How to take Malaysia's government to court if they mess up?

This article was written for the dilemma that the TTDI residents faced but it can also be used for the residents of Penang as they are currently in the midst of appealing the development plan for four 40 storeys tall apartment blocks after the recent Tanjung Bungah landslide. The cause of the landslide is still under investigation. 

Have you ever been mad at the Malaysian government for something? Maybe you were mad over the unfixed, months-old potholes that loiter the road outside your house. Or maybe you were mad that a government department rejected your application for no reason. Or you were mad because you felt like they exceeded the powers that were given to them, like in the case of Lina Joy who contested that the National Registration Department had no power to question whether or not she has been confirmed to have left Islam by the Syariah courts. 

Or maybe you were mad because the government decided to build houses in your favorite park. 

The residents of Taman Tun Dr Ismail have recently brought a case against the Mayor of Kuala Lumpur and DBKL for their proposed housing development project in Taman Rimba Kiara. Basically, what the residents of TTDI are protesting is the fact that DBKL has approved the development plan to build not only about 1,800 units of apartments but also a whole bunch of new highways. The Federal Territories Minister, Tengku Adnan has stated, earlier on in May, that the project would go on regardless of any protests. The residents are pretty upset because apparently the proposed developments would cut into a huge part of the existing Taman Rimba Kiara and it goes against the initial plans in DBKL’s 2020 plan. 

We managed to speak to some residents from TTDI and they told us that they have decided to take the issue to court. Leon Koay explains to us why they chose to do so:

”This action is for the public park, which is open for the enjoyment of everyone. It is symbolic of the challenge to make life liveable, in the middle of our bustling city. It is about preserving the carefully cultivated flora and the rare species of fauna that chose to make Taman Rimba Kiara their home, such as the wild hornbills.” – Leon Koay, Committee Coordinator, Save Taman Rimba Kiara Working Group and 14-year TTDI resident.

The action that they have decided to take is called a judicial review action. If you are wondering what is exactly is this judicial review and the superpowers it has to hold the government responsible, keep on reading. We do have to warn you that the process for judicial review is complicated and this article would be a long one. So, you might want to grab some cookies before you tackle this. 

What you need to know first is that the government is actually divided into three branches

Eh wait. What do you mean divided into three? Isn’t it just made up of the government and the opposition? Well, yes. Members of the ruling government party and the opposition party do make up the government but the government that we view as single entity is actually divided into three different branches of government. 

The three branches are the executive, the legislature, and the judiciary. Basically the executive arm carries out and administers laws which are passed by the legislature. The executive in Malaysia consists of members of the Cabinet, led by the Prime Minister and the Council of Rulers, including the Yang di-Pertuan Agong. 

On the other hand, the legislature is in charge of passing laws in Malaysia and consist of the two Houses in Parliament, the Dewan Rakyat (House of Representatives) and Dewan Negara (Senate). The judiciary, on the other hand, is meant to interpret the law and uphold the rule of law (this is a very abstract concept with many different theories but the rule of law, in its simplest form, means to uphold justice). 

The reason why there are three branches of government is to ensure the separation of powers. This means that the existence of the three branches of government is meant to ensure that no one person or body ever has the absolute power to do anything (because that would lead to an tyrannical system). However, because the separation of powers is not perfect (for example, members of the legislature also sit in the executive), there exists a system of checks and balances. This is where judicial review comes in. 

Judicial review is the process where the judiciary checks on the legality of the government’s (executive) actions. This means that the courts will not look at the reasons why the government acted in that way but they would only look at whether the decision-making process was done in a legal way. Judicial review is different from appealing your case because you actually have to satisfy certain requirements and adhere to proper procedures before you are able to bring a judicial review case. 

The first thing you need to know about a judicial review is…

There is a particular way to bring a judicial review action

The rules governing how a judicial review action can be brought are numerous but we will deal with this briefly just to give you guys a general idea. Order 53 of the Rules of Court 2012 governs applications for judicial reviews. Basically, among other things, in order to proceed with a judicial review application, you need to first gain leave (permission) from the High Court. 

