegality means an abuse of discretion, whether it is an exclusion of relevant consideration or the inclusion of irrelevant consideration; it relate closely with a bad faith or mala fide decision. The last ground, proportionality, means an unreasonable or severe punishment that is not fitting. It is respectfully submitted here that Wednesbury’s ‘proportionality’ was never clearly established. It had also been criticized as a ground examining the decision, not the process. Yet, cases had proven its appropriateness.

    Judicial review finally found its place in Malaysia, after the Tan Teck Seng’s case, the term ‘procedural fairness’ was developed under this heading against the proportionality of sentences; decision made with the combined effect of A 5 (1) and A 8 (1) of the Federal constitution.

    In Malaysia, judicial review powers are statutory in nature. O53 of the Rules of the High Court 1988 governs the application for judicial review and as stated, relief and inherent power is as provided in paragraph 1 of the Schedule to the Courts of Judicature Act 1964. Para 1 allow the court (High court, Court of Appeal and Federal court) to issue orders or writs, including writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others, for the enforcement of the rights conferred by Part II of the Constitution, or any of them, or for any purpose.The order is subject to the provisions in Chapter VIII (enforcement of public duties) of Part 2 of the Specific Relief Act 1950. After the amendment, Rule 2(3) of O53 further states that court are not confined to the relief appealed by applicant and may grant any order in place of the application.

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  4. continuation from above..

    According to Para 1 of the Schedule to the Courts of Judicature Act 1964, judicial review works to protect the rights conferred under part II of the Federal Constitution. In other words, judicial review comes into play whenever the fundamental liberties of a person are at stake; following the principle in Wednesbury’s case. In the case of R Rama chandran v Industrial Court of Malaysia, the court extended their power to grant certiorari under para II, thereon the court quashed the lower court decision without referring back to the industrial court for retrial. Later, In District Plantation sdn bhd v Ahmad Adnan Nazri, the court held that on grounds of wednesbury unreasonableness, court may extend its perimeters to the decision itself as opposed to the examination on the decision making process. Both cases extended the scope of judicial review to another level, making it possible to grant a new decision immediately after judicial review.

    It is humbly submitted that although a person rights is involved, and the court had no choice after taking into consideration the cost and time involved; ‘justice’ must also be in accordance with law. Though the statutes are silent, Taking a step further by giving a new judgement defies the core principle of judicial review; a check over the process of decision making. However, considering the rigid and antiquity procedural law governing application for judicial review, such drastic move may be appropriate to encourage a better and liberal procedural law to protect fundamental liberties through judicial review.

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  5. Judicial review is the process where someone goes for review on any decision done by any tribunal of any bodies that he responsible to, which he feels unjust. The general rule is in judicial review process, the judge will only look into the decision making process only in determining whether the tribunal in question is within its power or if not it will be ultra vires. This had been stressed by Wan Yahya FCJ in the case of R Rama Chandran v Industrial Court of Malaysia. However, the judicial review in Malaysia has evolved by time. In the case of R Rama Chandran V Industrial Court of Malaysia, two judges, Eusoff Chin CJ and Edgar Joseph FCJ, gave new rule in determining whether it is ultra vires or intra vires. They said that in a special circumstance, the decision making process would not upheld justice, thus it is more appropriate to examine the merit of the case. This was supported in the case of District Plantations Sdn Bhd v Ahmad Nazri Adnan & Anor, the judge said when a decision is challenged on the ground of 'wednesbury unreasonableness' the court may extend its judicial parameters and examine the merits of the decision itself as opposed to being confined to an examination of the decision making process only. This is because, sometimes, employer would follow all the procedure correctly and suddenly just dismiss him for unreasonable reason or unacceptable reason. Thus, I think in this modern day, it is kudos for the great judge, Eusoff Chin CJ, Edgar Joseph FCJ for create a new means to find justice.

    From: Muhammad Fuad B Md Sabri
    LEB090056, tutorial class: wednesday 6-7pm

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  6. Good work Mr Ng.- JR is vested in the HC- not just a Court.You have covered substantial ground but will need more originality in your approach.And you have not commented on the 2 cases referred to in the Question.Regards. VJ

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  7. Your continuation has commented on the 2 required cases.Ramachandrans case dealt with consequential relief. Good work Mr. Ng. VJ

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  8. Mr. Fuad- What did you mean by "kudos for the great judge?"(2nd last line). Keep up the good work. VJ

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  13. I mean it is something great having judges that done something good for the legal field like them.

