If you are affected by a public body’s “decision” (which is final & binding in nature), you are no doubt in a position to mount a challenge in Court – this is, of course, uncontroversial.
But what’s interesting in the realm of Malaysian administrative law is whether a “proposed decision”, “recommendation” or any matter which has yet to be crystallised into a “decision” can be reviewed in Court.
The Grab-MyCC Case
This conundrum was explored recently by the Kuala Lumpur High Court in Grab’s suit against the Competition Competition (MyCC). Essentially, Grab attempted to quash MyCC’s imposition of a “proposed decision” on 3rd October 2019 to fine Grab RM86.77 million for alleged abuse of dominant position (by imposing restrictive clauses on its drivers relating to the transit media advertising market). The “proposed decision” includes a penalty of RM15,000 per day onwards.
A “proposed decision” is a mechanism which is present and allowed for under the Competition Act 2010. Following a “proposed decision”, parties would be invited to submit oral and written representations to MyCC. After considering such representations, MyCC would then arrive at a final “decision”. This is an unusual 2-stage process which can rarely be found in other legislations.
Whilst the written grounds of judgment are not available yet, from media reports it appears that the High Court held that there was no final “decision” yet and therefore Grab’s suit was premature. The High Court consequently dismissed Grab’s suit. It is also reported that Grab intends to appeal such decision to the Court of Appeal.
Judgments in the nature of the Grab-MyCC case are common in Malaysia. Our Judiciary has rarely been zealous in interfering with public bodies unless a concrete “decision” has been reached. There is in fact a whole body of case law where Malaysian Courts have declined to intervene in the Election Commission’s recommendations on boundary delimitation purportedly because a final “decision” would only be made by Parliament.
Nonetheless, 2 observations are worth noting:
The Evolution of the Rules of Court 2012 in Expanding the Scope of Judicial Review
First, under the old Rules of Court 1980, only a “decision” can be challenged in Court. However, the revised Rules of Court 2012 is much wider in scope by also allowing “actions” and “omission” (instead of merely a “decision”) of public bodies to be challenged by judicial review.
The intention of the Statutory Rules Committees for the High Court and the Subordinate Courts in 2012 (chaired by the former Chief Justice, Tun Ariffin Zakaria) to include the words “action or omission” in the new Order 53 can be deduced from the White Book (the Editor-in-Chief being the former Chief Justice, Tun Ariffin Zakaria):
“Decision, action or omission – The ambit of reviewable decisions is much wider compared to the previous position and covers a range of actions taken pursuant to the exercise of public law powers which affect private rights or legitimate expectations…The present r2(4) covers action or omission in relation to the exercise of public duty or function of a public authority compared to the previous r2(4) which only covered decision of a public authority.
Rule 2(4) must not be read in isolation but contextually, together with r 3(6); there need not always be an actual decision”
It is certainly arguable that MyCC’s “proposed decision” – coupled with a relatively heavy penalty of RM15,000 a day – amounts to an “action” by a public body under the Rules of Court 2012, and is hence reviewable by the Courts.
The UK Position on Reviewability of “Preliminary Decisions” & “Recommendations”
Second, in several common law countries such as the UK, the Courts have adopted a more liberal approach in allowing preliminary decisions to be challenged in Court.
The UK position is reflected in the authoritative textbook of Judicial Remedies in Public Law by Sir Clive Lewis at page 144:
“Decisions may not be conclusive binding determinations, but simply one stage in a whole decision-making process leading up to a final decision. Such a preliminary decision will still be reviewable to ensure that it is a lawful exercise of discretion and that relevant procedural requirements, if any, have been observed. A decision of one body may be subject to confirmation by another body and may not take effect until confirmed, but it is still reviewable.
One body may submit proposals to another body for approval, as in the case of education where local authority proposals to close schools need to be approved by the Secretary of State. Judicial review may be used to challenge either the lawfulness of the proposals, or the decision to approve the proposals, on the grounds that the minister could only approve proposals that were themselves lawful. Judicial review may be sought of both the proposals and the subsequent approval.”
On the subject of recommendations, the Sir Clive Lewis said at page 148-149:
1. Recommendations may have legal significance and if so are clearly reviewable.
2. In some instances, the existence of a recommendation may be a precondition of the exercise of a statutory power. A patient may not be detained in a hospital for medical treatment under the Mental Health Act 1983, for example, unless there are written recommendations from two doctors. The recommendations may be reviewed to ensure that the statutory criteria have been properly observed.
3. Recommendations by one body may provide a ground for another taking a particular action. A person convicted of a crime becomes liable for deportation if the court makes a recommendation to that effect. These recommendations are reviewable even though the Home Secretary is not obliged to implement them and even though other grounds for deportation may exist.
4. Recommendations may, in any event, be taken into account by the decision-maker. If the recommendation involves some error of law it is likely a court would, in principle, be prepared to review the error and declare the recommendation invalid.
5. In any event, a decision which took into account a flawed recommendation would itself be open to challenge on the grounds that it was based on an irrelevant consideration”
The scheme of the Competition Act may very well provide justification for the Court to demand parties await for a final “decision” before they step into the courtroom with guns blazing.
But we can also take heed of the UK position which places a duty on the Judiciary to ensure that public bodies exercise their powers lawfully and comply with procedural requirements at all times.
As society & commerce in Malaysia develops in sophistication, there will be growing expectations of conscientious government bodies which pay due adherence to the law at all stages of the decision-making process.