Understanding Judicial Review in Police Disciplinary Cases
School
Multimedia University, Bukit Beruang**We aren't endorsed by this school
Course
LAW UAL 2612
Subject
Law
Date
Dec 12, 2024
Pages
17
Uploaded by HighnessStar26091
Problem Questions 1.Alex was appointed as a police officer under a 2-year contract in December 2023.Recently, he was dismissed from work due to allegedly assaulting a member of thepublic while on his duty. He received the official letter of his dismissal on 6th May2024. The decision to dismiss was made by the Disciplinary Board based on section 2of the Disciplinary Code of Conduct for the Royal Malaysia Police (fictitious). Heclaimed that the Disciplinary Board had acted ultra vires as the reason for hisdismissal was not clearly communicated to him. He had trouble finding a good lawyeruntil he finally resorted to you for advice. Apply the relevant administrative law inAlex’s predicament.The first issue is whether the Disciplinary Board is a public body and amenable to judicialreview. Article 160(2) FC defines public authorities inclusive of the Yang di-Pertuan Agong, theRuler of Yang di-Pertua Negara of a State, the Federal Government, the Government of aState, a local authority, a statutory authority exercising powers vested in it by federal or Statelaw or any officer or authority appointed by or acting on behalf or any of those persons,courts, tribunals or authorities. Applying Art 160(2) FC, the Disciplinary Board for the Royal Malaysia Police is a statutoryauthority exercising powers vested in it by the Federal law, which is the Disciplinary Code ofConduct for the Royal Malaysia Police. It therefore, falls within the definition of Art 160(2)FC. In DPP v Manners, an employee and director of the north thanes gasboard was charged withcorruption. The trial judge ruled that the gasboard is a public body. On appeal, it was arguedthat the gasboard is not a public body. It went up to the HOL, which held that since thegasboard has been constituted under the gas act to perform public duties for the benefit of thepublic, the trial judge ruling had been correct. Based on the facts, the Disciplinary Board is a public body, whereby the relevant section is s2of the Disciplinary Code of Conduct for the Royal Malaysia Police. It has been constituted toperform public functions which regulate the discipline of the police officials, who are publicservants under the law. In OSK Partners Sdn Bhd v Tengku Noone Aziz & Anor, it was held that although thebody derived its powers solely from contract, as long as there was an infusion of a publicelement, that will suffice to render it amenable to judicial review. Based on the facts, as we have deduced that the Royal Malaysia Police is a public authority,there was an infusion of public element and thus, that fact would render it amenable tojudicial review.
The second issue is whether Alex is an adversely affected person. According to Order 53 Rule 2(4) ROC 2012,any person who is adversely affected by thedecision, action or omission in relation to the exercise of the public duty or function shall beentitled to make the application. InQSR Brands Bhd v Suruhanjaya Sekuriti & Anor, the court held that there is a singletest of threshold locus standi for all remedies that are available under O 53. The applicantshould be adversely affected such that the burden is on the applicant to show that he wasadversely affected by the act or decision. In Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi &Anor, in determining the locus standi to sue, the court has to exercise caution in applying theEnglish cases. In our view, for an applicant to pass the 'adversely affected' test, the applicanthas to at least show he has a real and genuine interest in the subject matter. It is not necessaryfor the applicant to establish infringement of a private right or the suffering of specialdamage.Applying Order 53 Rule 2(4) ROC, Alex, who is the police officer employed under theRoyal Malaysian Police Force, is adversely affected by the decision of the Disciplinary Boardto terminate his employment. Applying the QSR Brands case, the burden is on Alex toprove that he was adversely affected by the act or decision. Applying MTEC v MenteriTenaga, Air dan Komunikasi & Anor, as long as Alex has managed to show that he has areal and genuine interest in being dismissed by the Disciplinary Board, he would be deemedto have the locus standi to sue. As he had been dismissed from employment without clearcommunication of the reasons for such, it is most likely that he is an adversely affectedperson from the case itself. The third issue is whether Alex may sue the Disciplinary Board for constructive dismissal byway of originating summons. In Ahmad Jefri bin Mohd Johari v Pengarah Kebudayaan & Kesenian Johor & Ors,theappellant was a gov officer, he was absent from work after a dispute with his superior. After awhile, he was dismissed from service. The appellant filed a writ of summons stating that hisdismissal was unlawful. The respondent struck out the appellants action in the HC. In hisappeal, he obtained leave in fc. One of the issues is whether an application to challenge thedecision of public authority could only be instituted by way of judicial review or he cancommence his action by writ of summons. He opined that the procedure under O 53 RHCwas not a mandatory procedure and a person aggrieved with the decision of a public bodycould therefore seek relief by way of writ or originating summons. Nevertheless, the FCdismissed his appeal, judicial review is intended to protect those entrusted with theenforcement of public duties against groundless harassment. In the instant case, the appellantwas clearly handicapped through limitations of time. Similarly, Alex, being a government officer, was under a contract for service with the royalmalaysian police, a public body. Applying the main principle derived in Ahmad Jefri’s case,judicial review was intended to protect those entrusted with enforcement of public duties. As
