by Joshua Wu Kai-Ming | Nov 5, 2025 | Law
Can applications for judicial review (“JR Applications”) be filed with regard to oral decisions that relate to the exercise of a public duty or function?[1]
Based on the cases explored in this article, the answer to this question is in the affirmative.
Decisions of the Strata Management Tribunal (“SMT”)
In Tham Sau Hoon v Tribunal Pengurusan Strata & Anor [2021] MLJU 1087, the SMT delivered both its decision and the reasons for its decision orally.[2] The applicant therein then filed a JR Application based on the SMT’s oral decision and reasons.[3]
A similar instance occurred in Perbadanan Pengurusan Sunrise Towers v Tribunal Pengurusan Strata & Anor [2020] MLJU 1604.[4]
In Caroline Philomena Gomez v Tribunal Pengurusan Strata & Anor [2021] CLJU 2496, the SMT delivered its decision orally but did not provide its reasons for its decision.[5] The applicant therein then filed a JR Application based on the SMT’s oral decision.
Decisions of the Tribunal for Homebuyer Claims (“THC”)
In Hazlinda bte Hamzah v Kumon Method of Learning Centre [2006] 3 MLJ 124, a decision of the Court of Appeal, the THC delivered both its decision and the reasons for its decision orally.[6] The applicant therein then filed a JR Application based on the THC’s oral decision and reasons.[7]
The THC in Denia Development Sdn. Bhd. v Tribunal Tuntutan Pembeli Rumah & Anor [2019] MLJU 783 allowed the Claimant’s claim and granted its Award.[8] However, the THC did not provide its reasons for its decision.[9] The applicant therein filed a JR Application based on the THC’s oral decision.[10]
A similar situation occurred in Seraimas Bina Sdn Bhd v Tribunal Tuntutan Pembeli Rumah Negeri Pulau Pinang & Anor [2017] 1 LNS 181,[11] and Oxbridge Height Sdn Bhd v. Rozila Razli [2010] 1 LNS 1085.[12]
(more…)
by Joshua Wu Kai-Ming | Sep 1, 2025 | Law
1. Is based on/derived from Article 4(1) of the Federal Constitution
Support for this proposition can be found in the Federal Court’s decision in Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356 (“Dhinesh”):
“… constitutional judicial review is expressly encompassed in art 4(1) of the FC.”[1] (Emphasis mine)
In Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan [2024] 2 MLJ 150 (“Nik Elin”), the majority of the Federal Court shared a similar sentiment when it held that Article 4(1) of the FC “forms the substantive constitutional basis for all constitutional judicial review cases.”[2]
2. Is provided for with further codified powers under statutory law of general application
This observation was made by the Federal Court in SIS Forum (M) v Kerajaan Negeri Selangor (Majlis Agama Islam Selangor, intervener) [2022] 2 MLJ 356:
“The means for redress for constitutional judicial review, however is provided directly under cl (1) of art 4 of the FC to strike down unconstitutional legislation with the further codified powers under statutory law of general application ie para 1 of the Schedule to the CJA 1964 to issue declarations and to mould relief in applications for judicial review filed pursuant to O 53 of the ROC 2012.”[3] (Emphasis mine)
3. Is a mechanism for maintaining separation of powers
Nallini Pathmanathan FCJ aptly put this in Dhinesh:
“… By providing for the ability to render enacted law void if inconsistent with the FC, art 4(1) of the FC also clearly houses the doctrine of the separation of powers. It ensures that where the Legislature enacts laws which are outside the purview of the FC, such laws are void. This effectively provides a check and balance mechanism in relation to the division of power between the arms of Government. Neither the Legislature nor the Executive should enact or execute laws that are inconsistent with the FC. In this context it is not purely an issue of the division of powers, but rather undertaking the highest responsibility for maintaining the state and social order. This separation is maintained by the mechanism of constitutional judicial review. Judicial review lies at the heart of the FC as it enables or facilitates the operation of the doctrines of the separation of powers as well as ensuring that the basic features and thus the fundamental identity of the FC is retained.”[4] (Emphasis mine)
