[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.

1969 MLJ at page 6

HAJI ARIFFIN V GOVERMENT OF PAHANG

ADMINISTRATIVE LAW- TERMINATION OF SERVICE OF KATHI - FEDERAL CONSTITUTION 135(2) FC

HELD: The appellants services in this case had been lawfullly terminated and such termination did not involve a penalty or punishment so as to make it a dismissal within the meaning of  Article 135(2) of the FC. and to make it necessary first to give him a reasonable opportunity of being heard.

( There is a difference between a contract of service and a contract for services )

In Limine - Defined & Explained

Latin word meaning " at the threshold " or "at the outset". It is a legal term used to pass a motion before the trial begins. Usually such motions are requested in order to remove any evidence which has been procured by illegal means or those that are objectionable by jury or which may make the jury bias.
For Example- Permission may be granted or refused in limine as the case may be.
The lawyer will be informed at the beginning of the application for review , if  such application is  successful.

Chin Mee Keong & Ors v Pesuruhjaya Sukan [2007] 7 MLJ 52

A MALAYSIAN PRIDE

THIS IS THE JALAN DUTA COURT COMPLEX. IT'S A MAGNIFICENT BUILDING AND RELALLY HUGE. I HOPE YOU GET TO VISIT THE COURT SOMEDAY.(not as an accused, I hope!!) VIJAY

[2010] 3 CLJ at page 507

SIVARASA RASIAH V BADAN PEGUAM MALAYSIA & ANOR

CONSTITUTIONAL LAW: Fundamental Liberties-Freedom of Association-- Article 10 Federal Constitution - Meaning of 'in the interest of morality'- whether restriction imposed  by S46 A Legal Profession Act 1976 reasonable within Art.10(2)(c) on grounds of public morality.

[2010] 2 MLJ 377

SIS FORUM (MALAYSIA) V DATO SERI SYED HAMID BIN SYAED JAAFAR ALBAR (MENTERI DALAM NEGERI)

Administrative Law- Judicial Review

The Applicant sought Judicial Review under Order 53 of the Rules of the High Court 1980 to quash the decision of the Minister of Home Affairs banning the book published by SIS Forum ( Sisters In Islam) entitled Muslim Women and the Challenges of Islamic Extremism

Held: There was error of law evident in the decision of the Minister, by the combined grounds of 'illegality' and 'irrationality'.

A NOTE TO ALL AL STUDENTS

 For this coming Wednesday and Thursday classes on the 25th & 26th August 2010, UM students are required to bring a photostat copy of the following case:- Badan Peguam Malaysia v Kerajaan Malaysia [2008] 1CLJ 521


CLJ  521PUTRAJAYA, Dec 27 (Bernama) -- The Federal Court Thursday ruled that law lecturer Dr Badariah Sahamid was qualified to be appointed as a judicial commissioner (JC).

In a 3-2 majority decision, the court ruled that her appointment as a JC is valid as she had been an advocate of the High Court in Malaya for 10 years preceding her appointment within the meaning of Article 123 of the Federal Constitution.

IN FRAUDEM LEGIS

In fraud of the law. Every thing done in fraudem legis is void in law.

STEPHEN KALONG NINGKAN V GOVERMENT OF MALAYSIA [1968] MLJ 238-239

Held: The onus was on the appellant to show that the proclamation of emergency was in fraudem legis as alleged by him ....

[1975] 2 MLJ 155

GOVERMENT OF MALAYSIA V MAHAN SINGH

Constitutional law- Termination of Service- Federal Constitution Arts 132 & 135

Held: The Goverment had power to terminate the respondents service in the public interest under the regulation  and as the Goverment's decision to do so did not involve the punishing or penalising the respondent , he had not been dismissed and therefore was not entitled to a reasonable opportunity of being heard under Article 132(2) of the Federal Constitution.

 (The above decision is evidently unconstitutional. It is respectfully submitted that Mr. Mahans constitutional right was infringed in this case.)

NEVER SAY THINGS LIKE THIS.

SIR EDWARD COKE- 1552-1634

The Chief Justice of the King's Bench engaged in a little disagreement with the King over the subject of  the King's supremacy. The King felt that the Judges were only delegates of his Sovereign power - therefore the King could decide cases in person,from his throne, outside the lawcourts with his decision being the final authority- above that of all  the law Courts in the realm.Up until that time,nobody dared to challenge or dispute this position. Then came Sir Chief Justice Coke.

Chief Justice Coke said, " His Majesty is not learned in the laws of  the realm of England ... and that it requires long study and experience before a man can attain to the cognizance of it........"( In short, he told that  the King  was not qualified to decide on those matters)
He was charged with treason and paid the price.