we have identified that Alex is working for a public body, he is entrusted with public dutiesand thus, the applicable mode would be to seek relief through judicial review. In Ghozi Abu Bakar v Majlis Angkatan Tentera & Anor, the pf is a member of the royalMalaysian navy and he sued by way of writ of declaration stating that he was wronglydecommissioned. The court held that since the pf is seeking a remedy on allegations that apublic authority is entitled to protection under the law and has exceeded or infringed the law,the pf must proceed by way of judicial review and not by way of originating summons.(trying to circumvent the leave of JR) The court did not allow this since it involves infusionof public elements. The party cannot simply choose the way to sue the public bodies when itis amenable to judicial review. When it involves public elements and the party chooses to sueby way of originating summons, it will lead to injustice and abuse the powers of the court atthe same time. In Dato’ Seri Anwar Ibrahim v Perdana Menteri Malaysia & Anor, DSAI sued the formerPM of Malaysia by way of originating summons. The court considered whether the applicantshould use judicial review instead of originating summons since it involves public lawmatters. The court held that he should apply via JR since it involves public authority. Applying the main principle in the Ghozi case and DSAI case, similarly, Alex is seekingremedies against MBSA on grounds of constructive dismissal. Since he is seeking remedieson allegations that a public authority is entitled to protection under the law and had infringedthe law, he should apply for judicial review as there is an infusion of public element.In R v Secretary of State for the Home Department, the complainant was a prison officer,he was charged for disobeying orders with certain paragraphs of the code of discipline. Hewas dismissed and he applied for JR. The court held that a public servant who was dismissedby the authority is subjected to JR. Hence, he was dismissed and applied for JR. The courtstated that since his duties are part of statutory terms, the court is entitled to review thedecision based on its supervisory jurisdiction. Whether a public authority is subjected to JRdepends on whether the matter is a public or private matter in law. Similarly, Alex was appointed as a police officer and charged with disobeying orders of theDisciplinary Code of Conduct for the Royal Malaysian Police. Although he was employed ona fixed-term contract basis, he was a public servant and dismissed by his superiors. The caseinvolved a public matter in law due to his employment as a public servant. As his duties arepart of the statutory terms, the court is entitled to review the case based on its supervisoryjurisdiction. The fourth issue is whether Alex is entitled to leave for judicial review. O.53 R3(6) ROCstates that an application for judicial review shall be made promptly and inany event within 3 months from the date when the grounds for the application first arose orwhen the decision is first communicated to the applicant.
In Yuslie Bin Mohd Yusop v Pertubuhan Peladang Kebangsaan, the letter dated 5thOctober 2018 was given to the applicant by the respondent to communicate the decision todismiss the applicant. The applicant filed for judicial review on 15th October 2021 which was3 years after the decision. The court held that the final MCO was only until 31/12/2020. Theapplication to file for judicial review was made on 15/10/2021. The court held that theapplication was an excessive period. They rejected this argument. In Ketua Pengarah Hasil Dalam Negeri v Yayasan Buah Pinggang KebangsaanMalaysia, Yayasan is a registered non-profit organisation with a tax exemption status.Yayasan underwent a tax audit by Lembaga Hasil Dalam Negeri LHDN on march 2019. InAugust 2019, LHDN informed yayasan that they have violated several regulations which ledto the revocation of tax exempt status. Yayasan made representations to LHDN and theministry of finance to reconsider for the tax exempt status to be reinstated. After severalexchanges of correspondence and meetings, LHDN issued a letter dated June 2020 whichcommunicated that their decision remains the same. Yayasan applied for JR in September2020 where the leave was granted. The issue is whether yayasan could rely on the lhdn letterdated 17 June 2020 which reaffirmed their initial decision. LHDN argued that yayasan wasout of time as they had issued the letter in august 2019. The court held that the time to file forjr only started from the lhdn letter dated 17 June 2020 because lhdn showed willingness toreconsider the decision via correspondence and meetings. Applying O 53. R3(6), Alex had received the official dismissal letter on 6 May 2024. Thefacts in the current case were silent on the date to which Alex had filed for leave of judicialreview. Therefore, assuming Alex had made the application within three months from the datehe received the dismissal letter, he would be entitled to leave for judicial review.Nevertheless, if he had filed for the application three months after the date of decision, suchleave would not be granted. Applying both cases to the facts, assuming Alex had only seekedrecourse from me on the current day, which is 29 August 2024, he would have exceeded the 3month time limit and thus, the leave would not be available. The fifth issue is whether Alex may apply for extension of time for his application of judicialreview. O. 53 R3(7) ROC 2012 states that the court may upon application, extend the time specifiedin rule 4(1), and if it considers that there is a good reason for doing so. In Mohd Ismail bin Abdul Ghani v Ketua Pengarah Pendaftaran Negara & Anor, theapplicant applied to ketua pengarah pendaftaran negara to amend his name and to omit theword islam from his identity card. The respondent refused to do so because the applicant hadfailed to submit a certified copy of surat pengesahan bukan islam from the jabatan agamaislam. The applicant unsastisfied applied for JR. the decision of ketua pengarah wascommunicated to him in April but he had applied for jr in November which was a 6 monthsgap. The applicant applied for extension of time quoting his reasons for delay, mainly due toinability to find a lawyer and work commitments. The court held that the reasons were not