Her Ladyship also mentioned in Dhinesh that the role/function of exercising this mechanism falls on the Judiciary:
“The only manner in which any enacted law which is inconsistent with the FC can be held to be void operationally, is through the mechanism of judicial review. And this role or function of constitutional judicial review falls on the Judiciary. The Judiciary undertakes the role of safeguarding the supremacy of the FC by declaring any such inconsistent law, void. It is, in effect, the guardian of the FC.”[5] (Emphasis mine)
4. Is to be contrasted with administrative/statutory judicial review
The Federal Court in Mohd Najib bin Hj Abd Razak & Anor v Government of Malaysia and another appeal [2023] 6 MLJ 483 made it clear that a contrast needs to be made, and provided an explanation regarding administrative/statutory judicial review:
“Constitutional judicial review is to be contrasted with administrative judicial review in that the latter involves the supervision of the acts and/or omissions of public law bodies per se without challenging the validity of a specific legislative provision.”[6] (Emphasis mine)
Constitutional judicial review, on the other hand, “happens when the Judiciary is called upon to exercise its powers of interpretation of the supreme document, the [Federal Constitution]”.[7]
Interestingly, there are cases that involve both constitutional judicial review and administrative/statutory judicial review. An example of this, which was recognised by the Federal Court in Haris Fathillah bin Mohamed Ibrahim & Ors v Tan Sri Dato’ Sri Hj Azam bin Baki & Ors [2023] 2 MLJ 296, is Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] 3 MLJ 759 which challenged “the constitutionality of s 4 of the Prevention of Crime Act 1959 and sought concomitant habeas corpus orders for immediate release on the basis of an unlawful detention premised on an unconstitutional legislation.”[8]
5. Locus standi will be broadly construed
Tengku Maimun CJ (as Her Ladyship then was) opined this in Nik Elin:
“[24] In a case such as the present one involving constitutional judicial review, we opine that locus standi must be adjudged on principles even broader than the ones already applicable in Taman Rimba.
…
[29] We therefore take the view that the fact that legislation has been passed creates a factual circumstance in which it can be challenged. Article 4(1), which forms the substantive constitutional basis for all constitutional judicial review cases, does not discriminate between the circumstances and situations in which such challenges can be brought or the categories of persons that can bring them, apart from differentiating between the nature and procedure for those proceedings ie between ‘incompetency’ and ‘inconsistency’ challenges.”[9] (Emphasis mine)
In Attorney General of Malaysia v Sabah Law Society [2024] 6 MLJ 121, the Federal Court applied Nik Elin and concluded that the Sabah Law Society had threshold locus standi in a constitutional judicial review in respect of the Special Grant provided for Sabah under art 112C and s 2 of Part IV of the Tenth Schedule of the Federal Constitution.[10]
(more…)
by Joshua Wu Kai-Ming | Mar 2, 2025 | Law
1. Applications must be filed within three months
Order 53 of the Rules of Court (“ROC”) 2012 lays out the procedural aspects of judicial review applications.
