[2013] 3 AMR 315; [2013] 2 MLJ 321; [2013] 2 CLJ 1009

Federal Court – Civil Appeal No. 01-9-04-2012(W)
Raus Sharif PCA, Zulkefli Ahmad Makinudin CJ (Malaya), Hashim Yusoff, Suriyadi Halim Omar, Ahmad Maarop FCJJ

January 16, 2013

Context

In Dr Michael Jeyakumar Devaraj v. Peguam Negara Malaysia,1 the applicant had in his capacity as the Member of Parliament for Sungai Siput challenged the refusal to allocate him public monies from the Federal Government’s “Special Constituency Allocation” (SCA). He had earlier applied for funds to undertake projects and activities to support survivors of natural disasters and vulnerable communities, and to improve schools, in his constituency.

Jeyakumar contended, among others, that he was being denied the funds because he was an Opposition Member of Parliament. Politicians from the ruling Barisan Nasional (BN) coalition had on occasions publicly stated that the SCA was only available for the use of BN Members of Parliament and their constituencies. Jeyakumar alleged that the refusal to grant him the funds was arbitrary and discriminatory, thereby violating Article 8(1) of the Federal Constitution.

The Attorney General (AG) objected to the application for leave to commence judicial review proceedings on the basis that the disbursement of funds under the SCA was not justiciable as it involved “policy considerations” and “prerogatives of management”.

The High Court granted leave to Jeyakumar, and held that the mere assertions of “policy considerations” and “prerogatives of management” were insufficient because evidence was required to support the assertions. It was therefore a case fit for further consideration at a full hearing of the judicial review. 

The Court of Appeal allowed the AG’s appeal and held as follows:2

[35] In our view, and as implied in the Notice of Motion, there can be no doubt that the approval and disbursement of the fund involves an exercise of discretion. The DG and/or the Director must evaluate the applications for the Allocation. These applications can only be decided by the DG and/or the Director in line with policy considerations and management prerogative. The factual background did show that the appellants had approved the respondent’s application amounting to RM1.72 million, while other applications are being given consideration. The Director has given practical suggestions to the respondent to channel relevant applications to relevant Government agencies. In the process of evaluation, the DG and/or the Director must comprehensively balance and safeguard the disbursement of the Allocation, consistent with Government policy and guidelines. Our Courts do not possess the knowledge of policy considerations that underlie the decisions pursuant to the DG and/or the Director’s evaluation.

Dissatisfied, Jeyakumar applied to the Federal Court for leave to appeal against the Court of Appeal’s decision. Leave was granted on the following questions:

  •  Whether an allegation that the decision or exercise of discretion sought to be reviewed under judicial review is based on policy consideration or management prerogative ought to be determined on an application for leave for judicial review, or whether the issue ought to be determined by the court after hearing all the evidence at the substantive motion for judicial review.
  • Whether a decision that is alleged to be based on policy consideration or management prerogative (“non-statutory discretion”) is ex facie non-justiciable, or whether the justiciability of such a decision is dependent on the existence, nature and extent of the non-statutory discretion and on the particulars facts of each case.

The Federal Court’s decision

The Federal Court affirmed the Court of Appeal’s decision and dismissed Jeyakumar’s appeal. Raus Sharif PCA (as his Lordship then was) delivered the court’s judgment. 

In relation to the first question, the Federal Court held that the decision or exercise of discretion under review based on policy considerations or prerogatives of management may be determined at the leave stage of a judicial review. In relation to the second question, the court held that the justiciability of the decision under review depends on the particular facts of the case.

Interestingly, the court made the following statement:3

[21] Of course, in appropriate cases the courts as the custodian of law and justice must not remain idle. Where the policy or action of the executive is inconsistent with the Constitution and the law or in any manner arbitrary, irrational or there are elements of mala fides and abuse of power, the court is duty bound to interfere. Whether or not the court should interfere clearly depends on the facts and circumstances of each case.

This statement is significant because it reasserted the usual substantive heads of judicial review in a court’s examination of the Executive’s conduct and policies. 

Commentary

However, it is unclear why these considerations were said to be ousted only on the mere ipse dixit of the AG that decisions regarding the disbursement of funds under the SCA were policy matters. Jeyakumar had alleged that the funds were being disbursed in an irrational and unreasonable way, and that there were elements of discrimination against him because of his political affiliation. As such, the refusal to grant him the funds constituted a violation of Article 8(1) of the Federal Constitution which guarantees that all persons are equal before the law and are entitled to the equal protection of the law. Having been established as “the humanising and all pervading provision” which seeks to ensure that legislative, administrative and judicial actions are objectively fair,4 the Article 8(1) issue should have been more fully explored by the court.

From the perspective of first principles, the useful illustrative guidelines set out in Public Prosecutor v. Datuk Harun bin Haji Idris & Ors5 should have been considered. Article 8(1) can be invoked not only against laws but also against the Executive’s orders which are discriminatory. Second, it can be invoked not only against substantive provisions of the laws but also against discriminatory rules of procedure. Third, guidance is essential to the Executive for the exercise of discretionary power. Unrestrained power of selection without a guiding policy offends Article 8(1). Fourth, the bona fide application of discriminatory laws is immaterial.

