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CONSTITUTIONAL AND ADMINISTRATIVE LAW 2

ARTICLE REVIEW

JUDICIAL REVIEW

THE POSITION OF JUDICIAL REVIEW UNDER THE FEDERAL CONSTITUTION

Public and private sector need to be divided

The most potential weapon available to an aggrieved individual to challenge the validity of the decision-making process of public authorities.

The aims :

To not allow those authorities to act outside their true legal limit.

To protect individuals from arbitrary or unfair action of powerful bodies.

May result in the granting of remedies to the affected party.

To ensure that public bodies which execise law making power or adjudicatory powers are kept within the confines of the power conferred.

It’s function is to determine whether the law is being obeyed or not and not its function to substitute the decision of the relevant decision-making authority with its own.

They uphold the notion of constitutional supremacy as opposed to parliamentary supremacy.

APPLICATION FOR JUDICIAL REVIEW

The position of judicial review under the Federal Constitution could not be discussed without making a cross-reference to the Reid Commission’s recommendation.

It is important to note from the onset that the five members of the Commission were not unanimous on the issue of judicial review.

The role of judicial review as a backbone of good governance in Malaysia could be viewed from two perspectives :

Where powers are conferred on the superior courts to determine the constitutional validity of federal and state laws and to invalidate them on the ground of unconstitutionality .

Constitutional supremacy is maintained by reviewing the executive act on constitutional as well as administrative law grounds.

It is important to note that in Malaysia, constitutional supremacy is maintained by reviewing the executive act on constitutional as well as administrative law grounds.

We argue that a distinction is necessary to provide different legal regimes for the performance of public functions and private activities. Our reasoning is based on the duties and obligations; for example, public administrators are responsible for conducting their duties in the public interests, whereas the same obligations do not apply to private bodies.

We also welcomed the development of a substantive public/private divide, maintaining that there is a need to differentiate the standards to which public bodies should be required to conform by the courts when performing public functions, but the same should not be applicable to private bodies . Public law is designed to protect the public, since it ‘provides public bodies and the court with protection against applicants …

The constitutional role of judicial review is of immense importance in fostering the spirit of good governance.

The court are in a position to determine whether in making a decision or in taking action, a public body has acted ‘within its power’ and in accordance to common law standards of fairness.

This is particularly significant with regards to exercise of discretionary powers.

Enhances the application of seperation of powers since it involves the courts considering the legality of executive action.

It may result in the granting of very effective remedies to the affected party that can quash, prevent or compel a public decision or action, authoritatively state the legal position of the parties and award damages.

THE ROLE OF JUDICIAL REVIEW IN PROMOTING GOOD GOVERNANCE

Summary

COURTS SUBJECTING PARLIAMENT TO THE CONSTITUTION

COURTS CONTROLLING EXECUTIVE ACTIONS OR DECISIONS

Concept of ultra vires provides the backbone of judicial review.

It would thus appear that the concept of ultra vires is nowadays regarded by many as an inadequate rationale for judicial review.

Although the judges still express their role in the traditional language of ‘vires’, the approach taken is more robust than before.

As defined in law, makes an error of law, the courts through the process of judicial review will intervene to ensure that the body in question reconsiders a matter and acts in a procedurally correct manner.

The preffered is that the courts need not resort to fictions such as the ‘intention of Parliament’ or the technicalities of ‘jurisdictional facts’ and ‘errors of law’, but that rather the courts will intevene whenever there has been an unlawful exercise of power.

Members of professional bodies

Function :

1) to control entrance to a particular professions

2) to enforce the standards of practice among the licensed practitioners of the concern profession.

Licensing

One of the areas where procedural protection would be most relevant.

The provisions regarding cancellation of a license do not provide for giving a hearing to the licensee.

One practical difference may however arise, the courts are apt to imply only the minimal requirements of natural justice , but statute may expressly provide for much better safeguards.

In Malaysia, Parliament is not supreme and any legislation can be tested before the courts on the touchstone of the Constitution.

Constitutional supremacy would ring hollow unless it is enforced.

For instance, in the case of B Surinder Singh Kanda v The Government of the federation of Malaya, where it was held that the words ‘any existing law’ meant ‘any valid existing law’. If there is a conflict between the pre-merdeka Ordinance and the constitution , the ordinance is not valid and must give way to the supreme Constitution.

What is required at the moment is judicial creativity on the parts of the courts to consistently assert their judicial review power in order to uphold good governance.

