Judicial Review: What is it?

An important aspect of Administrative Law is the ability to make an application for Judicial Review. Judicial Review is defined in the Merriam-Webster Dictionary as “a constitutional doctrine that gives to a court system the power to annul legislative or executive acts which the judges declare to be unconstitutional”. Essentially what this means is that Judicial Review can be used to challenge any decisions made by an authoritative body.

The test to determine if an applicant can make an application for Judicial Review is that the applicant must be ‘adversely affected’ by the decision of an authoritative body. This test was explained in the Federal Court case of Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145, where the court held that:

“…There is a single test of threshold locus standi for all the remedies that are available under the order. It is that the applicant should be ‘adversely affected’. The phrase calls for a flexible approach. It is for the applicant to show that he falls within the factual spectrum that is covered by the words ‘adversely affected’...”

The landmark case of R Rama Chandran v The Industrial Court Of Malaysia & Anor [1997] 1 MLJ 145 explained the elements of a Judicial Review, whereby:

“…It is often said that Judicial Review is concerned not with the decision but the decision making process.

it is useful to note how Lord Diplock (at pp 410–411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety…”

1st Ground – Illegality

This means that any decision given by a body that does not have the power to do so can be challenged. A decision exceeding the jurisdiction of the body can also be challenged under this limb.

2nd Ground – Irrationality

Any decision that that defies logic or accepted moral standards can be challenged on this ground even if the decision made by the body is legal. For example, a decision is given by taking into account irrelevant factors and/or by failing to take into account relevant factors would be a ground for Judicial Review under this limb.

3rd Ground – Procedural Impropriety

If a decision is given without adhering to the strict procedural rules in arriving at the decision, it can be a suitable ground to make an application for Judicial Review.

A person making an application for a Judicial Review must also clearly state the remedy sought after. The remedies available to an application of Judicial Review are:

  • Injunctions (to restrain or compel a person to perform a specific act)
  • Declarations (the courts will make a declaration as to the rights of the parties)
  • Mandamus Order (an order to compel public authorities to perform their duties)
  • Certiorari Order (to quash the decision of an authoritative body)

In conclusion, Judicial Review is a useful tool to ensure authoritative bodies are kept in check by the Judiciary to ensure everyone is able to access fair and just decisions.

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Author: Kage

Hoping to entertain someone with my thoughts.