1. Historical perspective of the current Order 53, Rules of Court 2012

-historical genesis

- UK Order 53, Rules of the Supreme Court 1965

- originally used to review the decision-making process

-of the administrators in the context of Wednesbury/CCSU review

- a common law perspective

- originally legislated in 1980

- 2 amendments: a) yr 2000, b) 2012

- in yr 2000

- s. Africa enacted PAJA 2000

- UK replaced Order 53 with Part 54, CPR

2. Order 53, Rule 1 (1 ） : Incorporating Constitutional Review into Order 53

- inclusion of Para 1, Schedule to the Courts of Judicature Act into this rule

- Para 1 is adopted from Art 226 Indian Constitution

- confers the additional powers of judicial review on the HC

-Order 53, a legacy of British law on judicial review

- regarding Wednesbury/CCSU review

- challenging the decision-making process of the administrators

-on the grounds of illegality, irrationality and procedural impropriety

- 2 different regimes on judicial review:- a) CCSU review reviewing the decision-making

process of the authority/govt, x go into the merits of the decision; b) Para 1, CJA deals with

constitutional review whenever a fundamental right is alleged to have been adversely affected

by an individual

Constitutional review

- India, art 32, fundamental right adversely affected can go directly to the Indian Supreme

Court

-s. Africa, Rule 18 of the Constitutional Court Rules allows the direct access to the

Constitutional Court for anyone who wants to enforce his or her fundamental rights

-Para 1, CJA houses our right to access to the High Court to enforce our fundamental rights

- genesis- art 226 of Indian Constitution

-in Malaysia, important provision should be housed in the Federal Constitution, x in the CJA

3. Order 53, Rule 1(2): Turning the clock back?

- this rule provided that Order 53 subjected to Chapter VIII of Part 2 of the Specific Relief

Act

- antiquated Act based on Indian Act

-enacted in the yr 1877

- S 49 of the Malaysian Specific Relief Act: neither the HC or any other courts in Malaysia

shall issue a mandamus

-in direct conflict of the PARA 1, CJA where the powers of the HC

-include writs of the nature of mandamus

- Para 1 based on Art 226 of the Indian Constitution

- hence, Para 1 shoul prevail over the antiquated Specific Relief Act

- rule 1(2) should never be invoked

-certain provisions in SRA like S49 should be repealed

- rule 1(2) should be amended to exclude SRA

4. Order 53, Rule 2(3) and Rule 5

- allow any monetary compensationand damages to be awarded by the court to the applicant

- should include exemplary or aggravated damages

- courts were to interpret Para 1 broadly and liberally

-the reviewing court is empowered to mould any relief in favour of the applicant

-ex gratia payment, interim relief

-see Rama Chandran and Sagong Tasi cases

5. Order 53, Rule 2(4): Restraining locus standi

- locus standi rule

-applicant to file his/her judicial review application in the HC

- any person.........adversely affected.......

-public interest litigation is ousted by this phrase

- if a person is x adversely affected,

-there is no locus standi for that person even though it might be an NGO or any other party

- vindicate the rule of law

- or act on behalf for the person whose fundamental right is adversely affected by an

administrative action or decision

- Lim Kit Siang v UEM

- Public Interest Litigation should be an inherent feature of the law

- relating to judicial review in any jurisdiction

- that upholds the rule of law

- in s. Africa, S 38 of the s. African Constitution

-provides that any person may approach the courts to enforce

- his fundamental rights

- x only the affected person

-but also anyone who acts on behalf of another person

- or acting in the public interest or an association vindicating the rule of law

- means any party may approach the court in the name of public interest litigation

- in India, broad interpretation of Art226 and Art 32 of the Indian Constitution

- in the matter of enforcing fundamental rights

- legal applications may be filed pro bono publico

- locus standi is liberally construed

- urgent cases

- writ petitions go directly to SC for enforcing fundamental rights under Art 32

-PIL very much alive in India

- judicial activism by the judges can be seen in a number of cases like George Mampilly,