Such is the fate of all those who poke holes in other peoples vanity, belittle their status and endanger their sense of self importance and security. Ignore this advice at your own peril.      VJ

AC 1984 p. 74

BOHAR SINGH KHERA                                                                APPELLANT

SECRETARY OF STATE FOR
THE HOME DEPARTMENT                                                          RESPONDENT

SALAMAT ULLAH KHAWAJA                                                       APPELLANT

SECRETARY OF STATE FOR

THE HOME DEPARTMENT                                                          RESPONDENT.

Immigration-Illegal Entrant-certificate of Entry- certificate granted to unmarried dependants's son- Non-disclosure of subsequent marriage-Whetehr Illegal entrant- whether under duty to disclose material facts.


 Per Lord Scarman- Habeas Corpus is not limited to British Nationals.Every person within the jurisdiction enjoys the equal protection of  our laws.He who is subject to English law is entitled to its protection.

LAWYERS & ASSOCIATES.

The proper way to pronounce the word ASSOCIATE is A-SSO-pronounced as CEO- and ends with CIATE.And not ASS-O-CIATE. There is a subtle difference in meaning depending on the way you pronounce it!So please be careful when using this word. VJ

CONUNDRUM- DEFINED & EXPLAINED

A paradoxical, insoluble, or difficult problem; a dilemma:

 A sensible approach out of the conundrum of  fundamental liberties.

PANACEA - DEFINED & EXPLAINED

A remedy for all diseases, evils, or difficulties; a cure-all.

It is naive and wishful thinking  for one to think that effective judicial review is a panacea to all public law problems and disputes in this day and age.

GUEST SPEAKER

 There will be a guest speaker  for  AL  this coming Wednesday on the 25.8.2010. Mr. Moses Susayan ,a legal practitioner of 15 years standing will present some aspects of administrative law. The other classes will have their turn in due course. VJ

PEARLMAN'S CASE

Pearlman v Keepers and Governors of Harrow School [1979] QB 56 (CA): Lord Denning said that the distinction between an error which entails absence of jurisdiction, and an error made within the jurisdiction, ‘should now be discarded. …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 and certiorari will lie to correct it.’

ANISMINIC'S CASE

Anisminic v Foreign Compensation Commission [1969] 2 AC 147 (HL)The Foreign Compensation Commission was set up by an act of Parliament that provided that ‘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’.

The Commission rejected Anisminic’s application for compensation, and the company sought a declaration that the decision was unlawful. Their argument was simply that the Commission misinterpreted the criteria for compensation, yet the House of Lords issued the declaration. The majority (3-2) of the Law Lords held that the Commission had misinterpreted the criteria, and that their error of law was of such a kind that there was no ‘determination’ at all.

According to Lord Reid, the Commission had decided the claim ‘on a ground which they had no right to take into account’ and as a result their decision was not a determination, but a nullity.

ORANG ASLI SETTLEMENT- PAHANG

BEST WISHES

TO ALL MY STUDENTS AT HELP INSTITUTE, IT WAS GREAT HAVING YOU IN CLASS. I WISH YOU ALL THE BEST IN YOUR CAREERS.FAREWELL-VJ

HOLOGRAPH- DEFINED & EXPLAINED

 In the law of Wills, a holograph is a will that is entirely written, dated and signed  by the hand of the testator.

( Perhaps this has more credibility than a printed will, in the sense that is less probable of it being a fake-VJ)

[2006] 6 MLJ 213

DR. MOHD NASIR BIN HASHIM V MENTERI DALAM NEGERI MALAYSIA

Constitutional law- Fundamental liberties- Freedom of Associations- Right to form Associations- Registration of political society at national level refused- Departmental policy- Whether unreasonable administrative act- Whether infringed right of freedom of association- guaranteed under the Federal Constitution-Federal Constitution- Art 10(1) (c) , 10 (2) (c)  

[1968] 1 ALL ER 694

PADFIELD AND OTHERS V MINISTER OF AGRICULTURE FISHERIES AND FOOD AND OTHERS

Public Authority- Statutory Powers- Duty of Minister- Judicial control of executive discretion- Complaint by milk producers- asking for reference to committee of investigation- Discretion of Minister not expressly limited by enactment- Minister declining to refer complaint- Previous applications- by producers to Milk Marketing Board unavailing- Producers in a minority on board- whether mandamus would lie- Agricultural Marketing Act 1958

TIPS FOR FUTURE LAWYERS

LIFE IS AN ENDLESS CONFLICT, AND YOU CANNOT  FIGHT UNLESS YOU CAN IDENTIFY YOUR ENEMIES.LAWYERS MUST SEE SITUATIONS AS THEY REALLY ARE, NOT AS HOW OUR EMOTIONS COLOUR THEM.MAKE A MISTAKE HERE & YOU WILL BE SWALLOWED ALIVE. VJ

MANEKA GANDHI V UNION OF INDIA , AIR 1978 SC 597

SUMMARY:- THE PETITIONER'S PASSPORT WAS IMPOUNDED IN PUBLIC INTEREST BY AN ORDER DATED JULY 2 1977.THE GOVERMENT OF INDIA DECLINED IN THE INTERESTS OF THE GENERAL PUBLIC TO FURNISH THE REASONS FOR ITS DECISION.

