6 Things About Leave in Judicial Review Applications

1. Leave is required before an applicant can proceed with a judicial review application

Order 53 Rule 3(1) of the Rules of Court 2012 provides the following:

“An application under this Order shall not be made unless leave therefor has been granted in accordance with this rule.” (Emphasis ours)

2. A leave application is made ex-parte

Order 53 Rule 3(2) of the Rules of Court 2012 states:

“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.” (Emphasis ours)

 3. Notice of the leave application must be given to the Attorney General

Order 53 Rule 3(3) of the Rules of Court 2012 expresses the following:

“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.” (Emphasis ours)

4. The Attorney General, if he elects to appear, can appear and be heard

Notwithstanding the fact that an application for leave is an ex-parte application, the Attorney General has a right to be heard even at the leave stage.

In Messrs Tai Choi Yu & Co, Advocates (suing as a firm and Tai Choi Yu as sole proprietor) v Arifin bin Zakaria & Anor [2020] 5 MLJ 207:

“Further, in a judicial review application, under O 53 of the Rules of Court 2012, the application must be served on the attorney general. This rule is based on the principle that judicial review is a principal tool of ‘public law’ applicable to ‘public’ bodies. As public bodies impliedly attract public interest and the guardian of public interest is the attorney general, this makes the attorney general a nominal party in all judicial review applications. The intention of the rule is to ensure that the attorney general vets all judicial review applications in order to ascertain if his participation is warranted. Whether the attorney general elects to appear or not is solely his discretion and if he elects to appear, the court is bound to give a hearing: Kanawagi a/l Seperumaniam v Dato’ Abdul Hamid bin Mohamad [2004] 5 MLJ 495.”[1] (Emphasis ours)

5. Very low threshold for leave

In Members of the Commission of Enquiry on the Video Clip Recording of Images of A Person Purported to be an Advocate and Solicitor Speaking on Telephone on Matters of Appointment of Judges v Tun Dato Seri Ahmad Fairuz bin Dato Sheikh Abdul Halim [2011] 6 MLJ 490, the Federal Court opined that:

“ … At the leave stage without the need to go into depth of the abundance of authorities, suffice for us to state that the threshold for the granting of such leave is very low. Leave is normally granted if the application is neither frivolous nor vexatious and it justifies further argument on a substantive motion (see Association of Bank Officers, Peninsular Malaysia v Malaysian Commercial Bank Association [1990] 3 MLJ 228, Bandar Utama Development Sdn Bhd & Anor v Lembaga Lebuhraya Malaysia & Anor [1998] 1 MLJ 224, Mohamed Nordin bin Johan v Attorney-General Malaysia [1983] 1 MLJ 68 and JP Berthelsen v Director General of Immigration, Malaysia & Ors [1987] 1 MLJ 134).”[2] (Emphasis ours)

The Federal Court in WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd [2012] 4 MLJ 296 was similarly of the view that:

“… Without the need to go into depth the abundant authorities, suffice if we state that leave may be granted if the leave application is not thought of as frivolous, and if leave is granted, an arguable case in favour of granting the relief sought at the substantive hearing may be the resultant outcome.”[3] (Emphasis ours)

6. The subject matter of the judicial review application must be justiciable

In Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal [2019] 3 MLJ 443, the Federal Court had the occasion to consider the issue of justiciability and held that:

“[49] The issue of justiciability in an application for leave for judicial review was considered in great detail by Mohamad Ariff Md Yusuf J (as he then was) in Tengku Muhammad Fakhry Petra Ibni Sultan Ismail Petra v Yang Maha Mulia Pemangku Raja Kelantan & Ors [2011] 1 MLJ 128:

Non-justiciable Issues

In connection with the unconstitutionality of legislation, we have seen that even where a fundamental right has been invaded by a statute, the individual who is affected thereby may not have a remedy from a Court of Law, because the issue involved is not justiciable.

… The most prominent amongst non-justiciable issues are those which are known in the U.S.A. as ‘political questions’, which means that the subject matter of the question is such that it is not capable of a judicial determination (at p 256).

The learned authors of De Smith’s Judicial Review (6th Ed) have also appropriately observed in this connection that despite the wholesome development of administrative law, ‘the fact remains, however, that there are some issues which are inherently unsuited to adjudication’ and in this category of case, ‘the Court acknowledges that the litigation process and the expertise of the Court are unsuited to resolving the question in hand’ (at p 121).

A good definition of ‘justiciability’ can also be found in Chris Finn, ‘The Concept of ‘Justiciability’ in Administrative Law’ in Groves & Lee, Australian Administrative Law (2007):

The term ‘justiciability’ refers to the suitability for, or amenability to, judicial review of a particular administrative decision or class of decisions. The term derives from the common law and reflects a series of self-imposed judicial restraints, themselves founded in a view as to the appropriate constitutional balance between the respective roles of the executive and the judiciary. Thus, a matter may be deemed ‘non- justiciable’ by a Court which feels that its resolution either is beyond the institutional competence of the Court or would involve stepping outside its appropriate constitutional role (at p 143).