    Fuad Sabri

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  14. Mr.Kopiice-no copy and paste. Regards VJ

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  15. Mr. Chiong Hoe Siang- yopuhave copied and pasted everything from this blog. Come'on - do some work. Grrrr!!! VJ

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  16. Mr. ferdinand- Thanks for the explanation. You have substance but need to work on your grammar.VJ

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  17. When an individual feels aggrieved at the hands of the administration because of the infringement of his rights and deprivation of his interests, he would want to seek remedial and redressal against the administration. Judicial review allows him to challenge the validity of the decision making process of the administration to obtain remedy. The power to review is the court’s inherent power, in which the review is concerned with the process of decision-making and not the decision itself. In Chief Constable of North Wales Police v Evans, it was held that judicial review is concerned with the legality of a decision and not its merits. The review court (the High Court) does not substitute its own decision but can only grant one or more of the remedies, including mandamus, certiorari, prohibition, declaration, and injunction. For instance, certiorari is the principal means of invoking judicial review over the inferior tribunals. In the modern days, it is invoked to quash decisions of tribunals which are unfair to the rights of persons. The grounds upon which judicial review may be made have been reformulated in CCSU v Minister for Civil Service, which are the grounds of illegality, irrationality, procedural impropriety, and possibility the principle of proportionality. Among the four, ‘irrationality’ is referred to the Wednesbury principles, and to be exact, the super-Wednesbury principles. It is unreasonableness of the highest degree or a decision which is so absurd that no reasonable authority will make that kind of decision.

    As the law develops, the High Court and the Federal Court have adopted a liberal and progressive approach in certiorari proceedings, as stated by Eusoff Chin CJ in R Rama Chandran v The Industrial Court of Malaysia. In that case, the court was satisfied that the appellant was dismissed from service without just cause and the Award of the Industrial Court was flawed on the grounds of Wednesbury unreasonableness. The court further held that a decision susceptible to judicial review is not only open to challenge on the ground of procedural impropriety but also on the grounds of illegality and irrationality; and in practice, this permits the Court to scrutinize such decisions not only for process but also for substance, that is the merits of the decision itself. Thus, Eusoff Chin CJ said that the High Court should mould the relief in accordance with the demands of justice.

    The ground for the courts to examine the merits of the decision itself has become clearer in the case of District Plantation Services Sdn. Bhd. v Ahmad Nazri Adnan & Anor, where it was clearly indicated that when a decision is challenged on the grounds of ‘Wednesbury unreasonableness’, the court may extend its judicial parameters and examine the merits of the decision itself as opposed to merely confining itself to an examination of only the decision-making process.

    The Malaysian position with regard to the procedure involved in judicial review is governed by the Specific Relief Act 1950 ( Act 137) and paragraph 1 of the Schedule of the Courts of Judicature Act 1964.
    The procedure to move an application for an order of mandamus, prohibition or certiorari in the Malaysian High Court is in Order 53 of the Rules of High Court. It lays down the need of application of a leave and its procedure which is needed before applying any orders.

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  18. Judicial review is a process where a court of law is asked to rule on the appropriateness of the decision of an administrative agency or tribunal.When a court decision is appealed, it is known as an appeal. Judicial review is the court review the process of finding the decision but not the final judgment unlike appeal that will review the decision then maybe will come out with a new decision which overruled the earlier one.

    But there are many administrative agencies or tribunals which make decisions or deliver government services of one sort or another, the decisions of which can also be "appealed." In many cases, the "appeal" from administrative agencies is known as "judicial review" which is essentially a process where a court of law is asked to rule on the appropriateness of the administrative agency or tribunal’s decision.

    Judicial review is a fundamental principle of administrative law.A distinctive feature of judicial review is that the "appeal" is not usually limited to errors in law but may be based on alleged errors on the part of the administrative agency on findings of fact.

    Firstly, i would like to talk about the Tan Teck Seng and Hong Leong Equipment case about the constitutional right to livelihood.Right of each of us should not be deprived according to our Federal Constitution in Article 5 of FC. We all have the right to lfe, right to be heard , all are equal under the law, nobody will be taken away his/her right. Gopal Sri Ram had said that right to life not only the right to breath but the right of how we enjoyed our live, the quality of life e.g. clean environment. R Ramachandran followed the decision of the above case.

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  19. Continue from above:

