[2001] 1 CLJ 27

DISTRICT  PLANTATIONS SDN. BHD V AHMAD NAZRI ADNAN & ANOR

LABOUR LAW- EMPLOYMENT- DISMISSAL

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.

Article 149 FEDERAL CONSTITUTION

Article 149 gives power to the Parliament to pass laws to suspend a person's fundamental rights vested to him in Part II of the Constitution if the Parliament believes that the person is a threat to national security or public order notwithstanding the fact that the laws are conflicting with Article 5, 9, 10 and 13 and 79.
The laws passed to the effect of this article include, to name a few:

Dangerous Drugs Act 1952 (Revised 1980)

Internal Security Act 1960 (Revised 1972)

Official Secrets Act 1972

Printing Presses and Publications Act 1984

Sedition Act 1948 (Revised 1969)

Universities and University Colleges Act 1971n

The Acts mentioned above recognize the death penalty, the detention without trial, the caning and the silencing of people critical to the government to be lawful although they contradict with the articles on fundamental rights in Part II of the Constitution.

UPDATE

FOR THIS WEEKS CLASS, 1ST & 2ND SEPTEMBER 2010, STUDENTS ARE REQUIRED TO BRING THE FOLLOWING CASE TO CLASS:-

R RAMA CHANDRAN V INDUSTRIAL COURT OF MALAYSIA [1997] 1 MLJ 145

JUDICIAL ACTIVISM

EUSOFF CHIN CHIEF JUSTICE-The HC should mould the relief with the demands of justice. Sungai Wangi Estate v Uni [1975] 1 MLJ 136

EDGAR JOSEPH- FEDERAL COURT JUDGE-In the very special circumstances of this case, to remit the case to the IC to assess the monetary compensation payable by the Employer to the Employee would seem to be a certain detachment from reality and more importantly, it would not answer the needs of justice.

DISSENTING 

WAN YAHYA FEDERAL COURT JUDGE - The Court has no jurisdiction to proceed to hear and award compensation after the Industrial  Court's order had been quashed. The matter was to be remitted for retrial before the Industrial Court.

IN THE ABOVE CASE, THE COURT NOT ONLY REVIEWED THE DECISION MAKING PROCESS BUT   WENT A STEP FURTHER AND CONSIDERED THE MERITS OF THE CASE ITSELF. ONLY WAN YAHYA  FCJ DISAGREED.

Harpers Trading (M) Sdn Bhd v National Union of Commercial Workers

[1991] 1 MLJ 417
SUPREME COURT OF MALAYSIA

It seems to us that it should be treated as trite law that judicial review is not an appeal from a decision but a review of the manner in which the decision was made and the High Court is not entitled on an application for judicial review to consider whether the decision itself, on the merits of the facts, was fair and reasonable. There is no dearth of authorities on this proposition — Tan Hin Jin v Prabhulal G Doshi [1971] 1 MLJ 274

LORD HAILSHAM

CHIEF CONSTABLE OF NORTH WALES POLICE V EVANS [1982] 3 ALL ER 141 AT 143

The remedy of JR is concerned with reviewing not the merits of the decision in respect of which the application for JR is made,but the decision making process itself. It is important to remember in every case that the purpose of the JR  is to ensure that individuals are given fair treatment by the authority to which he has been subjected and that it is no part of the purpose to substitute the opinion of the judiciary or of the individual judges  for that of the authority constituted by law to decide the matters in question.

SOURCES OF JURISDICTION

The Malaysian position with regard to the procedure involved in JR is governed by the Specific Relief Act 1950 ( Act 137) and paragraph 1 of the Schedule of the Courts of Judicature Act 1964.

Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155 at p. 1160

NOTE:
Note: District Plantation Services Sdn. Bhd v Ahmad Nazri Adnan & Anor [2001] 1 CLJ 25 at p. 30
- THE COURTS MAY EXAMINE THE MERITS OF THE DECISION ITSELF ( IF CHALLENGED ON THE GROUND OF WEDNESBURY UNREASONABLENESS

Harpers Trading (M) Sdn. Bhd v National Union of Commercial Workers [1991] 1 MLJ 417- In a JR application the Court will not act as a Court of Appeal.

ORDER 53 - APPLICATION FOR JR

In Dato Anwar bin Ibrahim v Perdana Menteri Malaysia & Anor [2007] 4 MLJ 422- new form of procedure known as 'application for JR' Anyone seeking to challenge an administrative act or omission must apply to the HC.

Chin Mee Keong & Ors v Pesuruhjaya Sukan [2007] 7 MLJ 52- laeva may be granted  or refused in limine.

Mohd Aris bin Zainal Abisin v Suruhanjaya Pasukan Polis & Anor [2002] 4 MLJ 105- Order 53 r 1A should be read harmoniously with Art 5(1) of the FC.