Saturday, August 06, 2005

Current Trends in Malaysian Public Law

By Dato' Gopal Sri Ram
Judge, Court of Appeal, Malaysia

This paper was first delivered on August 20th 2003, at the inauguration of the Tun Abdul Hamid Omar lectures

If there is one aspect of Malaysian jurisprudence that has to be identified as having undergone fundamental change over the past three decades it must be public law. The change has occurred in such matters as classification and nomenclature, grounds of intervention, remedies and procedure, and last, but not least, standing. Thus, the division between constitutional and administrative law has all but virtually ceased. Both now come under the broad title of public law. The old restrictive concept of error on the face of the record has gone. It has been replaced by the dual grounds of intervention, namely, substantive and procedural error. The separate prerogative orders of certiorari, mandamus, prohibition and quo warranto as well as the separate remedy of declaration have now been subsumed under the single broader remedy of judicial review. Procedural advancements include the right to discovery in judicial review proceedings1 and the power to award compensation in addition to or in lieu of the other remedies. So far as locus standi is concerned, the decision of the Court of Appeal in the Bar Council case2 clearly marks a departure from the traditional approach to standing. This will be dealt with later in this paper.

There has been encouraging forward, as well as unfortunate retrogressive, movement in the sphere of public law. This paper deals with some of the more important changes and highlights some of the current trends.

The first area of public law that calls for attention is legislative attempts to insulate decisions of public decision-takers from scrutiny by the courts. This is done by the rather simple process of introducing into an Act of Parliament a privative or ouster clause, often drafted in the widest possible of terms. An example is a clause in a statute that reads:

“Any decision by the Minister under this section shall be final and conclusive, and no such decision shall be challenged, appealed against, reviewed, quashed, or called in question in any court and shall not be subject to certiorari, prohibition, mandamus or injunction in any court on any account.”

Now, from the outset our courts took the view that such a clause did not prevent a decision being quashed by certiorari once there was jurisdictional error or an error of law on the face of the record3 So, in Lian Yit Engineering Works Sdn Bhd v Loh Ah Fon4 Abdul Hamid J. (as he then was) said:

“It is, I think, well established law that this court has power to issue an order of certiorari to quash an Industrial Court’s decision which, on the face of it, is wrong in law.”

That was a case under the Industrial Relations Act 1967 which housed and still houses an ouster clause of wide amplitude.

The high level watermark was the decision in Kannan & Anor v Menteri Buruh dan Tenaga Rakyat & Ors5 where Syed Othman J held that a decision by a public decision-maker not in accordance with law was not immunised from certiorari by a widely drafted ouster clause. After reviewing several authorities on the subject, his lordship said:

“From all these authorities, I am inclined to think that the better view of the law is that a plea that the court cannot interfere with a decision by reason of an ouster clause will only be accepted if the decision was reached according to the law. If the decision is not according to law, the court would invariably interfere with it. To my mind, a decision not according to law is no decision at all. (Emphasis added.)

This proactive approach of our courts was reversed by the Privy Council in a judgment that may best be described as ill-considered. In South East Asia Firebricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees’ Union6 the Board held that an ouster clause had the effect of immunising decisions made within jurisdiction however wrong that decision may be. In short, it drew a distinction between errors that go to jurisdiction and errors that do not. So, an error made within jurisdiction was protected from judicial intervention however wrong it was. The citizen was remediless in those circumstances and the court had to fold its arms in abject submission. This unrealistic distinction between errors within and without jurisdiction created by the Firebricks case held the field for about 15 years. During the intervening period the decision was subjected to much criticism. Courts were hard put to decide which errors fell within the jurisdiction of a public decision-maker and which were not. There was an air of unreality and artificiality as the profession went about trying to place a given case in the one basket or the other. In Enesty Sdn Bhd v Transport Workers Union & Anor7 Mohamed Azmi SCJ envisaged some future case in which Firebricks might be put to rest once and for all.