    In R Ramachandran , Edgar Joseph J observed that: the supervisory review jurisdiction is a creature of the common law and is available in the exercise of the courts' inherent power but its extent may be determined not merely by judicial development but also by legislative intervention.
    Wan Yahaya FJ in R.Ramachandran dissentting in R. Ramachandran was two pronged. Firstly, the Learned Judge held that a review,court cannot go into the facts of the dismissal to make a finding of a unjust dismissal. Secondly, the learned Judge held that on a construction of section 25 of the Courts of Judicature Act 1964 (“CJA”) and 0.53 Rules of the High Court 1980 read together, the Superior Court cannot give consequential relief - a function reserved for the Industrial Court.
    President Thomas Jefferson, responding to Marshall's opinion in Marbury, composed “Instructions to a Federal Prosecutory” in 1807, attempting to advance the prosecution of Aaron Burr for treason. Jefferson argued against citing Marbury and proposed “to have [the decision] denied to be law.” He went on to hold “the three great branches of the government should be coordinate, and independent of each other.” Jefferson believed each branch of the government had the right to decide for itself the constitutionality of matters before it and objected to a claim that the Court's judgment was superior to that of the other branches. His efforts on behalf of repeal of the Judiciary Act of 1801 and the first judicial impeachments supported the doctrine of “co‐ordinate construction,” whereby each branch of the federal government interprets the Constitution for itself.


    part 2

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  20. Basically, in both cases, the main principle in Ramachandran and District Plantations services case was they*the court* changed the decisions on the spot during the judicial review. Judicial review is just a review on the validity of the decision making process. Judicial review powers are statutory in nature. The cases changed the nature of the old judicial review, from a review of decision to an appeal alike creature.
    It is respected submitted here, that the court action itself for altering the decisions is unfounded in the (statutes), where they gain the power to hear a judicial review. The court may form lacunae in the law by creating two 'platforms' for an appeal; the usual appeal and a new judicial review.
    Injustice on the side of application may have been prevented but by doing so, the opposing party rights are at stake. Taking a step further by giving a new judgement defies the core principle of judicial review; a check over the process of decision making. However, considering the rigid procedural law governing application for judicial review, such drastic move may be appropriate to encourage a better and liberal procedural law to protect fundamental liberties through judicial review.

    Shamimi Saberi
    Thursday, 6pm-7pm.

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  21. Part 3...

    But in the case R Ramachandran had error of law in the second ground. Whether or not such errors of law were ultra vires or intra vires did not matter. If there was such an error, the superior court corrected the ‘certified’
    record and sent it back to the inferior tribunal for a re-hearing of the matter and a decision in conformity with the corrected error of law under judicial review. Not always in the decision making process will uphold justice although our FC had clearly stated that. It always depend on our judges to interpret and decided it.In R Ramachandran case, two of the judge, Edgar J and Eusoff Chin J said that in a special circumstance, the way of the decision making process would not upheld justice, thus it is more appropriate to examine the merit of the case to turn another way.

    Wednesbury and Anisminic case establishing and expanding the scope of the ultra vires doctrine.review for process began to take the
    appearance of review for substance. The reason was not only because of the erroneous finding of a ‘jurisdictional fact’ but also an incorrect application or inference of a correct finding of a jurisdictional fact by the inferior tribunal.
    Review on this ground is done under the head of “error of law” as mentioned in case R Ramachandran and illegality head in the CCSU case.
    As Ronald Dworkin puts it—and he is
    a defender of judicial review—on “intractable, controversial, and profound questions of political morality that philosophers, statesmen, and citizens have debated for many centuries,” the people and their representatives simply have
    to “accept the deliverances of a majority of the justices, whose insight into these great issues is not spectacularly special.”

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  22. In District Plantations Sdn. Bhd V Ahmad Nazri Adnan & Anor, when a decision is challenged on the ground of ' Wednesbury unreasonableness', the court may extend its judicial parameters and examine the merits of the decision itself as opposed to being confined to an examination of the decision making process only. It clearly stated that the principles in R Ramachandran case had been supported by it. Charles Black once remarked that, in practice, opposition to judicial review tends to be “a sometime thing,” with people supporting it for the few cases they cherish and opposing it only when it leads to outcomes they deplore. In reality, employer not always will follow the procedure exactly as stated. They will just followed what is majority but not minority for their own sake maybe some economic purposes.Process of dismiss always will have some unreasonable reason or unacceptable reason for the workers to accept. The evolution of judicial review should be evolve more rapidly to suited with others development inmodern day.

    The greatest activity in Judicial review has been in the area of employment
    law - at least as far as Malaysia is concerned. Almost all the leading cases in this area of administrative law have been cases concerning the Industrial Relations Act 1967 (“the IRA”) and to a lesser extent the Employment Act
    1955 (“the EA”) and to a still lesser extent the Trade Unions Act 1959.
    Judicial review is vulnerable to attack on
    two fronts. It does not, as is often claimed, provide a way for a society to focus clearly on the real issues at stake when citizens disagree about rights; on the contrary, it distracts them with side-issues about precedent, texts, and
    interpretation. And it is politically illegitimate, so far as democratic values are
    concerned: By privileging majority voting among a small number of unelected and unaccountable judges, it disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality in the final resolution of issues about rights.

