THE DOCTRINE OF JUDICIAL REVIEW: A CORNERSTONE OF GOOD GOVERNANCE IN MALAYSIA (original) (raw)
Related papers
An Overview of Judicial Review in The Malaysian Court
International journal of academic research in business & social sciences, 2023
Judicial review is the power of court to revise the decision and act of the administrative power and legislative action which had acted in exceeds of their power. However, interpretation of 'exceeding their power' may differ from one case to another to which the courts are given the discretionary power to decide. This leave uncertainty on the interpretation of the judiciary power to review and may lead to the collapse of the rule of check and balance and the concept of good governance. This study aims to examine the principles and approaches adopted in the judicial review process in Malaysia. These concepts and theories serve as the threshold to the cases of judicial review in Malaysia. The study adopts a qualitative method utilising doctrinal and case study. Analysing cases decided by the Malaysian court on Judicial Review forms a major part of the data analysis. The study found that the Malaysian judiciary has made significant efforts to preserve the rule of law, protect the fundamental rights of the people, and uphold the good governance concept through the function of judicial review. The principles of cases involving judicial review in Malaysia have served as a guideline in describing the rules and restrictions that a judge should follow when exercising the judicial review function. The findings of the study may form a summarised development of judicial review in Malaysia that may be referred to by the policymakers, academicians, and future researchers.
The Development of Judicial Review in Malaysia
Administrative law, 2020
A number traditional common law principles of judicial review were departed from in appropriate circumstances. Chief Constable v Evans-The house of Lords ruled that • The Chief Police Officer could exercise the power given to him only after applying natural justice as the deprivation of an office was involved • When an existing tight is sought to be taken away, principles of fairness be applied • Court do not probe into the merits of exercise of discretion • Judicial review is not an appeal from a decision, but a review of the manner in which the decision was made ;or • Judicial review is concerned not with the decision, but with the decision-making process' • (this statement means that the courts do not concern themselves so much with the merits of a discretionary decision as with how the impugned decision has been arrived at and whether there is any flaw in the decision-making process). • Supervisory jurisdiction always lies unless it is expressly taken away • In this case, the court does not probe into the merits of the dispute or substitute its own decision for that of the authority concerned. • The house of Lords firmly said reinstated the Principles of Chief "..in holding that judicial review is concerned not with the decision but the decision-making process..) • As the court often insist, judicial review concerned with the process of decision-making and not the decision itself. • A REVIEW court does not substitute its own decision for that of the original decision-making body .
The rule-of-law, in its simplest form, means a government by law as opposed to a government by men. The principles and values underlying the rule-of-law have percolated the Asian states that have embraced western legal systems. However, state adherence and reinforcement of these principles and values vary from one state to another depending on culture; governance; and the degree of state intervention in the economy. In 1996, Andrew Harding made the following observations: “Malaysia is approaching the problem of democracy from the opposite side of the spectrum from many of its neighbours, having succeeded previously in establishing democracy where other countries had failed. It is therefore to be expected that, in the long term, although perhaps not in the short term, the general trend in the region will be reflected in Malaysia too. If and when this happens, Malaysia will be well placed to advance the rule of law and democracy because it has the benefit of long-established traditions of constitutional government.” This essay will look at the extent to which the Malaysian constitutional system has upheld the principle of the rule-of-law.
The rule of law and executive power in Malaysia : a study of executive supremacy
1994
This thesis is about the conflict between the rule of law and executive power in Malaysia. The study contends, after examining the relevant constitutional and statutory provisions as well as case law, that supremacy of the executive is achieved and maintained within the so-called democratic process since the country achieved merdeka (independence) in 1957. The study endeavours to prove that by taking advantage of emergency, security and public order situations the executive has been able to perpetuate emergency rule even though the basis upon which an emergency is based has long elapsed. Further, it is established that by restricting basic rights under the Constitution, especially those pertaining to speech, assembly and association, the executive has suppressed the development of the rule of law and human rights. Chapter 1 sets out the scope of the study which includes the meaning and scope of the rule of law. This is followed in Chapter 2 by a discussion on the development of the ...
Rule of law in Malaysia: A developmental perspective (extracts)
'Rule of Law in Malaysia' examines the way in which policies aimed at facilitating rapid economic development in Malaysia have helped to shape the structural environment in which the legal system operates. By focusing its analysis on the policies rather than the political actors, the book provides a unique view of how the nature and functioning of the political system in Malaysia has been the main determining factor of how the judicial branch strategically carves its own space for institutional independence within Malaysia's own version of democracy.
Historically, the court has a supervisory role in ensuring the public administration exercises good governance. Therefore, the court has given the authority to determine the legality of the administration's decision through a mechanism known as a judicial review. One contentious issue in dealing with ultra vires decisions is whether the authority has to give a reasoned decision, i.e. the requirement to communicate the justification of its decision. The main crux of this duty is to ensure that the decision is not made arbitrarily. Under common law, the duty is subject to exceptional circumstances. Meanwhile, in Malaysian law, several cases demonstrate the imposition of a duty to make reasoned decisions primarily influenced by judicial activism propounded in the R Rama Chandran case rather than principles in the common law. Therefore, this study aims to analyse Malaysian and English administrative laws concerning the duty to make reasoned decisions and how they influence respective governments.