Legal Nutshell – Judicial Review

A concise, comprehensible explanation of the law on judicial review.

Have you ever come across the term “judicial review”? If you do, have you then questioned what is judicial review? What are the remedies? Or perhaps, wherein lies the differences between appeal and judicial review? Judicial review, does it sound Greek to you?

To address these questions, we must first take a look at the constitutional doctrine of separation of powers, or in short, the SOP. Lord Acton is famously quoted as having said “Power corrupts, absolute power corrupts absolutely”. It is therefore noted that the doctrine of separation of powers is practised in our nation to limit the powers of the three institutions, namely the Legislature, Executive and Judiciary with checks and balances in order to protect liberty and to prevent abuse of power. In Malaysia, Parliament which is made up of Dewan Rakyat and Dewan Negara is a democratically elected legislature that legislates the laws. The Government which is made up of the Prime Minister and the Cabinet sits in the executive then executes the laws passed by the Parliament. Judiciary, lastly, decides and interprets the laws by upholding the rule of law.

To achieve a complete separation of powers is practically impossible, and thus powers can only be separated with checks and balances. To put it in layman’s terms, with checks and balances, each of the three branches can limit or control the powers of the others. The judicial branch, for example, checks on the government through judicial review. It now leads to the first question, what is judicial review?

Judicial review, in general, is concerned with legality of the decision-making process of the executive (government), not with the merits of the decision. To put it in a nutshell, the application concerns review, not appeal. The court will not substitute its decision; it will only review the legality. An appeal is as of right whereas certain conditions must be fulfilled for one to seek leave for judicial review.

In Malaysia, An application for judicial review is governed by Order 53 Rules of the High Court 1980. Such an application must be supported by an affidavit (a formal sworn statement of fact).

If the authority acts against or fails to act according to the will of the Parliament, it is therefore said to be acting ultra vires and is unlawful. In that case, the court will interfere by reviewing the decision to determine the lawfulness of the decision, actions or omission. Having said that, there must be a decision from the Minister (or the government) before an application for judicial review can be made. There are three grounds for judicial review, namely illegality, unreasonableness or irrationality, and procedural impropriety.

Let’s take an example. A Minister by the powers rested in him, makes a decision denying X’s application to join a club without any reasons given. In this situation, the Minister cannot be charged in court as he or she was merely exercising his discretions by rejecting X’s application “as he deems fit”. Nevertheless, X can then apply for judicial review to challenge the decision made by the Minister, arguing that the rejection of the Minister is illegal as the power is not conferred on him, unreasonable as no reasons were given, and tainted by procedural non-compliance with the provisions of the Act.

One will then ask, what are the available remedies for judicial review?

In Administrative Law, there are 2 types of common law remedies, namely private law remedies and public law remedies. Among the private law remedies are damages, injunctions, and declarations. One can claim for damages as compensation. Injunctions, on the other hand, are prohibitory in nature and forbid the commission of some unlawful act. Declarations, in addition, aim to state or declare the legal position of the parties and to challenge the action of the public authority. It is however noted that such remedy is not enforceable per se, but it can be used with other remedies if successful.

Among the public law remedies are habeas corpus, certiorari, prohibition and mandamus. In Malaysia, habeas corpus is a well known prerogative writ commonly used in connection with ISA detention to challenge the legality of the decision. Such writ can be appealed by anyone or by someone acting on his or her behalf regardless of nationality. In general, a writ of habeas corpus will be granted if the applicant is able to prove that the detention is ultra vires and there is an excessive delay in bringing the prisoner up for trial. It is noted that one must be brought before the Magistrate within 24 hours of the detention.

Certiorari, Latin for quashing order, is a retrospective order that brings a decision made by the authority before the court and prays that such decision to be quashed. Prohibition, on the other hand, is a prospective order to quash a decision which is going to be made. One must bear in mind that failure to comply with such order amounts to contempt of court, which is criminal in nature. Mandamus, meanwhile, is used to enforce public duties by the decision-making body which it has failed to perform. It is enforced to ensure that the public duties are performed by the public authorities. Both certiorari and mandamus can be claimed together.

In Malaysia, an application for judicial review is often denied due to ouster clauses. Ouster clauses are finality clauses attempt to completely exclude judicial review. Words such as “final and/or shall not be questioned” are often seen in Acts of Parliament to deem the decision made by the Government be conclusive and does not subject to review. Unfortunately, unlike United Kingdom, we are not prepared to ignore absolute ouster clauses.

Malaysia is a God-gifted country in which the land is blessed with natural resources and free from natural disasters. Embracing the concept of constitutional supremacy or keluhuran perlembagaan, it is therefore noticed that public authorities must act in such a way that is compatible with the provisions of the Federal Constitution, failing which the act will be rendered unconstitutional and illegal. Thomas Fuller once said that “be you ever so high, the law is above you”; herein lies the significance of judicial review to ensure that Acts of Parliament are correctly interpreted. Government must be held responsible not only to the Parliament but to the people as a whole!