The application for judicial review must also be brought within 3 months from the date you first had reason to bring a judicial review action (Order 53, Rule 3(6)). 

The part which we want to focus on can be found in Order 53, Rule 2(4):

“Any person who is adversely affected by the decision of any public authority shall be entitled to make the application.”

Er. What does adversely affected mean? Does this mean that if you got a shock from watching your neighbour crash his car into the other neighbour’s house, would you be “adversely affected”? Not really, but to explain this, we need to look at something called a locus standi.

You must have a “standing” to bring an action

Locus standi is not a fancy word for locusts nor is it a word to describe how to get a new stand (this writer is fresh out of good jokes due to sleep deprivation). In its simplest form, locus standi means the right to bring a case or an action. If you are confused because you think that everyone has the right to access the court system, you are NOT wrong. Everyone has the right to access the court system but locus standi is meant to ensure that the system is not abused through claims brought in by people who have no interest in the case. 

For an example of how locus standi works, imagine this scenario. If you decided to bring a case against your neighbour for crashing his car against another neighbour’s house, you would most definitely get your case thrown out of court simply because you have no interest in the matter (it was not your car or your house).

But how do you know if you have legal standing to bring the case against the government when generally, the government’s decisions affect everyone?

This is where the Federal Court case of Malaysian Trade Union Congress & 13 Ors v Menteri Tenaga, Air dan Komunikasi & Anor (which is actually a major groundbreaking case in Malaysia but we won’t bore you with legal history) needs to be looked at. To state the facts of the case briefly, the case was brought by the Malaysian Trade Union Congress (“MTUC”) after their request for SYABAS’ documents concerning the increase in water tariffs was rejected by the Minister in charge. 

The Federal Court (which is essentially the Yoda of Malaysian Courts) then decided that in order to pass the “adversely affected” test, you would have to prove that you have a real and genuine interest in the subject matter. Okay. We are aware that we just replaced one weird English phrase with another longer weird lawyer speak. What “real and genuine interest” basically means is that all you have to prove to the courts is that the matter relates to you in some way. For example, if the government declares that all motorcycle riders cannot be on the road during peak hours, the decision affects all motorcyclists and if you are a motorcyclist, you would have a real and genuine interest in such a ruling. 

Assuming you have the locus standi (impress your friends with this Latin phrase), now you have to decide which grounds of judicial review you would want to take an action under. 

Basically, the government cannot be too “over” in what they do

As mentioned above, judicial review is looking at the legality of the government’s actions but not the reason why they came to that decision in the first place. With this being said, basically judicial review steps in when the government has, for the ease of explanation, gone bonkers in their actions. This is why there are four grounds for judicial review. They are:

This is where the government’s actions breaks the law, such as the Federal Constitution or the any Acts of Parliament. For example, the new Insolvency Act 1967 states you can be discharged from bankruptcy after 3 years if you fulfil the two requirements. So, if the Director General of Insolvency refuses to release you from bankruptcy even after you have fulfilled the two requirements, then you might have a ground for judicial review. 

[READ MORE: 5 new changes to Malaysia’s bankruptcy laws that makes it harder for you to become a bankrupt]

This ground came from the UK case of Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] and was reiterated in another famous case, Council for Civil Service Unions v Minister for Civil Service, where the judge essentially stated that irrationality can be relied on when the government has acted in a way that makes even your local kopitiam uncle recoil in horror because it just doesn’t make sense. Lord Diplock puts it in a nicer way than we do (ah, the English gentleman):

“So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” – Lord Diplock, Council for Civil Service Unions v Minister for Civil Service

An example of an unreasonable decision given by the courts include where a red-haired teacher is fired for having red hair. 

This is where the government’s decision-making process was tainted with unfairness or that it breached the principles of natural justice (this basically means the rule against bias – nemo judex in causa sua and the right to a fair hearing – audi alteram partem). 

An example of this would be where a government official decides to award a tender to their family member purely because they are related and not based on the proper procedures set out by the government such as opening up the tender process to the public. 

Proportionality is basically where the government is not allowed to take extreme methods in carrying out and administering the law. For example, if you are caught disseminating insults about our Yang di-Pertuan Agong, the government would probably have the right to seize your electronics to assist in their investigation but they are probably not allowed to seize your entire house. 

