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1.

Historical perspective of the current Order 53, Rules of Court 2012


-historical genesis
- UK Order 53, Rules of the Supreme Court 1965
- originally used to review the decision-making process
-of the administrators in the context of Wednesbury/CCSU review
- a common law perspective
- originally legislated in 1980
- 2 amendments: a) yr 2000, b) 2012
- in yr 2000
- s. Africa enacted PAJA 2000
- UK replaced Order 53 with Part 54, CPR
2. Order 53, Rule 1(1: Incorporating Constitutional Review into Order 53
- inclusion of Para 1, Schedule to the Courts of Judicature Act into this rule
- Para 1 is adopted from Art 226 Indian Constitution
- confers the additional powers of judicial review on the HC
-Order 53, a legacy of British law on judicial review
- regarding Wednesbury/CCSU review
- challenging the decision-making process of the administrators
-on the grounds of illegality, irrationality and procedural impropriety
- 2 different regimes on judicial review:- a) CCSU review reviewing the decision-making
process of the authority/govt, x go into the merits of the decision; b) Para 1, CJA deals with
constitutional review whenever a fundamental right is alleged to have been adversely affected
by an individual
Constitutional review
- India, art 32, fundamental right adversely affected can go directly to the Indian Supreme
Court
-s. Africa, Rule 18 of the Constitutional Court Rules allows the direct access to the
Constitutional Court for anyone who wants to enforce his or her fundamental rights
-Para 1, CJA houses our right to access to the High Court to enforce our fundamental rights
- genesis- art 226 of Indian Constitution
-in Malaysia, important provision should be housed in the Federal Constitution, x in the CJA

3. Order 53, Rule 1(2): Turning the clock back?


- this rule provided that Order 53 subjected to Chapter VIII of Part 2 of the Specific Relief
Act
- antiquated Act based on Indian Act
-enacted in the yr 1877
- S 49 of the Malaysian Specific Relief Act: neither the HC or any other courts in Malaysia
shall issue a mandamus
-in direct conflict of the PARA 1, CJA where the powers of the HC
-include writs of the nature of mandamus
- Para 1 based on Art 226 of the Indian Constitution
- hence, Para 1 shoul prevail over the antiquated Specific Relief Act
- rule 1(2) should never be invoked
-certain provisions in SRA like S49 should be repealed
- rule 1(2) should be amended to exclude SRA
4. Order 53, Rule 2(3) and Rule 5
- allow any monetary compensationand damages to be awarded by the court to the applicant
- should include exemplary or aggravated damages
- courts were to interpret Para 1 broadly and liberally
-the reviewing court is empowered to mould any relief in favour of the applicant
-ex gratia payment, interim relief
-see Rama Chandran and Sagong Tasi cases
5. Order 53, Rule 2(4): Restraining locus standi
- locus standi rule
-applicant to file his/her judicial review application in the HC
- any person.........adversely affected.......
-public interest litigation is ousted by this phrase
- if a person is x adversely affected,
-there is no locus standi for that person even though it might be an NGO or any other party
- vindicate the rule of law
- or act on behalf for the person whose fundamental right is adversely affected by an
administrative action or decision
- Lim Kit Siang v UEM

- Public Interest Litigation should be an inherent feature of the law


- relating to judicial review in any jurisdiction
- that upholds the rule of law
- in s. Africa, S 38 of the s. African Constitution
-provides that any person may approach the courts to enforce
- his fundamental rights
- x only the affected person
-but also anyone who acts on behalf of another person
- or acting in the public interest or an association vindicating the rule of law
- means any party may approach the court in the name of public interest litigation
- in India, broad interpretation of Art226 and Art 32 of the Indian Constitution
- in the matter of enforcing fundamental rights
- legal applications may be filed pro bono publico
- locus standi is liberally construed
- urgent cases
- writ petitions go directly to SC for enforcing fundamental rights under Art 32
-PIL very much alive in India
- judicial activism by the judges can be seen in a number of cases like George Mampilly,
Janamohan Das, Ganga Water Pollution, Taj Mahal, Mukti Morcha
- the courts exercise epistolary jurisdictions in appropriate cases
- in practice, the words adversely affected replaced by sufficient interest
- public duty replaced by any authority or person
- giant biz companies are so powerful that
- they can do anything in name of development including blatant violations of human rights
with impunity
- Foxconn, Mc Morran, Freeport
6. Order 53, Rule 3: Leave of the court
- meant originally for Wednesbury/CCSU applications
- in Wednesbury/CCSU review, when challenging the decision-making process of govt
- validity of the decision-making process on the grounds of illegality, irrationality, and
procedural impropriety
- leave is needed