Janamohan Das, Ganga Water Pollution, Taj Mahal, Mukti Morcha

- the courts exercise epistolary jurisdictions in appropriate cases

- in practice, the words “adversely affected” replaced by “sufficient interest”

- “public duty” replaced by “any authority” or “person”

- giant biz companies are so powerful that

- they can do anything in name of development including blatant violations of human rights

with impunity

- Foxconn, Mc Morran, Freeport

6. Order 53, Rule 3: Leave of the court

- meant originally for Wednesbury/CCSU applications

- in Wednesbury/CCSU review, when challenging the decision-making process of govt

- validity of the decision-making process on the grounds of illegality, irrationality, and

procedural impropriety

- leave is needed

- constitutional review: to challenge decisions or actions by the authority in violation of

fundamental rights

- art 5 to art 13 in Part II of the Fed constitution

- implied in all these provisions

- a guarantee of access to justice before the High Court

- this guarantee exists in many countries

- with a constitution

- india: art 32 and 226

- Hong Kong: art 39

- under S 44(4）

- HC exercise its discretion not to grant relief in relation to an application or referral made

under this section

- if it considers that an adequate alternative remedy is available to the person concerned

- India, Art 32 and 226

- confer and guarantee protection of fundamental human rights

-courts take a liberal approach when interpreting the fundamental rights

- all the restrictions that limit or derogate fr a guaranteed right must be read restrictively as

stated in Lee Kwan Woh

- leave requirement may be waived in enforcing fundamental human rights

-guaranteed by the Fed Constitution

7. Order 53, Rule 3(6): Time Bar

- infamous limitation period

-has 90 days to apply for judicial review fr the date when the decision was made

- too restricted

- in s. Africa, under PAJA 2000, application for judicial review made within 180 days

- 180 days lapses, can still seek judicial review with the discretion of the courts

- in the interest of justice

- under Rule 3(7)

-the court may use its jurisdiction to extend the time for good reasons

- cases involving PIL, the Rule 3(7) should be interpreted liberally in favour of the applicants

8. The forward march of the law in other common law jurisdictions

- the forward march of the law on judicial review

- should inspire and prompt review or changes

- in other common law jurisdictions

- indian and s. African law on judicial is progressive and inspiring

- separate rules/laws in governing each stream of judicial review

- ie CCSU on reviewing the decision-making and constitutional review in reviewing violation

of fundamental rights

- s. Africa, CCSU review is incorporated in PAJA 2000

- legislated under S33(3) SAF constitution

- S33 provides that everyone has the right to administrative action that is “lawful, reasonable

and procedurally fair”

- constitutional review: provided in the Rules Of The Constitutional Court read with S 38 of

the SAF Constitution

- in Malaysia, unfortunately and strangely

- 2 different streams are merged into Order 53 Rules of High Court 2012, since 2000

- order 53 had undergone 2 amendments since 1980- 2000 and 2012

- constitutional review cannot and should not be restrained by Order 53

- lead to constitutional disaster- Teoh Beng Hock death inquest

- Lingam Gate imbroglio

- legislators separate the 2 streams

- guided and inspired by countries like India, S. Africa, HK, and Fiji

9. PIL

- serious attempts must be made to revive PIL like in India and S. Africa

- MTUC case is interesting in terms of locus standi for PIL

-In MTUC, the court after considering the whole legal and factual context of the

application especially the fact that this is a public interest litigation, decided that MTUC

had shown that it had a real and genuine interest in the two documents. Hence, MTUC

was adversely affected by the Minister's decision.

- PIL the real pulse of FR

- rule of law will be paralysed if no public spirited taxpayer or NGO

- come forward to vindicate the rule of law on behalf of public interest

- the vibrant law on PIL in India and S. Africa is most inspiring to advocate the rule of

law

- Vishaka: india- sexual harassment of women

- Grootboom- s.africa- right to housing of the hardcore poor

10. Reforms of the law

- review and reform the procedural law on judicial and constitutional review

- move things forward like what happened in S. Africa and Fiji

- even HK Basic Law, came into force in 1997, fared far better than the Malaysian Public

Law