Reform Rules for suing Public Authorities

Comments on Order 53 (Applications for Judicial Review) in the proposed Combined Rules of Court 2012

The Malaysian Centre for RefConstitutionalism and Human Rights is pleased to submit the following comments on the proposed Order 53 of the Combined Rules of Court 2012, and its proposals for reform.

  1. With respect, the “new” Order 53 does not resolve the many ambiguities in the old Order 53, and continues a cumbersome process that actually results in unnecessary delays in the conclusion of applications for judicial review.
  2. The requirement that a litigant must first obtain leave before he or she can apply for judicial review should, in our view, be abolished.

2.1.    The current process unnecessarily delays matters. Leave applications unnecessarily clog up the Court diary, and if contested are frequently adjourned for written submissions and a full blown oral hearing.

2.2.    The leave process is a relic of 19th century English procedure. The requirement for leave is inappropriate in a modern constitutional democracy such as ours, where equality under the law is guaranteed under our Federal Constitution.

2.3.    The Attorney General’s Chambers involvement at leave stage is meant to only extend to raising objections if the application is prejudicial to the public interest. However, the AG frequently abuses the privilege granted to them as guardians of the public interest to appear at leave stage to argue instead on the substantive merits of applications for judicial review on behalf of the putative Respondents, or to raise technical objections of procedural non compliance. The same lawyers appear for the AG at the leave stage and then for the Respondents at the substantive hearing.

2.4.    The MCCHR proposes an alternative mechanism where an application for judicial review is filed and served on both the AG and the Respondents. A “permission hearing” should only be held if the AG or the Respondents apply within 14 days of service for such a hearing. At this “preliminary hearing”, no affidavits can be filed by the AG or the Respondents. Such a mechanism would achieve the same effect as the current leave stage, without unnecessarily clogging up Court diaries and protecting deserving Applicants from protracted leave stage hearings. Requiring a positive application to be made to object to leave may also reduce the number of frivolous objections raised.

3. The time limit of 60 days to apply for judicial review, although increased from the previous 40 days, is still too short.

3.1.    This very short time period unnecessarily creates problems for the rakyat. The stated aim of this short time period is in the interests of good administration. However, by allowing full blown hearings at the leave stage and then fixing the substantive hearing months later, judicial review applications are not as expeditiously disposed of as the very short time period to file the application envisages.

3.2.    Our time limit seems to be the most stringent. The relevant Rules in England [Civil Procedure Rules, Rule 54.5], Hong Kong [Rules of the High Court, Order 53 rule 4] and Singapore [Rules of Court, Order 54 r 1(6)] all require the application to be made promptly and no later than 3 months from the date the grounds for the application first arose. It is noteworthy that in South Australia, section 200 of the Supreme Court Civil Rules 2006 provides that such applications must be made as soon as practicable and no later than 6 months from the date grounds first arose to apply.

3.3.    A requirement for promptness, coupled with a maximum time period of 3 months, seems fair. The question of delay in applying for judicial review should be considered at the substantive stage of hearing together with all other factors affecting the grant of relief, to see whether the delay adversely affects the public authority and the due functioning of government. Delay will thus be taken into consideration in moulding the relief to be granted, rather than used as a means of avoiding examining the decision making process at all.

4. Two major problems facing litigants have also not been remedied by the proposed new Order 53.

4.1.    It should be made clear that the alternative remedy of a writ action seeking declaratory relief and damages is still available, thus overturning the effect of the Federal Court decision in Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145 and restoring the previous position of the law. Thus, the formulation in the English Part 54 of the CPR should be adopted which distinguishes between applications which “must” be done by way of judicial review, and those which “may” be so done.

4.2.    It should be made clear that the other provisions of the Rules apply to applications for judicial review unless inconsistent with specific rules therein, overturning the decision in Majlis Agama Islam v Bong Boon Chuen [2009] 6 MLJ 307, FC.

5. The MCCHR’s further comments on the proposed Order 53 as found in the Consultation document is set out by way of comments to the proposed Rules in Appendix A. The MCCHR’s proposed reform to Order 53 is found in Appendix B below.

Dated this 12th day of April 2012

Prepared for the Malaysian Centre for Constitutionalism & Human Rights by a team of volunteer lawyers.