If you succeed in your claim, you can stick it to the man

We don’t mean that you get to march up to Parliament when they are in session and literally uh, throw a stick at the minister (Please don’t). What we mean is that a successful judicial review action will get awarded with remedies that are meant to rectify the situation at hand. This is unlike normal civil suits such as breach of contract where you would usually get a remedy of damages (such as monetary compensation).

The remedies that can be awarded are as follows:

A declaration is basically where the court just declares what rights each party has. This is one of the simpler forms of remedies that the court can award as it technically has no force of application. It would not change the government’s decision unlike the other remedies but it clarifies the position of each party and hopes that the parties involved would act in accordance with their rights and not exceed them. 

Basically, this is where the court states what the law is and it is done with the belief that the government would not act in a manner that goes against the law.

It like you going to your dad because your brother stole your toy car and he just “declares” that the toy car is yours but he doesn’t ask your brother to give it back to you (maybe he just evil eyes your brother until he hands your toy car back but doesn’t demand it from him). 

Ignoring the fancy Latin, to quash something basically means to invalidate the government’s decision (this writer remembers it by equating “quashing” to “squashing” – the court “squashes” the government’s decision and the government can no longer act that way). 

Once a decision has been squashed quashed, the matter would basically go back to the relevant authority for them to decide on the matter again (this time, in accordance with the law). Coincidentally, this is what the TTDI residents are seeking for in relation to the proposed development of Taman Rimba Kiara as DBKL has issued a development order for the park in question. 

An example of this is where you ask your aunt if you can catch a midnight screening of Kingsman 2 and she says yes but your parents find out and drag you home. Your parents’ decision has invalidated your aunt’s.

This order is used when the government was supposed to do something but they failed to do it. For example, if they were supposed to gazette a certain law but failed to do so, an order of mandamus would compel them to do it. 

Basically, this order is meant to make the government carry out the duties they were supposed to.

To put it into every day context, an order of mandamus is like a mother tearing her children a new one for failing to complete their household chores. The mother’s rage (order of mandamus) compels the children (government) to complete their chores (government’s duty). 

An order of prohibition is basically an order that stops the government from doing something. It is like its name states; it prohibits the government from acting in the way that resulted in a judicial review.

It is essentially you playing games until the crack of dawn every day and when your parents find out about it, you get a whooping prohibited from playing until the sun rises.

This is an order to force the government to show their authority for doing what they are doing. So, if the government alleges that some law or some order from the Yang di-Pertuan Agong allowed them to act in a certain way, they must produce this piece of document conferring authority.

It is like you hotly demanding that someone else took your seat in the cinema and they produce their ticket to prove their “authority” for being there. You then have to slink away in shame.

Does this mean that I can bring an action for whenever I want?

Well, if you feel that the government has acted in a way that allows you a ground for judicial review and that you have locus standi, you can always engage a lawyer to start the proceedings for you. However, the process for judicial review can be long and tedious as there are many hurdles to overcome. So, it might be best for you to attempt other methods of resolution first. 

The residents of TTDI only decided on a judicial review action because they felt like they have no other avenues. Further, if you think that a judicial review action can only be brought by the rich (because you have the perception that TTDI is full of bigwigs that can’t be messed with), some of the residents of TTDI told us why they were bringing this action in the first place:

”When we used to talk about “balik kampung”, we used to talk about going home to other states but for our children, when they speak of “balik kampung”, it is right here in TTDI. This action has been called politically motivated but we are not associated with any politicians. It is an action by the community, for the community. TTDI is our home and we wish to ensure that any developments that are carried out are done so in a responsible manner. And taking an already designated public park to make way for a condominium development is a very irresponsible thing to do.” – Abdul Hafiz Abu Bakar, Chairman, Taman Tun Dr Ismail Residents’ Association and 30-year TTDI resident.

So, there you have it, folks. The governance in Malaysia consists of a system of checks and balances to ensure that everyone acts responsibly because, as Spiderman’s uncle famously said, “With great power comes great responsibility”.