29 th LAWASIA CONFERENCE 12 15 August 2016 Colombo, Sri Lanka THE JUDICIAL CONTROL OF ADMINISTRATIVE ACTION Steven Thiru President Malaysian Bar
The Malaysian judiciary, like their English counter-parts, have been largely alive to the threat of unbridled administrative powers and our courts have developed a system of judicial control, through a vibrant judicial review jurisdiction, to repulse the threat. The statutory basis of judicial review actions in Malaysia is provided by in Section 25(2) read with Para 1 the Courts of Judicature Act (CJA) 1964.
JUDICIAL REVIEW: THE PROCEDURE AND LOCUS STANDI
The procedure for filing a Judicial Review is set out in Order 53 of the Rules of Court. Ord 53 r 1(1) allows for an applicant in a judicial review to claim all prerogative remedies (certiorari, mandamus, prohibition etc) that are available under the common law and also claim for a declaration, injunction and damages (see Ord 53 r 2(2) and Ord 53 r 5(1)). Order 53, Rule 2(4) prescribes the locus standi requirements - An applicant must be adversely affected by the decision of any public authority (see Ord 53 r 2(4)): - For an applicant to pass the adversely affected test, the applicant has to at least show that he has a real and genuine interest in the subject matter. It is not necessary for the applicant to establish infringement of a private right or the suffering of special damage. (emphasis added) (see Federal Court in Malaysian Trade Union Congress v. Menteri Tenaga, Air Dan Komunikasi [2014] 2 CLJ 525).
A CONSTITUTIONAL DIMENSION TO JUDICIAL REVIEW IN MALAYSIA
In the late 1990 s, judicial control of administrative action in Malaysia enjoyed a period of rapid development when our Courts established a constitutional foundation for judicial review actions. The Federal Constitution contains a chapter (Part II) on fundamental liberties, which includes two important humanizing provisions that house the right to judicial review and which are capable of extending its reach into new horizons. Article 5(1) the right to life No person shall be deprived of his life or personal liberty save in accordance with law. Article 8(1) the right to equality All persons are equal before the law and entitled to the equal protection of the law. Our Court of Appeal has held that judicial review of administrative action in Malaysia is a constitutional right :- [We] are of the view that the liberty of an aggrieved person to go to court and seek relief, including judicial review of administrative action, is one of the many facets of the personal liberty guaranteed by Article 5(1) of the Federal Constitution. (see the Court of Appeal in the Sugumar Balakrishnan case [1998] 3 MLJ 289 at p. 308. NB the Federal Court did not disturb the above statement when it reversed the Court of Appeal s decision on appeal. Please see [2002] 4 CLJ 105)
THE EXPANSION OF THE SCOPE OF JUDICIAL REVIEW
Our courts have also embraced the touchstones of judicial review that Lord Diplock neatly set out in the CCSU case, namely, illegality, irrationality (Wednesbury unreasonableness), procedural impropriety and proportionality (see the Aliran case [1990] 1 MLJ 351 (at p. 355)). The underlying basis and scope of the judicial review powers of our courts has been expanded and was explained as follows by the Federal Court in Ranjit Kaur v. Hotel Excelsior (M) Sdn. Bhd. [2010] 6 MLJ 1 (as per Tan Sri Raus Shariff PCA):- Historically, judicial review was only concerned with the decision making process where the impugned decision is flawed on the ground of procedural impropriety. However, over the years, our courts have made inroad into this field of administrative law. Rama Chandran is the mother of all those cases. The Federal Court in a landmark decision has held that the decision of inferior tribunal may be reviewed on the grounds of 'illegality', 'irrationality' and possibly 'proportionality' which permits the courts to scrutinise the decision not only for process but also for substance. It allowed the courts to go into the merit of the matter. Thus, the distinction between review and appeal no longer holds. (emphasis added)
CHALLENGING THE DECISION OF THE ATTORNEY GENERAL AS PUBLIC PROSECUTOR
THE OFFICE OF THE ATTORNEY GENERAL AND PUBLIC PROSECUTOR Article 145(2), FC: - It shall be the duty of the Attorney General to advise the Yang di-pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by Yang di-pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law Article 145(3), FC: - The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court martial Article 145(3A), FC: - Federal law may confer on the Attorney General power to determine the courts in which or the venue at which any proceedings which he has power under Clause (3) to institute shall be instituted or to which such proceedings shall be transferred.
