Judicial Review: Challenging Government Decisions in Malaysia
When and how you can challenge unlawful administrative decisions through the courts.
Published: 8 January 2025 · Constitutional
What Is Judicial Review
Judicial review is a legal mechanism through which the courts examine the lawfulness of decisions made by public authorities. It is not an appeal on the merits of the decision, but rather a check on whether the decision-making process was lawful, rational, and procedurally fair. In Malaysia, judicial review is governed by Order 53 of the Rules of Court 2012, and the substantive principles are drawn from both the Federal Constitution and the common law. The power of judicial review is fundamental to the rule of law because it ensures that government agencies, local councils, ministers and statutory bodies act within the limits of their legal authority.
Grounds for Judicial Review
A successful judicial review application must establish one or more recognised grounds. Illegality occurs where the decision-maker acts outside the scope of the powers conferred by the enabling statute, or where the decision is contrary to law. Irrationality, sometimes referred to as Wednesbury unreasonableness after the English case that established the principle, applies where the decision is so unreasonable that no reasonable authority could have made it. Procedural impropriety covers failures to observe the rules of natural justice, such as the right to a fair hearing and the rule against bias, as well as failures to follow procedures required by statute. In Malaysia, constitutional illegality is an additional ground, where the decision violates a fundamental right guaranteed under the Federal Constitution, such as the right to equality under Article 8 or the right to property under Article 13.
The Procedure for Applying
Judicial review proceedings in Malaysia begin with an application for leave under Order 53 of the Rules of Court. The applicant must file the application within three months of the date when the grounds for the application first arose, though the court has discretion to extend this period in appropriate cases. The leave stage acts as a filter to weed out unmeritorious claims. If leave is granted, the applicant then files the substantive application for judicial review, which will be heard by the High Court. The court may quash the impugned decision through a certiorari order, compel the performance of a public duty through a mandamus order, or prohibit an anticipated unlawful act through a prohibition order. Declarations and injunctions may also be sought.
Limitations and Challenges
Judicial review is not a panacea. The courts will not interfere with policy decisions merely because they are unwise or unpopular. The doctrine of separation of powers means that the courts are reluctant to substitute their own judgment for that of the executive on matters of policy. Ouster clauses in legislation, which purport to exclude judicial review, present a significant obstacle, although Malaysian courts have sometimes found ways to read down such clauses in the interests of justice. The cost of judicial review proceedings and the complexity of the legal arguments involved mean that anyone considering this route should seek specialist legal advice at the earliest opportunity.
Messrs S.K. Song has experience in constitutional and administrative law matters, including judicial review applications in the Johor Bahru High Court. If you are affected by a government decision that you believe is unlawful, contact us at 07-334 2188 for a preliminary assessment.