My Journey into Judicial Review
My entry into Judicial Review was serendipitous rather than planned. It began as a natural progression from representing a company in an Industrial Court matter, where my client was found to have unfairly dismissed an employee. This initial exposure sparked what would become a deep fascination with the law on Judicial Review.
The real learning began when I immersed myself in the cause papers, studying the relevant legal principles and analysing the rich body of case law. My advice to young lawyers and those curious about this area of practice is simple: extensive research is your greatest teacher. The learned judges often provide valuable insights by clearly extracting the parties’ prayers and arguments alongside the legal principles when delivering their judgments. I learned from there. I didn’t have to do any file search. I just read many court judgments from beginning to end.
The Evolution of My Practice
My first ‘genuine’ Judicial Review case involved challenging a decision by a Minister, among other respondents. While this particular case settled amicably before hearing, it marked the beginning of my foray into this practice area.
Essential Elements of a Judicial Review Application
1. Locus and Adverse Effect
Your client, the Applicant, must demonstrate they have been adversely affected by a decision of a public authority, including quasi-public bodies.
2. Time Limitations
The application must be filed within 90 days from the date the decision came to the knowledge of the Applicant. This is a strict deadline that cannot be overlooked. Your client must show proof of when the decision came to their knowledge as this is the starting point of that 90-day period.
3. Two-Stage Process
A Judicial Review application follows a specific procedural path:
- First, an ex-parte application is made;
- If successful, this is followed by a substantive hearing.
4. The Order 53 Statement
This document requires meticulous drafting. It forms the foundation of your case, and the supporting affidavit must align precisely with the statements made here.
5. Crafting the Prayers
The reliefs sought must be carefully considered. The most common and often most effective relief is certiorari, which quashes the impugned decision. It’s advisable to focus on this remedy. Having said that, it doesn’t mean that other reliefs are not relevant. It all depends on the facts of the case and the circumstances affecting the Applicant. Caselaw will assist you in determining the right reliefs.
6. Mandamus Considerations
A prayer for mandamus is only viable when there exists a specific statutory duty that the Respondent is legally bound to perform. In other words, it is an order to compel a public authority to perform a duty it is legally obligated to carry out. Without this legal foundation, such a prayer becomes ineffective and liable to be dismissed.
7. The Ex-Parte Stage; Leave to Judicial Review
The Attorney General typically sends a federal counsel to attend the ex-parte hearing. In most instances, they do not object at this preliminary stage. The threshold for leave to judicial review is rather low. The Applicant only has to show that the matter is suitable for, or, amenable to judicial review.
8. Beyond the Ex-Parte Stage
Successfully navigating the ex-parte application marks the beginning of the more complex phase of litigation. Reading up Order 53 Rules of Court 2012 on the process from one stage to the next is key.
9. The Substantive Hearing
At the substantive hearing, the Applicant must establish the grounds for judicial review, demonstrating that the public authority’s decision was made improperly, irrationally, or in breach of the principles of natural justice. Satisfying these will prove effective in persuading the court.
Concluding Thoughts
Judicial Review represents one of the most intellectually stimulating areas of legal practice, requiring a thorough understanding of administrative law principles, meticulous attention to procedural requirements, and the ability to construct compelling legal arguments. This area of law continues to evolve, making ongoing research and study essential for effective practice.
Pro-tip: When reading law at university, I found administrative law to be a rather dry subject. I suspect that’s because at that tender age, one could not fathom what public authority decisions could affect an individual or entity. However, practice is a different story altogether. It is worth paying attention and reading current cases in the courts to keep abreast of developments in the law of Judicial Review.
Recent cases worth reading:
DATO’ SRI MOHD NAJIB TUN HJ ABD RAZAK v. MENTERI DALAM NEGERI & ORS [2025] 7 CLJ 63 [COA]
THE ATTORNEY GENERAL OF MALAYSIA v. DATO’ SRI MOHD NAJIB TUN HJ ABDUL RAZAK [2025] 8 CLJ 951 [FC]
How do you view the court’s role in reviewing decisions made by public authorities?