by Shanmuga Kanesalingam
Published February 18, 2014
Article first published in Loyar Burok on 18.02.2014.
When a public authority does something to you that you feel is wrong, you can go to Court to challenge their decision.
To be able to do so successfully, you must prove that the decision of the public authority is tainted by one of the following:
Illegality: It breaks a law — either the Federal Constitution, a State Constitution, an Act of Parliament, a State Enactment, or a piece of subsidiary legislation (e.g. rules or by-laws made by a Minister or some other body authorised by an Act or Enactment).
Irrationality: The decision is “Wednesbury unreasonable” — i.e. it was, in the words of Lord Devlin, “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”.
Procedural impropriety: The decision-making process was unfair or unjust, and breached the rules of natural justice, which include the principle that no person should be a judge in his or her own cause, and that both sides must be given an opportunity to be heard before a decision affecting one or the other is made.
Proportionality: This is something new, and means that the decision reached was disproportionate to the restriction to an individual’s right which is permitted by law. For example, the law allows restrictions on free speech to protect public order — is a ban on an entire book proportionate to the effect sought when only seven pages are considered a threat to public order? How do you challenge the decision?
You must apply to Court by a process known as “judicial review”.
In an application for judicial review, you can get several forms of relief:
The most simple and straightforward is a “declaration” — a Court order that merely declares the rights of the parties. There is no bite to such an order; the order merely declares and does not actually make any order to do something, or not to do something. The assumption is that the government or other public authorities will not act in a manner that is against what the Court has said is the law.
Another form of relief is something called an “order of certiorari”, or a quashing order as it is now known in England. This order has bite — it actually orders the physical “quashing” of the document containing the public authority’s decision that has been found to be tainted by illegality, irrationality, procedural impropriety, or disproportionality. Usually, the Court will remit the matter back to the public authority concerned to decide the matter afresh according to law. This was what happened when the Court quashed the Home Minister’s decision to reject Malaysiakini’s application for a newspaper printing permit.
We also have an “order of mandamus” — an order that forces the public authority to do something. This is usually the case when the public authority was under a positive duty to perform a duty, and it did not do so.
The flip side of the mandamus order is an “order of prohibition” — an order that forces the public authority to stop doing something that the applicant for judicial review says is illegal. This is quite frequently used when a professional person wants to stop a disciplinary body from proceeding with disciplinary proceedings.
There is also the rarely used “order of quo warranto” — an order addressed to a person to show his authority for doing what he is doing. This relief was used to challenge the appointment of a Judge and an Industrial Court Chairman whose appointment was alleged to be contrary to law.
The law also provides that the above remedies are not exhaustive, and that whenever there has been a breach of a person’s rights by a public authority, the Court has power to fashion an appropriate remedy. However, as far as I know, no Court has had to go beyond the above remedies when it has found a reason to interfere with the decision of a public authority.
Among a whole host of other obstacles a person faces when challenging the government, the rules on locus standi were one of the most formidable. The Latin phrase, meaning “place of standing”, is the term lawyers use to describe the rules which governed who was entitled to apply to the Court to challenge a decision of a public authority.
The issue is simple when it is a decision that clearly only affects one or two people, or a small and well-defined number of people. For example, a doctor faced with disciplinary proceedings commenced by the Malaysian Medical Council clearly has locus standi to challenge those proceedings if the doctor feels that the proceedings are unlawful.
But what happens when a decision is made that you feel is clearly unlawful, but which does not affect you directly, and affects all Malaysians (or a very large portion of them) equally?
This was the problem that faced many social activists, politicians and other concerned citizens who were refused leave to even apply for judicial review on the ground that they did not have locus standi. And all this arose because of the decision in the case of Lim Kit Siang v United Engineers Malaysia (‘the UEM case’) in the late 1980s.
That was finally laid to rest (or so it would seem) by the Federal Court last week in Malayan Trade Unions Congress & Ors v Minister of Energy, Water and Communications & Government of Malaysia (‘the Water Agreement case’).
In my next article, we’ll look at the UEM case, and the impact of the Water Agreement case on the rules of standing.