Judicial Review

Judicial review, in general is concerned with legality of the decision-making process

of the executive (government) and not with the merits of the decision made. The application
concerns on matter of review, no appeal. The court will not substitute its decision but will
only review the legality. Certain conditions must be fulfilled for one to seek leave for judicial
review. There are three grounds for judicial review, namely illegality, unreasonableness or
irrationality and procedural impropriety. The purpose of a certiorari is to inspect the
proceedings and determine whether there have been any irregularities.

Certiorari

In Administrative law, there are two types of common law remedies namely private
law remedies and public law remedies. In this instant case, a public law remedy is much more
connected. Public law remedies are such as habeas corpus, certiorari, prohibition and
mandamus.

An application for a judicial review is governed by Order 53 of The Rules of High

Court, 1980. The writ of certiorari is to ensure that the jurisdiction of the inferior tribunal
should be properly exercised1. In the case of Re Haji Sazali, a certiorari is an order exercise
by the High Court in its supervisory jurisdiction over inferior tribunals or public authorities.
It includes a magistrates order for detention. In Malaysia, an order for certiorari is obtained
by an order of court pursuant to Order 53 of The Rules of High Court, 1980. Certiorari, Latin
for quashing order is a retrospective order that brings a decision made by the authority before
the court and prays for such decision be quashed. The object is to keep the exercise of
powers by judicial and quasi-judicial tribunals within the limits of their jurisdiction assigned
to them by law and to restrain them from acting in excess of their authority and if necessary
to quash their decisions. Generally the existence of an alternative remedy is not a bar to
obtain an order for certiorari when the inferior tribunals has purportedly acted without
jurisdiction or in excess of jurisdiction.

In order for Dr Firdaus to obtain an order for certiorari, a leave of court must first be
obtained and it must be done within 6 weeks after the date of the proceedings or time
prescribed by any written law or the delay must be accounted for to the satisfaction of the
1
Order 53 Rule 2(4) of the Rules of Court 2012
court. Certiorari must be supported by an affidavit. The ROS had rejected the application
made by Dr Firdaus on the grounds that it is for the safety of the nation. However, Dr Firdaus
may make an application through a certiorari to quash the decision made by the ROS as the
reason given was irrational and illegal.

In the case of Associated Provincial Picture Houses v Wednesbury Corporation 2, it

was held by Lord Greene MR that the Court may intervene in judicial review only if the
Court could conclude that unreasonable if it is so unreasonable that no reasonable person
acting reasonably could have made it. It is a stricter test than merely showing the decision
was unreasonable. It must be so unreasonable that it can be described as irrational.
Furthermore, it is applied in the case of Council of Civil Service Unions v Minister for the
Civil Service3 explains the standard of unreasonableness that is to be applied whereby Lord
Diplock explained that "irrationality" may be referred to as "Wednesbury unreasonableness"
that the decision is so outrageous that no sensible person who had applied to his mind to the
question to be decided could have arrived at it. So therefore, the ROS should have given
proper and reasonable reasons as to the decision made by them. If there is no reasons given
then it is in the trite law to say that the ROS had no good reasons to reject the application
made by Dr Firdaus.

In applying to the present case, a writ of certiorari should be granted in order to quash
the decision made by the ROS in rejecting the applicants application of registering an
organization called Parti Mesti Dapat Balik. There was failure on the part of ROS to verify
the fact that the Parti MDB would cause any harm or threats to the nation. Therefore, the
decision made by the ROS should be quashed as the rejection was unreasonable.

2
[1948] 1 KB 223

3
[1984] 3 All ER 935