Stick it to the man (legally)! (part 2 of 2)
Stick it to the man (legally)! (part 2 of 2)
In part 1 (made accessible here), I outlined the procedural law upon which a JR application is grounded. Now, I shall turn to consider the substantive law behind it (JR application).
At the leave stage
As explained previously, a JR application will consist of 2 stages.
Firstly, the Applicant will have to obtain leave of Court (on an ex parte basis).
Secondly, the Applicant will be required to satisfy the Court (on an inter partesbasis) that the Government arm in question has acted beyond its powers (ultra vires).
The leave stage; what law is applicable?
Leave ought not be a protracted affair. At this stage of the proceedings, the Court need only concern itself with this question: has the Applicant showed that it has aprima facie case that is neither frivolous nor vexatious? (Association of Bank Officers, Peninsular Malaysia v Malayan Commercial Banks Association  3 MLJ 228).
The application for leave must not be frivolous (QSR Brands Bhd v Suruhanjaya Sekuriti &Anor  3 MLJ 164).
Frivolous (or vexatious) actions are regarded as being actions which have no prospect of success, are wanting in bona fides or will not lead to any practical result (Clear Water Sanctuary Golf Management Bhd v Ketua Pengarah Perhubungan Perusahaan & Anor  6 MLJ 446).
It is a low threshold and the rationale is easy to see; individuals should not be shut out from challenging the Executive.
However, due to the ex parte nature of the leave stage, full and frank disclosure must be made.
It is incumbent upon the Applicant's lawyer to ensure that the Affidavit in Support is “as detailed and comprehensive as the circumstances will permit. [It] should exhibit all the documentary exhibits which are truly relevant and upon which he intends to rely. The object of these steps is to ensure that the court has as complete a picture as is possible right from the start, of the case for the applicant who is seeking judicial review.”(per His Lordship Edgar Joseph JR FCJ in Tun Hj Sarip Hamid v Patco Malaysia Bhd  2 MLJ 442. Refer further to Marcel Jude v The Chairman Election Commission of Malaysia  10 MLJ 216).
The Substantive Application
Once the leave stage has been overcome, the substantive application may then proceed.
Once affidavits have been exhausted and the matter is at the door of the Court, submissions shall be tailored according to the particular facts of each case.
Accordingly, I shall not delve into the same.
However, there are a few interesting substantive issues that are applicable across the board.
These issues delve into the heart of the application and must be taken into consideration for each an every JR application.
The issues are (non-exhaustive):-
a) Locus standi
b) Concession agreements
c) Internal dispute resolution mechanisms
1. Locus standi
Locus standi literally translates to “standing”.
In Government of Malaysia v Lim Kit Siang  2 MLJ 12, His Lordship Salleh Abbas LP stated as follows:-
Every legal system has a built-in mechanism to protect its judicial process from abuse by busy-bodies, cranks and other mischief-makers by insisting that a plaintiff should have a special interest in the proceedings which he institutes. This special interest is a nexus between him and the party against whom he brings his complaints to court and is known as locus standi.
Locus is an overarching issue that shadows every JR application. If the Applicant does not have the necessary locus to bring an action for JR, he will be shut out.
Very recently, the Federal Court considered the issue of locus. In Malaysian Trade Union Congress v Menteri Tenaga, Air dan Komunikasi  3 MLJ 145, the Federal Court held that in considering locus under O. 53 r.2(4) ROC 2012, the Court would accept and apply the “adversely affected” test as being “a single test for all the remedies provided for under O. 53 of the RHC (sic)...”