    I think we should have much more strong judicial review of legislation. If we are in a system of strong judicial review, courts have the authority to decline to apply a statute in a particular case even though the statute on its own terms plainly applies in that case or to modify the effect of a statute to make its
    application conform with individual rights but must in ways that the statute itself does
    not envisage each other. Moreover, courts in this system have the authority to establish
    as a matter of law that a given statute or legislative provision will not be applied, so that as a result of stare decisis and issue preclusion a law that they have refused to apply becomes in effect a dead letter. A form of even stronger judicial review would empower the courts to actually strike a piece of legislation out of the statute-book altogether.

    Part 4
    Chingsoonseng

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  23. Judicial Review provides remedy to aggrieved parties who suffer infringement of rights and deprivation of interests through a court action. It is also to ensure that the administration body does not abuse its power and functions according to law. In short, Judicial Review is used by the courts to ensure that grievances of the individuals against the administration is effectively redressed and would help to create good administration.

    In Britain, it has been stated that "Judicial Review is concerned, not with the decision, but the decision-making process". It is said that the Judicial Review is concerned with the legality of a decision and not its merits. This shows that the scope of Judicial Review is restricted and the same position was undertaken by the Malaysian Courts.

    However, over the years, to conform to the needs of modern administrative law, the doctrine of Judicial Review has been expanding.

    In the case of R Rama Chandran v The Industrial Court of Malaysia, Edgar Joseph Jr. FCJ had decided that in order to suit the rapidly developing law in applications for Judicial Review, whenever legally permissible, the court has to demonstrate a willingness to mould the remedies available to provide justice. The Federal Court, in a majority decision, held that in judicial review proceedings, the courts not only have the power to order consequential relief but their power have also extended to review the decision of a tribunal on the merits; and even to substitute a different decision in place of the tribunal’s decision without remitting in to the tribunal for re-adjudication. This is clearly shown that the court has undertaken a judicial review of an administrative decision that is committed not only to review its decision making process but also the substance of its decision to determine whether it has been affected by any procedural impropriety, illegality, irrationality or proportionality which has been laid sown in the case of Civil Service Unions v Minister for Civil Service.

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  24. Continue...


    In the case of District Plantation Services Sdn. Bhd. v Ahmad Nazri Adnan & Anor, it was held that on the grounds of "Wednesbury Unreasonableness", the court may extend its perimeters to the decision itself as opposed to the examination on the decision making process. It means that judges could actually expand its jurisdiction more than just being confined to an examination of the decision making process only.

    From the above cases, it has clearly shown that the process of Judicial Review in Malaysia has been expanding and gradually evolving from the traditional restrictions of judicial review which have derived from the courts in Britain.

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  25. by Patricia Jayne Noeb
    Judicial review is a process whereby a legislative and executive action is subject to review by the judiciary. The action mentioned could be held to be ultra vires if it contradicts with a higher authority such as a written constitution.
    The courts in a judicial review possess a supervisory jurisdiction whereby it quashes the decision of the tribunal (if needs be) and sends the case back to them for re-trial.
    The test so commonly used in a judicial review is the ‘Wednesbury unreasonableness’ test which was laid down in the case of Provincial Picture Houses Ltd v. Wednesbury Corporation.. Whereby the court decides as to whether the decision made by the tribunal is one which any reasonable tribunal would’ve made.
    The test and the role of the court today have expanded beyond the framework laid out above with credit to the case of Rama Chandran v. Industrial Court of Malaysia. The case so mentioned concerns itself with the dismissal of the appellant by the second respondent from his work in what the appellant calls a dismissal without just cause or excuse. On appeal to the Federal Court for judicial review, two questions were posed. Firstly whether the Award of the Industrial Court (which affirmed the second respondent’s action) should be quashed and secondly, if the first question is to be found in the affirmative, whether the Federal Court can award compensation. The court in a majority decision, answered the second issue in the affirmative. The majority found that this was a case whereby the decision of the court should not end with the quashing of the decision of the Industrial Court and went out to decide the compensation due to the appellant. Eusoff Chin FCJ justified the majority’s decision saying that ‘...to merely grant certiorari to quash the Award ... would deprive the writ of its vital and effective meaning and may result in grave injustice...’

    The decision in Rama Chandran was followed in the case of District Plantations Services Sdn. Bhd. v. Ahmad Nazri Adnan & Anor. In the latter case, it was plainly laid out that; the court in a judicial review is no longer confined to an examination of the decision-making process but to also include the merit of the decision.

    In conclusion, the nature of process of judicial review has extended from determining whether the tribunal has erred in law in their decision to whether the award or punishment imposed was reasonable and practical.

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  26. Well Miss Pauline=- Good work but need to put in some original research. VJ

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  27. Mr Kopiice- where did you get this from??

