CONSTITUTIONAL REVIEW-[ HOW TO EXPLAIN THIS CONCEPT]

My Dear Students- the future Peguambela & Peguamcara of Malaysia, I have written this article only as a guideline. Do not attempt to "copy & paste" as it  called plagiarism and to say the least- very unprofessional. Happy studying. Vijay

Introduction
In most of the Commonwealth countries,the Constitution is the supreme law of the land. ( With the exception of England, Israel & New Zealand) which does not have a written constitution, but only statutory legislation and case law). In the Malaysian context, Art 4 (1) of the Federal Constitution states in no uncertain terms that the supreme law of the land  is the Federal  Constitution .

As  Malaysia cleared itself  of  British  rule and their influence,and to safeguard  itself from any possible ambiguities, interpretations or whatever British influence they left behind, the Federal Constitution went on to state that " any law passed after Merdeka which is  inconsistent with the Constitution, is to the extent of the inconsistency null and void. And Article 162(6) further provides that a Court is empowerd to amend any pre-Merdeka law which is inconsistent with the Constitution to bring the relevant law in line with the Federal Constitution.

But the matter is far from simple- in fact, it is very complex arena. This is due to the  doctrine of Dicey.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 . Briefly summarized, they are as follows:-

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

The Conflict- Constitutional Review
Although few would argue with the first two principles, the third principle is extremely contentious as it is incompatible with the notion of a written constitution since such a constitution would be above the courts. But Dicey has stated that  there is no set of  laws which are above the Court!"
 
It is proposed to discuss the third point of Diceys legal proposition as it has presented a great difficulty- as it has reference to Constitutional review. The Supremacy of the Parliament and the Constitution are intact but the  Courts are the final interpreters of the law even to the extent reviewing the decisions of the elected Executive- that all  Goverment bodies act within the framework of the law.
 
Constitutional Review- its meaning within the legal context.
So when a citizen  of the Federation claims that his fundamental rights have been affected in some way by the Goverment or a tribunal he has to take his case  to a Court of law to challenge the Goverments's decisions that has affected him.( Sugumar Balakrishnan v Pengarah Imigresen Negeri  Sabah  & Ano [1998] 3 MLJ 289) In this context the Court has to hear the case and to decide as to whether  his Constitutional rights have indeed been violated. In other words - has the citizens rights been affected in any way that is  guaranteed in the  Federal Constitution? There is no such thing as an uncontrolled power .When the Judiciary is engaged in reviewing the decisions of Goverment bodies or tribunals, the process is also known as Judicial review.

 In Pangarah Tanah & Galian v Sri Lembah Enterprise[1979] 1 MLJ  the Court that,
" Every legal power must have legal limits ...otherwise there is a dictatorship. The Courts are the only defence of the liberty of the subject against departmental aggression.'

Judicial Review

There are many ways that a citizens  fundamental right can be affected. Since the scope of the question is wide, it is proposed to discuss the different contentious areas that has appeared before the Malaysian Courts. It seems appropriate to quote here the words of  Hishamudin Yunus J, in the case of Abdul Ghani  Haroon v Ketua Polis Negara & Anor [2001] 2 CLJ , a case relating to habeas corpus.

"The police officers responsible for the detention of the applicants must wake up to the fact that supreme law of this country is the Federal Constitution and not the ISA."

 Students need to explain the brief facts and the outcome of these cases.
Constitutional Review  of rights relating to religious freedom

Fatimah bte Sihi & Ors v Meor Atiqulrahman [2005] 2 MLJ 25

Constitutional Review  of  arrests and detention

Karam Singh v  Menteri Hal Ehwal Dalam Negeri Malaysia 2 MLJ 129 [1969]

Constitutional Review of  decisions of tribunals

Beatrice Fernandez v Sistem Pernerbangan Malaysia [2005] 2 CLJ 713

Constitutional Review in respect of   Goverment decisions


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

[ students must elaborate on more cases above]

Judicial Control

Judicial control over the legality of  administrative actions may be excercised in the following ways. Briefly stated if  any Goverment body exceeds the jurisdiction  coferred on it, an action my lie by way of judicial review.

