JUDICIAL REVIEW

INTRODUCTION
Judicial review is the backbone of
administrative law, the judicial weapon
available to an aggrieved individual to
challenge the validity of the decision-making
process of public authorities.
The aim is not to allow those authorities to act
outside their true legal limit.
General definition: judicial review is a process
by which the courts exercise their supervisory
jurisdiction to see that public authorities do not
act outside the remit of their powers.

Definition by Halsburys Laws of Malaysia:
Judicial review is the process by which the high court
exercises its supervisory jurisdiction over the
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.
The nature of judicial function under the judicial
review jurisdiction: the court is there to determine
whether the law is being obeyed or not, and it is thus
not a judicial function to substitute the decision of the
relevant decision-making authority with its own.

INTENSITY OF REVIEW
Halsburys Laws of Malaysia explains the relevance of
the expression intensity of review in the following
manner;
The intensity of scrutiny will vary according to the
statutory context.
Where interests in life, liberty or private property are
liable to be directly affected by the exercise of a
discretionary power, the court will examine the
decision-makers actions more rigorously than where
such interests are not directly affected by the action or
where there is a large policy element in the exercise
of a discretion.

Nevertheless, different considerations may apply in
respect of administrative decisions by authorities or
persons who are charged with the performance of
public acts or duties. Scrutiny of administrative action
may be less intense where the statutory powers are
required to be exercised in emergencies, or where
they are subject to political controls.
A review may be refused in cases where the
executive had exclusive information, and substitution
of views may be inappropriate on account of public
policy, national interest, public safety or national
security.
JUDICIAL REVIEW & APPEAL
Distinction between appeal & review;
Hotel Equatorial (M) Sdn Bhd v National Union of
Hotel, Bar & Restaurant Workers and Industrial Court
of Msia
FC explained that under judicial review, the high
court, it must be observed, has no jurisdiction to
consider the merits of the case, its only function is to
consider whether the inferior tribunal has performed
its duties according to law. A clear distinction must be
maintained between want of jurisdiction and the
manner of its exercise, otherwise review for
jurisdictional error will be equivalent to review on
merit.
1. Judicial review: The discretion is conferred by
written law on the executive, and it is not part of
the courts function to replace decisions of
executive agencies with its own.
2. Appeal: The right to appeal is dependent on
statutory provision. Provisions may have been
made so as to require the court with which the
appellate jurisdiction has been conferred to
conduct a rehearing and to empower it to
substitute its decision for the decision of the
authority against which the appeal had been
lodged.

APPLICATION FOR JUDICIAL
REVIEW
Application for judicial review is provided
under Order 53 of the Rules of the High Court
1980.
By means of this procedure, the court may
grant the prerogative remedies of certiorari,
prohibition and mandamus. Damages may
also be awarded in certain prescribed
circumstances.
GROUNDS FOR JUDICIAL
REVIEW
1. The authority had used the power for improper
purpose
2. The authority had failed to take into account a
relevant factor, or had taken into account an irrelevant
factor
3. The authority had exercised the power unreasonably,
irrationally or perversely
4. The authority had failed to comply with procedural
requirements imposed under the applicable written law
5. The authority had failed to comply with principles of
procedural fairness

6. The authority had committed jurisdictional
error
7. The authority had fettered its discretion
8. The authority had unlawfully delegated its
decision-making power
9. The authority had reached a decision on no
evidence.

AUTHORITIES SUBJECT TO
JUDICIAL REVIEW
What is public authorities?
1. Source of power is written law: The decisions
and determination of public authorities are
subject to judicial review if the source of the
decision-making power are constitutional or
legislative provisions.
2. Source of power is not written law: Where the
source of power is not written law, review will
still be available if the authority in question
exercises functions of a public nature

The test: A public element suggests a
governmental or quasi-governmental element,
though extending to indirect governmental
connection..
R v Disciplinary Committee of The Jockey
Club, ex p Aga Khan
Fact: the jockey club decided to disqualify a
horse from racing after it failed a dope test.
Held: that decision was a matter of private law
and thus not susceptible to judicial review.

OSK & Partners Sdn Bhd v Tengku Noone Aziz &
anor
Q: whether the Kuala Lumpur Stock Exchange
are subject to judicial review.
Abdool Cader J , the KLSE is a hybrid
corporation a company incorporated under the
Companies Act but recognised and regulated by
legislation and subject to its governance and
authority with therefore an element of public
flavour superimposed on the contractual element
in relation to its members. It is statutory regulated
entity under the overall direction and control of
the minister in fundamental respects, thus
manifesting a distinctive public element

Tang Kwor Ham v Pengurusan Danaharta Nasional
Berhad
Q: the position of several entities created by the
Pengurusan Danaharta Nasional Berhad Act 1998.
Fact: Pengurusan Danaharta Nasional Berhad was
incorporated under the Companies Act 1965. it is a
company limited by shares, all of which are held by
the minister of finance and is publicly funded.
HC: Danaharta was not a public authority under O53
r2(4) of the Rules of the High Court as one look at the
source rather than the character of the power.
Danaharta was essentially a private entity falling
under the field of private law and did not have the
character of public law, and thus should not subject to
judicial review.

COA: even if the public body is subject to judicial
review, the matter decided by it may not be suitable
for judicial review.
In relation to GLC, Gopal Sri Ram JCA observed that
3 types of them;
1. Companies incorported under companies act 1965
which perform purely private function and in which the
federal/state government or both own substantial
shares (eg. MAS) not amenable to judicial review
2. Publicly owned service providers (eg. TNB), that was
corporatised under the privatisation schemes hybrids
& regulated by Acts of parliament: amenable to judicial
review depends on the nature and character of the act
complained of.

3. Companies owned by the government as the
sole shareholder, which are funded entirely with
public money and have either statutory powers
or duties conferred upon them amenable to
judicial review.
Held: Danaharta Nasional fell under the 3rd
type of companies & was therefore subject to
judicial review.