Order 53 Rule 3(6) of the ROC 2012 provides the timeline for the filing of judicial review applications:
“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.” (Emphasis mine)
2. Extension of time applications should be sought where the timeline has passed
Order 53 Rule 3(7) of the ROC 2012 gives the Court the discretion to extend the time for judicial review applications provided there is a ‘good reason’:
“The Court may, upon an application, extend the time specified in rule 4(1) and if it considers that there is a good reason for doing so.” (Emphasis mine)
The Court of Appeal in P Maradeveran a/l Periasamy & Ors v Suruhanjaya Pilihan Raya & Anor [2019] 2 MLJ 70 held the following on the ‘good reason’ test:
“Whether ‘good reason’ exists is primarily a question of fact for the presiding judge to determine having regard to the material before him … There is no mystery to the phrase ‘good reason’. It means correct or proper reason.”[1] (Emphasis mine)
The Court is not required to consider the merits of the case when considering an extension of time application: Wong Kin Hoong & Anor (suing for themselves and on behalf all of the occupants of Kampung Bukit Koman, Raub, Pahang) v Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 MLJ 161.[2]
3. Non-compliance goes to the jurisdiction of the Court
In Mersing Omnibus Co Sdn Bhd v Minister of Labour & Manpower & Anor [1983] 2 MLJ 54, the Federal Court expressly held this:
“We took the point ourselves as it clearly goes to the jurisdiction of the court from which leave to apply for certiorari was sought as Order 53 rule 1(1) stipulates that no application for an order of certiorari shall be made unless leave therefor has been granted and rule 1A which we have already adverted to enacts that leave shall not be granted except in accordance with its specific provisions.”[3] (Emphasis mine)
The Federal Court in Ravindran v Malaysian Examination Council [1984] 1 MLJ 168 had a similar view:
“In our view the whole issue is clearly one of jurisdiction. In the event only the first consideration of the Judge is relevant. Since the Judge rejected the explanation for the delay it follows that the Court had no jurisdiction to hear the application for leave for an order of certiorari.”[4]
This was subsequently reiterated by the Federal Court in Wong Kin Hoong & Anor (suing for themselves and on behalf all of the occupants of Kampung Bukit Koman, Raub, Pahang) v Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 MLJ 161, at para 30, and Kijal Resort Sdn Bhd v Pentadbir Tanah Kemaman & Anor [2016] 1 MLJ 544, at pp. 579-580..
4. The actual date of what is being challenged has to be identified
Support for this proposition can be found in Abdull Hamid Embong JCA (later FCJ) judgment in Abdul Rahman bin Abdullah Munir & Ors v Datuk Bandar Kuala Lumpur & Anor [2008] 6 MLJ 704 (“Abdul Rahman”):
“It is thus crucial to first identify definitely what the decision is that is sought to be impugned. This has to be the actual date (see Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 MLJ 1). The appellants’ interpretation towards the first respondent’s non-response to their letter makes no sense and far stretching one’s imagination. This would give rise to an artificial meaning to the word decision. The date of the decision too becomes fictitious which makes the computation of the statutory time limit under O 53 of the RHC indeterminable.”[5] (Emphasis mine)
In situations where a public authority fails to respond to a letter within a deadline stipulated in the letter, can the failure to respond be challenged by way of judicial review?
The Court of Appeal in Abdul Rahman made it clear that such failures to respond are not amenable to judicial review:
“To say that the decision was only made on 5 January 2005 after the first respondent had failed to revert to their letter of 22 December 2004, is fallacious. We also find it ludicrous for the appellants to hold the view that a decision was only arrived at when the first respondent failed to respond to the one-week time period ultimatum in their letter. The latter was not duty-bound to respond to what we feel, corresponded to a threat.
Thus, our view is that no decision was made by the first respondent pursuant to that letter. No decision need in fact be made as it was already made earlier.
…
We also agree with the learned judge’s finding that the decision as alleged by the appellants is artificial and is thus not susceptible to judicial review.”[6] (Emphasis mine)
It is important to note that Abdul Rahman was decided prior to the amendment to Order 53 Rule 2(4) of the ROC 2012 via PU(A) 232/2012 which expanded the scope of judicial review from a “decision” to a “decision, action or omission” by a public authority.