The opportunity came in 1995. It came in a case called Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union8. (The SKMK case). In that case we in the Court of Appeal refused to follow the Privy Council in Firebricks and instead held that the Malaysian cases that had been overruled by the Board were rightly decided. This is what I said:

“With great respect to Lord Fraser, neither the passage in the judgment of Syed Othman J in Kannann or that in the judgment of Abdul Hamid J in Lian Yit Engineering deserved the treatment it received in the hands of the Privy Council. Indeed, I would go so far as to say that the Malaysian cases may not have met the fate that they did, and the administrative law of this country would not have taken a step backwards, if the Board in Fire Bricks had truly understood and appreciated the effect of the decision in Anisminic.
…………………..
In my judgment, the true principle may be stated as follows. An inferior tribunal or other decision-making authority, whether exercising a quasi-judicial function or purely an administrative function, has no jurisdiction to commit an error of law. Henceforth, it is no longer of concern whether the error of law is jurisdictional or not. If an inferior tribunal or other public decision-taker does make such an error, then he exceeds his jurisdiction. So too is jurisdiction exceeded, where resort is had to an unfair procedure (see Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis9), or where the decision reached is unreasonable, in the sense that no reasonable tribunal similarly circumstanced would have arrived at the impugned decision.

It is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law, for the categories of such an error are not closed. But it may be safely said that an error of law would be disclosed if the decision-maker asks himself the wrong question or takes into account irrelevant considerations or omits to take into account relevant considerations (what may be conveniently termed an Anisminic error) or if he misconstrues the terms of any relevant statute, or misapplies or misstates a principle of the general law.

Since an inferior tribunal has no jurisdiction to make an error of law, its decisions will not be immunized from judicial review by an ouster clause however widely drafted.

It follows, from what I have said, that the decision of the Board in Fire Bricks and all those cases approved by it are no longer good law. By the same token, Kannan and Lian Yit Engineering Works, though disapproved of or overruled by the Board, must now be taken to have always correctly stated the law.”

And so in this way we restored the position correctly established by our courts. The Federal Court in two cases10 upheld what we did in the SKMK case.

Having thus returned our common law on ouster clauses to its proper place, we moved a step further by placing emphasis on the right of an aggrieved party to have access to justice. In this context it is important to bear in mind what Cappellatti11 said about access to justice:

“The need for access to justice may be said to be two fold; first, we must ensure that the rights of citizens should be recognised and made effective for otherwise they would not be real but merely illusory; and secondly we must enable legal disputes, conflicts and complaints which inevitably arise in society, to be resolved in an orderly way according to the justice of the case, so as to promote harmony and peace in society, lest they foster and breed discontent and disturbance. In truth, the phrase itself, ‘access to justice’, is a profound and powerful expression of a social need which is imperative, urgent and more widespread than is generally acknowledged.”

In Sugumar Balakrishnan v Director of Immigration, Sabah12 we recognised the importance of this principle and held access to justice to be a constitutional right. . The route by which we arrived at this conclusion is as follows. The right of a litigant to seek redress from a court is part of his or her personal liberty within Article 5(1) and hence a fundamental liberty. Parliament cannot therefore legislate to limit or restrict such right. An ouster of jurisdiction by an Act of Parliament would therefore be prima facie void. However, by resort to the rule of harmonious construction, such an ouster would only prevent judicial review of a public law decision that is made in accordance with law in the Anisminic13 sense.
And this is how we put it:

“The fundamental liberty of free access to an independent judiciary to obtain redress is apparently inconsistent with a provision in a statute that seeks to preclude that right by ousting the power of judicial review. This apparent inconsistency is resolved by permitting an ouster clause in a statute to immunize from judicial review only those administrative acts and decisions that are not infected by an error of law. Such an approach is in accordance with the well-established principle of legislative interpretation known as the rule of harmonious construction whereby the court, instead of striking down a statutory provision altogether as being unconstitutional, prefers to permit the impugned provision to operate in harmony with the Constitution. (see Tasmania v The Commonwealth (1904) 1 CLR 329, 357; Sri Venkataramana Devaru v State of Mysore [1958] SCR 895 at p 918).”

The Federal Court reversed us in the Sugumar case. They held the ouster in that case to be complete. The judgment of the Federal Court in that case has attracted and continues to attract severe criticism. The case is hardly cited in argument. The profession did not hide its dislike for it. A symposium was convened by the Bar to discuss the negative consequences of the judgment. It was the unanimous view of those who participated in the symposium that the decision is wrong. I will say something more about the Federal Court judgment in that case a little later. But what requires emphasis is that nowhere in its judgment did the Federal Court say that access to justice is not a fundamental right. So, very recently, in Kekatong Sdn Bhd v Danaharta Urus Sdn Bhd14 we re-affirmed our earlier stand that access to justice is a fundamental right but this time under Article 8(1) of the Constitution. That decision is now the subject of an application for leave to appeal before the Federal Court.