Endorsed by the following Advocates & Solicitors (arranged according to the order of receipt of endorsement):

Shanmuga Kanesalingam, Edward Saw, Fahri Azzat, Sharmila Sekaran, Edmund Bon Tai Soon, Nizam Bashir, Marcus van Geyzel, Seira Sacha Abu Bakar, Amer Hamzah Arshad, Aston Paiva, James Khong, Mahaletchumy Balakrishnan.

The mission of the Malaysian Centre for Constitutionalism and Human Rights (also known as the Pusat Rakyat LoyarBurok) is to promote and protect human rights in Malaysia in accordance with established international rights principles, treaties and law by maximising the use of all appropriate tools through an integrated community-based approach.

Appendix A: Comments to O. 53 as proposed in Consultation Document

ORDER 53

APPLICATION FOR JUDICIAL REVIEW

Application for judicial review (O. 53, r. 1)

1.         (1) This Order shall govern all applications seeking the relief specified in paragraph 1 of the Schedule to the Courts of Judicature Act 1964 and for the purposes therein specified.

Comment:

This formulation will result in injustice, with the continuation of the harsh regime established by Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145 where Order 53 is held to be the sole avenue for all public law claims. The rights of individuals to take a writ action for declaratory relief under the inherent jurisdiction of the Court (in addition to Order 53 procedures) is long established: see Tan Sri Haji Othman Saat v. Mohamed bin Ismail [1982] 2 MLJ 177; Attorney-General of Hong Kong v. Zauyah Wan Chik & Ors. [1995] 3 CLJ 35; [1995] 2 MLJ 620; Teh Guan Teik v Inspector General of Police [1998] 1 MLJ 137, FC should be reinstated. See also CPR Part 54.2 and 54.3 which distinguishes between when judicial review “must” be used and when it “may” be used.

(2)       This Order is subject to the provisions of Chapter VIII of Part 2 of the Specific Relief Act 1950 [Act 137].

Comment:

It is unclear what this provision seeks to achieve. The Court of Appeal in Hong Long Equipment ([1997]1 CLJ 665 @ 737e-f, 757d-h interpreted and reconciled the apparent conflict in the Courts of Judicature Act (para 1, Sched which allows writs of mandamus) and section 49 of the Specific Relief Act (which prohibits writs of mandamus). The formulation in this Rule creates confusion. Everything in the Rules ought to be subject to all Acts of Parliament – there does not seem to be reason for the Specific Relief Act to be singled out.

Applications (O. 53, r. 2)

2.         (1)       An application for any of the reliefs specified in paragraph 1 of the Schedule to the Courts of Judicature Act 1964 (other than an application for an order of habeas corpus) shall be in Form 109.

Comment:

The proviso relating to applications for habeas corpus should be in rule 1.

This rule also still leaves unclear the confusion over whether the prayer in Form 109 (Form 111A as it was before) is meant to ask for “leave” or for the substantive relief. If the requirement for leave is to be retained, then the reference to the Form should be in rule 3 as the Form to be used to apply for leave.

Why not use same rules on joinder of parties, and of causes of action?

Liable to be set aside in the usual manner against the order granting leave.

(2)       An application for judicial review may seek any of the reliefs, including a prayer for a declaration, either jointly or in the alternative in the same application if it relates to or is connected with the same subject matter.

(3)       Upon the hearing of an application for judicial review, the Court shall not be confined to the relief claimed by the applicant but may dismiss the application or make any orders, including an order of injunction or monetary compensation:

Provided that the power to grant an injunction shall be exercised in accordance with the provisions of section 29 of the Government Proceedings Act 1956 [Act 359] and section 54 of the Specific Relief Act 1950.

(4)       Any person who is adversely affected by the decision of any public authority shall be entitled to make the application.

Comment:

The Ahmad Jefri case referred to above show clearly that litigants have no guidance on when they should use Order 53 and when they should use ordinary writ actions. The difficulty in identifying the public nature of a decision of a public authority or not was most recently seen in the Court of Appeal decision in WRP Asia Pacific Sdn Bhd v Tenaga Nasional Berhad [2011] 4 CLJ 838, CA per Low Hop Bing JCA which held that a notice for increased charges on the grounds that a electricity metre had been tampered was not a decision of a public authority. The High Court decision in Tekali Prospecting Sdn Bhd v Tenaga Nasional Berhad [2002] 1 MLJ 113 (reversed on another point [2002] 2 MLJ 707) has a good discussion on when a public authority performs a public function as opposed to a private one, citing several English decisions construing the definition of a “public authority” in section 6 of the English Human Rights Act 1998. The English CPR formulation of a decision, action or failure to act in the exercise of a “public function” is therefore preferable.

