JUDICIAL CONTROL I

Chapter 5
Contents
• Introduction
• Grounds for judicial review
• Rules of natural justice
• Right to be heard
• Rules against bias

• Abuse of discretionary powers

• Illegality
• Irrationality
• Proportionality
• Limitation on judicial review
• Ouster clause
• Policy consideration
Abuse of discretionary powers
• One can be given the power to make a decision.
• Examples:
• S20(3) of IRA 1967
(3) Upon receiving the notification of the Director General under subsection
(2), the Minister may, if he thinks fit, refer the representations to the Court
for an award.
• s26(2) of IRA 1967
(2) The Minister may of his own motion or upon receiving the notification of
the Director General under subsection 18(5) refer any trade dispute to the
Court if he is satisfied that it is expedient so to do…
• If the Act states the circumstances when he has to exercise such a power,
then there is little room for the Minister to make his own decision.
• If the word ”may” is used in the statute, without any guidelines, then the
Minister would in essence have wide powers but the exercise of such
powers must always must be exercised in accordance to the law
• Even if the power is said to be discretionary – there are certain guidelines
that the decision maker must adhere to.
• Reason for review?
• If the power was used for an improper purpose/s or for an unintended
purpose. If there are several purposes – what is the primary, or
fundamental or dominant purpose
• Padfield v Minister of Agriculture, Fisheries and Food: HL 14 Feb 1968

• English case which support show the importance of using the power
for the right purpose
• If the purpose is overlooked then the decision could held to be ultra
vires.

• BerjayaBooks Sdn Bhd & Ors v Jabatan Agama Islam Wilayah

Persekutuan & Ors [2014] 1 MLJ 138
Illegality
• Publicbodies must correctly understand
and apply the law that regulates their
decision making powers.

• If
they do not follow the law correctly their
decision, action, or failure to act will be
unlawful. An action or decision may be
unlawful if the decision maker had no
power to make it or exceeded the powers
given to him/her, or if it misapplies the law.
Mala fide
• Mohamad Ezam Bin Mohd Noor V Ketua Polis Negara & Other Appeals
[2002] 4 MLJ 449
• An order of detention was mala fide if it was made for a "collateral" or
"ulterior" purpose, that is, a purpose other than what the legislature
had in view in passing the law of preventive detention'

Considering irrelevant factors or not considering relevant facts

• Liew Fook Chuan V Menteri Sumber Manusia & Anor [1995] 3 MLJ 740
Irrationality
• Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]
I KB 223 HL
• “If a decision on a competent matter is so unreasonable that no reasonable
authority could ever had come to it, then the courts can interfere… but to
prove a case of that kind would require something overwhelming..”

• Council of Civil Service Unions v Minister for the Civil Service (The GCHQ
case) [1985] AC 374
• “So outrageous in its defiance of logic or accepted moral standards that
no sensible person who had applied his mind to the question to be
decided could have arrived at it.”
• See Choo @ See Guat Kiok v Suruhanjaya Sekuriti [2006] 1 MLJ 649
• By 'irrationality' I mean what can by now be succinctly referred to as
“Wednesbury unreasonableness”. It applies to a decision which is so
outrageous in its defiance of logic or of accepted moral standards that no
sensible person who had applied his mind to the question to be decided
could have arrived at it.
Proportionality
• It envisages that a public authority
ought to maintain a sense of
proportion between his particular
goals and the means he employs to
achieve those goals, so that his
action impinges on the individual
rights to the minimum extent to
preserve the public interest.

• It means that administrative action

ought to bear a reasonable
relationship to the general purpose
for which the power has been
conferred a.k.a “balance”
Proportionality in Britain

• In many cases in Britain, proportionality has been treated merely as an

aspect of the Wednesbury unreasonableness.
• However after the enactment of the Human Rights Act, 1998, the House of
Lords have adopted a position between proportionality and Wednesbury as
regards judicial review under the HRA.
• Pham v Secretary of State for the Home Department [2015] UKSC 19.
• The respondents have to show that they pursued a pressing social need and
that the means employed to achieve this were proportionate to the
limitation of the rights.
Proportionality in Britain

• The test?
• De Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries,
Lands and Housing [1999] 1 AC 69:
 The legislative objective is sufficiently important to justify limiting a
fundamental right;
 The measures designed to meet the legislative objective are rationally
connected to it; and
 The means used to impair the right or freedom are no more than is
necessary to accomplish the objective.
Proportionality in Malaysia

