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.