[50] There are certain areas which the court is reluctant to delve into. These include the power of the state to enter into treaties and conduct of foreign policy, the defence of the realm and the control of the armed forces, the prerogative of mercy, the dissolution of Parliament and the appointment of Ministers. Such powers are governed by broader policy considerations which are more appropriately entrusted to the political branches of government, and which are unsuited to be examined by the courts.”[4] (Emphasis ours)

In the event the subject matter of a leave application is non-justiciable, the courts are likely to dismiss the application.

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Selected Commonwealth Jurisdictions with Fused Roles of the Attorney General and Public Prosecutor

Selected Commonwealth Jurisdictions with Fused Roles of the Attorney General and Public Prosecutor

In the following Commonwealth jurisdictions, the roles of the Attorney General and Public Prosecutor are fused.

The Attorney General is the principal legal advisor to the Government, as well as “chief criminal law enforcement officer”[1] “responsible for the prosecution of all criminal offences.”[2]

1. Brunei

Article 81(2) & (3) of The Constitution of Brunei Darussalam

“(2) The Attorney General shall advise on all legal matters connected with the affairs of Brunei Darussalam referred to him by His Majesty the Sultan and Yang Di-Pertuan or by the Government.

(3) The Attorney General shall have power exercisable at his discretion to institute, conduct or discontinue any proceedings for an offence other than …”[3] (Emphasis mine)

2. Malaysia

Article 145(2) & (3) of the Federal Constitution

“(2) 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 the 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.

(3) 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.”[4] (Emphasis mine)

3. Singapore

Article 35(7) & (8) of the Constitution of the Republic of Singapore

“(7) It shall be the duty of the Attorney-General to advise the Government 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 the President or the Cabinet and to discharge the functions conferred on him by or under this Constitution or any other written law.

(8) The Attorney‑General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence.”[5] (Emphasis mine)

4. Sri Lanka

Extract from the website of the Attorney General’s Department[6] of Sri Lanka:

Anomaly: Hong Kong

In Hong Kong, the Department of Justice is in charge of criminal prosecution.

Article 63 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China provides that:

“The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.”[7]

The Department of Justice is headed by Secretary of Justice,[8] and the latter is appointed by the Central People’s Government on recommendation and nomination of Chief Executive of Hong Kong Special Administrative Region.[9]

Hong Kong’s Prosecution Code 2013 notes that, “the Secretary for Justice is responsible for applying the criminal law, formulating prosecution policy, and superintending the Director of Public Prosecutions and prosecutors in the Prosecutions Division of the Department.”[10]

In terms of practical day-to-day prosecutions, the Director of Public Prosecutions “initiates and conducts the prosecution of cases on behalf of the Hong Kong Special Administrative Region”[11] and “exercise on behalf of the Secretary for Justice the discretion whether or not to bring criminal proceedings in the HKSAR.”[12]


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5 Things About the Defence of Justification

1. Provided for under Section 8 of the Defamation Act 1957

Section 8 of the Defamation Act 1957 (“DA 1957”) provides the following:

“In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.”

 2. A complete defence to a defamation action

 In Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187, the Federal Court opined:

“As a matter of general rule, the defence of justification is a complete defence to a defamation action (see Hasnul bin Abdul Hadi v Bulat bin Mohamed & Anor [1978] 1 MLJ 75 and Tun Datuk Patinggi Haji Abdul-Rahman Ya’akub v Bre Sdn Bhd & Ors [1996] 1 MLJ 393).”[1]

 This legal proposition was affirmed by the Federal Court in Noor Azman bin Azemi v Zahida bt Mohamed Rafik [2019] 3 MLJ 141.[2]

 3. The burden lies on the defendant to establish the defence

 Tun Salleh Abbas FJ in International Times v Leong Ho Yuen [1980] 2 MLJ 86 remarked that:

“The appellants in the present appeal relied on justification and fair comment. Therefore, the burden of proving these defences rests entirely upon them (Gatley on Libel and Slander 7th Edition paras. 351 and 354).”[3]

 This has been reiterated by the Supreme Court in S Pakianathan v Jenni Ibrahim [1988] 2 MLJ 173,[4] and the Federal Court in, amongst others, Noor Azman bin Azemi v Zahida bt Mohamed Rafik [2019] 3 MLJ 141[5] and Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187.[6]

 4. The Defendant must state clearly and explicitly the meanings which he/she seeks to justify

 The Federal Court in Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187 summarised the decision of the English Court of Appeal in Lucas-Box v Associated Newspapers Group Plc & Ors [1986] 1 All ER 177:

“In substance, the Lucas-Box plea of justification as decided by the English Court of Appeal is as follows:

(a) if a plaintiff, in its defamation pleadings, gives a natural and ordinary meaning to the impugned words, the defendant may then rely on stating in his defence what he alleged was the natural and ordinary meaning of the words complained of; and

