Can You Sue a Public Authority or Government Body? Alliff Benjamin Suhaimi

What is judicial review? An inherent right of the courts to review the decision making process of a public body provided under Order 53 Rules of Court 2012. The courts can also review the decision and analyze the merits of the decision and replace the decision of the administration body Under Judicial Review, the Courts can only grant public law remedies provided under paragraph 1 of the Schedule to the Court of Judicature Act 1964 and Chapter VIII of Part 2 of the Specific Relief Act 1950.

Reliefs Declare rights of parties Declaration Certiorari Mandamus Prohibition Quo warranto Declare rights of parties Quash the decision made by the authority Compel the government to do something Prohibits the government from doing something Force the government to show their authority

Who can sue? “Adversely affected” Test – O 53 r 2(4) Rules of Court 2012 Any person adversely affected by the decision, action or omission in relation to the exercise of the public duty or function Real and genuine interest in the subject matter Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145 (Federal Court) “Therefore, in determining the locus standi to sue, the court has to exercise caution in applying the English cases. In our view for an applicant to pass the 'adversely affected' test, the applicant has to at least show he has a real and genuine interest in the subject matter. It is not necessary for the applicant to establish infringement of a private right or the suffering of special damage.”

Who Can Be Made A Respondent The decision-maker and the public body that governs the judicial maker. This includes public authorities themselves, tribunals and other decision-making bodies exercising public functions. The Court of Appeal in Tenaga Nasional Bhd v Tekali Prospecting Sdn Bhd [2002] 2 MLJ 707 has held that when the activities and/or decisions of a decision-maker in the private sector falls within a public law environment, the same can be subjected to judicial review as well.

What Can Be Subjected to Judicial Review An applicant can file a JR to challenge/review the decisions, omissions and/or actions of a body exercising ‘public function’ Following WRP Asia Pacific Sdn Bhd v Tenaga Nasional Berhad [2011] MLJU 1298 (Federal Court) , the interpretation of “public function” is based on consideration of, inter alia, the following factors:- The powers conferred to the decision-maker under existing statutes; The extensive and/or monopolistic power of said decision-maker; The relationship between the aggrieved party and the decision-maker in question.

Procedure of Judicial Review Application Hearing Serve a sealed copy of Form 110, statement and all affidavits in support on persons directly affected File Notice in Form 110 (O.53 r. 4 ROC 2012) Ex parte application of leave (O.53 r.3 ROC 2012)

Time Limit O 53 r 3 (6) Rules of Court 2012 3 months from the date when the grounds of application first arose when the decision is first communicated to the applicant Non-compliance of prescribed timeline is fatal

Grounds for Judicial Review Illegality Irrationality Procedural Impropriety Proportionality Error of law affecting jurisdiction Such as unreasonableness, improper purposes Breach of Natural Justice Excessive sanction or punishment which intrude on individual rights

Additional Powers/Reliefs Order 53 rule 5 Rules of Court 2012 The Court may award damages to the applicant if He has included in the statement in support of his application a claim for damages; and The Court is satisfied that, if the claim has been made in an action begun by the applicant at the time of making his application, he could have been awarded damages The Court may also apply to the Judge for discovery and inspection of documents pursuant to Order 24, to administer interrogatories, or to cross-examine the deponent of affidavit pursuant to Order 38

Civil Suit against Government A party can also sue the government under a normal civil claim for breach of contract / negligence. In the event the plaintiff or the defendant is: Federal Government: the title “Government of Malaysia” will be used; or State Government: e.g. Perak, the title would be “State of Perak” (Section 21 & 22 Government Proceedings Act 1956) Acts done in pursuance or execution of any written law/public duty/authority Limitation Period: 36 months from the date of the breach or damage from the negligent act (Section 2 Public Authorities Protection Act 1948)

Limitation of Court’s power in granting reliefs in Government Proceeding Section 5 and 6 of GPA 1956 limits the liability of the Government in relation to the act done by the public officer. Section 29 Government Proceedings Act 1956 (“GPA 1956”) restricts the court’s power in granting the following reliefs: Injunction Order for specific performance Order for recovery of land or delivery of property Section 33(4) generally prohibits execution of judgement against the government.

Rationale No injunction against Government It was explained by Court of Appeal in Superintendent of Lands and Surveys, Bahagian Mukah & Anor v Bunyak Gadin & Ors and another appeal [2016] 5 CLJ 558 that injunction cannot lie against the Government to stop them from carrying out their public duties. Although the court is prohibited from granting an injunction, the aggrieved party is not deprived of certain entitlement such as compensation. As such, damages would be an adequate remedy and the balance of convenience did not favour the grant of injunction