IMPUGNED DECISION OF THE ATTORNEY GENERAL Based on the facts and evidence as a whole, I, as the public prosecutor, am satisfied that no criminal offence has been committed by the prime minister in relation to the three investigation papers I will return the relevant investigation papers to MACC today, with the instruction to close the three investigation papers. - Attorney General Apandi Ali, 26 January 2016
IMPUGNED DECISION OF THE ATTORNEY GENERAL: MALAYSIAN BAR S RESPONSE Malaysian Bar urges the Attorney General to reconsider his decision to exonerate the Prime Minister on 2 February 2016 - The Attorney General Must Reconsider MACC s Investigation Papers on the Transfer of Funds into the Personal Bank Accounts of the Prime Minister Malaysian Bar files judicial review action against the Attorney General s decision on 16 March 2016
THE MALAYSIAN BAR S JUDICIAL REVIEW ACTION AGAINST THE ATTORNEY GENERAL In summary, the Malaysian Bar is seeking the following relief in the judicial review:- (1) An order of certiorari to quash the Attorney General s decision that no criminal offence had been committed by the Prime Minister; (2) An order of certiorari to quash the Attorney General s instruction to the MACC to close its investigation papers; (3) Declarations that the decisions of the Attorney General referred to above were unlawful and in excess of his jurisdiction under Article 145(3); and (4) An order of mandamus directing the Attorney General to reconsider the recommendations of the MACC in respect of the latter s investigations into the transfer and flow of funds into the Prime Minister s bank accounts.
LOCUS STANDI OF THE MALAYSIAN BAR Section 42(1)(a) of the Legal Professions Act 1976 sets out a principal object and power of the Malaysian Bar: - to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour (emphasis added) In Badan Peguam Malaysia v Kerajaan Malaysia [2008] 2 MLJ 285, the Malaysian Bar challenged the exercise of the King s constitutional discretion to appoint a university lecturer as a Judicial Commissioner. The suit was filed pursuant to the Malaysian Bar s powers under section 42(1)(a). The Malaysian Bar s locus standi was never impugned in the case. Therefore, if section 42(1)(a) is wide enough to allow the Malaysian Bar to challenge the King s discretion under the Federal Constitution, the provision must likewise be sufficiently broad to allow for a challenge against the exercise of the Attorney General s constitutionally enshrined powers. In Bar Malaysia v Index Continent Sdn Bhd [2016] 1 MLJ 445, the Federal Court recognized that to give effect to its statutory purpose under section 42, the Malaysian Bar necessarily had powers that were co-extensive with the powers of the attorney general under Art 145(3) and, further, that section 42 should be given a broad purposive interpretation.
IS THE DECISION OF THE ATTORNEY GENERAL OPEN TO REVIEW? The Federal Court s decisions in Long bin Samat & Ors v PP [1974] 2 MLJ 152 and Johnson Tan Han Seng v PP [1977] 2 MLJ 66 are said to be authorities for the proposition that the exercise of the Attorney General s prosecutorial discretion, pursuant to Article 145(3), not to prosecute is not amenable to judicial review. However, it would appear that these observations were obiter dicta
Long bin Samat & Ors v Public Prosecutor [1974] 2 MLJ 152 The Federal Court was asked to consider whether a trial in the Magistrates Court of an accused charged under section 324 of the Penal Code was a nullity in circumstances where the facts clearly disclosed an offence under section 326 of the Penal Code. The Federal court had no difficulty in rejecting this argument. Suffian LP said: - the supreme law clearly gives the Attorney-General very wide discretion over the control and direction of all criminal prosecutions... Anyone who is dissatisfied with the Attorney-general's decision not to prosecute, or not to go on with a prosecution or his decision to prefer a charge for a less serious offence when there Is evidence of a more serious offence which should be tried in a higher court, should seek his remedy elsewhere, but not in the courts. (emphasis added)
Johnson Tan Han Seng v Public Prosecutor [1977] 2 MLJ 66 The issue was whether the Attorney General s discretion to charge 3 persons, who were in possession of firearms, under different statues contravened the Equal Protection Clause in Article 8. The Federal Court held that the Attorney General may discriminate between A,B and C without contravening Article 8. In doing so Suffian LP said: - In view of this deliberate decision of our constitution makers to write this provision into our constitution I do not think that it can be said that it must be read subject to art 8. Rather, in my view, the contrary: art 8 it is that must be read subject to art 145(3). In deciding that the attorney general is not constrained by art 8 when deciding whether or not to prosecute and if so on what charge, whether a lesser or a greater one, it must not be thought that he may act dishonestly
In both these cases, the Federal Court was not asked to consider, nor were any arguments advanced on, the question of whether the exercise of the Attorney General s prosecutorial discretion not to prosecute a person is amenable to judicial review. The law on this question is therefore not settled by any authority that is binding on future decisions on this issue.