HELD: - NATURAL JUSTICE IS A GREAT HUMANISING PRINCIPLE INTENDED TO INVEST LAW WITH FAIRNESS AND TO SECURE JUSTICE AND OVER THE YEARS IT HAS GROWN INTO A WIDELY PERVASIVE RULE AFFECTING LARGE AREAS OF ADMINISTRATIVE ACTION.

TO ALL MY STUDENTS IN BRICKFIELDS

TO ALL MY STUDENTS IN BRICKFIELDS- NEVER DO THIS WHEN THE LECTURER IS TALKING. REGARDS. VJ

WAN AZLAN AHMAD

ADMINISTRATIVE LAW IN MALAYSIA- at p 7

JR is the backbone of AL, and it remains, in a contemporary rule of law state,the most potent judicial weapon available to an aggrieved individual to challenge the validity of the decision making process of public authorities.

WAN AZLAN AHMAD

ADMINISTRATIVE LAW IN MALAYSIA - at page 3

"The study of administrative law is in the main concerned with ensuring that tribunals,goverment departments and all authorities exercising public law functions act within the perimeters of their powers.

SYLLOGISTIC REASONING-DEFINED

a piece of deductive reasoning from the general to the particular

[2001] 2 CLJ 709

ABDUL GHANI HAROON V KETUA POLIS NEGARA & ANOR APPLICATION [NO3]

ADMINISTRATIVE LAW: Remedies - Habeas Corpus ad subjiciendum-Denial of Access to Counsel and family members-whether remedy available-Internal Security Act 1960, ss 8, 73 (1), (3) - Federal Constitution Art 5(3)

habeas corpus ad subjiciendum: ini adalah suatu writ for inquiring into the lawfulness of the restraint of a person who is imprisoned or detained in another's custody.[Seringkas kata- apa salahlaku nya sampai kena ditahan oleh pihak polis? ]

Justice Hishamudin Yunus- The denial of access to lawyers was not only a gross violation of the fundamental rights as enshrined in the Federal Constitution but had also greatly prejudices the applicants.

ATTRITION-DEFINED AND EXPLAINED

1. A rubbing away or wearing down by friction.
2. A gradual diminution in number or strength because of constant stress.
3. A gradual, natural reduction in membership or personnel, as through retirement, resignation, or death.

OURS IS A WAR OF ATTRITION- HIZBOLLAH

[2004] 4 CLJ 403

BEATRICE FERNANDEZ V SISTEM PENERBANGAN MALAYSIA & ANOR

Constitutional law is a branch of public law;it deals with the contravention of an individuals rights by a public authority.

Abdul Hamid Mohamad FCJ delivering the Judgment of the Court

Note: This is the essence and foundation of administrative law.If a citizen complains that his or rights have been infringed by a public body, that thay can file an action in Court. The Courts will then review the decision of the public body to see if the citizens rights have indeed been infringed. This process is done under Order 53 RHC and is known as Judicial Review. The Courts will analyze the decision of the public body and see whether it was acting within its powers.If it had exceeded its powers then the Courts will quash the decision atas alasan that it was ultra vires In law this is known as certiorari proceedings. Faham tak,murid murid?? Vijay

TUTORIAL QUESTION

DESCRIBE HOW THE RULE OF LAW MANIFESTS ITSELF IN THEORY AND PRACTICE VIA THE ULTRA VIRES DOCTRINE.

Dicey's rule of law

 

 The notion of the rule of law can be traced back to at least the time of Aristotle who observed that given the choice between a king who ruled by discretion and a king who ruled by law, the latter was clearly superior to the former.In more recent times, it is Albert Dicey who is credited with providing the logical foundation upon which the modern notion of the rule of law is based. He laid out his three principles of the rule of law in his 1885 book An Introduction to the Study of the Law of the Constitution (often abbreviated as Law of the Constitution):

• everyone is equal before the law
• no one can be punished unless they are in clear breach of the law
• there is no set of laws which are above the courts

Although few would argue with the first two principles, the third principle is actually quite contentious as it is incompatible with the notion of a written constitution since such a constitution would be above the courts. This simple fact leads us to have to consider Dicey's views on written vs unwritten constitutions.This is really where the problems begin for the law student.

