In Sabah Forest Industries Sdn Bhd v The Honourable Minister of Human Resources Malaysia & Anor [2018] 1 MLJ 277 [“Sabah Forest Industries”], the Court of Appeal held:

“It is trite that the grounds to challenge the decision of an administrative authority are based on illegality, procedural impropriety and proportionality. The challenge by the applicant in this case before us are based on unreasonableness which is not the common accepted grounds to challenge the decision of an administrative authority. More so, the decision of the Minister shall be final and shall not be questioned in any court as envisaged by s 9(6) should be upheld. We find no material before us and before the court below of any impropriety or unreasonableness in the decision of the Minister. The issue on unreasonableness or irrationality had been answered by the Minister in his affidavit in opposition.”[1] (emphasis mine)

(hereinafter referred to as the “Impugned Paragraph”)

With all due respect to the coram of Sabah Forest Industries, the Impugned Paragraph is gravely inconsistent with established case law on judicial review.

Two propositions can be gleaned from the Impugned Paragraph. They are the following:

  • The grounds to challenge the decision of an authority are based on illegality, procedural impropriety, and proportionality; and
  • Unreasonableness is not a commonly accepted ground to challenge the decision of an administrative authority.

In fact, it is trite that the grounds to challenge the decision of an authority are actually (1) illegality, (2) procedural impropriety, and (3) irrationality/unreasonableness.

Previous Federal Court decisions

Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145:

“… The grounds for judicial review, as laid down by this court in R Rama Chandran v Industrial Court of Malaysia & Anor are illegality, irrationality and procedural impropriety which means, the court in practice is permitted to scrutinise a decision not only for process but also for substance.”[2] (emphasis mine)

R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 [“R Rama Chandran”]:

“It is often said that Judicial Review is concerned not with the decision but the decision making process. (See eg Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155). This proposition, at full face value, may well convey the impression that the jurisdiction of the courts in Judicial Review proceedings is confined to cases where the aggrieved party has not received fair treatment by the authority to which he has been subjected. Put differently, in the words of Lord Diplock in Council of Civil Service Unions & Ors v Minister for the Civil Service [1985] AC 374, where the impugned decision is flawed on the ground of procedural impropriety.

But Lord Diplock’s other grounds for impugning a decision susceptible to Judicial Review make it abundantly clear that such a decision is also open to challenge on grounds of ‘illegality’ and ‘irrationality’ and, in practice, this permits the courts to scrutinize such decisions not only for process, but also for substance.”[3] (emphasis mine)

R Rama Chandran is a seminal judicial review case and has been referred to numerously, including by the Federal Court in Akira Sales & Services (M) Sdn Bhd v Nadiah Zee bt Abdullah and another appeal [2018] 2 MLJ 537.

Previous Court of Appeal decisions

RHB Bank Bhd v YB Menteri Sumber Manusia Malaysia & Anor [2017] 6 MLJ 239 [“RHB Bank Bhd”]:

“… the traditional view in respect of judicial review, in respect of executive decision which is still good law in the Malaysian context was expounded in the case of Council of Civil Service Unions & Ors v Minister for the Civil Service [1985] 1 AC 374. That case anchors the point to say judicial review is not an appeal from a decision, but a review of the manner in which the decision was made. In doing so, the court are obliged to consider the jurisprudence related to illegality, irrationality and procedural impropriety and when it relates to sentence or deprivation thereof of the subject then the proportionality principle need to be taken into consideration (see Menteri Kewangan & Anor v Wincor Nixdorf (M) Sdn Bhd and another appeal [2016] 4 MLJ 621; [2016] 6 CLJ 215).”[4] (emphasis mine)

The coram of Sabah Forest Industries, amongst others, cited the above paragraph from RHB Bank yet erred when it stated that irrationality (also referred to as unreasonableness) was not a commonly accepted ground to challenge the decision of an administrative authority.

Rokiah binti Mhd Noor v Menteri Perdagangan Dalam Negeri, Koperasi & Kepenggunaan Malaysia & Ors and another appeal [2016] MLJU 1765:

“A decision of a public body may of course be challenged in a judicial review if such decision is infected by an “error of law”: Syarikat Kenderaan Melayu Kelantan v Transport Workers Union [1995] 2 MLJ 317. Error of law is committed if the decision suffers from illegality, irrationality, procedural impropriety and proportionality: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.”[5] (emphasis mine)

Salak Land Development Sdn Bhd v Pentadbir Tanah Kuala Langat & Ors [2015] 3 MLJ 487 [“Salak Land Development”]:

“The locus classicus on when the supervisory jurisdiction of judicial review is exercised is Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL). In that case, Lord Diplock reviewed the common law on judicial review and categorised the instances warranting judicial review as illegality, procedural impropriety and irrationality, with a possible fourth ground as proportionality.”[6]

Ambank (M) Bhd v Menteri Sumber Manusia & Anor and another appeal [2014] 6 MLJ 377 [“Ambank (M) Bhd”]:

“It has been accepted by the courts too that although as a matter of first principle judicial review was concerned primarily with the decision making process (not the merits, substance or justification), there was an exception to that rule where the court could still go behind the decision, where the allegations raised were to the effect that the decision maker had transgressed principles of procedural impropriety, illegality or irrationality (may be even proportionality) in arriving at the impugned decision.”[7]

Holiday Villages of Malaysia Sdn Bhd v YB Menteri Sumber Manusia & Anor [2009] 6 MLJ 402:

There are three categories upon which an administrative decision may be judicially reviewed, namely illegality, irrationality and procedural impropriety. Illegality refers to a situation where the administrative authority is guilty of an error of law in its action, such as exercising power it did not have. Irrationality refers to a situation where the authority exercises a power in a very unreasonable manner (‘Wednesbury unreasonableness’). Procedural impropriety refers to a situation where there is a failure on the part of the authority to observe procedural rules expressly set out in statutes or statutory instruments conferring upon such authority its jurisdiction (see paras 10–11);Council of Civil Service Union & Ors v Minister for the Civil Service [1985] 1 AC 374; [1984] 4 All ER 935 followed.”[8] (emphasis mine)

See also Raja Abdul Rahman Raja Abdul Aziz v Exxonmobil Exploration And Production Malaysia Inc [2012] 7 CLJ 141, at paragraph 24.

Subsequent Court of Appeal decisions

KAB Corp Sdn Bhd & Anor v Master Platform Sdn Bhd and another appeal [2019] 6 MLJ 752:

“The decisions of an inferior court, administrative tribunal or other public authority may be reviewed on the grounds of procedural impropriety, illegality, irrationality and possibly proportionality which permits the courts to scrutinise the decision not only for process but also for substance (R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 (FC)).”[9] (emphasis mine)

Peguam Negara Malaysia v Chan Tsu Chong & Ors [2018] 1 MLJ 409:

“In judicial review, the court is only to intervene where there is illegality, procedural impropriety or irrationality and possibly proportionality. The decision, action and/or omission of the public body must have the effect of altering the rights or obligations of the applicants and deprive them of some benefit or advantage. Therefore, the courts in a judicial review must scrutinise the reasoning of a decision and/or action and subsequently to decide if the decision is tainted with ‘illegality’, ‘irrationality’ and ‘procedural impropriety’ to merit curial intervention by the court.”[10] (emphasis mine)

What is clear from the above is that irrationality/unreasonableness is a commonly accepted ground to challenge the decision of an administrative authority.

The Court of Appeal decisions in inter alia Salak Land Development and Ambank (M) Bhd indicate that it is proportionality which has long been treated as a possible ground for judicial review rather than an accepted one.

It is highly disconcerting that the second highest court of the land could get such a fundamental point wrong. It is unfortunate that the Impugned Paragraph forms part of the ratio decidendi of Sabah Forest Industries and could be incorrectly relied upon by lower courts.


[1] Sabah Forest Industries Sdn Bhd v The Honourable Minister of Human Resources Malaysia & Anor [2018] 1 MLJ 277, at paragraph 33

[2] Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145, at paragraph 65

[3] R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145, at 186-187

[4] RHB Bank Bhd v YB Menteri Sumber Manusia Malaysia & Anor [2017] 6 MLJ 239, at paragraph 12(b)

[5] Rokiah binti Mhd Noor v Menteri Perdagangan Dalam Negeri, Koperasi & Kepenggunaan Malaysia & Ors and another appeal [2016] MLJU 1765, at paragraph 11

[6] Salak Land Development Sdn Bhd v Pentadbir Tanah Kuala Langat & Ors [2015] 3 MLJ 487, at paragraph 14

[7] Ambank (M) Bhd v Menteri Sumber Manusia & Anor and another appeal [2014] 6 MLJ 377, at paragraph 30

[8] Holiday Villages of Malaysia Sdn Bhd v YB Menteri Sumber Manusia & Anor [2009] 6 MLJ 402 at

[9] KAB Corp Sdn Bhd & Anor v Master Platform Sdn Bhd and another appeal [2019] 6 MLJ 752, at paragraph 23

[10] Peguam Negara Malaysia v Chan Tsu Chong & Ors [2018] 1 MLJ 409, at paragraph 34