The “adversely affected” test was put forth by His Lordship Gopal Sri Ram JCA (as His Lordship was then known) in QSR, supra. His Lordship phrased the test as follows:-
 It is to rid this dichotomous approach which often produced injustice that O 53 in its present form was introduced. There is a single test of threshold locus standi for all the remedies that are available under the order. It is that the applicant should be 'adversely affected'. The phrase calls for a flexible approach. It is for the applicant to show that he falls within the factual spectrum that is covered by the words 'adversely affected'. At one end of the spectrum are cases where the particular applicant has an obviously sufficient personal interest in the legality of the action impugned. See, Finlay v Canada(1986) 33 DLR 421. This includes cases where the complaint is that a fundamental right such as the right to life or personal liberty or property in the widest sense (see Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor  1 MLJ 261;  2 CLJ 771) has been or is being or is about to be infringed. In all such cases, the court must, ex debito justitiae, grant the applicant threshold standing. See, for example, Thorson v Attorney General of Canada 1 SCR 138.
 At the other end of the spectrum are cases where the nexus between the applicant and the legality of the action under challenge is so tenuous that the court may be entitled to disregard it as de minimis. In the middle of the spectrum are cases which are in the nature of a public interest litigation. The test for determining whether an application is a public interest litigation is that laid down by the Supreme Court of India in Malik Brothers v Narendra Dadhich AIR 1999 SC 3211, where, when granting leave, it was said:
[P]ublic interest litigation is usually entertained by a court for the purpose of redressing public injury, enforcing public duty, protecting social rights and vindicating public interest. The real purpose of entertaining such application is the vindication of the rule of law, effective access to justice to the economically weaker class and meaningful realisation of the fundamental rights. The directions and commands issued by the courts of law in public interest litigation are for the betterment of the society at large and not for benefiting any individual. But if the Court finds that in the garb of a public interest litigation actually an individual's interest is sought to be carried out or protected, it would be bounden duty of the court not to entertain such petition as otherwise the very purpose of innovation of public interest litigation will be frustrated.
From this, it is clear that every Applicant must ensure that he has the relevant locusbefore undertaking any JR application. Utilising the “adversely affected” test, the Applicant must consider whether he has a “sufficient personal interest in the legality of the action impugned”.
This will turn on a case's individual facts but it is a prerequisite that the Applicant must satisfy.
2. Concession agreements
A concession agreement is an agreement providing for rights over land or Government property. The property over which the concession is granted will usually be of public concern (e.g., roads, lakes, rivers etc.)
Concession agreements are a useful tool in that they allow for the Government to outsource necessary public service works. However, they are also a source of much chagrin as concession agreements are prone to mismanagement and abuse.
For JR applications, concession agreements become a cause for concern when the agreement carries clauses that affect the right of the Applicant.
In Malaysian Trade Union Congress, supra, the Federal Court held that where a concession agreement contains a clause calling for confidentiality, it would not be unreasonable for the Minister to refuse disclosure.
This is not a boon for the development of a critical society. Preventing the nation from having ready access to agreements that adjudicate the supply of water a misstep.
The Courts ought to be moving towards a liberalisation of bureaucracy and not abet the Executive in squirreling away secrets.
Similarly in Beta Tegap Sdn Bhd v Majlis Perbandaran Sepang (Attorney-General of Malaysia, the intervener  10 MLJ 420, the High Court held that the concession agreements would not be a valid concern as the issue before the Court was a jurisdictional point.
In Beta Tegap, the argument taken was different. The Applicant argued that the Respondent had no jurisdiction to issue the Notices to remove the AES cameras. Accordingly, the concession agreements were not of concern to the Court as the Court was tasked with deciding whether the Respondent had acted ultra vires.
In addition, in Beta Tegap, the Applicant was not a party to the concession agreement. This prevented the Applicant from being privy to the concession agreements.
Despite the above, there does appear to be a predilection for the Courts to not grant immediate access to concession agreements. This is an issue that any prospective Applicant must be made aware of prior to initiating any application for JR.
3. Alternative remedies
In certain scenarios, there may exist an alternative remedy that an Applicant in JR may avail himself of. This is normally manifested in an internal dispute resolution mechanism.
In Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan  3 MLJ 1, the Federal Court stated that where Statute has provided for a specialised appeal procedure for cases of a technical nature (planning, employment, taxation), the Applicant ought to first exhaust those remedies.
The Federal Court also made reference to Professor Wade and stated as follows:-
Professor Wade reckons — and we respectfully agree — that the reality of the matter is that: when genuine grounds for Judicial Review are alleged, it is the refusal rather than the grant of relief which is the exceptional course (see 7th Ed, Wade and Forsyth, Judicial Review of Administrative Action p 725).
As such, where genuine grounds present themselves, the Court will lean towards the JR application proceeding.
The issue of an alternative remedy may be considered at either the leave stage or at the substantive hearing (Zakaria bin Abdullah v Lembaga Pelesenan Tenaga Atom  5 MLJ 206; Mohd Ismail bin Abd Ghani v Ketua Pengarah Pendaftaran Negara  1 MLJ 707)
It must be noted that in Zakaria bin Abdullah, the Court of Appeal stated that where an alternative remedy was available, the same could be considered at the leave stage. As such, where an alternative remedy lay, the Court at the leave stage would be able to take the same into account (in addition to the “frivolous”test).
In Metacorp Development v Ketua Pengarah Hasil Dalam Negeri  5 MLJ 447, Her Ladyship Rohana Yusuf J (as Her Ladyship was then known) affirmed and applied Majlis Perbandaran Pulau Pinang, supra with the following words:
 It is clearly established by the Federal Court in the Majlis Perbandaran Pulau Pinang that an application for a judicial review is not barred by the non-exercise of its internal appeal procedure. As stated by Edgar Joseph Jr FCJ in that case, whilst in theory the court often been recited with incantation that alternative remedy must be exhausted, in practice the courts are often much kinder to an applicant with good case. Having analysed the various conflicting decisions of the English cases in that case the Federal Court states that generally, if an applicant can demonstrate illegality or unlawful treatment then it would be wrong to insist on exhaustion of local remedy. The Federal Court acknowledged that in certain cases such as tax cases, appeal procedure is provided under the statute but if the applicant can demonstrate excess or abuse of power or a breach of natural justice, judicial review would still be granted. Indeed in the present case where there exist special circumstances, the respondent is not immune from the process of judicial review. Similar principle was applied by the high court in Kim Thye Co v Ketua Pengarah Jabatan Hasil Dalam Negeri, Kuala Lumpur  3 CLJ 20 (Rep), which was subsequently upheld by the Supreme Court on appeal.
 Thus relying on the principle laid down in Majlis Perbandaran Pulau Pinang I hold that the availability of an alternative internal remedy in the form of an appeal process will not bar an application for judicial review. This is so especially where the complaint made to the court is one on error of law or abuse of power that goes to the legality of the conduct of the decision-making authority as in this case.
 The applicant here had demonstrated illegality and unlawful treatment, thus it would be wrong to insist that it exhausts its statutory right of appeal, even if it is available. In fact a complaint that raises a question of law, as in the present case, would preferably be referred to the court, being a more appropriate forum.
1. Robin Tan Pang Heng @ Muhammad Rizal bin Abdullah (suing as public officer at Penang Turf Club v Ketua Pengarah Kesatuan Sekerja Malaysia  4 MLJ 771
2.Chin Mee Keong v Pesuruhjaya Sukan  6 MLJ 193
3. TR Lampoh Ak Dana v Government of Sarawak  6 MLJ 371
Once the first hurdle has been overcome, the Applicant must ensure that his application is rock-solid.
As a JR application tends to have far-reaching consequences that will, more often than not, affect more than a mere individual, one may even argue that there is a burden of “civic propriety” placed upon the Applicant.
To avoid a procedural error is of the imperative. The opponent is ever-vigilant and will have deeper pockets. To do battle against Goliath, David substituted effort for ability. Likewise, an Applicant's legal team must be adroit and agile; more must always be produced with less.
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