AN OBSERVATION

There are many Nations AND  Constitutions in this world but I think most of us live here. Vijay

[2005] 3 MLJ 97

PALM OIL RESEARCH & DEVELOPMENT BOARD MALAYSIA & ANOR V PREMIUM VEGETABLE OILS SDN. BHD. & ANOR APPEAL

(Per Gopal Sri Ram JCA)-  Section 14(1) empowers the  Minister, inter alia, to impose research cess on palm oil: not on palm oil millers. Thus the 1979 Act did not suthorise the imposition of the research cess upon palm oil millers. S14 of the 1979 Act also did not identify the payer of the research cess.Basaed on these above matters, the 1969 Order was ultra vires the 1979 Act.

CESS- DEFINED & EXPLAINED

The term cess (a shortened form of assess; the spelling is due to a mistaken connection with census) generally means a tax. It is a term formerly more particularly applied to local taxation, in which sense it is still the official term used in Ireland; otherwise, it has been superseded by "rate." In India it is applied, with the qualifying word prefix, to any taxation, such as irrigation-cess, educational-cess, and the like. In Scotland, it refers to the property tax which was enacted in Scotland in 1665 and continued to be levied through the 1700s.

Albeit--Meaning and Definition

Even though; although; notwithstanding

PROPORTIONALITY

- From Professor Gan's Notes-at p. 30

Proportionality is part of Malaysian law when a breach of  fundamental or human right is alleged to have occourred. It is a doctrine which envisages than an administrative action, rule or decision may be intefered with by the reviewing Court if it is found that it is not proportionate  to the mischief  at which it was aimed. In simple language, you cant use a sledgehammer to crack a nut.

Case law:- Kumpulan Perangsang SElangor Bhd v Zaid bin Mohd Noh [1977]1 MLJ 798 at p 798-799

[1969] 2 MLJ p. 129

KARAM SINGH V MENTERI HAL EHWAL DALAM NEGERI, MALAYSIA
 Held: Dismissing the Appeal.

(1) The learned trial Judge was correct in holding that the appellants detention had been made in the exercise of a valid legal power and therefore the onus lay on the appellant to show that such power had been exercised mala fide or improperly.

PARACHIOLISM- DEFINED & EXPLAINED

narrowness or pettiness of interests, opinions, or information. — parochialist
Eg. - Somebody who is just stuck with his own views.( Malay  version- Seperti katak di bawa tempurung)

[1996] 1 MLJ 481 461

HONG LEONG EQUIPMENT SDN. BHD V LIEW FOOK CHUAN ( pp-536-537)
"... as a general rule, procedural fairness, which includes the giving of reasons, must be extended to all cases where a fundamental liberty guaranteed by the  Federal Constitution is adversely affected in consequence of a decision taken by a public decision maker. Whether a particular right is a fundamental liberty, and therfore falls within the wide encompass of any of the Articles under Part II of the FC  is a question that has to be dealt with on a case by case basis. Suffice to say that the instant appeals are concerned with a fundamental liberty"

[1998] 2 MLJ 217

SUGUMAR BALAKRISHNAN V DIRECTOR OF IMMIGRATION, STATE OF SABAH & ANOR

HIGH COURT (KOTA KINABALU)- ORIGINATION MOTION NO K25-29 OF 1997  
 IAN CHIN  26 DECEMBER  1997

 Immigration- Cancellation of entry permit- Application for certiorari to quash decision of State Authority- Director of  Immigration- acted under direction of State Authority-Whether cancellation subject to Judicial Review - Immigration Act 1959/63 S59 A 

Per incuriam- Definition

By mistake
Per-incuriam decisions or precedents are not binding

A decision of a court that is wrongly decided, because the judge was misinformed of the law. A judgment per incuriam is not binding and has no authority under the principle of stare decisis.


The judgment per incuriam could not be relied on under the principle of stare decisis.

Legal Dictionary

Sui Generis- Latin, of its own kind

constituting a class alone : unique or particular to itself sui generis case has the potential to mislead

Lee Kwan Woh v PP [2009] 5 MLJ 301 at p. 302
In addition, the constitution  is a document sui generis governed by interpretative principles of its own which imposes a duty on the Court  to adopt a prismatic approach when interpreting the fundamental rights guaranteed under Part II of the Constitution.

Chapter 1 - The South African Constitution and Bill of Rights

Summary of the Constitution -Preamble
We,the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constituton as the supreme law of the Republic so as to -Heal the divisions of the past and establish a society based on democratic values, social justice
and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will
of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place as a sovereign state in
the family of nations.
May God protect our people.
Nkosi Sikelel' iAfrika. Morena boloka setjhaba sa heso.
God seen Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afrika. Hosi katekisa Afrika.

