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  • Writer's pictureGavin Jayapal

Stick it to The Man (legally)! (Part 1 of 2)

Stick it to The Man (legally)! (Part 1 of 2)



Nothing strengthens authority so much as silence.

Leonardo da Vinci



A broad history


Power corrupts; absolute power corrupts absolutely. A saying that has stood true to the test of time never has been better wrought. From a perusal of history, it is abundantly clear that there is something within the human genome that drives our desire for absolute power and domination.


Since the dawn of mankind, despots have come and gone. Leadership replete with turpitude will always come to one of two inevitable conclusions; infamy or an inglorious death. In the power vacuum left by a despot's demise, fiefdoms (whether real or imagined) are ravaged by petty, bickering princes.


Despite the above, it must be acknowledged that domination is inherent in human nature. It is a trait that is visible in our simian cousins as well; rational thought and opposable thumbs have done little to usurp this.


The dawn of democracy and challenging the Executive


Atavistic traits aside, humanity has learnt that it is important for a communal order to be maintained. Democracy, despite all its flaws, does have considerable benefits. Governance is no longer subject to the whims and fancies of one man (instead, it is subject to the common prejudices of all) and a system of rational laws is allowed to come into being.


One very important aspect of a functioning democracy is the ability of the individual to challenge his Government. Should one's Government go beyond its powers (i.e., act ultra vires), the onus is thrust upon the individual to right a wrong.


This is precisely where Judicial Review (“JR”) applications come in. JR applications enable an individual (or corporation) to challenge the decision of a Government body.


This could be as simple as challenging a local authority's decision to impose a fine for allowing your dog off its leash right up till a jurisdictional challenge against the Federal Government's ambit of power.


Judicial review in Malaysia


Malaysia aspires to Montesquieu's Tripartite System of governance.


In writing this article, I was concerned with 2 main aspects of a JR application: procedural and substantive law.



Both sets of law are separate and distinct.


In Director General of Inland Revenue v Siong Hoe Biscuit & Confectionary [sic]Factory Sdn Bhd [1992] 1 MLJ 656, His Lordship Richard Tallala J explained the distinction wondrously:

As stated in 37 Halsbury's Laws of England (4th Ed) para 10 there is a vital and essential distinction between substantive law and procedural law. The function of substantive law is to define, create or confer substantive legal rights or legal status or to impose and define the nature and extent of legal duties. The function of practice and procedure is to provide the machinery or the manner in which legal rights or status and legal duties may be enforced or recognized by a court of law or other recognized or properly constituted tribunal.

[EMPHASIS ADDED]


In this article, I shall consider the PROCEDURAL LAW aspect of a JR Application; what shackles does the Applicant first have to unbind before he is able to get at the gaoler?


Procedural polemics; avoid them at all costs


It is a shame to see a valid action shut out merely because of a procedural failing on the part of one's solicitor. Aside from being embarrassing, it may also act as the basis of a professional negligence suit.


To avoid this, it is essential that one is made aware of procedural pitfalls. First, a consideration of Order 53 of the Rules of Court 2012 (“ROC 2012”) must be made. As the Order is rather lengthy, I shall not reproduce it here. Readers are advised to follow the link above.


Essential preliminary considerations for a Judicial Review Application


1. Where is the application to be commenced?


In a JR application, consideration must first be given to where the application ought to be commenced. O.53 r.1(1) ROC 2012 states as follows:-

Application for judicial review (O. 53, r. 1) 1. (1) This Order shall govern all applications seeking the relief specified in paragraph 1 of the Schedule to the Courts of Judicature Act 1964 and for the purposes therein specified.

Paragraph 1 of the Schedule to the Courts of Judicature Act 1964 states as follows:-

SCHEDULE [Subsection 25(2)] ADDITIONAL POWERS OF HIGH COURT Prerogative writs 1. Power to issue to any person or authority directions, orders or writs, including writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others, for the enforcement of the rights conferred by Part II of the Constitution, or any of them, or for any purpose.