The High Court in the following decisions departed from Abdul Rahman on this and held that the non-reply to a letter amounts to an “omission”/deemed “decision” and is amenable to judicial review:
(a) Sentul Raya Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2024] MLJU 2646;[7]
(b) Udapakat Bina Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2024] MLJU 1880;[8]
(c) WCE Holdings Bhd v Menteri Kewangan Malaysia (Ketua Pengarah Hasil Dalam Negeri, intervener) [2024] MLJU 257;[9]
(d) Lush Development Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2023] MLJU 2889;[10]
(e) Tanda Bestari Development Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2023] MLJU 2887;[11] and
(f) Impian Seloka Sdn Bhd v. Menteri Kewangan Malaysia [2022] MLJU 3479.[12]
(more…)
by Joshua Wu Kai-Ming | Oct 2, 2024 | Law
1. A command issued by the court to an authority to perform a public duty placed upon it by law
This proposition was put forth by the Federal Court in Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 4 MLJ 641 (“Petrojasa”):
“… by definition an order of mandamus is a command issued by the court to an authority to perform a public duty placed upon it by law.”[1]
In MP Jain’s ‘Administrative Law of Malaysia and Singapore’ 3rd edn at pp. 652, 653, the learned author described a mandamus as “… a command issued by the High Court asking an authority to perform a public duty imposed upon it by law.”[2]
2. Provided for under paragraph 1 of the Schedule of the Courts of Judicature Act 1964
Paragraph 1 of the Schedule of the Courts of Judicature Act 1964 states that the High Court has the additional powers to:
“… 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.” (Emphasis mine)
3. Provided for under Section 44 of the Specific Relief Act 1950
Section 44 of the Specific Relief Act 1950 provides the following:
“(1) A Judge may make an order requiring any specific act to be done or forborne, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or any court subordinate to the High Court:
Provided that—
(a) an application for such an order be made by some person whose property, franchise, or personal right would be injured by the forbearing or doing, as the case may be, of the said specific act;
(b) such doing or forbearing is, under any law for the time being in force, clearly incumbent on the person or court in his or its public character, or on the corporation in its corporate character;
(c) in the opinion of the Judge the doing or forbearing is consonant to right and justice;
(d) the applicant has no other specific and adequate legal remedy; and
(e) the remedy given by the order applied for will be complete.
(2) Nothing in this section shall be deemed to authorize a Judge—
(a) to make any order binding on the Yang di-Pertuan Agong;
(b) to make any order on any servant of any Government in Malaysia, as such, merely to enforce the satisfaction of a claim upon that Government; or
(c) to make any order which is otherwise expressly excluded by any law for the time being in force.”
4. Must satisfy the 4 requirements in Koon Hoi Chow
Sharma J in Koon Hoi Chow v Pretam Singh [1972] 1 MLJ 180b (“Koon Hoi Chow”) laid down the 4 requirements for an order for mandamus:
“There are four prerequisites essential to the issue of an order under section 44 or of a mandamus:-
(1) Whether the applicant has a clear and specific legal right to the relief sought;
(2) Whether there is a duty imposed by law on the respondent;
(3) Whether such duty is of an imperative ministerial character involving no judgment or discretion on the part of the respondent; and
(4) Whether the applicant has any remedy, other than by way of mandamus, for the enforcement of the right which has been denied to him.”[3]
The test in Koon Hoi Chow has been subsequently adopted by appellate courts, including the Court of Appeal in Peguam Negara Malaysia v Dr Micheal Jeyakumar Devaraj [2012] 1 MLJ 179[4] and Mohamad Hassan bin Zakaria v Universiti Teknologi Malaysia [2017] 6 MLJ 586.[5]
5. Can be granted against a Minister
In Petrojasa, the Federal Court speaking through Abdul Hamid Mohamad CJ held the following:
“[31] We shall now look at the provision of para 1 of the Schedule in detail. Mandamus is mentioned as one of the additional powers. It may be issued to ‘any person or authority’ which, in my view, includes a Minister of a government.
[32] My brother Arifin Zakaria FCJ has dealt at length, citing authorities to the effect that judicial review lies against a Minister. I shall not repeat. Indeed, the writ of habeas corpus, one of the writs mentioned in para 1 of the Schedule are mostly issued against a Minister. That being the case, I am of the opinion that mandamus may be issued against the appellant.”[6] (Emphasis mine)
(more…)
by Joshua Wu Kai-Ming | Jun 15, 2022 | Law
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.
(more…)
Recent Comments