The second area which requires mention concerns constitutional interpretation. The decided cases on the point may be very roughly likened to the graph of a fluctuating curve. In the early years of our constitutional jurisprudence, our courts adopted a strict or literal approach to the interpretation of the fundamental liberties provisions enshrined in Part II of the Federal Constitution. As a result these liberties became a dead letter. However, a while later, a more liberal approach prevailed.

The lowest point in the curve is represented by the decision of the Full Bench15 of the former Federal Court in Government of Malaysia v Loh Wai Kong16.. That was an extraordinary case. It was a case in which the appellant, the Government of Malaysia, (who was the defendant in the suit) had succeeded in the High Court. The plaintiff had failed in the action. But the trial judge17 had made certain observations on the expression “personal liberty” appearing in Article 5(1) of the Constitution. He had adopted the wider interpretation given by the Supreme Court of India in Maneka Gandhi v Union of India18 to the identical phrase appearing in Article 21 of the Indian Constitution. Those advising the Government were unhappy with the observations of the learned trial judge. There was an appeal to the Federal Court. But it was an incompetent appeal. It was incompetent because the Federal Court only had jurisdiction to hear appeals by a litigant against whom an order or decision had been made. It had no jurisdiction to hear an appeal by a successful party to litigation. That is elementary law19. Yet the point appears to have been missed all round. That is why I called it an exceptional case.

As it happened, the Federal Court, in the absence of any statutory authority to do so, went on to hear the appeal and to deliver judgment. Suffian LP who delivered the judgment of the Court said:

“Article 5(1) speaks of personal liberty, not of liberty simpliciter. Does personal liberty include the three liberties? It is well-settled that the meaning of words used in any portion of a statute — and the same principle applies to a constitution — depends on the context in which they are placed, that words used in an Act take their colour from the context in which they appear and that they may be given a wider or more restricted meaning than they ordinarily bear if the context requires it. In the light of this principle, in construing “personal liberty” in article 5(1) one must look at the other clauses of the article, and doing so we are convinced that the article only guarantees a person, citizen or otherwise, except an enemy alien, freedom from being “unlawfully detained”; the right, if he is arrested, to be informed as soon as may be of the grounds of his arrest and to consult and be defended by his own lawyer; the right to be released without undue delay and in any case within 24 hours to be produced before a magistrate; and the right not to be further detained in custody without the magistrate’s authority.” (The emphasis is mine).

It may be seen at once that the entire reasoning of the learned Lord President in arriving at his conclusion on the issue of interpretation was based on the premise that the same principles of construction apply with equal force both to a statute and a Constitution. Indeed he treats the proposition as “well-settled”. But the weight of authority, current at the time of the pronouncement was against the principle contended for. For, just three years earlier, Lord Diplock had said in Hinds v The Queen20 :

“To seek to apply to constitutional instruments the canons of construction applicable to ordinary legislation in the fields of substantive criminal or civil law would, in their Lordships’ view, be misleading.”

It is significant that the narrow approach to constitutional interpretation adopted in Loh Wai Kong was repudiated in two later cases of primary importance which are often overlooked. These two cases mark the high point in the graph.

In Dato Menteri Othman bin Baginda & Anor v Dato’ Ombi Syed Alwi bin Syed Idrus 21. Raja Azlan Shah Ag LP said:

“In interpreting a constitution two points must be borne in mind. First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. Secondly, a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way — “with less rigidity and more generosity than other Acts” (see Minister of Home Affairs v Fisher 22. A constitution is sui generis, calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation. As stated in the judgment of Lord Wilberforce in that case: “A constitution is a legal instrument given rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms.” The principle of interpreting constitutions “with less rigidity and more generosity” was again applied by the Privy Council in Attorney-General of St Christopher, Nevis and Anguilla v Reynolds [1980] AC 637, [1979] 3 All ER 129, [1980] 2 WLR 271.”
It is in the light of this kind of ambulatory approach that we must construe our Constitution.”

The second case is a landmark in the sphere of constitutional law. It is the decision of the Full Bench of the Supreme Court in Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor23. In that case, Abdul Hamid Omar LP who delivered the leading judgment, adopted the approach of Lord Wilberforce in Minister of Home Affairs v Fisher 24 and held, following the judgment of Dr, Anand J (later Chief Justice of India) in Mian Bashir Ahmad & Ors v The State25 and Maneka Gandhi’s case that:

“in testing the validity of state action with regard to fundamental rights, what the court must consider is whether it directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ‘ineffective or illusory.’”