acceptable, evidence must be provided to see whether there was really an inability to find alawyer. In Sayid Alwi bin Syed Ahmad v ACP Wan Hassan bin Wan Ahmad & Ors, the applicantis a corporal in the police force. He applied for judicial review as he was dissatisfied with thedecision of Lembaga tatatertib to dismiss him as a corporal. The applicant claimed that he didnot have finances to engage a counsel. He approached jabatan guaman perak and Yayasanbantuan guaman kebangsaan but was unsuccessful. He even stated that as a corporal, hisknowledge with regards to civil actions is very limited. He received the dismissal letter on15/12/2016, he applied for judicial review on 29/1/2018. the court held that ignorance of thelaw is no excuse, hence extension of time is rejected. As there was no clear definition of what constitutes ‘good reason’ in O.53 R3(7) ROC, wehave to refer to the two decided cases in determining whether Alex’s reasons for applicationare acceptable. In Mohd Ismail’s case, similarly, Alex’s reasons for the extension of judicialreview was due to his inability in finding a good lawyer. Applying the decision in MohdIsmail, such reasons are not acceptable and evidence must be provided to determine whetherthere was really inability to find a lawyer. Besides, applying the decision in Sayyid’s case,assuming Alex had applied for judicial review exceeding 3 months from the time of decisionalong with his reasons of delay in the inability to find a suitable lawyer, ignorance of the lawwould not be a valid excuse, and as such extension of time would be rejected. In Wong Kin Hoong & Anor v Ketua Pengarah Jabatan Alam Sekitar & Anor, it washeld that the time frame in applying for judicial review prescribed by the Rules wasfundamental. It goes to jurisdiction and once the trial judge had rejected the explanation forthe delay for extension of time to apply for judicial review, the court no longer has thejurisdiction to hear the application for leave for judicial review. Applying the case decision to the current facts, as Alex did not have valid justification for hisapplication of time extension for judicial review and it had been rejected by the trial judge,the court did not have the jurisdiction to hear the application for leave of judicial review. Thus, it is most likely Alex would not be granted extension of time for his application ofjudicial review.
2.Sam, a government officer, was dismissed by his employer, Majlis Bandaraya ShahAlam (MBSA). It was alleged that he had disclosed a confidential investigationreport, violating the Official Secrets Act 1972. Sam is planning to sue MBSA forconstructive dismissal by way of originating summons. Advise Sam.The first issue is whether MBSA is a public body and subjected to judicial review. In DPP v Manners, an employee and director of the north thanes gasboard was charged withcorruption. The trial judge ruled that the gasboard is a public body. On appeal, it was arguedthat the gasboard is not a public body. It went up to the HOL, which held that since thegasboard has been constituted under the gas act to perform public duties for the benefit of thepublic, the trial judge ruling had been correct. Based on the facts, MBSA is a government administrative body which is a governmentdepartment. It implements government policies at the district level. Besides, it has beenconstituted to perform public duties for the benefit of the public. Based on the status of Sam,who is a governmental officer employed under MBSA, it is evident that MBSA is agovernmental department. Therefore, it is most likely MBSA is a public body. In R v Secretary of State for the Home Department, ex parte Benwell, the complainantwas a prison officer, he was charged for disobeying orders with certain paragraphs of thecode of discipline. He was dismissed and he applied for JR. The court held that since hisduties are part of statutory terms, the court is entitled to review the decision based on itssupervisory jurisdiction. This case determined that whether a public authority is subjected tojudicial review depends on whether the matter is a public or private law. Referring to the facts of the case, Sam was charged with violating certain provisions bydisclosing a confidential investigation report under the Official Secrets Act 1972. His duties,which encompass such statutory terms of the Act, entitled the courts to review his decisionbased on its supervisory jurisdiction. Besides, as the matter fell within the ambit of publiclaw, it was amenable to judicial review. Therefore, it is most likely MBSA is a public body subjected to judicial review. The second issue is whether Sam is an adversely affected person in relation to theconstructive dismissal process by MBSA. Order 53 Rule 2(4) ROC: any person who is adversely affected by the decision, action oromission in relation to the exercise of the public duty or function shall be entitled to make theapplication. InQSR Brands Bhd v Suruhanjaya Sekuriti & Anor, the court held that there is a singletest of threshold locus standi for all remedies that are available under O 53. The applicantshould be adversely affected such that the burden is on the applicant to show that he wasadversely affected by the act or decision.
In Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Kmounikasi &Anor, in determining the locus standi to sue, the court has to exercise caution in applying theEnglish cases. In our view, for an applicant to pass the 'adversely affected' test, the applicanthas to at least show he has a real and genuine interest in the subject matter. It is not necessaryfor the applicant to establish infringement of a private right or the suffering of specialdamage.In Perbadanan Pengurusan Trellises & Ors v Datuk Bandar Kuala Lumpur & Ors, themayor of KL had approved a proposed development of luxury condominiums at taman rimbakiara, which is a public park. In response, the residents from taman tun dr ismail filed ajudicial review to quash the decision. The issue is whether this party had a locus standi. TheCOA applied the test in the test in MTUC & Ors. It was mentioned that all applicants had realand genuine interest in the subject matter, bcs the purpose of the development would have animpact on the applicant from the use of property, the value of properties , traffic and so on.Applying O53 R2(4) ROC, Sam, who is a public servant may make an application forjudicial review as against MBSA’s decision to dismiss him in the exercise of their publicduties and functions. Applying QSR Brands' case to the facts, the burden of proof is on Samto show that he was adversely affected by the decision of MBSA to dismiss him. Applyingthe principle in Malaysian Trade Union Congress case, in determining Sam’s locus standito sue, Sam has to demonstrate that he has a real and genuine interest in relation to thetermination of his employment status. Applying the Perbadanan case to the facts, todetermine Sam’s interest in the dismissal case, he would have to prove that the dismissalprocess would have a significant impact on him. Applying all the cases and laws above, it is most likely that Sam has a burden of proof toprove that he is an adversely affected person. The third issue is whether Sam may sue MBSA for constructive dismissal by way oforiginating summons. In Ahmad Jefri bin Mohd Johari v Pengarah Kebudayaan & Kesenian Johor & Ors,theappellant was a gov officer, he was absent from work after a dispute with his superior. After awhile, he was dismissed from service. The appellant filed a writ of summons stating that hisdismissal was unlawful. The respondent struck out the appellants action in the HC. In hisappeal, he obtained leave in fc. One of the issues is whether an application to challenge thedecision of public authority could only be instituted by way of judicial review or he cancommence his action by writ of summons. He opined that the procedure under O 53 RHCwas not a mandatory procedure and a person aggrieved with the decision of a public bodycould therefore seek relief by way of writ or originating summons. Nevertheless, the FCdismissed his appeal, judicial review is intended to protect those entrusted with theenforcement of public duties against groundless harassment. In the instant case, the appellantwas clearly handicapped through limitations of time.
Similarly, Sam, being a government officer, was under a contract for service with MBSA, apublic body. Applying the main principle derived in Ahmad Jefri’s case, judicial review wasintended to protect those entrusted with enforcement of public duties. As we have identifiedthat Sam is working for a public body, he is entrusted with public duties and thus, theapplicable mode would be to seek relief through judicial review. In Ghozi Abu Bakar v Majlis Angkatan Tentera & Anor, the pf is a member of the royalMalaysian navy and he sued by way of writ of declaration stating that he was wronglydecommissioned. The court held that since the pf is seeking a remedy on allegations that apublic authority is entitled to protection under the law and has exceeded or infringed the law,the pf must proceed by way of judicial review and not by way of originating summons. Thecourt did not allow this since it involves infusion of public elements. The party cannot simplychoose the way to sue the public bodies when it is amenable to judicial review. When itinvolves public elements and the party chooses to sue by way of originating summons, it willlead to injustice and abuse the powers of the court at the same time. In Dato’ Seri Anwar Ibrahim v Perdana Menteri Malaysia & Anor, DSAI sued the formerPM of Malaysia by way of originating summons. The court considered whether the applicantshould use judicial review instead of originating summons since it involves public lawmatters. The court held that he should apply via JR since it involves public authority. Applying the main principle in the Ghozi case and DSAI case, similarly, Sam is seekingremedies against MBSA on grounds of constructive dismissal. Since he is seeking remedieson allegations that a public authority is entitled to protection under the law and had infringedthe law, he should apply for judicial review as there is an infusion of public elements.Thus, it is most likely Sam may not sue MBSA for constructive dismissal by way oforiginating summons, but through judicial review.
