What is Judicial Review?
Judicial review is a court action specifically designed to challenge “decisions, actions or omissions” of public bodies.
Public bodies are government organs which perform a public function: Ministers, the Federal Government, State Governments, Royal Malaysian Police, the Commissions which regulate various industries, Tribunals, Industrial Courts, local authorities, land offices, public universities, etc.
Must every decision of a public body be challenged by Judicial Review?
No. There are 2 main exceptions.
First, if the complaint against a public body is not based on principles of public law, or is a mixture of both private & public law, a Court may rule that a proper action would be by writ or originating summons (which are court actions for private parties). For example, if there is a fallout in a joint venture agreement between a construction company with a State Government to develop a land, it is essentially a contractual dispute involving private law. Similarly, if a patient suffers complications in a public hospital, it is a medical negligence case revolving private law. Both are unsuitable for judicial review.
Second, if there is a specific statutory procedure to challenge the public body, the same must be adhered to first. For instance, if you are unhappy with an income tax assessment imposed by the Inland Revenue Board, you must appeal to the Special Commissioners for Income Tax. If you are unhappy of a fine imposed by the Competition Commission, you must appeal to the Competition Appeal Tribunal. Having said that, if the decisions of the above appellate tribunals are still unsatisfactory, you can then proceed to file a Judicial Review.
Who can file a Judicial Review?
Any person who is “adversely affected”. In legal jargon, you must possess “locus standi” (a place of standing).
You are “adversely affected” as long as you can show you have “a real and genuine interest in the subject matter”.
You don’t necessarily need to be personally affected by a public law decision. The law recognises the concept of “public interest litigation”. “Public interest litigation” will be entertained by Courts if it is meant to redress public injury, enforce a public duty, protect social rights and vindicate public interest. It ensures access to justice to economically weaker classes.
On what grounds can you challenge a public decision?
The usual grounds are as follows:
(1) Ultra vires: when a public body acts beyond one’s statutory or legal power
(2) Unconstitutionality: when a public body does something which is against the Constitution
(3) Unreasonableness: when a public body acts in a manner where no reasonable public body would have done the same
(4) Disproportionality: when the decision arrived at is disproportionate to the objective sought to be achieved
(5) Breach of legitimate expectation: when a public body reneges on a policy, promise or representation made to a person or group of persons
(6) Denial of the right to be heard: when you are not given the opportunity to present your explanation/story before a decision is made
(7) Procedural unfairness: when a specific procedure provided in the law/regulations/rules is not followed in arriving at a decision
(8) Bias: when the public body has a vested personal interest in the outcome of a decision
(9) Failure to give reasons for decision
What remedies can you obtain if you succeed in a Judicial Review?
The usual remedies sought for are:
(1) Certiorari: an order to quash or nullify the decision of a public body.
(2) Declaration: a court pronouncement on the legal rights and obligations of parties
(3) Mandamus: an order for the public body to do something
(4) Prohibition: an order to prohibit the public body from doing something
(5) Damages: monetary compensation for the losses you have suffered
Is there a time limit for you to file a Judicial Review?
Yes, a Judicial Review should be filed 3 months from the date (i) when the grounds of application first arose or (ii) when the decision is first communicated to you.
If you have filed a Judicial Review outside the 3 months timeframe, you have to apply for an extension of time. The Court will only allow the extension of time if there are “good reasons for doing so”.
Must I exhaust all alternative remedies before filing a Judicial Review?
For example, if a trade union is dissatisfied of the Director-General of Trade Unions’ decision to revoke its registration, it should appeal to the Minister pursuant to a specific provision under the Trade Unions Act 1959, instead of filing a Judicial Review beforehand.
However, failure to exhaust alternative remedies does not automatically preclude one from seeking relief from the Courts through Judicial Review – it depends on among others the futility of such alternative remedy.
How is the court process like for Judicial Review?
A Judicial Review must be filed at a High Court.
There is a 2 stage process. The first stage is called the leave stage. The Court sieves out frivolous and vexatious cases (eg: if a matter is a private law dispute, if the applicant is not “adversely affected”, if the 3 month time limit is exceeded, etc.). At this stage, only the Attorney General’s Chambers appear and not the public body itself.
The second stage is the substantive stage. This is where the full merits of your case gets ventilated and decided by the Court.
A Judicial Review is conducted by affidavit evidence. This means you don’t appear as witnesses in a trial. The matter will be decided by documentary evidence. In rare circumstances, one can apply to cross-examine witnesses.
If you lose, you may be asked to pay costs to the public body concerned, and vice versa.
If you lose, you also have the opportunity to appeal to the Court of Appeal and may seek leave to appeal to the Federal Court thereafter.
Do I need to engage a lawyer to file a Judicial Review?
It is not mandatory.
But ideally, one should engage a lawyer to file a Judicial Review.
All of the above principles are general statements – nuances, caveats and exceptions govern such general principles, which are ordinarily only appreciated by those trained in the law. A lawyer is also more familiar with court procedure, forms and cause papers – an omission could result in cases being struck out on technicalities.
As a whole, it may be very challenging to face off alone unaided against a government lawyer representing the public body