Leave (O. 53, r. 3)

Comment:

The requirement for leave should be abolished as it presently stands. for the reasons set out above. However, if leave is to be retained, the following comments apply.

3.         (1)       An application under this Order shall not be made unless leave therefor has been granted in accordance with this rule.

(2)       An application for leave must be made ex parte to a Judge in Chambers and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by affidavits verifying the facts relied on.

(3)       The applicant must give notice of the application for leave not later than three days before the hearing date to the Attorney General’s Chambers and shall at the same time lodge in those Chambers copies of the statement and affidavits.

Comment:

The time limits specified in this Rule generally are arbitrary and make no sense. See further the comment to clause (6) of this Rule, below.

(4)       The Judge may, in granting leave, impose such terms as to costs and as to the giving of security as he thinks fit.

(5)       The grant of leave under this rule shall not, unless the Judge so directs, operate as a stay of the proceedings in question.

(6)       An application for judicial review shall be made promptly and in any event within sixty days from the date when the decision is first communicated to the applicant.

Comment (within 60 days)

60 days is much still too short a time period for many people, especially indigent applicants. The English formulation (3 months or even earlier if the situation in that particular case warrants it) is preferable. Service on the AG only 3 days before the hearing also does not seem to be practical. Service should be within 7 days of extraction of the sealed application, and AG/Respondents should submit objections at least 2 weeks after service or 3 days before hearing, whichever is earlier.

Currently, first hearings are inevitably adjourned since applicants won’t know the AG’s objections until day of hearing, which defeats the object of judicial review being a speedy mechanism to resolve these cases so as not to slow the machinery of government. (In cases of urgency, an expedited timetable can be set by Court. Lawyers filling urgent application must be required to suggest timetable in Certificate of Urgency.)

Comment: (when the decision is first communicated to the applicant)

The removal of the alternative “when the grounds for the application arose” is a very serious deletion. The reform brought about by including this ground has been lauded in Sivarasa Rasiah v Badan Peguam Malaysia [2002] 2 MLJ 413, CA, and was construed there as permitting judicial review notwithstanding that there may not have been a “decision” as such. The removal of this is therefore quite a serious amendment.

(7)       The Court may, upon an application, extend the time specified in rule 4(1) and if it considers that there is a good reason for doing so.

Comment:

The “good reason” test is defective and permits the rejection of serious challenges to public maladministration where an applicant is late. The test should be the interests of justice– the AG / Respondents must show that the administration of government will actually suffer because of this particular delay e.g. actions have been taken on the basis of this decision that has affected many people, and impossible to change without causing widespread systemic

(8)       An application to extend the time must be served on all respondents and must be heard inter partes.

Comment:

This is a new innovation, and will result in a greater delay in dealing with the case. It will result in more contested leave hearing. The question of delay rightly belongs to the substantive stage consideration, where the delay in bringing the challenge would be considered a factor in refusing to grant relief.

Specifying that extension of time applications are heard inter partes, and not specifying the same for stay applications, means the actual practice of the Courts will still differ from that set out in the Rules.

But discretion should also be given to the Court to hear urgent cases ex parte – what if a local authority is going to demolish a house tomorrow? Thus, the MCCHR has proposed the incorporation of the provisions of Order 29 rule 1(2A) enabling ex parte orders, lasting for 21 days and subject to confirmation at an inter partes hearing.

Notice (O. 53, r. 4)

4.         (1)       Where leave has been granted under this rule, the applicant shall, within fourteen days after the grant of such leave, file a notice in Form 110.

(2)       Upon extraction of the sealed copy of Form 110, the applicant shall serve a copy of the same together with a copy of the statement and all affidavits in support on all persons directly affected by the application not later than fourteen days before the date of hearing specified in the Form110.

