OCTOBER 29 ― The expression judicial review simply means the court exercises its supervisory jurisdiction to see that the public authorities do not act outside the remit of their powers.
An application for judicial review is to review the decision and action that was made by public bodies. Hence, the essential element giving rise to the exercise of the supervisory jurisdiction of the court is the public element, which takes many different forms.
This functions as a check and balance between the executive and the legislative action, in ensuring the public bodies act within the permissible law.
Judicial review is by a way of application that is provided under Order 53 of the Rules of Court 2012.
An application for judicial review is a two-stage process. First a leave must be obtain, and if it is granted then the court will hear the applicant’s claim on merits.
However, whether a non-statutory or prerogative power can be challenged depends on the subject matter of the non-prerogative power which is exercised.
As to what prerogatives are or ought not, to be subject to review, Lord Roskill, in the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, referred to the following as a non-justiciable category:
• relating to the making of treaties;
• the defence of the realm;
• the dissolution of Parliament;
• the appointment of ministers;
• the grant of honours; and
• the exercise of prerogative mercy.
This is because the nature and subject matter are such as not amenable to the judicial process.
Non-justiciable means, the court cannot hear such matter. The declaration sought cannot be heard in a court of law.
Having said that, the application of judicial review by the incumbent members of Parliament on the dissolution of the Parliament that took place on October 10, 2022, was non-justiciable and it was issue to be considered under the executive and legislative sphere. The Yang di-Pertuan Agong, has the ultimate power to consent or reject the request of the prime minister for the dissolution of Parliament.
* This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.