INEFFECTIVENESS OF JUDICIAL REVIEW AS A CORNERSTONE OF GOOD GOVERNANCE

Civil servants of public services

The Federal Constitution provides that members of the public service cannot be dismissed or reduced rank without being given a reasonable opportunity of being heard.

Domestic tribunals

Public law principles do not extend to regulate bodies that derive power exclusively from contract. These bodies are private entities and are subject only to private law.

The court have allowed judicial review controls to extend to these bodies although the ground of review are much narrower than those available against statutory authorities.

Institutions of higher learning

The provisions of arts 149 and 150 to a certain extent hinder the smooth operation of the doctrine of judicial review.

Absolute powers available in place, a large number of governmental powers are not subject to any real control.

Judicial review of legislative and executive acts on constitutional grounds is not a significant feature of the Malaysian Constitution.

A number of judicial decisions indicate that the humanising provisions of part 2 of the Constitution on fundamental liberties do not apply to the private sector.

Judicial review could still be available provided that the functions performed are public in nature

The following instances have hampered courts in controlling the exercise of governmental powers of public authorities in Malaysia. The bold proclamation of constitutional supremacy in art 4(1) and the notion of judicial review on constitutional grounds that is implicit in art 4(1), are immediately qualified by art 4(2)(a).

There are ouster clauses that seek to oust or exclude judicial review of executive discretion or legislative action.

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Judicial review is the backbone of administrative law, and it remains, and is particularly significant with regards to exercise of discretionary power by the administration and aims to protect individuals from arbitrary and unfair action of powerful bodies.

Judicial review may result in the granting of remedies to the affected party.

Hence, judicial review represents the means by which the courts control the exercise of governmental power.

As a concept, judicial review has developed to ensure that public bodies which exercise law making power or adjudicatory power are kept within the confines of the power conferred.

Analysis

The ouster clauses must be abolished

The statute granted powers to the body, the exercise of which could not be challenged in court.

However where the body acted illegally, it was clearly acting outside the power granted by the Statute.

That exercise of power, because it was outside the statute, was not subject to the limitation on review which applied when the statutory power is used.

Lim lian Geok v The Minister of Inferior, Federation of Malaya

A person become stateless as a result of the deprivation of citizenship order, an effect prohibited by art 26B(2). The court show unwillingness to review the ministerial order.

Throughout the greater part of his life, Mr. Lim dedicated himself towards fighting for the cause of social justice and equality, as manifested in his constant calls to the then Federal Government for fair and equal treatment of all language streams within the country’s system of education.

It was in line with this principled position of his that he strongly and consistently opposed the Federal Government’s move to forcibly switch the medium of instruction of Chinese secondary schools from Chinese to English

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It is important to note that the nature of judicial function under the judicial review jurisdiction is that the court is there to determine whether the law is being obeyed or not.

It is thus not a judicial function to substitute the decision of the relevant decision-making authority with its own.

Being aware of such arguments, the author would like to pay attention to the issue of how the doctrine of judicial review operates in such an environment not forgetting the fact that in Malaysia, we uphold the notion of constitutional supremacy as opposed to parliamentary supremacy.

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.

This article examines the concept of judicial review as a cornerstone or backbone of governance in Malaysia despite the fact that the Federal Constitution does not mention judicial power together with the accompanying documents.

Hence, constitutional supremacy is maintained by reviewing the executive act on constitutional as well as administrative law grounds.

In Malaysia, hundreds of executive actions have been invalidated by the courts for violation of the requirements of the Constitution.

The author also mentioned that in a Malaysian context, the operation of the concept of judicial review is affected by various factors or even provisions of the Constitution such as the outer clauses, which may act as a hindrance to the notion of fostering good governance in the country.

To consider a person to be deprivation on the ground of disloyalty until he become stateless is indeed a big matter.

It is, therefore, unjust for him not to be given an opportunity for his case to be reviewed so the court could re-evaluate and know the exact consequences of being a stateless.

The consequences of becoming a stateless person.

Hard to get job

Could not get any protection in one country

Nowhere else to come back home

You might be deported to nowhere

Hard to build a family

-The position of judicial review

under federal constitution

-Application for judicial review

-The role of judicial review in

promoting good governance

-Courts subjecting parliament to

the constitution

-Courts Controlling executive

actions or decision

-Inefectiveness of judicial review

as a cornerstone of good

governance

Conclusion

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!

conclusion