GROUNDS FOR JR

PROCEDURAL IMPROPRIETY
This refers to the breach of any of the rules of natural justice thereby rendering an administrative action taken null and void. This sub-head is broad enough to incorporate the breach on  any procedural requirement prescribed by a law.

Sarawak Electricity Supply Corporation v Wong Ah Suan [1980] 1 MLJ 65
Held:Although the audi alterem partem rule applied in this case, an adequate opportunity to be heard had been accorded to the respondent.  [p.11]

CCSU

 In the common law countries, the grounds of JR of administrative action have been re-postulated  by the HOL in the landmark case of Council  for Civil Service v Minister for Civil Service

MATERIAL ON ADMINISTRATIVE LAW

                                                                  PART 1
ART.4(1) of  the FC is the supreme law of the Federation and any law that is passed after Merdeka whcih is inconsistent with  the FC is null and void. 

ART 162 (6)  a Court or Tribunal is empowered to modify any pre-Merdeka law which is inconsistent with the Constitution so as to bring it into accord wit the FC.

Barat Estates Sdn. Bhd & Anor v  Parawakan a/l Subramaniam & Ors [2000] 4 MLJ 107-"constitutionalisation of private law"

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                                                                      PART 2

Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223- traditionally the grounds of review were laid down in this case.

Council for Civil Service v Minister for Civil Service [1985] AC 374- grounds for JR repostulated in this case  (i) impropriety (ii) irrationality (iii) illegality (iv) proportionality ( as a possible additional ground of review in the future)

The Malaysian Courts endorsed the CCSU principles in the following cases:-

1. Minister of Home Affairs v Kesatuan Aliran  Kesedaran Negara [1990] 1 MLJ 351(SC)
2. R. Rama Chandran v The Industrialcourt of malaysia & Anor [1997] 1 MLJ 145 (FC)

Courts of Judicature Act 1964- additional powers for JR.

                                                                         PART 3
ART 128 (1) FC- the Federal Court has the jurisdiction  to determine the validity of any State or Federal law.

ART 130 - the Federal Court has the power and the jurisdiction to give an advisory opinion  on a constitutional question if the matter is referred by the Yang di Pertuan Agong.

                                                                       PART  4

Section 84 Courts of Judicature Act 1964 - important questions of law can be referred to the Federal Court  for a  final interpretation.

Badan Peguam Malaysia v Kerajaan Malaysia [2008] 1 CLJ 521 (FC)
( In the above case the reference to the Federal Court was to interpret and rule whether an academic (a law professor)  could be appointed as a Judicial Commissioner under Article 123  of the  Federal Constitution. The Court by a majority ruled in favour of the academic.

                                                                     PART 5
The Federal Court has the inherent jurisdiction and power under Rules 137 of the Federal Court 1995 to re-open, re-hear and re-examine  its previous judgment.

JUST WHAT IS JUDICIAL REVIEW?

Judicial review is the means by which the High Courts exercise a supervisory jurisdiction over inferior Courts. It is a specialised remedy in public law.

In reviewing a particular decision the Court is concerned to evaluate the fairness.The essential function of JR was described by Lord Hailsham L.C. in Chief Constable of North Wales Police v Evans[1982] 1WLR 11565 where he stated,

" It is important to remember in every case that the purpose ...is to ensure that the individual is given fair treatment by the authority to which he has been subjected......"

ZUNAR'S DILEMMA

SUN-TUESDAY- JULY 27 2010
Malaysiakini and cartoonist Zunar's publishing Company filed seperate applications yesterday for Judicial Review against against a Goverment decision to ban Zunar's political cartoon books 1 Funny Malaysia and Perak Darul Cartoon.

According to the applications, the order to ban the books was made without giving any grounds, except for describing the books as being "prejudicial to public order"

The applicants contented that " It cannot by any stretch of the imagination be considered to pose any threat whatsoever at all to public order within the meaning of Section 7 of the Printing Presses aand Publication Act  1984 ( Act 301)

The applicants claimed that the order and the consequential ban were in direct contravention to the right of freedom of expression and the rights of  Malaysians to receive information and expression of opinion  about political affairs from a free media. 

[ His real name is Zulkiflee S.M. Anwarul Haque]

SECTION 84 CJA 1964

SECTION 84 OF THE COURTS OF JUDICATURE ACT  1964 ALSO ENABLES IMPORTANT QUESTIONS OF LAW  TO BE REFERRED TO THE FEDERAL COURT FOR A FINAL AND AUTHORITATIVE  INTERPRETATION AND RULING.

ENDORSEMENTS

CCSU was  endorsed in the following Malaysian cases:-

Minister v Home Affairs v Kesatuan Aliran Kesedaran Negara [1990]  1 MLJ 351

P. Rama Chandran v The Industrial court of Malaysia & Anor [ 1997]    1 MLJ 145

G.C.H.Q. CASE

Lord Diplock defined " illegality" as meaning that "the decision maker must understand correctly the law that regulates his decision making power and must give effect to it."

[1979]QB P. 56

PEARLMAN V GOVERNORS OF HARROW SCHOOL
"No Court or tribunal has any jurisdiction to make an error of  law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction." Lord Denning M.R.

R v Hull University Visitor, ex p Page, Lord Browne Wilkinson clarified that,

"The mere existence of a mistake of law made at some earlier stage does not vitiate the  actual decision made; what must be shown is a relevant error of law, i.e. an error in the actual making of the decision which affected the decision itself."  [1993] A.C 682

Case Stated

An action that is brought upon the agreement of the parties who submit a statement of undisputed facts to the court but who take adversary positions as to the legal ramifications of the facts, thereby requiring a judge to decide the Question of Law presented.A case stated is also called an amicable action, a case agreed on, or a friendly suit.

