Basically, judicial review usually applied by a party to the High Court to enable the High Court to review the decision made by any tribunals. It has to be noted that judicial review does not act as an appeal. It is a different thing to begin with. In the case of Ahmad Jefri Mohd Jahri @ Md Johari v. Pengarah Kebudayaan & Kesenian Johor & Ors, the Federal Court held that the High Court has a supervisory jurisdiction over proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties. This process exercised by the High Court is commonly referred to as judicial review. In brief, judicial review provides a means by which judicial control of administrative action is exercised as stated in Council of Civil Service Unions & Ors v. Minister for the Civil Service.
Pursuant to Order 53 r. 2(4) of the Rules of Court 2012, it states that any person who is adversely affected by the decision of any public authority shall be entitled to make an application for judicial review. To emphasise this, in Malaysian Trade Union Congress & Ors v. Menteri Tenaga, Air dan Komunikasi & Anor, the Federal Court held that in an application for judicial review under O. 53, the test is whether a person is "adversely affected", where the applicant has to at least show that he has a real and genuine interest in the subject matter. It is not necessary for the applicant to establish infringement of a private right or the suffering of special damage. This includes cases where the complainant’s fundamental right such as the right to life or personal liberty or property in the widest sense as in Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor has been or is being or is about to be infringed. Hence, a person adversely affected by the decision of a public authority may seek the following orders. One, an order of certiorari to quash the decision of the public authority or an order of mandamus to compel the public authority to restore all rights and privileges lost as a result of the decision.
As for the grounds for judicial review, this is clearly stated in the case of Council of Civil Service Unions & Ors v. Minister for the Civil Service. First, is on the ground of illegality which means that the decision maker had failed to keep strictly within the perimeters of his decision-making powers as provided by the law. Second, judicial review may also be made on the ground of irrationality or is commonly known as 'Wednesbury unreasonableness', whereby the decision was so outrageous in its logic or accepted moral standards that no sensible person would arrive to that decision; and this may also be made on the ground of procedural impropriety that the decision maker failed to observe basic rules of natural justice and or procedural rules. However, as the law evolve, there is also an additional ground for judicial review named as doctrine of proportionality which is recognised in the administrative law of the European Economic Community.
Next, judicial review unlike an appeal; is a discretionary remedy and not available as of right. The Federal Court in Hoh Kiang Ngan v. Mahkamah Perusahaan Malaysia held that the remedies sought in a judicial review application are discretionary in nature. The applicant must be able to demonstrate an error of law on the part of the decision maker. The applicant must also show that “substantial injustice” has been suffered to warrant the award of a judicial review remedy.
In terms of application for judicial review, Order 53 r. 3(6) of the ROC states that an application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision was first communicated to the applicant. In the case of Seruan Gemilang Makmur Sdn Bhd v. Pegawai Kewangan Negeri Pahang, the court held that if an application for leave for judicial review was filed outside the prescribed period, then prima facie the application will not be entertained and it is a pre-condition to the exercise of discretion in the applicant’s favour that the applicant show a good reason of the delay. The court would not grant the application for extension unless positively satisfied it is proper to do so.
Hence, it is essential for the applicant to observe and satisfy all of the abovementioned requirements and meet all of the conditions in applying for judicial review in order for the application to be allowed and thus, be granted with respective order to remedy the applicant’s award given by the tribunal.
Author: Nur Farihah Binti Syahriza, Pelatih Dalam Kamar.