(b) a defendant in defamation proceedings who wishes to rely on a plea of justification must make clear in the particulars of justification the case which he is seeking to set up and must accordingly state clearly and explicitly the meaning which he seeks to justify.”[7] (Emphasis ours)

In Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Nurul Izzah bt Anwar & Anor [2021] 2 MLJ 577, the Federal Court referred to Gatley on Libel and Slander (12th Ed) and similarly held that:

“Where a claimant complains that words are defamatory of him in their natural and ordinary meaning, the defendant is entitled to justify those words in any meaning which those words are capable of conveying to a reasonable man (see Gatley on Libel and Slander (12th Ed) para 27.8 citing Prager v Times Newspapers Ltd [1988] 1 WLR 77.”[8] (Emphasis ours)

5. The defamatory allegations made must be substantially true

In interpreting Section 8 of the DA 1957, the Federal Court in Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Nurul Izzah bt Anwar & Anor [2021] 2 MLJ 577 was of the view:

“… there only needs to be substantial justification of the whole libel and it is not necessary to prove the truth of every word of the libel.”[9] (Emphasis ours)

Azahar Mohamed FCJ, in Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187, held:

 “A defendant will have sufficiently proven the defence of justification if he is able to prove the truth or the substantial truth of his own meanings of the impugned words (see Moore v News of the World Ltd and another [1972] 1 All ER 915 and Khalid Yusoff v Pertubuhan Berita Nasional Malaysia (Bernama) & Ors [2014] 8 CLJ 337, Cheah Cheng Hoc & Ors v Liew Yew Tiam & Ors [2000] 6 MLJ 204).”[10] (Emphasis ours)

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On Retabling The Motion to Extend Section 4(5) of SOSMA 2012

The Federal Government tabled a motion in Parliament to extend the application of Section 4(5) of the Security Offences (Special Measures) Act 2012 (“SOSMA 2012”) for yet another five years (“the Defeated Motion”).[1]

Section 4(5) of the SOSMA 2012 allows a “police officer of or above the rank of Superintendent of Police may extend the period of detention for a period of not more than twenty-eight days, for the purpose of investigation.”

As a safeguard against the detention without trial allowed in Section 4(5), Section 4(11) of the SOSMA 2012 was enacted. The latter provides the following:

“Subsection (5) shall be reviewed every five years and shall cease to have effect unless, upon the review, a resolution is passed by both Houses of Parliament to extend the period of operation of the provision.”

The Defeated Motion was introduced as the present period of operation of Section 4(5) of the SOSMA 2012 will be coming to an end on 30th July 2022.[2]

The Defeated Motion, however, was not passed as 86 MPs voted against it, as opposed to 85 MPs who voted in favour of it.[3]

The Home Minister recently announced that the Federal Government is looking to re-table the SOSMA motion.[4]

Questions have arisen whether the Federal Government can do so, especially in the present Parliamentary session when the Defeated Motion was not passed.

Mr. Andrew Khoo, the co-chairperson of the Bar Council’s Constitutional Law Committee, has provided his views on the matter.[5]

He very aptly referenced Standing Order 36(3) of the Standing Orders of the Dewan Rakyat[6] (“Standing Orders”) which states that:

“It shall be out of order to attempt to reconsider any specific question upon which the House has come to a conclusion during the current session except upon a substantive motion for rescission.”

In essence, this would mean that the Federal Government cannot re-table the Defeated Motion until the Dewan Rakyat sits post-15th General Election.[7]

After all, the Dewan Rakyat has come to a conclusion during the current session about the contents of the Defeated Motion.

One possible way for the Federal Government to re-table the Defeated Motion during the current session would be to suspend the application of Standing Order 36(3).

Suspending Standing Order 36(3)

Based on Standing Orders 26(1)(m) and 90(1), it can be inferred that a motion can be moved to suspend any of the Standing Orders.

Order 26(1)(m) of the Standing Orders provides that:

“Unless Standing Orders otherwise provide, notice shall be given of any motion which it is proposed to move with the exception of the following:

(m) a motion to suspend any Standing Order moved under Standing Order 90 when the consent of Tuan Yang di-Pertua has been expressed.” (Emphasis mine)

Meanwhile, Order 90(1) of the Standing Orders states:

“Except with the consent of Tuan Yang di-Pertua, the House shall not proceed upon any Bill, amendment, motion or petition which, in the opinion of Tuan Yang di-Pertua, would suspend the Standing Orders of the House or any of them.” (Emphasis mine)

During the next ordinary Dewan Rakyat sitting, scheduled to be from 18th July 2022 to 4th August 2022,[8] the Federal Government could introduce a motion to suspend Standing Order 36(3) [“Suspension Motion”] and fast track voting on the Suspension Motion.

After the Suspension Motion is passed, the Defeated Motion can then be re-tabled and voted upon.

If the Federal Government opts to go down this route, a special sitting of the Dewan Negara has to be called as the Dewan Negara is only scheduled to sit from 8th August 2022 to 16th August 2022[9] and the Defeated Motion would have to be passed by both the Dewan Rakyat and the Dewan Negara before 30th July 2022.

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