Essay Question (not exactly in complete essay form, just the scope)1.Discuss the case of R. RamaChandran v Industrial Court [1997] 1 MLJ and itssignificance in administrative law. Do you agree with its principle?In R. Rama Chandran’s case,the appellant (the “Employee”) was dismissed by therespondent, the Malaysian Co-operative Consumer Society (the “Employer”) after two yearsof employment. The Employee contended that he was unlawfully dismissed by the Employerand claimed for reinstatement in the Industrial Court. Subsequently, the Industrial Courtdismissed the Employee’s claim and held that the dismissal was with just cause or excuse.The Employee applied to the High Court for Judicial Review on various grounds, but hisapplication was dismissed. The Employee then appealed to the Federal Court against thedecision of the High Court and posed the following questions of law:Whether the Industrial Court Award should be quashed; andWhether in the particular circumstances of this case, the Federal Court has the powernot merely to quash the Industrial Court and remit the case to the Industrial Court butto go further and decide that the Employee had been dismissed without just cause orexcuse and to award a fair compensation.In a majority decision the Federal Court held, among others, that in a Judicial Reviewprocess, the Court has the power to review the decision of the Industrial Court on its merits,quash it by certiorari, substitute the decision of the Industrial Court with a different decisionand also determine a just relief for the applicant. Such a decision that is susceptible to judicialreview is also open to challenge on grounds of illegality and irrationality. In practice, thisallows the courts to scrutinise the decisions not only for process but also for substance. To put it simply, in a Judicial Review proceeding, the High Court has the following powers inreviewing an Industrial Court case:To review the decision of the Industrial Court on the merits;To substitute a different decision in place of the Industrial Court Award withoutremitting the case to the Industrial Court for re-adjudication; andTo order consequential relief.Traditionally, judicial review in Malaysia followed common law principles in reviewing thedecision to ensure that the decision-maker had not defaulted in the decision-making process.After the ruling in the case, the courts were permitted to analyse the decision of inferiorcourts not only for process but also for substance and allows the courts to go into the meritsof the matter. This was a liberal approach taken by the court in the Rama Chandran casewhich did not stand long when there were several limitations spelt out in the KumpulanPerangsang case. It must be noted that the court in Rama Chandranreviewed the decision of
an Industrial court, thus the applicability of the liberal approach in this case should not bepromoted in cases of public order or national security where threat to the society is at stake.In Kumpulan Perangsang Selangor Bhd v Zaid Noh, this was an appeal against thedecision of the HC judge that quashed an award of the industrial court that upheld theappellant’s act of terminating the respondent’s employment. The appellant argued that thejudge exceeded his role in judicial review proceedings and actually exercised appellatejurisdiction when he quashed the award, and secondly, even if the judge kept well within thelimits of the judicial review function, he was nevertheless wrong in the conclusions arrivedat. The further question to be considered was whether the consequential order made by thejudge remitting the matter to the Industrial Court should remain, or whether it ought, in thecircumstances of this case, be substituted for some other more appropriate relief. Whiledelivering his judgement, the learned judge criticised the outcome of the R. Ramachandrancase, stating that there may be cases in which for reasons of public policy, national interest,public safety or national security the principal in Rama Chandran may be whollyinappropriate. Nevertheless, the case did not fall within any of these exceptions. There was,therefore, no misdirection of law by the judge upon the basis of intervention and notransgression of the prescribed parameters of judicial review. In Petroliam National Bhd v Nik Ramli Nik Hassan, Minister of HR had referred thedispute between R and A to the Industrial Court under s20(3) IRA 1967. IC dismissed therespondent’s claim for unfair dismissal. R moved the HC for orders of certiorari andmandamus. HC held that the IC had committed an error of law in arriving at its conclusionand accordingly, granted the orders prayed for. A appealed to the COA. COA dismissed theappeal and held that a reasonable tribunal properly directing itself on the facts and law wouldhave reached a conclusion that the respondent had been dismissed without just cause orexcuse. The issue was whether the review jurisdiction of the review court under O 53 of ROC1980 included a right of the review court to decide for itself the correctness of the decision onthe merits. The judge held that only if the case is tainted with excessive illegality andirrationality, the case of r. Ramachandranshould be followed. Dato’ Dr Cyrus Dasrequested a revisit to Rama Chandran that the decision has obliterated the traditionaldistinction between supervisory and appellate jurisdiction of the High Court. The courts hadalso cited Mr. Choo Chin Thye in his article the ‘role of Art 8 FC in judicial review of publiclaw in Malaysia’: It should also be noted that the Federal Court in Rama Chandranemphasized very carefully that the power of the court to examine the merits or substance of adecision of a public decision maker is an exceptional circumstance that will arise only wherethe factual matrix of a case required it. Otherwise, the general rule that the court will notinquire into the merits before a public decision maker still holds.
In Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior, justice Low Hop Bing, JCA held thatthe 'Industrial Court had gone on a frolic of its own' in finding that the appellant had beenvictimised. He further held that it was manifestly wrong for the Industrial Court to proceed toembark on 'the possibility of victimisation' when it should have been concerned withprobabilities ie, on the balance of probabilities. Clearly the Industrial Court has committedjurisdictional errors when finding the possibility of victimisation in the absence of positiveproof and misdirecting on the standard of proof by reference to possibility instead of abalance of probabilities. In light of the multiple errors on the part of the Industrial Court, theHigh Court judge was correct in quashing the decision of the Industrial Court. For the samereason, the Court of Appeal did not exceed its role when it upheld the decision of the HighCourt in the review of the High Court's exercise of its supervisory jurisdiction.Thecredibility of witnesses ought not to be disturbed by the reviewing judge unless theywere grounded on illegality or plain irrationality.In Thilagavathy a/p Alagan Muthiah v Meng Sing Glass Sdn Bhd [1997] 3 MLJ 735, theHigh Court had considered the decision of the Industrial Court in Ramachandran case andwhile exercising the extended powers of judicial review, substituted its own decision,determined the just relief and calculated its quantum. The High Court also reviewed themerits of the case and ordered full back wages from the day of the employee’s dismissal tothe day of the Award. With R. Ramachandran’s case,the Courts in Malaysia has certainly expanded jurisdictionand powers in relation to decisions of the Industrial Courts. A dissatisfied party now has anavenue to challenge the merits of an Industrial Court award by way of Judicial Review. Previously a review could end with the quashing of a decision and/or an Order of Mandamusdirecting the inferior court to do something. However, in R Rama Chandran’s case, theFederal Court, after reviewing an Award of the Industrial Court for substance as well as theprocess, went further than the traditional method of granting relief. After quashing the Awardof the Industrial Court, the Federal Court proceeded to determine and grant the relief insteadof remitting the case back to the Industrial Court. The development of the law of judicialreview and hence its scope depends very much on the extent to which the superior courts areprepared to take it to. Recently, the courts have been more active in enlarging the scope of thereview process.It has to be noted that in judicial review, the court does not substitute its opinion for that ofthe decision-maker on whom Parliament has conferred the power of decision. The court rulesonly on the legality of a decision - not on its correctness. In so doing, the court is not actingagainst the will of Parliament but in support of it. However, in my view, by imposingrequirements of fairness and rationality on public decision-makers, judicial review ensuresthat individuals are not subjected to arbitrary treatment by those entrusted with governmental
power. In other words, judicial review safeguards the rights of individuals against potentiallyarbitrary or unjust decisions by administrative bodies. This is because the decision of thiscase expands the scope of judicial review to include substantive aspects of decisions. Judicialreview also acts as a check and balance on administrative power by examining the merits sothat the court can challenge the case based on the grounds of illegality or irrationality.From the view of safeguarding human rights, the employee in R. RamaChandran’s case was51 years old and unemployed for the last 7 years. To remit the case back to the IC wouldprolong the litigation process and cause injustice to the employee instead. Thus, the FC chosenot to remit the case, but proceeded with the computation of monetary compensation in lieuof reinstatement that was payable by the society to the employee. In light of recent events which will lead to unprecedented employment disputes and concerns,it is apt to highlight the implications of R. Ramachandran’s case. The High Court must be allowed to look into not only the procedures but also the merits of anIndustrial Court Award to ensure the rights of employees and employers are protected. Whilstthere is not much positive news to come out of this pandemic, it is clear that an IndustrialCourt Award is not the final frontier.
2.Discuss the relationship between the Rule of Law and Administrative law The rule of law and administrative law are interrelated with each other. Rule of law plays animportant role in administrative law. It provides protection to the people against arbitraryaction of administrative law. To clearly understand the relationship between the rule of lawand administrative law, it is important to examine a related doctrine of administrative law,which is the doctrine of ultra virus. The doctrine to some extent is a derivation of theprinciple of the rule of law. The former underlines that power should be exercised accordingto law. The latter goes one step further and states that it is an action of any official or agencybeyond the scope of power given to it is ultra vires (i.e. beyond power), hence it is consideredas null and void. An ultra vires act does not have any binding effect in the eyes of the law. 1st postulate:The supremacy of the law: 'no man is punishable or can be lawfully made tosuffer in body or goods except for a distinct breach of law established in the ordinary legalmanner before the ordinary courts of the land.’ The court, in reviewing an administrative action, is expected to see or examine the legality ofthe action only. In judicial review, the judges do not substitute their own discretion andjudgment for that of the government. They simply rule whether the government or its officialshave acted within the ambit of their lawful authority. Thus, the judges do not govern thecountry and do not displace the government when government decisions are challenged in thecourts. Whether a certain decision is right is not a matter to be investigated under theadministrative law, rather it should be left to the decision-making agency since it purelyinvolves policy considerations. Similarly, the principle of the rule of law does not go to theextent of ensuring whether a certain agency‘s decision is right or wrong. Its primary meaningis attached to the principle of legality or the superiority of law. Its concern is to ensure thatadministrative action is taken according to law. Generally, all persons and authorities, including Parliament must act in compliance with theConstitution. The basis of their scope and limits of power are defined by the constitution. Anyunconstitutional act may be challenged and invalidated in court. Developed under thedoctrine of ultra vires, a latin phrase that means ‘beyond powers’ or ‘without powers’,judicial review gives power to the court to declare that certain regulation passed by theadministrator as void. The basis to this discussion lies on the concept of supremacy of theconstitution as provided under Article 4(1) of the Federal Constitution. Any act passed afterMerdeka may be declared ultra vires to the extent of its inconsistencies. Thus, in introducingsubsidiary legislation, an administrative body must ensure that the regulations conform withthe constitution. Section 23(1) and 87(d) of the Interpretation Act 1948 and 1967 gives powerto the court to control the subsidiary legislation through judicial review.