This is a marked departure from the former inflexible doctrinaire approach of classification as the test of the validity of State action in relation to the fundamental liberties Articles contained in Part II of the Constitution and expressed in cases such as Datuk Haji Harun bin Haji Idris v Public Prosecutor 26. The broad, and liberal approach to constitutional interpretation adopted by Abdul Hamid Omar LP in Nordin bin Salleh is in keeping with trend in other jurisdictions.

In my view, the prismatic method is the correct approach to the interpretation of a written constitution such as ours, particularly to those provisions that guarantee fundamental rights. Just as a ray of light when passed through a prism reveals its constituent colours, so too when the provisions of our Constitution are subjected to prismatic treatment, they will reveal the several concepts that are housed within their language.

My own views on the subject are so well expressed in the dissenting opinion of Lord Nicholls of Birkenhead and Lord Hope of Craighead in Prince Pinder v The Queen27 that I find it sufficient to quote from them:

It should never be forgotten that courts are the guardians of constitutional rights. A vitally important function of courts is to interpret constitutional provisions conferring rights with the fullness needed to ensure that citizens have the benefit these constitutional guarantees are intended to afford. Provisos derogating from the scope of guaranteed rights are to be read restrictively. In the ordinary course they are to be given ‘strict and narrow, rather than broad, constructions’: see State v Petrus 28, per Aguda JA in the Court of Appeal of Botswana, applied by their Lordships’ Board in R v Hughes 29.

It is also important to bear in mind the words of Lord Woolf LCJ in R v Lambert30:

“[I]t is necessary to have in mind the nature of the convention as an instrument for the protection of fundamental rights. This justifies the adoption of the approach vividly described by Lord Wilberforce in relation to the provisions of a written constitution in Minister of Home Affairs v Fisher 31. It involves giving a broad and purposive approach, not a rigid approach, to the language of the convention, an approach which will make the convention a valuable protection of the fundamental rights of individual members of the public as well as society as a whole.” (Emphasis added.)

So, when Article 5(1) says “life”, it does not mean mere animal existence. It has a much wider meaning and includes all elements that constitute the quality of life. This is the approach we adopted in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor 32. But the approach that commended itself to us found no favour with the Federal Court in Sugumar’s case. Dzaiddin CJ in a judgment in which Abdul Malek Ahmad FCJ concurred (Wan Adnan (CJ, Malaya) having died after judgment had been reserved), held that neither “life” nor “personal liberty” in Article 5(1) of the Constitution have any wider meaning. And in support of this conclusion, the learned Chief Justice relied on Loh Wai Kong’s case. There was no reference to the powerful views expressed in the judgments in Dato Menteri Othman bin Baginda or Nordin bin Salleh or to the several Privy Council cases decided before and after Loh Wai Kong. Neither did the Chief Justice alert his mind to the basic defect in Loh Wai Kong, namely that it was the view of a court that had no authority whatsoever to deal with the case. With respect, the conclusion on the point of interpretation expressed in his judgment by the Chief Justice is entitled to no weight whatsoever.

In my view, the time has come to treat the Federal Court’s pronouncement in Sugumar as bad authority. It is a wholly erroneous decision. It is inconsistent with other decisions of high authority, which it does not even attempt to address. These decisions include the Federal Court case of Dato Menteri Othman Baginda and the Supreme Court case of Nordin Salleh. The court in Sugumar was a two Bench division and is therefore entitled to very little weight. Last, but not least, the decision is contrary to well-established principles.

It is appropriate now to turn to the next topic. This concerns the grounds on which a court will grant judicial review.

The traditional English approach to judicial review is that a court is primarily concerned with the decision-making process and not with the merits of the decision itself33. But that is only the general rule. As Edgar Joseph Jr. FCJ pointed out in R Rama Chandran v Industrial Court34:

“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 35 ). 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 Minister36 for the Civil Service , 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.”