• Sivarasa Rasiah v. Badan Peguam

Malaysia & Anor [2002] 2 MLJ 413.
Wednesbury unreasonableness v. Doctrine of Proportionality

Wednesbury unreasonableness
• Wednesbury applies to a decision which is so reprehensible in its defiance
of logic or of accepted moral or ethical standards that no sensible person
who had applied his mind to the issue to be decided could have arrived at it.
• Case law has shown the considerable element of uncertainty-page 88.
Wednesbury unreasonableness v. Doctrine of Proportionality

Doctrine of Proportionality
• Capable of being more precise and fastidious than a reasonableness test as
well as requiring a more intrusive review of a decision made by a public
authority which requires the courts to assess the balance or equation struck
by the decision maker.
• Criticism that proportionality allows judges to interfere with decisions by
the executive by imposing their own opinion on the merits in place of that
of the decision maker.
Limitation on judicial review
• Ouster clause
• Policy consideration
Ouster clause
• The meaning of ouster clause
• Examples of ouster clause
• Instances when courts can overlook these clauses
• English approach on ouster clause
• Malaysia approach on ouster clause
The meaning of ouster clause
• The Parliament recognizes the rule of law – by granting the power to one
body to make decisions and allows the other to question the validity of its
decision making process through the judicial review.

• However, the right to question this decision making process comes with
limitations.

• Partial or total ouster clause.

• The Parliament when drafting the statute may insert a finality clause – which
prevents judicial reviews.
Examples of Ouster Clauses
• s9(6) Industrial Relations Act 1967
• A decision of the Minister under subsection (1D) or (5) shall be final and shall not be
questioned in any court.

• s33B of the Industrial Relations Act 1967

• (1) Subject to this Act and the provisions of section 33A, an award, decision or order
of the Court under this Act (including the decision of the Court whether to grant or
not to grant an application under subsection 33A(1)) shall be final and conclusive,
and shall not be challenged, appealed against, reviewed, quashed or called in
question in any court.

• Section 59A Immigration Act 1959/63

• (1) There shall be no judicial review in any court of any act done or any decision
made by the Minister or the Director General, or in the case of an East Malaysian
State, the State Authority, under this Act except in regard to any question relating
to compliance with any procedural requirement of this Act or the regulations
governing that act or decision.
• Although the section prima facie disallows judicial review, the section however,
does recognize instances where such a review could be possible.
English courts in ouster clause

• The English courts have disregarded such clauses if the decisions made by
the body are caused by jurisdictional error.

• Anisminic v Foreign Compensation Commission [1969] 2 AC 47.

• Wide enough to cover all grounds for review
• Certiorari was still granted despite an ouster clause
• all errors of law are now to be considered as jurisdictional and ultra
vires in a broad sense of the term.
• Implies that ouster clauses should not be effective against any error of
law.
Cases where an ouster clause can be set aside in
Malaysia
• The earlier examples clearly
prevents judicial intervention
• But, there are possible
circumstances which could
allow judicial intervention
• R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147

• The case discussed the scope of the Court`s jurisdiction and its role in
judicial review and the effect of ouster clauses
• A decision susceptible to judicial review is not only open to challenge on
the ground of procedural impropriety but also on the grounds of illegality
and irrationality; and in practice, this permits the Court to scrutinize such
decisions not only for process but also for substance, that is the merits of
the decision itself.
• Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and
other appeals [2018] 1 MLJ 545
• “Nevertheless, it was settled law that the supervisory jurisdiction of
courts to determine the legality of administrative action could not be
excluded even by an express ouster clause. It would be repugnant to the
rule of law and the judicial power of the courts if the registrar’s decision
was immune from review.”

• Other case?
Policy Consideration
• What is policy consideration?
• A course or principle of action adopted or proposed by an organization or
individual.
• The general principles by which a government is guided in its management
of public affairs, or the legislature in its measures to the welfare or
prosperity of the state or community.
• Dr Michael Jeyakumar Devaraj v Peguam Negara Malaysia [2013] 2
MLJ 321
• “We have no hesitation in accepting that the executive's discretion,
whether by statute or prerogative is amenable to judicial review.
However, whether such discretion is amenable to judicial review is
dependent on the facts of each case…”
• “Courts must be wary of unduly extending its judicial arms to policy
matters which are exclusively within the domain of the executive.
Unwarranted usurpation and transgression by the judiciary into the
realm of the executive and vice versa will bring about disrepute to
our system of government which upholds the separation of powers
between the three main components vis a vis the executive, the
legislature and the judiciary.”