- constitutional review: to challenge decisions or actions by the authority in violation of


fundamental rights
- art 5 to art 13 in Part II of the Fed constitution
- implied in all these provisions
- a guarantee of access to justice before the High Court
- this guarantee exists in many countries
- with a constitution
- india: art 32 and 226
- Hong Kong: art 39
- under S 44(4
- HC exercise its discretion not to grant relief in relation to an application or referral made
under this section
- if it considers that an adequate alternative remedy is available to the person concerned
- India, Art 32 and 226
- confer and guarantee protection of fundamental human rights
-courts take a liberal approach when interpreting the fundamental rights
- all the restrictions that limit or derogate fr a guaranteed right must be read restrictively as
stated in Lee Kwan Woh
- leave requirement may be waived in enforcing fundamental human rights
-guaranteed by the Fed Constitution
7. Order 53, Rule 3(6): Time Bar
- infamous limitation period
-has 90 days to apply for judicial review fr the date when the decision was made
- too restricted
- in s. Africa, under PAJA 2000, application for judicial review made within 180 days
- 180 days lapses, can still seek judicial review with the discretion of the courts
- in the interest of justice
- under Rule 3(7)
-the court may use its jurisdiction to extend the time for good reasons
- cases involving PIL, the Rule 3(7) should be interpreted liberally in favour of the applicants

8. The forward march of the law in other common law jurisdictions


- the forward march of the law on judicial review
- should inspire and prompt review or changes
- in other common law jurisdictions
- indian and s. African law on judicial is progressive and inspiring
- separate rules/laws in governing each stream of judicial review
- ie CCSU on reviewing the decision-making and constitutional review in reviewing violation
of fundamental rights
- s. Africa, CCSU review is incorporated in PAJA 2000
- legislated under S33(3) SAF constitution
- S33 provides that everyone has the right to administrative action that is lawful, reasonable
and procedurally fair
- constitutional review: provided in the Rules Of The Constitutional Court read with S 38 of
the SAF Constitution
- in Malaysia, unfortunately and strangely
- 2 different streams are merged into Order 53 Rules of High Court 2012, since 2000
- order 53 had undergone 2 amendments since 1980- 2000 and 2012
- constitutional review cannot and should not be restrained by Order 53
- lead to constitutional disaster- Teoh Beng Hock death inquest
- Lingam Gate imbroglio
- legislators separate the 2 streams
- guided and inspired by countries like India, S. Africa, HK, and Fiji
9. PIL
- serious attempts must be made to revive PIL like in India and S. Africa
- MTUC case is interesting in terms of locus standi for PIL
-In MTUC, the court after considering the whole legal and factual context of the

application especially the fact that this is a public interest litigation, decided that MTUC
had shown that it had a real and genuine interest in the two documents. Hence, MTUC
was adversely affected by the Minister's decision.
- PIL the real pulse of FR
- rule of law will be paralysed if no public spirited taxpayer or NGO
- come forward to vindicate the rule of law on behalf of public interest

- the vibrant law on PIL in India and S. Africa is most inspiring to advocate the rule of
law
- Vishaka: india- sexual harassment of women
- Grootboom- s.africa- right to housing of the hardcore poor
10. Reforms of the law
- review and reform the procedural law on judicial and constitutional review
- move things forward like what happened in S. Africa and Fiji
- even HK Basic Law, came into force in 1997, fared far better than the Malaysian Public
Law