In Chief Constable of the North Wales Police v Evans 37, Lord Hailsham criticised the judgments of the Court of Appeal in that case, in particular that of Lord Denning MR. He said:

“There are passages in the judgment of Lord Denning MR (and perhaps in the other judgments of the Court of Appeal) in the instant case and quoted by my noble and learned friend which might be read as giving the courts carte blanche to review the decision of the authority on the basis of what the courts themselves consider fair and reasonable on the merits. I am not sure whether Lord Denning MR really intended his remarks to be construed in such a way as to permit the court to examine, as for instance in the present case, the reasoning of the subordinate authority with a view to substituting its own opinion. If so, I do not think this is a correct statement of principle. The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court.”

However, in Kumpulan Perangsang Selangor Bhd v Zaid bin Hj Mohd Noh38 the Federal Court expressly preferred the views of Lord Denning in the Court of Appeal in to those of Lord Hailsham in the House of Lords. This is what the Court said:

“In our judgment, the correct approach to the ‘Wednesbury unreasonableness’ and the proportionality tests is that adopted by Lord Denning MR in the Court of Appeal in Evans. We therefore find the criticism of his approach by the House to be unwarranted. The continued reluctance of English courts to come to grips with the practical realities of applying the ‘Wednesbury unreasonableness’ test (see, for example, R v Secretary of State for the Home Department, ex p Brind39) in no way deters us from accepting as correct the view expressed by Edgar Joseph Jr FCJ in Rama Chandran. An examination of the merits of a decision followed by a result that no reasonable person or body similarly circumstanced could have come to the conclusion in question and a making of the decision that ought to have been made in the first place, does not, in our view, occasion an abuse of judicial power by an unjustified or unauthorized assumption of appellate power in certiorari proceedings.”

There is nothing strange or novel about these pronouncements. They merely meet with the realities of those principles that have been part of the common law jurisprudence for a great many years. Anyone with a passing familiarity with English administrative law will remember what Lord Greene said in the Wednesbury case40. Put shortly, one ground on which a court may quash a public law decision is that it is unreasonable in the sense that no reasonable decision-maker armed with the relevant facts would have done what the particular decision-maker did in the given case. Now, to determine whether a decision is objectively reasonable, it is mandatory for the court to go into the merits of the particular case. In the event, the examination of the decision is on grounds of substance and not mere procedure. In Sugumar, the Court of Appeal held that a public law decision could be impugned on grounds of substance and not merely procedure. We simply applied what Edgar Joseph Jr FCJ had said in Rama Chandran. Yet, the Chief Justice in his judgment in Sugumar’s case reversed us. After quoting the same passage we had quoted from the judgment of Edgar Joseph Jr FCJ he found it possible to say:

“[W]e cannot agree with the Court of Appeal that the doctrine of substantive fairness can be invoked as a separate or additional ground of judicial review of an administrative decision.”

It is now settled beyond argument that there are a number of grounds on which a public law decision may be invalidated. These grounds are better known better by the shorthand title, “Anisminic errors” 41. Hence, it is now beyond argument that there are a number of grounds on which a public law decision may be attacked, some of which may go to impugn the fairness of the procedure employed whilst others may go to impugn the substantive fairness of the decision itself. Which of the grounds, if any of them, would apply to invalidate a particular decision would depend on the facts and circumstances of the given case. If a decision is reasonable, then it passes the substantive fairness test. Yet it may be flawed in that the particular supplicant was denied procedural fairness. These two propositions though inverted would equally produce the same result.

The last topic is the issue of standing or locus standi. There are two stages at which standing falls to be tested. The first is at the point of initiation of proceedings. The question here is whether the applicant has the necessary locus standi to commence the proceedings. This is known as threshold locus standi. The second stage is at the close of the proceedings. Here the question is whether the applicant has a sufficient interest to receive the remedy claimed or whether there is some person who is more directly affected to whom the remedy may more appropriately be granted. This is known as substantive locus standi.

At common law, threshold locus standi simply means that it is only a person who has a real interest in a suit may bring it. The concept has been described as follows:

“A litigant is said to have locus standi, in effect standing to sue in a court of law, if that court recognizes his or her ability to institute and maintain proceedings before it.” 42

The rule governing locus standi is a judge-made rule of practice designed to keep busybodies away from the doors of the court. Because it is a judge-made rule, it is fairly flexible. So, whether the law confers standing to sue upon a litigant depends on how widely or narrowly the courts are prepared to read the requirement of “real interest”.