    President Thomas Jefferson, responding to Marshall's opinion in Marbury, composed “Instructions to a Federal Prosecutory” in 1807, attempting to advance the prosecution of Aaron Burr for treason. Jefferson argued against citing Marbury and proposed “to have [the decision] denied to be law.” He went on to hold “the three great branches of the government should be coordinate, and independent of each other.” Jefferson believed each branch of the government had the right to decide for itself the constitutionality of matters before it and objected to a claim that the Court's judgment was superior to that of the other branches. His efforts on behalf of repeal of the Judiciary Act of 1801 and the first judicial impeachments supported the doctrine of “co‐ordinate construction,” whereby each branch of the federal government interprets the Constitution for itself.

    The earlier part is okay and average but we will get improve with time.

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  28. Puan Shamimi--"changed the decisions on the spot during the judicial review?" For the time being,there are no judges on Planet Earth who can change the decisions on the spot.

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  29. Puan Diana
    "..... which has been laid sown in the case of Civil Service Unions v Minister for Civil Service. [ This is poor grammar and improper sentence construction] VJ

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  30. Puan Patricia Jayne Noeb-
    The courts in a judicial review possess a supervisory jurisdiction whereby it quashes the decision of the tribunal (if needs be) and sends the case back to them for re-trial.

    Puan- what is this process called in law?? VJ

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  31. Puan Patricia Jayne Noeb- Your presentation states "The courts in a judicial review possess a supervisory jurisdiction whereby it quashes the decision of the tribunal (if needs be) and sends the case back to them for re-trial"

    Puan- what is this process called in law?? VJ

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  32. People have the rights to ask a court to review administrative action that they do not agree with. If the court finds that the decision is unlawful, unreasonable or procedurally unfair it can rectify the situation by making an order declaring the administrator's decision invalid by ordering the administrator to reconsider the decision, replacing the decision with the court's own decision and ordering the government to pay damages to the affected person.

    The applicant must comply with the rule of exhaustion of internal remedies. This means that, where the law sets out procedures allowing someone to review or appeal a decision of the administration, these must be used up before an affected person can approach a court. A person can therefore only ask for judicial review as a last resort. An application for judicial review must be made within 180 days of the date on which all internal remedies were exhausted. A person who asks for judicial review after this period will not be successful, unless they can convince the court to that it is in the interests of justice to allow it.

    The person who takes the administrative action to court will issue a notice of motion. This is a notice to the other that a court action is being started. The applicant will attach affidavits and other relevant documents to the notice of motion. The respondent must deliver all documentation and records regarding the administrative action to the relevant registrar or clerk of the court within 15 court days.

    In R Rama Chandran v Industrial Court of Malaysia & Anor, the court held that based on the facts of the case before the Court, to remit this matter back to the Industrial Court would mean to prolong the dispute which would hardly be fair or conducive to the interests of the parties. In the circumstances justice demands that to avoid further delay and expense, the Court should determine the consequential relief rathcr than remitting the case to the Industrial Court for that purpose. While,in the case of District Plantation Services Sdn Bhd v. Ahmad Nazri Adnan & Anor the court held that when a decision is challenged on the ground of ‘Wednesbury unreasonableness’, the court may extend its judicial parameters and examine the merits of the decision itself as opposed to being confined to an examination of the decision making process only.

    In conclusion, we can see the willingness on the part of the courts to uphold the rules of natural justice with an increasing preference to the concept of fairness in cases. In the area of judicial review, a conclusive, unequivocal and authoritative ruling by the Supreme Court is keenly awaited and it is also hoped that the Court will review its stance in respect of the test of locus standi for public interest litigation.

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  33. Judicial review is the power of the courts to annul the acts of the executive and/or the legislative power where it finds them incompatible with a higher norm. Judicial review is an example of the functioning of separation of powers in a modern governmental system. Under the new Order 53 which is now entitled ‘Application for Judicial Review’, public law remedies of prerogative orders and private law remedies of declaration, injunction and damages are both available in judicial review proceedings. Declaration can now be claimed either jointly or in the alternative to the prerogative orders.

    In the first reported case under the new Order 53, Sivarasa Rasiah v Badan Peguam Malaysia & Anor, the Court of Appeal ruled that it was not required that application for declaratory reliefs under Order 53 should be made jointly with other reliefs. In R Rama Chandran v The Industrial Court of Malaya & Anor, the court held held that pleadings should not be treated as mere pedantry and that the Industrial Court must attend to matters that it is bound to consider. It is the pleading of the Company that its action was based on the alleged misconduct of the Claimant. The decision made must take into consideration in determining whether it is ultra vires or intra vires. In District Plantations Sdn. Bhd V Ahmad Nazri Adnan & Anor, the decision of this case followed the decision laid down in Rama Chandran where the court in a judicial review is no longer confined to an examination of the decision-making process but to also include the merit of the decision. The validity of the decision making process is taken into main concern in judicial review.