At the heart of Jeyakumar’s complaint is that the funds under the SCA were more accessible by certain constituencies compared to others. He alleged discrimination. In assessing the allegation, it is noted that Article 8(1) does not prohibit all forms of discrimination as long as there is a “reasonable classification founded on intelligible differentia having a rational relation or nexus with the policy or object sought to be achieved” by the particular law or order in question. At the prima facie stage of judicial review, is “political affiliation” an acceptable element in the disbursement of public funds under the Harun Idris guidelines? We suggest that discrimination on the grounds of political affiliation would fall foul of the “reasonable classification” requirement.6 If so, leave should have been granted for a more meticulous examination of the merits of the complaint.

Further, the principle of non-justiciability of certain matters is not controversial. Granted that there are matters such as proceedings in Parliament7 or foreign policy8 which have been recognised as beyond the competencies of the courts, Jeyakumar’s case was different. In handling a complaint of disproportionate treatment, the court would primarily scrutinise the “how” of the treatment. An approach would be to ask for the internal rules, regulations or procedures governing the decision-making process regarding the disbursement of funds under the SCA. The Government would then need to file an affidavit to explain and justify its process. The court would look into whether the process was correctly followed, or if there were any other matters that influenced the process, in the decision to refuse the funds to Jeyakumar.

The court is well-equipped to handle matters of process. Should there be evidence of discriminatory or arbitrary action, the court does not necessarily need to allocate the funds but only to order the Government to review its policies or procedures. In cases involving economic, social and cultural rights, the usual orders have been to direct governments to take into account relevant considerations – that were not earlier considered – in undertaking a second look at their impugned policies or procedures.9 Similarly, should there be a violative gap in how the funds under the SCA were being disbursed, the court could have directed the Government to devise better disbursement policies and procedures, and thereafter to report the same to the court for further evaluation for constitutional consistency. The court’s power in judicial review is wide and untrammelled. 

Conclusion

Jeyakumar was a case of public importance. The Federal Court missed the opportunity to apply and expand the application of Article 8(1) in relation to the allocation of resources within the context of Malaysia’s political structure. It is disconcerting that the mere assertion that a decision is based on policy considerations is sufficient to discharge the burden of proof, making it beyond the reach of the Judiciary. 

Subsequent decisions by the Malaysian courts have applied Jeyakumar in a limited fashion.10 Most of the cases have cited Jeyakumar only for the general principles of judicial review and the applicable test at the leave stage. These issues are settled.

Hopefully, there will be another case for the Federal Court to revisit Jeyakumar. The case has seemed to buck the trend in Malaysia and across the Commonwealth of courts increasing the quality and intensity of judicial reviews of governmental actions. Today, the Judiciary no longer declines jurisdiction readily, or defers to the Executive easily, in matters involving fundamental liberties and human rights.

1 [2013] 3 AMR 315; [2013] 2 MLJ 321; [2013] 2 CLJ 1009.

2 [2012] 1 MLRA 157 at 166.

3 [2013] 3 AMR 315; [2013] 2 MLJ 321; [2013] 2 CLJ 1009.

4 See for example Lee Kwan Woh v. PP [2010] 2 AMR 231; [2009] 2 MLRA 286.

5 [1976] 2 MLJ 116.

6 See also Dainik Sambad & Anor v. State of Tripura & Ors AIR 1989 Gau 30 and Roncarelly v. Duplessis [1962] 1 DLR 680.

7 Fan Yew Teng v. Government of Malaysia [1976] 2 MLJ 262.

8 Prabagaran a/l Srivijayan & Anor v. Minister of Foreign Affairs & Anor [2017] 8 AMR 278.

9 See for example Government of the Republic of South Africa & Ors v. Irene Grootboom & Ors [2000] ZACC 19 regarding housing policies and South African Minister of Health & Ors v. Treatment Action Campaign & Ors (No. 2) [2002] ZACC15 regarding health care services.

10 See for example Sahari bin Basri & Anor v. Kerajaan Negeri Selangor & Ors [2014] 10 MLJ 270; MKini Dotcom Sdn Bhd v. Chief Judge of Malaya & Ors [2015] AMEJ 1416; [2016] 8 MLJ 357; Datuk Mohd Zaid Ibrahim v. Peguam Negara Malaysia [2017] 3 AMR 561; [2017] 9 MLJ 502; Khairuddin bin Abu Hassan v. Tan Sri Mohamed Apandi Ali [2017] 3 AMR 596; [2017] 9 MLJ 441; Suruhanjaya Pencegah Rasuah Malaysia & Ors v. Latheefa Beebi Koya & Anor [2017] 6 AMR 205; [2017] 5 MLJ 349.

This commentary appeared in Legally Discerning: Selected Judgments of Tun Raus Sharif With Commentaries (2018) published by the Chief Registrar’s Office, Federal Court and Thomson Reuters (pp. 207-212).