The policy of the courts to grant locus standi depends on whether a claim is made in private law or in public law. The test for locus standi in private actions is very strict. Only a party who has suffered the harm in question may sue. In private law it is illustrated by the rule in Attwool v Merryweather43, although it is more familiar to students and the profession as the rule in Foss v Harbottle 44. In Prudential Assurance v Newman Industries 45, the Court of Appeal said that it is an

“elementary principle that A cannot, as a general rule, bring an action against B to recover damages or secure other relief on behalf of C for an injury done by B to C. C is the proper plaintiff because C is the party injured, and therefore the person in whom the cause of action is vested. This is sometimes referred to as the rule in Foss v Harbottle (1843) 2 Hare 461, 67 ER 189 when applied to corporations, but it has a wider scope and is fundamental to any rational system of jurisprudence.”

By contrast, in public law the courts apply a far more liberal rule of standing. This is illustrated by Tan Sri Haji Othman Saat v Mohamed bin Ismail 46. It is a case of paramount importance. The facts of that case are quite notorious.

Nevertheless, it is necessary to recall them in brief to appreciate the points that will fall to be made later. The applicant in that case was a fisherman. The respondent was the Menteri Besar (or Chief Minister) of the State of Johore. The applicant and 183 others had applied for a piece of land. They heard nothing of their application for many years. The applicant then discovered that the land in question had been alienated to several persons, including the respondent and other personages in the upper echelon of the State Government. There appeared prima facie to have been an abuse of power. The applicant then instituted proceedings challenging the alienation. His standing to maintain the action was challenged at the very outset. The High Court ruled in the applicant’s favour. The respondent appealed to the Federal Court which, when dismissing the appeal, said:

“The sensible approach in the matter of locus standi in injunctions and declarations would be that as a matter of jurisdiction, an assertion of an infringement of a contractual or a proprietary right, the commission of a tort, a statutory right or the breach of a statute which affects the plaintiff's interests substantially or where the plaintiff has some genuine interest in having his legal position declared, even though he could get no other relief, should suffice. When it comes however to the question of discretion on a consideration of the substantive application, it may well be proper in particular cases to refuse a remedy to persons who, though they may have standing as a matter of jurisdiction on the lines we have indicated, do not merit it, perhaps because, inter alia, others are more directly affected, or the plaintiff himself is fundamentally not.”

What has given rise in the past to considerable difficulty in cases concerning locus standi is the question of classification of the particular action as a private or public law proceeding. This was in the main caused by plaintiffs having resort to the private law remedies of declaration and injunction in what in essence were public law challenges. These remedies brought with them their own special difficulties about the scope of their application in the public law environment. As a result, plaintiff’s’ ran the risk of their suit being classified as a private interest action and having the strict locus standi rule applied to them.

This is what happened in Government of Malaysia v Lim Kit Siang 47. In that case, the Supreme Court, by a bare majority of 3:2, denied standing to a plaintiff who asserted title to sue in several capacities, including as a road user and a taxpayer, in an action challenging the privatisation of the North-South Highway. The majority applied the common law rule of standing laid down by Buckley J in Boyce v Paddington Borough Council 48 and approved by the House of Lords in Gouriet v Union of Post Office Workers 49. Abdul Hamid CJ (Malaya) when delivering one of the majority judgments summarised the court’s approach to the issue of standing to sue as follows:

“Put in a nutshell, the law of standing to sue has two fundamental rules. First, apart from certain cases in which standing to sue is in the discretion of the court, the plaintiff must possess an interest in the issues raised in the proceedings. Second, where the private plaintiff relies on an interest in the enforcement of a public right and not of a private right, standing will be denied unless the Attorney-General consents to a relator action, or the plaintiff can demonstrate some special interest beyond that possessed by the public generally.”

In private interest litigation the motive for instituting an action is private interest. And if that interest is found lacking in a suit classified by a court as a private law action, then the plaintiff is bound to fail for want of threshold standing. This is brought out clearly in the following passage in the judgment of Abdul Hamid CJ (Malaya) in the Lim Kit Siang case:

“A justification for standing rules relates to standing as a function of the adversary system. Self-interest is seen as the motivating force that will ensure that the parties present their respective positions in the best possible light. If the motivation of self-interest is non-existent so that the ensuing dispute is not with respect to contested rights and obligations of the parties themselves, then the assurance of diligent preparation and argument cannot exist.”