In Mamat bin Daud & ors v The Gov of Malaysia, there was an issue of inconsistency ofan Act of Parliament with the state legislature. The pfs were charged with doing an act that islikely to prejudice unity amongst persons professing Islam. They sought declarations to theeffect that s298A was ultra vires Art 74 FC in that Parliament had no power to legislate on amatter that dealt with Islamic law likely to cause disunity or prejudice harmony betweenpeople professing the same religion. In its application to Muslims, it is a law the object ofwhich is to ensure that the Islamic religion as practised in this country is allowed by theStates. Parliament cannot rely on its powers to legislate on public order because the exerciseof such power comes into direct conflict with State powers. It was held that it is notparliament’s discretion to enact s298A PC. Thus, this section was declared invalid and ultravires. In Iki Putra Mubarak v Kerajaan Negeri Selangor, the petitioner who was alleged to havecommitted sodomy, challenged the competency of the Selangor State Legislature to enactSection 28 of the Syariah Criminal Offence (Selangor) Enactment 1995 that was said to fallunder criminal offences. Legislating criminal offences falls under the jurisdiction of theParliament and not the State legislative body. He was granted with the leave to file for suchpetition under Article 4(3) and (4) of the Federal Constitution. The court then decided that theenactment of Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 wasdeclared to be invalid since the Legislature of the State of Selangor is not empowered tomake such laws.In Tan Seet Eng v AG & Anor, it was held that the judiciary’s exercise of power followingits proper constitutional role does not constitute judicial supremacy. Nevertheless, if alegislative or executive action violates the Constitution, the court may declare it to be ultravires and null. The courts are responsible for ruling on the constitutionality of any act thatchallenges the federal or state legislative act. In fact, constitutional supremacy would ringhollow without enforcement from the judicial branch. Hence, the role of judicial review isimportant to strengthen the concept of constitutional supremacy, where this branch acts toreview the actions of the legislature and the executive on constitutional grounds. Anycontravention to this written law by their actions will be invalidated by the courts. LordScarman highlighted that judicial review is a great weapon in the hands of the judges, but thejudges must observe the constitutional limits imposed by our parliamentary system on theirexercise of this beneficent power. In the case ofShaikh Mohd Ibrahim Shaikh Omar v. Tan Sri Dr Haili Dolhan & Ors.[2022] 1 LNS 1397. On claim of procedural impropriety, the appellant applied for certiorarito quash the decision of the disciplinary board to withdraw his emolument benefits andmandamus to restore his grade of service, benefits, and position as a schoolteacher at Sekolah
Kebangsaan Pulai Chondong, Kelantan. This raised an issue of whether the procedureprovided under the Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 hasbeen complied with. The judge decided that there was no impropriety of procedure by therespondent. Thus, the application for review was dismissed with cost.Based on these decided cases, we can see that judicial review complies with the first postulatein only punishing those that commit offences should there be grounds of illegality,impropriety or irrationality. It ensures public authorities do not act beyond their scope ofpowers. 2nd postulate: Equality before the law: No one is above the law, and that all individuals andinstitutions are subject to the same legal rules. Relating to administrative law context, thismeans government officials are subjected to the procedures laid down by statutory context. Nevertheless, the presence of ouster clauses are terms used to oust the powers of the court inreviewing acts of the legislative or administrative bodies. Judicial review of a proclaimationof emergency is barred by Art 150(8) FC. Article 150(1)provides that if the YDPA satisfiedthat a grave emergency exists whereby the security, or the economic life or public order in theFederation or any part thereof is threatened, he may issue a proclamation of Emergency.Although there is distinct opinion on the constitutional procedure of declaration between theneed to act on the advice or it falls within the prerogative power of the YDPA, but upondeclaration the declaration shall not be subjected to judicial review. This shows lesscompliance with the second postulate, granting freedom to the YDPA under certain ousterclauses that prevent judicial review. In the case of Dato Seri Anwar Ibrahim v Tan Sri Mahiaddin bin Yassin & Anor [2021] 7CLJ 894the court held that the decision of the Prime Minister in advising the Yang di-Pertuan Agong to promulgate s. 14 of the Emergency (Essential Powers) Ordinance 2021which resulted in the prorogation and/or suspension of Parliament, is not amenable to judicialreview. The