Teh Cheng Poh [1979] 1 MLJ 50 One of the unsuccessful appellants in Johnson Tan appealed to the Privy Council against the Federal Court s The Privy Council agreed with the Federal Court s ruling on the Article 8 argument but appeared to recognized that the Attorney General s prosecutorial discretion could be challenged if the Attorney General had exercised his discretion unlawfully. If indeed the Attorney General was possessed of a discretion to choose between prosecuting the appellant for an offence against section 57(1) of the Internal Security Act, 1964, or for an offence under the Arm Act, 1960, and the Firearms (Increased Penalties) Act, 1971, there is no material on which to found an argument that in the instant case he exercised it unlawfully. (per Lord Diplock)
UNFETTERED DESCRETION? The Federal Court decision in Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135 where Raja Azlan Shah Ag CJ (Malaya) (Malaya) said: - every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene. The courts are the only defence of the liberty of the subject against departmental aggression. (emphasis added)
THE POSITION IN OTHER JURISDICTIONS
UNITED KINGDOM The law was settled in R v DPP, exp C [1995] 1 Cr APP R 136, where the Court of Appeal confirmed that the exercise of prosecutorial discretion not to prosecute was subject to judicial review. This was confirmed by the House of Lords in R v DPP, exp Kebiline [2000] 2 AC 326 and applied in R v DPP exp, Manning [2001] QB 330. In Manning (supra), the sisters of the late Mr. Alton Manning, who died while in police custody took out a judicial review application against the decision of the Director of Public Prosecutions not to prosecute any defendant for manslaughter as a result of the manner in which in which the deceased met his death. The court allowed the application, quashed the Director of Public Prosecution s decision and ordered him to reconsider the decision whether or not to prosecute. Lord Bingham CJ had this to say in this regard: - Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review: see, for example, R v Director of Public Prosecutions, Ex p C [1995] 1 Cr App R 136. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere.
SINGAPORE The Attorney General s prosecutorial discretion in Article 35(8) of the Singaporean Constitution is in pari materia with our Article 145(3). The prevailing position in Singapore is that a decision of the Attorney General not to prosecute is amenable to judicial review. This is reflected in the decision of the High Court of Singapore in Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR 239 which cites with approval the position taken in Teh Cheng Poh above: - In our view, the exercise of the prosecutorial discretion is subject to judicial review in two situations: first, where the prosecutorial power is abused, ie, where it is exercised in bad faith for an extraneous purpose, and second, where its exercise contravenes constitutional protections and rights.
HONG KONG In D v Director of Public Prosecutions [2015] HKCU 1553, an application was taken for leave to judicially review the decision of the Director of Public Prosecutions not to prosecute an alleged case of indecent assault. The Court of First Instance, in granting leave, held that the question of whether the decision of the Director not prosecute was amenable to challenge by judicial review was reasonably arguable.
INDIA However, insofar as the Public Prosecutor s discretion to withdraw an ongoing case under section 321 of the Criminal Code is concerned, the Indian Supreme Court in Sheonandan Paswan v State of Bihar 1983 SC 1125 held that In the first place though it is an executive function of the Public Prosecutor for which statutory discretion is vested in him, the discretion is neither absolute nor unreviewable but it is subject to the Court's supervisory function. (emphasis added)
CONCLUSION The notion of an absolute and unfettered discretion of the Attorney General should be discarded completely and the prevailing common law position in the Commonwealth jurisdictions should be adopted. The decision of the Attorney General (or the Deputy Public Prosecutor) to prosecute cannot be challenged in a judicial review. However, a decision not to prosecute can be challenged.
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