    Applications for judicial review have become an important means of access to the supervisory jurisdiction of the High Court of Malaysia for persons aggrieved by decisions of the Minister of Human Resources or the Industrial Court. Decision making process will be looked into by the judge and if the tribunal is not within its power, the decision made will be ultra vires. In other words, judicial review is no longer concerned with the decision making process but the decision itself.

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  34. Dear Mr Vj, with reference to your question above, i believe its called;Remission.

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  36. Halsbury's Laws explained judicial review as the High Court exercises its supervisory jurisdiction over
    the proceedings and decisions of inferior courts, tribunals and otherbodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties.

    According to the case of “ Ramachandran v Inductrial Court of Malaysia, Edgar Joseph JR FCJ said that
    judicial review is concerned not only with the decision but the decision making process which means it permits the courts to scrutinize a decision not only for process, but also for substance.
    Judicial Review is not an appeal from the decision but a review of the manner in which a decision is made. This can be clearly seen in the case of District Plantation Services Sdn Bhd v Ahmad Nazri Adnan & Ors, whereby the High Court reviewed whether the Industrial Court (the second respondant ) acted lawfully in concluding the first respondent was unfairly dismissed by the appellant without just cause or reason. The court held that the Industry court was fair and just in delivering the award in the favour of 1st respondent becase the applicant was failed on proving the specific misconduct did by the 1st respondant based on the balance of probabilities.
    From the judgement laid down in the case of District Plantation Services ,it is clarly to show that judicial review is contrasted with an appeal as an appeal is concerned with the merits of the decision under appeal while judicial review is concerned only with the legality of the decision.

    There are three grounds for judicial review: 'illegality' , 'irrationality' and “procedural improperty”.
    'Illegality' means that when a power vested in a decision-maker is exceeded, acts done in excess of the power are invalid as being ultra vires (substantive ultra vires).

    ‘Irrationality' referred to as ' Wednesbury unreasonableness. A decision made under the ground of “irrationality” may be attacked by Judicial Review. In the case of District Plantataion Services Sdn Bhd, when a decision is challenged on the ground of 'Wednesbury unreasonableness', the court may extend its judicial parameters and examine the merits of the decision itself

    “Procedural impropertly “is whereby the sustance of the decision may be reviewed by the court. It involves reviewing of a decision by process. It covers the failure by the decision-maker to observe procedural rules that are expressly laid down in the legislation by which its jurisdiction is conferred, or a failure to observe basic rules of natural justice, or a failure to act with procedural fairness (procedural ultra vires).


    “ proportionality” was mentioned by the Lord Diplock as a possible fourth ground of review which called for development. This ground enables the court to review an impugned decision for substance as well as process.


    As a conclusion, judicial review serves as a challenge to the way in which the decision has been made. The conclusion of a case is not a concern if the law has been correctly applied. The decision of the public bodies can be challenged to ensure the award is reasonable

    CHUNG MOI HUA
    THURSDAY (6 -7 )

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  37. THE NATURE AND PROCESS OF JUDICIAL REVIEW

    by MATHEW ANAK DAVID

    Judicial review is a doctrine that empowers the judiciary to supervise, review and in significant instances, to invalidate any executive and legislative actions. Proponents of the doctrine of separation of powers would concur that judicial review is a device which guarantees the checks and balance between the three pillars of the Government, in a sense that the power of judicial review vested in the judiciary will ensure that the executive and legislative branches of the Government did not operate outside its provided parameters. In a case where any of these governmental organs are found to act outside their prescribed parameters, their actions will be rendered ultra vires by the Courts. To depict a rough picture of the nature of judicial review, judicial review serves to ensure that no governmental agencies/bodies operate above/outside their jurisdiction as prescribed by law. In relation to this, such duty is entrusted in the judiciary, being the guardian of the law.

    Under English law, there are several grounds of judicial review as propounded in CCSU v Minister for the Civil Service. The grounds are illegality, irrationality, procedural impropriety and the principle of proportionality. The grounds for a judicial review is in fact laid down in an earlier, yet significant case of Associated Provincial Picture Houses v Wednesbury Corporation, where the term 'Wednesbury unreasonableness' was coined. This term is related to the ground of irrationality as propounded in CCSU.

    In Malaysia, the process of judicial review is provided in the Specific Relief Act 1950 and paragraph 1 of the Schedule of the Courts of Judicature Act 1964. The application for a judicial review on the other hand, is provided under Order 53 of The Rules of High Court 1988.