By contrast the position is quite the opposite in respect of public interest litigation. Indeed, a piece of litigation will fail as public interest litigation if the court finds a private interest motive. As was pointed out by the Supreme Court of India 50:

“[P]ublic interest litigation is usually entertained by a court for the purpose of redressing public injury, enforcing public duty, protecting social rights and vindicating public interest. The real purpose of entertaining such application is the vindication of the rule of law, effective access to justice to the economically weaker class and meaningful realisation of the fundamental rights. The directions and commands issued by the courts of law in public interest litigation are for the betterment of the society at large and not for benefiting any individual. But if the Court finds that in the garb of a public interest litigation actually an individual's interest is sought to be carried out or protected, it would be bounden duty of the court not to entertain such petition as otherwise the very purpose of innovation of public interest litigation will be frustrated.”

The difficulties in classification of an action as private or public interest litigation was caused by the former adjectival law governing the remedies. Once again it is necessary to quote from the judgment of Abdul Hamid CJ (Malaya) in the Lim Kit Siang case:

“Finally, I would like to refer to a query that was raised in the course of the appeal in relation to section 29 of the Government Proceedings Ordinance 1956 considered in the light of Reg v Secretary of State for the Home Department & Anor, ex parte Herbage 51. The respondents’ answer to the point raised was that Ex parte Herbage did not apply in view of our Order 53. And that the definition of “civil proceedings” in section 2(2) of the Ordinance should refer to the position as it stood in 1956 when the Ordinance was enacted and should not therefore be affected by changes brought about to the English Order 53 in 1977.

Tan Sri Eusoffe Abdoolcader S.C.J. said that there was a lack of substance in this proposition. The question is was there really? It is to be observed that the changes brought about by the English Order 53 in 1977 resulted in an omnibus provision to include not only the prerogative orders of mandamus, prohibition and certiorari, but also the remedies of declarations, injunctions, etc. It may well be argued that the correct answers is to be found in the so-called principle that a statute is to be treated as always speaking and that the exception in section 2(2) of the Ordinance is an on-going statutory provision. The elementary point to note, however, as regards section 29 of the Ordinance is that it affords a defence to the Government or a servant of the Government to a claim for an injunction subject to compliance with the requirements therein stated. The section therefore deals with rights and not procedure.

That being so, the question which arises is whether such a defence, which cannot be said to be available if the point had arisen for decision prior to 1977, can be said to have been taken away by the simple expedient of an amendment to a rule of court made subsequently in a foreign jurisdiction. I regret I find myself unable to subscribe to this proposition since not only are we an independent sovereign country whose Parliament has seen fit to repeal the right of appeal to the Judicial Committee of the Privy Council in all matters but also because we have our own Order 53 which is limited to prerogative orders only and does not extend to claims for declaration, injunction or damages. Clearly, any lengthy discussion on section 29 should not have overlooked this crucial factor.

I would accordingly hold that the exception to the definition of “civil proceedings” in section 2(2) of the Ordinance which reads “or such proceedings as would in England be brought on the Crown side of the Queen’s Bench Division” must refer to the prerogative jurisdiction of the Queen’s Bench Division in England as at the date of the coming into force of the Ordinance and which was then limited to the granting of orders of mandamus, prohibition and certiorari only.

Consequently, as the claim in the present case was for a declaration and injunction it fell fairly and squarely within the four walls of the definition of “civil proceedings” appearing in section 2(2) of the Ordinance. It follows that the defence under section 29 applies and the case of Ex parte Herbage is, therefore, wholly inapplicable.”

The current position is that the problems cause by the adjectival law governing public law remedies have ceased to exist after the amendment to Order 53 of the Rules of the High Court 1980. Today, a litigant who wishes to pursue a cause of action in public law may claim any or all of the prerogative orders available under the former Order 53 in an Application for Judicial Review.. He or she may also add a claim for a declaration or injunction in the same proceeding. More importantly, the court is not confined to the relief claimed by the applicant and may instead mould a remedy that is appropriate to justice of the case. In appropriate cases, compensation in addition to or in lieu of a specific remedy may be granted. Further, the only requirement to confer standing is that the applicant should be adversely affected by a decision of a public authority. This is far more flexible than the Buckley test.

Comfort may be derived from the fact that the current trend is to interpret Order 53 liberally as it is a curative provision. That is what we did in Sivarasa Rasiah v Badan Peguam Malaysia & Anor 52. And this is what we said in that case:

“It must not be forgotten that O 53 of the RHC in its present form was introduced to cure the mischief of its precursor, which was much narrower and more restrictive. Two points may be noted when considering our present Ord 53 of the RHC. First, that it begins by referring to the powerful and enabling provision introduced for the first time in our law by Parliament in paragraph 1 of Courts of Judicature Act 1964 (‘the CJA’). Pausing for a moment, let me remind myself of the historical background against which paragraph 1 was enacted.