As such, the proper place to initiate a JR application would be in the High Court.


To begin the action anywhere else or through any other originating process would be an irregularity and may render the action liable to be struck out (Musa Bin Keran v Public Service Commission Malaysia [1995] 4 MLJ 451; Puncak Niaga (M) Sdn Bhd v Kerajaan Negeri Selangor [2014] 1 CLJ 948).


2. Time


It is of the imperative that any and all JR applications are brought within 3 months from the date the decision is first communicated to the Applicant. This time frame cannot be stressed enough.


O.53, r.3(6) ROC 2012 states as follows:-

Leave (O. 53, r. 3) (6) 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 is first communicated to the applicant.

The reader will note that the wording of the Rule does not explicitly allow for a 3-month time frame. Instead, 3 months appears to be the extreme to which time may be stretched.


The Court retains an inherent discretion to extend time should there be cogent reasons for doing so (Sia Chiu Chuan v Jabatan Kastam Diraja Malaysia [2014] 3 CLJ 126).


However, as is the norm with judicial discretion, it is inherently easier to comply than to seek penitence (cf. Wong Kin Hoong v Ketua Pengarah Jabatan Alam Sekitar [2013 ] 4 CLJ 193; Lim Thian Siang v Bursa Malaysia Securities Bhd [2013] 3 CLJ 1214).


It is easy to see the rationale behind the 3-month mark; the machinery of Government ought not be hindered by petty suits. If a matter is so serious that it warrants immediate action, the Applicant should not slumber on his rights.


The dust has cleared and all systems are go


Once the above two issues have been satisfied, it is time to turn one's attention to the JR application itself. JR applications are a 2-stage system:

  • Firstly, the Applicant will have to obtain leave;

  • Secondly, the Applicant will have to satisfy the Court that the decision of the Executive is ultra vires.

1. Obtaining leave for a JR application


Leave is the first important step towards a JR application. Failing to make an application for leave is fatal (Roland Chong Yew Soon v Majlis Perbandaran Subang Jaya [2006] 6 MLJ 472).


To gauge what is necessary for a leave application, one need only turn to O. 53, rr. 2 and 3 ROC 2012:

Applications (O. 53, r. 2) 2. (1) An application for any of the reliefs specified in paragraph 1 of the Schedule to the Courts of Judicature Act 1964 (other than an application for an order of habeas corpus) shall be in Form 109. Leave (O. 53, r. 3) 3. (1) An application under this Order shall not be made unless leave thereof has been granted in accordance with this rule. (2) An application for leave must be made ex parte to a Judge in Chambers and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by affidavits verifying the facts relied on.

From this, it is safely deduced that the following documents are necessary for a leave application:-


a) Notice of Application (in accordance with Form 109);

b) Statement;

c) Affidavit(s) in support


With these 3 integral documents, a JR application is conceived. Form 109 will act as the originating process of the JR application.


An application for leave must be made ex parte to a Judge in Chambers.


Failing to do so will necessitate the Applicant to immediately make an application to amend under O. 20 ROC 2012 (within the 3-month time period).


O.53 r.7 ROC 2012 only will allow for the Statement and Affidavit to be amended (Omar Suhaimi Abu Hassan v Mahkamah Perusahaan Malaysia & Anor [2014] 3 CLJ 720).


After the cause papers, the presentation


Once the cause papers have been prepared, it will be necessary to serve the leave application. As this article deals with procedural issues, I shall not go into the substantive law of a leave application (that shall be dealt with in part 2).


Service of the leave application is provided for under O.53, r.3(3) ROC 2012:-

(3) The applicant must give notice of the application for leave not later than three days before the hearing date to the Attorney General's Chambers and must at the same time lodge in those Chambers copies of the statement and affidavits.

Failing to serve the A-G's Chambers with a leave application will be fatal to the JR application (Musa Bin Keran, supra; Roland Chong, supra; Ambiga A/P Sreenevasan v Ketua Pengarah Imigresen, Malaysia & Ors [2011] MLJU 757).