court further states that Art 150(6) and (8) FC expressly prohibits any challengesto the validity of the Ordinance on any form and on any ground. In the case of Datuk Seri Salahuddin Ayub & Ors v. Perdana Menteri, Tan Sri Dato’ HjMahiaddin Md Yasin & Anor[2021]8 CLJ 260the court states that Article 150(8) of theFederal Constitution shuts the court's doors from any challenge or application being madeagainst a proclamation and the Ordinances enacted under emergency law. Therefore, thedecision of the Yang di-Pertuan Agong, made pursuant to art. 150(1) and 150(2B) of theFederal Constitution, could not be challenged by way of judicial review.Art 62 FC empowers Parliament to regulate its own procedure and is therefore not subjectedto external regulations. In the case Tun Dr Mahathir Mohamad & Ors v. Datuk Azhar Azizan Harun & Ors(2021) 3 CLJ 852 the court deliberated that the Parliament has the power or jurisdiction toelect and/or to dismiss the Speaker and the Deputy Speaker. Hence, the validation of suchappointment/dismissal was not within the court’s jurisdiction. In this case the plaintiffs,Members of Parliament, filed an application seeking, inter alia, for orders that the
appointment of Datuk Azhar Azizan Harun as the Speaker of the Dewan Rakyat and theappointment of Dato’ Sri Azalina Othman Said as the Deputy Speaker of the Dewan Rakyatis invalid. Similar privilege is accorded to the the state legislative assembly through articles63 and 72. In the case of Yang Dipertua, Dewan Rakyat v Gobind Singh Deo [2014] 6 MLJ 812, FCthe court said that if the proceedings in the House have constitutional or legal support, theproceedings must be immune from legal challenge. However, because of the doctrine ofconstitutional supremacy, Parliament cannot do as it wishes and must bring itself within theconfines and limits placed upon it by the Constitution. Only in cases where the Parliamenthad acted in violation of constitution provisions that the court is allowed to review the act ofthe legislative.3rd postulate:Predominance of Legal Spirit - Common law affords greater protection to thecitizens than a written constitution. The third principle places emphasis on the role of thejudiciary in enforcing individual rights and personal freedoms irrespective of their inclusionin a written constitution. Rights and freedoms best protected under Common Law. In a substantive sense, judges use the rule of law not only to limit administrative powers, butalso to protect the citizens’ entitlements. Courts calibrate their control over how far tointervene in the use of their powers by administrative bodies. In this way, the content of rightsis directly impacted by judicial scrutiny. One of the best examples of this approach is thatused through the control of proportionality of administrative action. Administrative justicemay become a means to enforce the political and economic rights that individuals have, andeven to recognize such rights. Administrative litigation may be an opportunity for judges tobetter characterise the legal relationship arising between citizens and the administration. In R v Immigration Appeal of Tribunal, , the Statutory review procedure was designed as aback-stop for any refusal to hear an appeal by the IAT. The restriction on oral hearings onlyoperated at one level, and oral hearings were available at others. The regime providedadequate and proportionate protection. Court held the regime, although not as extensive asjudicial review, did provide access to judicial scrutiny and oversight of judicial action. It wasfound to provide the right to a fair trial as per art 6 ECHR. In R (on the application of Anderson) v Secretary of State for the Home Department, themandatory murder tariff was left in the hands of the Home Secretary, but this was subject toreview by the courts as to whether the executive had breached Article 6 of ECHR in affordingthe tariff.In Public Prosecutor v Mohamed Ismail , the defendant was charged with the offence ofdrug trafficking which was punishable with life imprisonment or death under s 39B(1) of theDangerous Drugs Act 1952. While his trial was still going on or pending, the law was
substantially amended in deliberation to provide for a mandatory death penalty. At the finalstage of the said trial, the public prosecutor suggests the court impose the enhanced penalty.In refusal to the request, the court held that the amendment could not be applied to the instantcase, as it was only enacted after the offence was committed. As such, the decision of the saidcourt was in line with the Article 7(1) of the Federal Constitution. The Malaysian courts haveupheld this fundamental concept in Dicey’s analysis of the rule of law.All in all, the government also must be the effective government so as to uphold rule of lawwhich means the government must be able to enforce the law and crime must be undercontrol and the citizens must show that they are respecting the laws. At the same time, theremust be socio-economic and legal justice. Tyranny in any form whether in private or publicsector must be prohibited too.