Art 8 (1 ) FC

It has been ruled by implication that Art 8 (1) FC is the source of the ultra vires doctrine in this country.

Palm Oil Research v & Development Board Malaysia & Anor v Premium Vegetable Oils Sdsn. Bhd  [2005] 3 MLJ 97 (FC)  

p.23

[2008] 4 MLJ 641

Minister of Finance, Goverment of Sabah v Petrojasa Sdn. Bhd

The response is a clear reflection of the little respect, if any that the Government has for the Certificate. The learned High Court Judge in his judgment expressed his disapproval over the conduct of the State Goverment in the following words;

“The Applicant is not alone because there are others who have variously obtained judgments, decisions or awards  against the Government of the State of Sabah which remain barren to this day. I do not propose to speculate Sabah can continue to defy the law and play the ostrich before it undermines the basis of its very existence. I would certainly eschew a discussion on the wisdom, or of the abject recalcitrance of the Government of lack of it, the State of Sabah in these circumstances. I need not say more, except lament the hollowness of the salutary expression of Lord Denning in FRANKLIN at p 871 – “It is always presumed that, once a declaration or entitlement is made, the Crown will honour it. And it has always done so.And my misfortune in being placed in a situation  where the Court is helpless to put right what is clearly an unmitigated wrong."

Rohana Ariffin & Anor v USM [1989] 1 MLJ 487

It is a well established principle of administrative law that anything that restricts or appears to restrict the defendants ability  to present his case  may be held to be a breach of procedural fairness and is thereby susceptible to JR.

Universiti Sains Malaysia (Discipline of Staff) Rules 1979 ,rr 4,14,27,33 & 35
Universities & University and University Colleges Act  1971, s 16 A
Rohana & Hashim.

In the case of the applicant Hashim, he had been found guilty by the disciplinary authority of four of the six offences charged, namely:
a first charge of making a public statement on a matter that would be detrimental to the policies and decisions of the respondent university in relation thereto and thereby committed an offence under r 18(1) of the Universiti Sains Malaysia (Discipline of Staff) Rules 1979 (hereinafter referred to as ‘the said Rules’) and acted so as to bring discredit to the reputation of the respondent university, and thereby committed an offence under r 4(2)(d) of the said Rules;

a second charge alleging conduct which was irresponsible, an offence under r 4(2) of the said Rules;

two charges of, inter alia, inciting students, on separate occasions, to boycott activities organized by the student affairs department of the respondent university which were offences under r 4(2)(g) and 4(2)(j) of the said Rules.

JUDICIAL REVIEW

The rules governing JR under the CL inherent jurisdiction of the HC have been endorsed and emphasised by the Malaysian Courts in the case of Rohana & Anor v USM [1989] 1 MLJ 487 at 489 

US AMENDMENTS MADE SIMPLE

1st Amendment- deals with freedom of speech, press freedom, and the right to peaceful assembly.

5th Amendment- this is a guarantee of due process

14 Amendment- this is a guarantee on equal protection.

Fourteenth Amendment to the United States Constitution

The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868 as one of the Reconstruction Amendments.

Its Citizenship Clause provides a broad definition of citizenship that overruled the decision in Dred Scott v. Sandford (1857), which held that blacks could not be citizens of the United States.

Its Due Process Clause prohibits state and local governments from depriving people (individual and corporate) of life, liberty, or property without certain steps being taken. This clause has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive procedural rights. Rights and Its Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction. This clause later became the basis for Brown v. Board of Educationracial segregation in the United States. (1954), the Supreme Court decision which precipitated the dismantling of

Fifth Amendment to the United States Constitution

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

First Amendment to the United States Constitution

The First Amendment (Amendment I) to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law "respecting an establishment of religion", impeding the free exercise of religion, infringing on the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances.

Originally, the First Amendment only applied to the Congress. However, starting with Gitlow v. New York, 268 U.S. 652 (1925), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment applies the First Amendment to each state, including any local government.

R Rama Chandran v The Industrial Court of Malaya & Anor [1997] 1 MLJ 147

The Court cannot overide an express provision of the law, but if there is no express provision in the statute, then the Courts can exercise its powers in a suitable case.  Zainal Abidin v Century Hotel [1982] 1 MLJ 260 followed.

INIMICAL- Defined & Explained

Unfriendly 

Injurious or harmful in effect; adverse: habits inimical to good health. 

R Rama Chandran v The Industrial Court of Malaya & Anor [1997] 1 MLJ 147

The Courts, therefore should not be obliged to continue to arrive at decisions which are both unjust to the decisions and inimical to the public well being simply because of something decided centuries ago.