As this is an ex parte application, there is no requirement to serve the Respondent. However, as a matter of courtesy (even more so when a stay is being sought), the Respondent may be served. This is completely discretionary.


The A-G's Chambers must be served at least 3 days before the Hearing date of the leave application. Of course, as with all legal matters, the sooner the better.


A peculiarity of the Malaysian legal system is that at times, no one from the A-G's Chambers may turn up for the first Case Management session (despite all documents having been properly served).


This has happened to me and the manner in which one would go about handling this issue will turn on its individual facts.


In my anecdote, no representative from the Attorney-General's Chambers turned up for 2 CM sessions. Myself and the Respondent were both present (we opted to serve the Respondent with the leave application papers).


I managed to speak to the Federal Counsel in charge of the file and was told that the A-G's Chamber had no objection to our leave application. A letter outlining the same was issued to us and to Court after which, the leave application was allowed to proceed. Your mileage may vary but this is certainly a manner in which one may tackle such an issue.


Post-leave


Once the leave application before the Judge has concluded, the Applicant must prepare and file their draft order. A fair order shall then be made extractable.


In all this excitement, one very important procedural step may be left out: the filing of Noticepursuant to O.53, r.4 ROC 2012.


The filing of Notice


Notice is an integral part of one's JR application. Once leave has been obtained, the next step would be to inform the Respondent of that fact (that leave has been obtained). Notice also serves to inform the Respondent that substantive relief will be sought on such further date.


O.53, r.4 ROC 2012 states as follows:-

Notice (O. 53, r. 4) 4. (1) Where leave has been granted under this rule, the applicantshall, within fourteen days after the grant of such leave, file a notice in Form 110. (2) Upon extraction of the sealed copy of Form 110, the applicant shall serve a copy of the same together with a copy of the statement and all affidavits in support on all persons directly affected by the application not later than fourteen days before the date of hearing specified in the Form 110.

Notice must be filed within 14 days of the grant of leave (i.e., filed with the Court registry). However, it is interesting to note that the service of the sealed Notice, statement and affidavit (on the Respondent) is to be made not later than 14 days before the date specified in the Notice.


This may prove problematic if the Hearing date specified in the Notice is very short.


A possible workaround would be to serve an unsealed copy of the Notice (together with the relevant cause papers) on the Respondent before the sealed copy is made extractable. I believe that this shows good faith on the part of the Applicant and puts the Respondent on notice.


Failing to file and serve the Notice is fatal. In National Union of Bank Employees v Director General of Trade Unions [2013] 6 MLJ 167, the Federal Court made a slight exception and held that where all parties had been present at the application for leave, the requirement for Notice was a “mere formality”. Accordingly, the time for filing and serving the Notice was extended.


However, it must be kept in mind that National Union turned on its peculiar facts; all parties were well aware and present at all stages of the proceedings. This allowed for the enlargement of time. Where all parties are not present (i.e., in a truly ex parte application), Notice becomes essential (consider the statements made by their Lordships in Omar Suhaimi, supra).


Upon extracting the Notice, the Applicant must then serve it (together with the Statement and Affidavit in Support) on the Respondent.


The dust settles


Upon serving the Notice of Application, Statement and Affidavit in Support, the procedural aspect of a JR application will have been satisfied. The Applicant will then have to wait for the Respondent's affidavit in reply, to which an affidavit in response shall then be commissioned.


Upon the exhaustion of affidavits, directions shall be issued by Court as to written submissions. These shall be based upon substantive law and will be of relevance at the Hearing.


Concluding remarks


In a JR application, time is of the essence. An Applicant must ensure that he keeps track of important dates and acts in accordance with the strictures put in place by the ROC 2012.


Failure to comply may sometimes be excusable but be wary; as gingerly as the fox treads, the hunter's snare is ever-vigilant.


_________________________________________________________________________

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