Until 1964, the statute that governed the judicial arm of Government was the Courts Ordinance 1948 (‘the Ordinance’). That Ordinance was passed by our colonial masters under whose yoke we lived until 31 August 1957. On 31 August 1957, we inherited a dynamic Federal Constitution (‘the Constitution’) which conferred upon our citizens some of the most cherished and valuable rights that any human being can aspire for. Among these are the fundamental liberties enshrined in Part II. It was obvious to the meanest of intelligence that in the face of such a dynamic document the outdated, archaic and arcane provisions of a medieval society that fashion remedies to meet its needs were wholly inappropriate. Of what use to us are such ancient self-fettering remedies like certiorari, quo warranto and the like? Something had to be done to bring federal law in line with dynamism of the Constitution. And so Parliament acted. It repealed the Ordinance and replaced it with the CJA into which it incorporated paragraph 1 conferring upon our High Courts powers much wider than those vested in Queens Bench Division in England. But our courts were limping behind Parliament in the procedural sector. We still clung on to the shackles and fetters imposed upon us by English adjectival law. We forgot all about paragraph 1. And then finally, the Rules Committee acted to keep in tandem with the CJA. Accordingly, O 53 of the RHC, in its present form was introduced.

To return to the construction to be given to O 53 of the RHC, I turn to the second point I wish to make. It is the principle which governs the construction of rules of courts. A rule of court should not be interpreted in such a way as to result in unfairness or produce a manifest injustice: Bank of America National Trust and Savings Associations v Chai Yen 53; Sim Seoh Beng & Anor v Koperasi Tunas Muda Sungai Ara Bhd 54. So here, a manifest injustice would occur if O 53 of the RHC is read restrictively so as to permit an applicant to claim a declaration only where he applies for it jointly with some other remedy.

I might add that under paragraph 1 of the Schedule to the CJA, which is drawn from art 226 of the Indian Constitution and to which in material parts it is identical, our courts have power to issue such orders and grant such relief as is appropriate to the particular circumstances of a given case.”

The procedural liberalisation of threshold locus standi in the sphere of public law remedies has been accompanied by forward movement in the sphere of substantive locus standi as well. The decision in Raja Segaran v Bar Council Malaysia 55 has had a positive effect in this area. To recall, the court in that case was moved in a suit, inter alia, for declaratory relief on the ground that the proceedings of a general meeting that the Bar proposed to hold to discuss the judicial conduct of the then Chief Justice would constitute contempt of court and violate certain provisions of the Constitution. The defendant moved to strike.

If the High Court had adhered to precedent, then, following Lim Kit Siang and Imperial Tobacco Ltd v A-G 56 it would have struck out the action on the ground that it was not appropriate in the circumstances for the plaintiff to bring proceedings claiming for a declaration that the defendant’s proposed conduct was unlawful57. But, as it happened, the High Court declined to strike out the action. And the Court of Appeal affirmed.

This constitutes a departure from the principle in Lim Kit Siang. It must not be forgotten that part of the plaintiff’s pleaded case in Lim Kit Siang was that the defendants’ proposed venture was bad because certain members of Government had committed corrupt practice within section 2(1) of the Emergency (Essential Powers) Ordinance No. 22 of 1970 in relation to the venture. One of the grounds on which the plaintiff’s claim was struck out was that the plaintiff’s pleaded case disclosed no reasonable cause of action as it sought a declaration that was based on alleged criminal conduct. If there was criminal conduct then that was a matter for the Public Prosecutor to deal with and it could not constitute the subject matter of a declaration.

One final point. Whether a citizen is to be accorded locus standi to move under RHC Order 53 as a person adversely affected depends very much on the approach one takes to the interpretation of those fundamental rights guaranteed by Part II of the Constitution, in particular Article 5(2) which protects both life and liberty. Once a broad, liberal and generous interpretation is given 58 to the expressions “life” and “personal liberty” in Article 5(2), it will be possible to accommodate within Order 53 as a person adversely affected, an applicant who complains that a public authority has failed to enforce the law, for example on the ground that no action has been taken against those who engage in unlawful activities that harm the environment.

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