Inherent Supervisory Jurisdiction of the Court.

Traditionally the grounds of review those  laid down in Associated Provincial Picture Houses v Wednesbury Corporation.These grounds have since been repostulated by the House Of Lords in the case of CCSU as procedural impropriety,irrationality, illegality with proportionality as an additional ground of review in the future. These principles were fully endorsed by the Malaysian Courts in the following cases:-

Minister of Home Affairs v Kesatuan Aliran Kesedaran Negara [1990] 1 MLJ , Ramachandran v Industrial Court of Malaysia.[1997] 1 MLJ145

 Powers of the Federal Court under  Article 128 of the federal Constitution.

The FC has the jurisdiction to determine the validity of any State law or Federal law on the ground that the impunged law was ultra vires the law making  power of the State

Article 130- Read this section

Section 84 CJA 1964- important questions of law can be referred to the Federal Court for a final interpretation and ruling.

Furher the Federal Court has the powers under Rule 37 of the Rules Of the Federal Court 1995 in very limited and exceptional circumstances  to re-open, rehear and re-examine its previous judgment, decision or order which has been obtained by fraud or suppression of material evidence or due to lack of quorum or as a result of the clear breach of the law  or where bias has been established.

Dato Seri Anwar bin Ibrahim v PP [2004] 3 MLJ 517 FC 

Grounds of  Judicial  Review : CCSU and the position thereafter

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, commonly known as the GCHQ case was an English administrative law which held that the Royal Prerogative was subject to judicial review. In 1984 the British government under Margaret Thatcher decided that employees of the Government Communications Headquarters (GCHQ) would not be allowed to join a trade union for national security reasons. This was enforced through an Order-in-Council, an exercise of the Royal Prerogative. The Council of Civil Service Unions chose to bring this matter to court through judicial review, first to the High Court of Justice, which ruled the Order-in-Council was invalid. The case then went to the Court of Appeal, which decided that the national security issues trumped any problems of propriety.


From there the case went to the House of Lords, where it was decided on 22 November 1984. In their decision, the Lords found that exercises of the Royal Prerogative were generally subject to judicial review, with certain exceptions such as matters of national security. This was a significant break from the previous law, which held that prerogative powers were not in any way subject to judicial review. The GCHQ case served to identify that the application of judicial review would be dependent on the nature of the government's powers, not their source

Note:- students need to point out that this case was the first to encroach on the Royal Prerogative. Prior to this case prerogative powers were not subject to Judicial Review.


Procedural Impropriety
 This refers the breach of any of the rules of natural justice.

Sarawak Electricity Supply Corp v Wong Ah Suan [1980] 1 MLJ 65

Irrationality

It is a decision that no reasonable authority or person will ever make that kind od decision.  -also known as "Wednesbury unreasonableness."

Kruse v Johnson [1998] 2 QB 91
Air India v Nergesh Meerza 1981 SC

Illegality

refers to abuse  of discretion -

male fide- Kamari bin Kassan v MMA [2000]  5 MLJ 84
ignoring relevant considerations- Tan Tek Seng v SPM & Anor [1996] 1 MLJ  261 (CA)
taking into account irrelevant considerations- Padfield v Minister of Agriculture & Fisheries [1968] 1 All ER 694
improper purpose- Pengarah Tanah &  Galian , WP  v Sri Lembah Enterprise [1979] 1 MLJ 135 (FC)
non- exercise of discretion- P Patto v CPO, Perak [1986] 2 MLJ 204

Proportionality 

briefly stated- this refers to prohibiting excessive punishment or fine

R v  Barnsley MBC , exp Hook [1976] 1 WLR - excessive punishment
R v Northumberland Compensation Appeal tribunal ex parte Shaw [1952] 1 All ER 122-excessive fine

 Observation of the Malaysian position.
From the above discussion, it appears that Malaysia is still caught up with the legal principles that were formulated in Associated Provincial Picture Houses v Wednesbury Corporation.  But the glaring fact is this- Wednesbury's case relied upon cases that were decided somewhere in the early 1900's- prior to the two major world wars!!!! Whereas other Countries have moved on with  the times, Malaysia is still caught up in the time warp of the first world war.  A further point to note is this- the legal position  in reference to Judicial review is rather narrow and most three of it is phrased negatively. These grounds are narrow and rigid  in terms of evaluating the decisions of inferior tribunals.