Comment:

A mechanism should be inserted for

a) other applicants in similar situations who wish to support the application as “Interested Parties” to be added to the application, and

b) other bodies who may be able to assist the Court to appear as amicus.

This rule should also be harmonised with rule 8, which only applies to allow those wanting to oppose The High Court decision in blic authority hinges on the grounds that a metre had been tamperedision in necessarily creates problethe application for judicial review to be heard as a party: Majlis Agama Islam v Bong Boon Chuen [2009] 6 MLJ 307, FC (which also held that Order 53 was a self contained provision, and other parts of the RHC did not apply to it)

Damages (O. 53, r. 5)

5.         (1)       On an application for judicial review the Court may, subject to paragraph (2), award damages to the applicant if—

(a) he has included in the statement in support of his application for leave under rule 3 a claim for damages arising from any matter to which the application relates; and

(b) the Court is satisfied that, if the claim has been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.

(2)       Order 18, rule 12, shall apply to a statement relating to a claim for damages as it applies to a pleading.

Discovery, etc. (O. 53, r. 6)

6.         After leave has been granted, any party to an application for judicial review may apply to the Judge for discovery and inspection of documents pursuant to Order 24, to administer interrogatories pursuant to Order 26, or to cross-examine the deponent of any affidavit filed in support of or in opposition to the application pursuant to Order 38.

Comment:

The removal of the previous 14 day time limit from the grant of leave is to be welcomed. That time limit was impractical and made no sense, since applications of this nature can only realistically be made after receipt of the affidavit in reply from the Respondents.

Amendment (O. 53, r. 7)

7.         (1)       The Judge may allow the statement to be amended, and may allow further affidavits to be used if they deal with new matters arising out of any affidavit of any other party to the application, and where the applicant intends to amend his statement or use further affidavits, he must immediately give notice of his intention and of any proposed amendment of his statement to every other party.

(2)       Every party to the application must supply to any other party copies of the affidavits which he proposes to use at the hearing.

Other persons who may be heard (O. 53, r. 8)

8.         (1)       Upon the hearing of an application for judicial review, any person who desires to be heard in opposition to the application and appears to the Judge to be a proper person to be heard may be heard notwithstanding that he has not been served with the cause papers in the matter.

Comment:

This rule prohibits persons to be heard in support of the application, which should be remedied. See comment to Rule 4 above.

(2)       Where on application for judicial review an order of certiorari is made in any such case, the order must direct that the proceedings must be quashed forthwith on their removal to the High Court.

No setting aside of Order (O. 53, r. 9)

9.         An application to set aside any order made by the Judge shall not be entertained, but the aggrieved party may appeal to the Court of Appeal.

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Appendix B: MCCHR PROPOSAL FOR REFORMED ORDER 53

CLAIM FOR JUDICIAL REVIEW

Claim for judicial review (O. 53, r. 1)

1.         (1)       A ‘claim for judicial review’ means a claim for relief by a person who is adversely affected by

(a)       any written law, or

(b)       by a decision, action or failure to act in relation to the exercise of a public function.

(2)       The procedure contained in this Order must be used for all claims for judicial review seeking any of the reliefs specified in paragraph 1 of the Schedule to the Courts of Judicature Act 1964 for the purposes set out therein, expect for applications for habeas corpus.

(3)       The procedure contained in this Order may be used for claims for judicial review seeking a declaration, injunction or the relief set out in Chapter VIII of Part 2 of the Specific Relief Act 1950.

(4)       Nothing in this Order shall be construed as diminishing in any way the jurisdiction of the High Court to declare any written law as void for being inconsistent with the Federal Constitution if the question arises in any other action or proceeding.

Applications (O. 53, r. 2)

2.         (1)       A claim for judicial review shall be made in Form 109 supported by a Statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by affidavits verifying the facts relied on.

(2)       An application for judicial review may seek any of the reliefs, including a prayer for a declaration, either jointly or in the alternative in the same application if it relates to or is connected with the same subject matter.

(3)       Upon the hearing of an application for judicial review, the Court shall not be confined to the relief claimed by the applicant but may dismiss the application or make any orders, including an order of injunction or monetary compensation:

Provided that the power to grant an injunction shall be exercised in accordance with the provisions of section 29 of the Government Proceedings Act 1956 [Act 359] and section 54 of the Specific Relief Act 1950.