    However, it must be noted that the previous practice of judicial review before the significant developments is that the Courts will only take into account the procedural matters of a case heard in a lower tribunal, following the practice of the English Courts.In other words, the Courts were interested in the process of how is the decision is arrived at and not the merits of the case. Therefore, the party applying for a judicial review can only rely on procedural discrepancies(if any)in order to succeed in their application.

    The Malaysian law on judicial review has seen positive development, as it grows from merely highlighting the procedural substance of a case in dispute to the more significant focus on the merits of a case. This was in fact held by the Federal Court in the case of R Rama Chandran v The Industrial Court of Malaysia,whereby the courts have the powers (i) to review the decision of a tribunal on its merits, (ii) to substitute the decision of a tribunal with a different decision without remitting it for a re-adjudication, and (iii) to order consequential relief. This case law shows that the Courts are currently willing to consider the merits of a case - a distinct departure from its stringent practice of only taking the procedural matters into account i.e. whether procedural rules (and not the merits of the case) have been adhered to or not.

    In the another equally important case of District Services Sdn Bhd v Ahmad Nazri Adnan & Anor.,the court may now scrutinise the merits of a decision of a tribunal if it is brought on the ground of Wednesbury unreasonableness. In this situation, the court may act outside its parameters and examine the merits of the case. However, it must be noted that a judicial review is not an appeal, as a judicial review will only be concerned with the legality of the decision.

    In a nutshell, judicial review is an important device that further equips the Court in its quest as the guardian of the law. This is to ensure that governmental bodies and its respective agents e.g. a tribunal, operate within its bounds and do not act outside their prescribed parameters.

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  38. Judicial review at common law is the inherent supervisory jurisdiction of the High Court over the validity of actions or decisions by a public authority. In Malaysia, there are additional powers which are conferred by the Courts of Judicature Act, and hence are statutory in nature. This position is different from the Indian where theirs are constitutional in nature. The grounds of review in the traditional Wednesbury’s case were re-postulated in CCSU.
    In both cases of Rama Chandran and District Plantations, the court not only exercised its inherent jurisdiction of judicial review to scrutinize on the decision making procedures by the authority, but too granted relief when quashing the decision of the authority concerned. The reasoning was that there are no express provisions in the Courts of Judicature Act or the Rules of High Court prohibiting it. Therefore, the courts could exercise its power when there are such lacunae in law.
    However, this would cause confusion and leads to the lacking of uniformity in law, as judicial review is supposed to review the decision making process, but not to intervene in the decision itself. By granting relief, it seems that the court, in exercising the power of judicial review, is hearing an appeal of the decisions from the inferior courts, which should not happen.

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  39. A judicial review is a complex legal process. Judicial review may be used where there is no right of appeal or where all avenues of appeal have been exhausted. Judicial review is the power of a court to review the actions of the legislative, executive, and administrative arms of the government or agent for constitutionality or for the violation of basic principles of justice. In many jurisdictions, the court has the power to strike down that law, to overturn the executive act, or order a public official to act in a certain manner if it believes the law or act to be unconstitutional or to be contrary to law in a free and democratic society.

    There is no automatic right to judicial review. The court will not allow a judicial review in every case. In general, the court will only allow a judicial review in limited circumstances.

    The grounds for judicial review are first laid down in Wednesbury’s case. A standard of unreasonableness used in assessing applications for judicial reviews of decisions of public authorities under English law. A decision or reasoning is Wednesbury unreasonable if it is so unreasonable that no reasonable person acting reasonably could have made it. It is possible for a decision to fail a proportionality test without being Wednesbury unreasonable.

    In the case of District Plantations Sdn Bhd v Ahmad Nazri Adnan & Anor, the judge said when a decision is challenged on the ground of 'wednesbury unreasonableness' the court may extend its judicial parameters and examine the merits of the decision itself as opposed to being confined to an examination of the decision making process only.

    In R Rama Chandran v The Industrial Court of Malaysia, a court undertaking a judicial review of an administrative decision is committed not only to review its decision making process but also the substance of its decision to determine whether it has been affected by any procedural impropriety, illegality, irrationality or proportionality.

    A judicial review is not a re-trial or a rehearing of case. The judge does not focus on whether he or she would have made a different decision from the one made by an administrative tribunal or an administrative decision maker. In a judicial review, the judge generally focuses on determining whether the tribunal had the authority to make a particular decision and whether the tribunal exercised that authority.