Take for example-the  decisions of tribunals may be reviewed on the basis of errors of law in the Anisnimic sense. Anisminic v Foreign Compensation Commission [1969] 2 AC 147 ( this landmark case is said to have abolished the distinction betwen errors of law that went to jurisdiction and those that did not)

This has been the legal position ever since the case of Syarikat Kenderaan Melayu Kelantan v Transport Workers Union [1995] 2 MLJ  317. Generally, all errors of law now go to jurisdiction and hence open to judicial intervention  on the application of  Judicial review.

It is submitted that it time for the  Malaysian legal system to sttudy from other systems and perchance emulatate those systems. Most notably the administrative law in South Africa is more dynamic  when compared to to other constitutional systems of the world . In year 2000 the SA Parliament enacted the Promotion of  Administrative Justice Act 2000 with a view to revamping the Judicial review process.This happened in the post apartheid era.One of the most powerful  Articles in the SA Constitution is the entrenchment and safeguarding of fundamental rights in Article 33.Whereas  in Malaysia procedures realting to fundamental rights are only found in statues (Criminal Procedure Code, Internal Security Act) in Soth Africa- they are safeguarded in the Contitution itself.

Of course, those safeguards became imperative, given the bloody history of the nation  it is submitted that Malaysia need not wait for a gross violation of human rights before it  decides to act.The system in India has been updated  too,  prior to which India had one of the worst violations of human rights in the world.  Article 226 is the cornerstone of human rights in India.

Conclusion

 The inquest into the mysterious death of Mr. Teoh and the Court's verdict have now been broadcast around the world.It is submitted that Dicey's third concept that the Courts are the final arbiters of the law has now become even more imperative but in the Malaysian context it has become somewhat of a joke. The Judiciary is the only avenue to safeguard the fundamental liberties of the citizen in any jurisdiction- by way of constitutional review of the decisions of  Goverment bodies- as a defender of the rights of its citizens.But if the Courts become weak and are unable to fullfill its mandate then a whole revamp of the system becomes necessary.

As the famous English maxim put it- "Justice must not only be done, it must seem to be done." There are already winds of dissatisfaction blowing against the Judiciary and the Executive- it is the authors view that the next election will have even more surprises than the previous one.The  author of this paper concludes this paper with a famous quote again from,

Pengarah Tanah dan Galian,WP v Sri Lembah Enterprise "Unfettered discretion is a contradiction in terms.....Every legal power must have legal limits,otherwise there is a dictatorship....The Courts are the only defence of the liberty of the subject against departmental aggression"
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( For students who want to score above average answers)
Proposols for Reform
( if any student wishes to earn an above average mark- fill in the gaps here:-Clue- research and imagination must go together. Bye.)
HUMAN RIGHTS COMMISSION OF MALAYSIA ACT 1999PART III --POWERS OF INQUIRY OF THE COMMISSION

An Act to provide for the establishment of the Human Rights Commission of; to set out the powers and functions of such commission for the protection and promotion of human rights in Malaysia; and to provide for matters connected therewith or incidental thereto:-Commission may inquire on own motion or on complaint

12. (1) The Commission may, on its own motion or on a complaint made to it by an aggrieved person or group of persons or a person acting on behalf of an aggrieved person or a group of persons, inquire into an allegation of the infringement of the human rights of such person or group of person.

(2) The Commission shall not inquire into any complaint relating to any allegation of the infringement of human rights which---
(a) is the subject matter of any proceedings pending in any court, including any appeals; or
(b) has been finally determined by any court.

(3) If the Commission inquires into an allegation under subsection 12 (1) and during the pendency of such inquiry the allegation becomes the subject matter of any proceedings in any court, the Commission shall immediately cease to do the inquiry.