JR-ITS MEANING

 Judicial Review is the means by which  the High Courts exercises a supervisory jurisdiction over inferior tribunals or other   public bodies.

In reviewing a particular decision the Court is concerned to evaluate fairness in the administration of justice. The essential function of Judicial review was well put by Lord  Hailsham L.C in Chief Constable Of North Wales Police v Evans where he stated,

" It is important to remember in every case that the purpose...is to ensure that the individual is given a fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of  the judiciary  or of individual judges for that of the authority constituted by law to decide the matters in question."

ARTICLE 4 (1) FC

Article 4(1) of the FC stipulates that the FC is the Supreme law of the Federation  and any law passed after Merdeka which is inconsistent with the Constitution is to the extent of the inconsistency, null and void.

Article 162 (6) further states that a Court or  Tribunal is empowered to modify  any pre-Merdeka law which is inconsistent with the constitution so as to bring in into accord with the federal Constitution.

1969 2 CA page223-256

ANISMINIC LTD. V FOREIGN COMPENSATION COMMISSION AND ANOR

 By S4 (4) of the  Foreign Compensation Act 1950:"The determination by the Commission of any application made to them under this Act shall not be called in question in any Court of law"

By Article 4(1)  in Part III of the Foreign Compensation (Egypt) ( Determination and Registration of Claims)  Order 1962:

" The Commission shall treat a claim under this Part of the Order  as established if the applicant satisfies them of the following matters:-

(a) that his application refers to property in Egypt which is referred to in Annex E

(b) if the property referred to in paragraph (1) (a) or paragraph (2) of Annex E

(i) that the applicant is the person referred to in paragraph (1) (a) or in paragraph (2) , as the case may be as the owner of the property or is the successor in title of such person; and

(ii) that the person referred to aforesaid  and any person who became successor in title  of such person on or before February 28  1959 were British Nationals on October  31 1956 and February  28 1959;

(c) if the property is referred to in paragraph (1) (b)  of Annex E

(i) that the applicant was the owner on October 31 1956 , or at the option of the applicant, on the date of the sale of the property at any time before February 29, 1959 , by the Goverment of the United Arab Republic under the provisions of the  Egyptian Proclamation No.5 of November 1,1956 , or is the successor in title of such owner ; and

(ii) that the owner on october 31 1956, or on the date of such sale, as the case may be, and any person who became successor in title  of such owner  on or before February 29, 1959 were British  Nationals on october 31 1956 and February 28 1959."

ARTICLE 128 FC

Under Art 128)(1) (a)  FC , the FC possesses jurisdiction to determine the validity of any State or Federal law on the ground that the impunged law was ultra vires the law making power of the State or as the case may be , the Federal Legislature.

impugn = to challenge or attack as false; assail; criticize

ADDITIONAL POWERS

 In Malaysia, the additional powers of Judicial Review of the High Court are those powers conferred on the High  Court  under para 1,Schedule to the Courts of Judicature Act 1964. These are statutory powers over and above the inherent powers of judicial review.

INDIAN AIRLINES V PRABHA D KANAN

[2006] 11 SCC 67
 In that landmark case , the Indian Supreme Court in no uncertain terms pronounced that  the time has come for Wednesbury unreasonableness to give way to  and be substituted by the more superior doctrine doctrine of proportionality.  

QUOTE

THE JUDICIARY MUST MAINTAIN ITS FUNCTION FEARLESSLY AS "THE  LAST DEFENCE OF THE LIBERTIES OF SUBJECTS AGAINST DEPARTMENTAL AGGRESSION"

THE STAR- FRIDAY 16 JULY 2010

KUALA LUMPUR: Every subsidiary Company is allowed to set up its own in-house Trade Union , the High Court ruled. Justice Mohd Zawawi Salleh made the ruling yesterday in a Judicial Review application filed by an in-house Trade Union British America Tobacco (Malaysia) Bhd. Employees Union (BATEU).

 He held that the law allowed for the Trade Union Director General  to register in-house Trade Unions although there is a national union of workers to protect the rights of employees in that specific industry.
In the application filed on November 14, 2007 the union applied to overturn the decision of Trade Union Director General dated October 29, 2007 who held that the union could no longer represent the employees of the Tobacco Importers & Manufacturers Sdn. Bhd. and Commercial Marketing & Distributors Sdn. Bhd.  which are BATEU subsidiary Companies.

Apart from a stay order , the union sought for costs and further relief  deemed fit by the Court. The Judge dismissed the application with costs.

The Unions's lawyer V.K. Raj told the Judge that he had received instructions to file an appeal. 

1 MLJ P.65

SARAWAK ELECTRICITY SUPPLY V WONG AH SUAN HELD:Although the audi alteram partem rule applied in this case, an adequate opportunity to be  heard had been accorded to the respondent.

[2008] 1 CLJ 521 (FC)

BADAN PEGUAM MALAYSIA V KERAJAAN MALAYSIA

The reference to  the  Federal Court was to interpret and rule whether an academic (i.e. a law professor) could be appointed as a Judicial Commissioner unedr Article 123 of the Federal Constitution. The Court by a majority ruled in favour of the academic.

ROHANA BINTE ARIFFIN V UNIVERSITI SAINS MALAYSIA

[1989] 1 MLJ P487   HIGH COURT PENANG - ORIGINATING MOTION 32-17-86 EDGAR JOSEPH
Issue:Appeal against decision of disciplinary authority dismissed- Application for certiorari
Held: Allowing the Appeal
The proceedings before the Disciplinary Authority were contrary to natural justice owing to the presence of the Registrar of the Respondent University,the complainant in the case of both the applicants, during the disciplinary authority's deliberations.