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  40. In general, judicial review is a process whereby the decision making process which was made by the lower courts or tribunals was reviewed. Whenever there is dissatisfaction regarding the decisions made, the applicant may apply for the order of certiorari upon certain basis or grounds such as the court or tribunal related had acted beyond their jurisdiction. When the court is satisfied on the grounds brought forward, the higher court would then review the manner of how the decision was decided.
    The issue of judicial review was discussed in the case of Ramachandran v Industrial Court of Malaysia. The court held that the appellant was dismissed with just cause. The appellant applied to the High court to quash the decision but the High court refused. He further appealed to the Federal court which then quashed the decision. Eusoff Chin CJ stated that the Industrial court has failed to consider the allegations of misconduct and instead focused on the letter of termination due to retrenchment. He further stated that the High court should not have refused the appeal when injustice was brought to its notice to remedy the injustice. Remitting the case back to the industrial court would also only prolong the dispute and thus caused further hardship to the appellant.
    Edgar Joseph Jr, FCJ stated that judicial review is concern with the decision-making process and not the decision. However, judicial review does make a decision to be scrutinized for process and substance as well such as proportionality. In this case, the judge stated that the decision of the industrial court flawed on grounds of reasonableness when it was held that the basic ground for dismissal was with just cause when in fact no fair inquiry regarding misconduct was held.
    The dissenting judge, Wan Yahya though agreed with the other judges that the Industrial court had failed to address the right issue, he disagreed that the Federal court can reverse the decision of the Industrial court. He supported this judgment by stating that the appellate court does not review and alter the finding of Industrial court as its function is purely supervisory in nature and not to substitute or interfere the findings of facts.
    Paragraph 1 of the Schedule to the Courts of Judicature Act gives the additional power to the High Court and the Federal Court to not only quash the award of the Industrial Court but also to make a finding that the employee had been dismissed from service without just cause or excuse and to go on to make the consequential orders for fair compensation.
    Another case which also discusses the issue of judicial review is the case of District Plantation Services Sdn Bhd v Ahmad Nazri Adnan & Anor. In brief, the applicant had dismissed the 1st respondent from his job on two main grounds. The industrial court decided in favor of the respondent. The applicant applied for the order of certiorari to quash the decision. Grounds of this application were that the industrial court(2nd respondent) had acted beyond its jurisdiction and did not discuss relevant facts. The applicant also appealed based on wednesbury reasonableness.

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  41. It was held that the 2nd respondent's decision is judicially sound and within the jurisdiction of the 2nd respondent without exhibiting any error in law, and is within the factual matrix presented before the court and that the 2nd respondent arrived at the appropriate decision which any other reasonable tribunal in like circumstance would have made. Thus, the applicant’s notice of motion was dismissed.
    However, a recent judicial pronouncements have clearly indicated that when a decision is challenged on the grounds of 'Wednesbury unreasonableness', the court may extend its judicial parameters and examine the merits of the decision itself as opposed to merely confining itself to an examination of only the decision-making process. It was generally thought that when a decision is challenged on grounds of 'Wednesbury unreasonableness', the court is confined to an examination of the decision-making process and not the merits of the decision itself.
    Based on the cases, it can be deduced that in judicial review, the high court and the Federal court have wider jurisdiction whereby they can review not only the decision-making but as well as the decision itself of the tribunal. However, this is against the principle whereby judicial review is not a form of appeal but merely to review the manner the decision was made. Furthermore, not all cases are open for judicial review as in the case of Plantation whereby it is unproven that there is error in the decision which causes injustice.

    By: Steffi Evonne Julius
    Thurs (6-7)

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  42. Mr. kahkheng- consider including the words "ultra vires" in your presentation. Keep up the good work! VJ

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  43. "supervisory jurisdiction of the High Court of Malaysia" - this is the cornerstone of JR- supervisory Jurisdiction. Good Work. But you have try to use your own grammar and linguistics. VJ

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  44. Mr. Hoe Siang
    supervisory jurisdiction of the High Court of Malaysia" - this is the cornerstone of JR- supervisory Jurisdiction. Good Work. But you have try to use your own grammar and linguistics.

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  45. Puan Patricia- I almost had a heart attack!! Its called "Certiorari". Regards. VJ

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  46. Puan Sandybeach
    "As a conclusion.." The correct grammar is 'In conclusion..." Keep up the good work and please read more. VJ

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  47. Aquinas-
    you have covered most of it.You are borrowing other material, you have to redraft it in your own English. Keep up the work. VJ

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  48. Puan Karen- average work. Need to read more and redraft in your own English. VJ

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  49. Puan Lim Justine- your quote
    A judicial review is a complex legal process. Judicial review may be used where there is no right of appeal or where all avenues of appeal have been exhausted.

    (This is an incorrect proposition.) JR has nothing to do with the appellate process. regards. The rest is okay.

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  50. Puan Steffi- wherd did you get this from?

    "However, a recent judicial pronouncements have clearly indicated that when a decision is challenged on the grounds of 'Wednesbury unreasonableness', the court may extend its judicial parameters and examine the merits of the decision itself as opposed to merely confining itself to an examination of only the decision-making process"

    Borrow the substance, but redraft in your own style. regards. VJ

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