[2008]5 MLJ 773

AHMAD JEFRI BIN MOHD JAHRI @MD. JOHARI V PENGARAH KEBUDAYAAN & KESENIAN jOHOR & ANOR
Held:Any application to challenge the decision of the respondent, a pulic  authority can only be commenced by way of Judicial Review  under the new Order 53 of the RHC which replaces the former )53 RHC  and came into effcet from 21 September 2000.

Syarikat Kenderaan Melayu Kelantan Bhd. v Transport Workers Union [1995] 2 MLJ 321

Jurisdiction is exceeded when error of law is committed, an unfair procedure is adopted,or where the decision reached is unreasonable. However,it is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law,  for the categories of  such an error are not closed.  at page 322.

CRYPTIC- Defined & Explained

having a hidden or ambiguous meaning; mysterious; baffling: a cryptic comment

obscure and curt in expression

 Syarikat  Kenderaan Melayu Kelantan Bhd. v Transport Workers Union  [1995] 2 MLJ 321

 Per Incuriam- ( Per Gopal Sri Ram JCA ) The disregard of form in industrial law does not include the settling of documents in cryptic and incomprehensible language.While perfection in drafting is not called for, some care must be taken to ensure that no one is misled by the contents of any pleading delivered in proceedings before the Court. 

THE VICTORY??

Temuans celebrating after the Court ruled in their favour.The compensation was RM6.5 million.The actual lands worth was something like RM1 billion!!!-VJ

NOSTALGIC MOMENTS.

Sagong Tasi (in yellow T-shirt) walking along KM33 of the Nilai-KLIA Highway with his daughter and other Temuans. The highway runs through where their houses, as well as the Balai Adat and Balai Raya, once stood. — AZLINA BT ABDULLAH / The Star

EQUIPOLLENT- Defined & Explained

Equal in force, power, effectiveness, or significance

Art 32 of the Indian Constitution - protects and enforces fundamental human rights in the Supreme Court. However, there is no such equipollent provision in Malaysia.

[In Malaysia,although these rights are found in the Constitution, it does not include the words-" Protects and enforces fundamental human rights in the Supreme Court" like the Indian Constitution.Further, our Constitution does not say that fundamental rights are protected by the  Federal Court[ ALTHOUGH THE RIGHTS ARE MENTIONED  IN THE FC]. A brief illustration is the Sagong Tasi's case where the Temuan tribe, although they won their case but they still lost their land to the Selangor State Goverment)

The other difference is this- Art 32 of India- the Supreme Courts protects human rights. In Sagong Tasi's episode- he had to take the Selangor State Goverment  to  Court to protect himself. The land was confiscated in 1996- High Court judgment was only given in the 2002. By the time it reached the CA in 2005- the land was already overun by development.

But by Art 32- the Supreme Court would have, by way of an injunction- ordered the Authority to leave the land immediately. [ I really  hope this is removing the mental block of  students]. Have a great weekend.-- VJ

SUBSTANTIVE ULTRA VIRES

In  the  Federal Court it was pronounced that the ultra vires doctrine has its roots in Art8(1) of the Federal Constitution.

Palm Oil Research & Development Board Malaysia & Anor v Premium Vegetable Oils [2005] 3 MLJ 97

PROCEDURAL ULTRA VIRES

In relation to subsidiary legislation, it refers to any non-compliance with mandatory procedural requirement by the law making authority in the law making process.

INFERIOR TRIBUNALS

 Review On Errors of Law
The decision of inferior tribunals may be reviewed on the basis of errors of law in the Anisminic sense.This has been the position ever since the case of  Syarikat Kenderaan Melayu v Transport Workers Union [1995] 2 MLJ 317 pages 342-343

ORDER 53 RHC

In Common Law Countries like Malaysia, Singapore and Hong Kong - Judicial Review has been inherited from the British.The said procedures for such applications is prescribed in Order 53 of the Rules of the High Court.

RECESSIVE

Tending to go backward or recede.

THE LAW AND ITS IMPORTANCE

"Law,says the Judge as she looks down her nose,
Speaking clearly and most severely
Law is as I have told you before
Law is as you know I suppose
Law is but let me explain it once more
Law is the Law."
W.H AUDEN, extract from Law is like Love."

ABRIDGE- Defined & Explained

1. to shorten by omissions while retaining the basic contents: to abridge a reference book.
2. to reduce or lessen in duration, scope, authority, etc.; diminish; curtail: to abridge a visit; to abridge one's freedom.
3. to deprive; cut off.

quo warranto

quo warranto. Definition Legal- procedure by which an entity is stopped from continuing with a particular course of action, by demanding to know by what authority or right it is doing what it is doing. Latin for, by what authority.