Time for application (O. 53, r. 3)

3.         (1)       Unless a different time limit is specified in any other written law, a claim for judicial review shall be made promptly and in any event no later than 3 months from the date

(a)              the grounds for the claim arose or

(b)              the decision, action or failure to act was communicated to the Applicant.

(2)       The Court may at the substantive hearing of the claim for judicial review extend the time for making a claim for judicial review if the justice of the case requires it.

Service  (O. 53, r. 4)

4.         The applicant must lodge with the Attorney General’s Chambers and serve on the Respondents and on all persons directly affected by the claim for judicial review copies of the Form 109, the Statement and the affidavits in support within 7 days of the date of issue of the sealed Form 109 or within such later time as is allowed by the Court.

Preliminary Hearings (O. 53, r. 5)

5.         (1)       The Court may strike out the claim for judicial review if the claim is frivolous, vexatious or otherwise an abuse of process.

(2)       An application under this rule seeking an order to strike out the claim for judicial review shall be made by notice of application setting out the grounds of objection and shall be heard in open court.

(3)       The application must be filed by the Attorney General, the Respondent or a party directly affected within 14 days of receipt of the Form 109 or within such other time limit permitted by the Court.

(4)       Only the Form 109, the Statement and the affidavits verifying the same filed by the Applicant shall be read at the preliminary hearing and no affidavit filed by the Attorney General’s Chambers or the Respondents shall be considered at the preliminary hearing unless otherwise ordered by the Court.

(5)       No appeal shall lie against a decision dismissing an application under this Rule except with leave of the Court of Appeal.

Stay and other interim remedies (O. 53, r. 6)

6.         (1)       The Court may grant interim relief including a stay of the proceedings in question upon application by the Applicant.

(2)      The application for interim relief may be made ex parte, in which case the provisions of Order 29 rule 1(2A), (2B) and (2BA) shall apply mutatis mutandis.

(3)      Any order made in the absence of the other party may be set aside.

Damages (O. 53, r. 7)

7.         (1)       On an application for judicial review the Court may, subject to      paragraph (2), award damages to the Applicant if—

(b) the Applicant has included in the Statement under rule 2 a claim for damages arising from any matter to which the application relates; and

(b) the Court is satisfied that, if the claim has been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.

(2)       Order 18, rule 12, shall apply to a statement relating to a claim for damages as it applies to a pleading.

Discovery, etc. (O. 53, r. 8)

8.         (1)       Any party to an application for judicial review may apply to the Judge for discovery and inspection of documents pursuant to Order 24, to administer interrogatories pursuant to Order 26, or to cross-examine the deponent of any affidavit filed in support of or in opposition to the application pursuant to Order 38.

(2)       Any such application shall be made promptly and within 14 days from the date on which the grounds for the application arose.

Amendment (O. 53, r. 9)

9.         (1)       The Judge may allow the Statement to be amended and may allow further affidavits to be used.

(2)       Where the applicant intends to amend his statement or use further affidavits, the Applicant must immediately give notice of any proposed amendment or of the Applicant’s intention to use further affidavits to every other party.

(3)       Every party to the application must supply to all other parties copies of the affidavits the first mentioned party proposes to use at the hearing.

Other persons who may be heard (O. 53, r. 10)

10.       (1)       At the hearing of an application for judicial review, any person who desires to be heard in opposition to or in support of the application and appears to the Judge to be a proper person to be heard may be heard notwithstanding that he has not been served with the cause papers in the matter.

(2)       In allowing such a person to be heard, the Judge may make such other directions as are necessary including an order that the person be joined as a party or that counsel for that person be admitted as a friend of the Court to as amicus curiae.

Certiorari (O. 53, r. 11)

11.       Where on application for judicial review an order of certiorari is made in any such case, the order must direct that the proceedings must be quashed forthwith on their removal to the High Court.

Other provisions of the Rules (O. 53, r. 12)

12.       In so far as they are not inconsistent with the specific rules set out in this Order, all other provisions of these Rules shall apply mutatis mutandis to applications under this Order.

 

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Malaysian Centre for Constitutionalism and Human Rights (MCCHR) is a non-profit based in Kuala Lumpur with the mission of promoting active democratic participation and human rights awareness.

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