COMMENTS ON ART 32 & 226

Articles 32 and 226 are the provisions of the Constitution that together provide an effective guarantee that every person has a fundamental right of access to courts. Article 32 confers power on the Supreme Court to enforce the fundamental rights. It provides a guaranteed, quick and summary remedy for enforcing the Fundamental Rights because a person can go straight to the Supreme Court without having to go undergo the dilatory process of proceeding from the lower to higher court as he has to do in other ordinary litigation. The Supreme Court is thus constitution the protector and guarantor of the fundamental rights.


The High courts have a parallel power under Article 226 to enforce the fundamental rights. Article 226 differs from Article 32 in that whereas Article 32 can be invoked only for the enforcement of Fundamental Rights, Article 226 can be invoked not only for the enforcement of Fundamental Rights but for any �other purpose� as well. This means that the Supreme Court�s power under Article 32 is restricted as compared with the power of a High Court under Article 226, for, if an administrative action does not affect a Fundamental Right, then it can be challenged only in the High Court under Article 226, and not in the Supreme Court under Article 32. Another corollary to this difference is that a PIL (Public Interest Litigation) writ petition can be filed in Supreme Court under Article 32 only if a question concerning the enforcement of a fundamental right is involved. Under Article 226, a writ petition can be filed in a High court whether or not a Fundamental Right is involved.

PAJA 2000

 In the year 2000, the South African Parliament enacted the Promotion of Administration Justice Act  witha view  to facilitating and promoting Judicial Review.

DEROGATION- Defined & Explained

The partial abrogation of a law. To derogate from a law is to enact something which is contrary to it, while to abrogate a law is to abolish

Relevant Articles of the Indian Constitution:

Article 32 Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant to and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

Article 226 Power of High Courts to issue certain rights
(1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without -

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

 (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.

Article 150 Federal Constitution

This article permits the Yang di-Pertuan Agong to issue a Proclamation of Emergency and to govern by issuing ordinances that are not subject to judicial review if the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened.

Article 13 Federal Constitution

Article 13 provides that no person may be deprived of property save in accordance with law. No law may provide for the compulsory acquisition or use of property without adequate compensation.

ADONG BIN KUWAU V KERAJAAN NEGERI JOHOR & ANOR

[1997]1 MLJ 418
High Court ( Johor Bahru)-Originating Summons No. 24-828-94
Mokhtar Sidin JCA      21 November 1996
OBITER:  The NLC 1965 does not provide for compensation of lands acquired.However, the NLC must be read as being subservient to Art.13 of the Federal Constitution and where there is no provision for compensation under statutory law, Art.13 (2)  should beread into that statute.

KERAJAAN NEGERI SELANGOR &ORS v. SAGONG TASI & ORS

COURT OF APPEAL, PUTRAJAYA[CIVIL APPEAL NO: B-02-419-2002]
GOPAL SRI RAM JCA , ARIFIN ZAKARIA JCA , NIK HASHIM JCA
19 SEPTEMBER 2005Case History : High Court : [2002] 2 CLJ 543 JUDGMENT
Gopal Sri Ram JCA:
Facts, Background And The Issues
There are 4 appeals and a cross appeal before us. For convenience, I will refer to the parties according to the titles assigned to them in the court below. The appeals have been brought by each of the 4 defendants. Their complaints are directed against the judgment of the High Court granting the plaintiffs compensation under the Land Acquisition Act 1960 ("the 1960 Act") for loss of certain land which the judge found to have been held under customary title. His judgment is reported in [2002] 2 CLJ 543. The facts of this case have been - to adopt the expression currently in vogue - sufficiently 'interrogated' in that judgment. That spares me regurgitating the facts here. I need only say something about them for the limited purpose of understanding the arguments that have been canvassed before us.

The plaintiffs (which expression appearing throughout this judgment includes all those whom they represent) are aboriginal peoples of the Temuan tribe. They are the First Peoples of the States of Malaya. They are, by their custom and tradition, settled peoples. In other words, they are not nomadic as are some of their other aboriginal brothers and sisters. They settle on the land. They cultivate it with crops. They put up buildings on the land. They also exercise rights of usufruct over the surrounding area. In other words they forage and fish in that area. In this case the lands in question are in Bukit Tampoi.

Now, the judge made several findings of fact in the plaintiffs' favour. None of these are the subject of challenge before us by the defendants. That is hardly surprising. His findings of fact which form the substratum of the case for making out customary community title are amply supported by cogent evidence. All the facts as found by the judge are therefore accepted by the defendants. Some of his primary findings of fact are as follows:

(a) the Bukit Tampoi lands, including the land, have been occupied by the Temuans, including the plaintiffs, for at least 210 years and the occupation was continuous up to the time of the acquisition;

(b) the plaintiffs had inherited the land from their ancestors through their own adat;


(c) the Temuans who are presently occupying the Bukit Tampoi lands including the plaintiffs in respect of the land are the descendants of the Temuans who had resided thereat since early times and that the traditional connection with the Bukit Tampoi lands have been maintained from generation to generation and the customs in relation to the lands are distinctive to the Temuan culture; and


(d) the Bukit Tampoi lands, including the land, are customary and ancestral lands belonging to the Temuans, including the plaintiffs, and occupied by them for generations.

COMMENT BY GOPAL SRI RAM

Kerajaaan Negeri Selangor & Ors v Sagong bin Tasi & Ors - Court Of Appeal- [2005] 6 MLJ 289

 "But this is nevertheless a sad case.Sad,because of the treatment that the plaintiffs received in the hands of the defendants.Here you have a case where the very authority-the State-that is enjoined by the law to protect the aborogines turned upon them and permitted them  to be treated in a most shoddy, cruel and oppressive manner.It is my earnest hope that an episode such as this will never be repeated"

SAMPLE EXAM QUESTION

1.How does and where the principle of accountability fit into the discussion on the Rule of Law?

2.Using Sagong Tasi's case as the basis for arguments,how do you creatively use the doctrine of Rule of Law,Arts.4(1),162(6),5(1),8(1),13(1) and 13(2) of the Federal Constitution and LAA 1960,CLA 1956,etc,to re-invent and re-fashion legal arguments in support of the claims of the Orang Asli whenever their rights and interests are constantly under threat whenever outside developments encroach upon their settlements and livelihood.

Sagong bin Tasi & Ors v Kerajaaan Negeri Selangor & Ors - High Court - [2002] 2 MLJ p.591

Kerajaaan Negeri Selangor & Ors v Sagong bin Tasi & Ors - Court Of Appeal- [2005] 6 MLJ 289

Recent Federal Court cases:

Lee Kwan Woh [2009] 5 MLJ 301, (FC).


Shamim Reza Abdul Samad V PP [2009] 6 CLJ 91, (FC)


Darma Suria bin Risman Saleh v Menteri Dalam Negeri, Malaysia & Ors (Federal Court, 9th Oct 2009)


Sivarasa Rasiah v Badan Peguam Malaysia & Kerajaan Malaysia (Federal Court, 17th Nov 2009)

MEANINGS

"Super -Wednesbury unreasonableness"= relates to an administrative action which is unreasonable in the extreme

"Sub-Wednesbury unreasonableness" =substantive defects in the decision making process such as "mala fide"[bad faith]

What is Audi alteram partem?

It embodies the concept in criminal law that no person should be condemned unheard; it is akin to due process [proper process in law]

it also appllies in Civil cases.
[Sarawak Electricity Supply Corporation v Wong Ah Suan 1 MLJ 1980 65]

GROUNDS FOR JR

ILLEGALITY- ABUSE OF DISCRETION

 Kamari bin Kassan v MMA [2000] 5 MLJ 84- mala fide
[The Respondent failed to adhere to bahagian IV para 3(h) of 'Peraturan-Peraturan Perkhidmatan Pegawai / Kakitangan Akademi Laut Malaysia' as no warning letter was  issued to the Claimant and no report in writing was ever prepared by the respondent to be handed to the disciplinary Board.]


Tan Tek Seng v SPM & Anor [1996]  1 MLJ 261  CA - ignoring relevant consideration


Padfield v Minister of Agriculture & Fisheries [1968] 1 All ER 694- taking into account irrelevant consideration


Pengarah Tanah & Galian ,WP v Sri Lembah Enterprise [1979] 1 MLJ (FC) -improper purpose


P Patto v CPO,  Perak [1986]  2 MLJ  204 (SC)
Lam Eng Rubber Factory v Pengarah Alam Sekitar , Negeri Kedah & Perlis & Anor [2005] 2 MLJ 493 (CA) 

GROUNDS FOR JR

IRRATIONALITY

 It means unreasonableness of the extreme. If it relates to an administrative decision,it is a decision  that no reasonable authority or person will ever make that kind of decision.

KRUSE V JOHNSON [1898] 2 QB 91
A County Council claiming to act under their statutory powers, made a by-law prohibiting any person from playing music or singing in any public place or highway within 50 yards of any dwelling house after being requested by any constable, or an inmate of such house,or his or her servant, to desist.
Held: That the by-law was valid.

[Air India v Nergesh Meerza AIR 1981 SC 1829]