SUMMARY* : In this paper, a two–case study is undertaken on public interest litigation in the promotion of good governance in Malaysia and Singapore. As public interest litigation is a branch of administrative law which involves judicial review of administrative actions, it has a pivotal role to play in an administrative state particularly in the promotion of good governance. Initiated by citizens who may not be directly affected by the administrative acts, such public interest litigants are often frowned upon by the executive as meddlesome busybodies. This makes them a thorn in the executive’s side, and various obstacles were placed in the way by the executive to stymie the growth of public interest litigation. However, it was judicial self–restraint that brought the growth of public interest litigation in Malaysia to a grinding halt. In Government of Malaysia v Lim Kit Siang, the Malaysian Supreme Court took a restrictive approach to the rules of standing.But that does not mean that public–spirited individuals and non–governmental organisations should lose heart. On the contrary, they should persevere and continue to resort to public interest litigation so that it affords an opportunity for the courts to liberalise the current restrictive standing criteria. On the other hand, the absence of public interest litigation in Singapore presupposes that Singapore has a good public administration. Public interest litigation therefore promotes good governance in public administration. It does not hinder. It can be a panacea for administrative ills in public administration, a role which can no longer be underestimated or overlooked by the executive in this age and time.
The invocation of public interest litigation as a check against executive actions in Malaysia was severely clogged after 1988 by the case of Government of Malaysia v Lim Kit Siang. This case marked the courts’ fundamental shift from a liberal to a restrictive approach in terms of the rules of standing which a public interest litigant is required to meet before his action against the executive can be maintained. In Singapore, it can be safely said that there is no public interest litigation at all, though there have been some leading cases on judicial review brought by citizens adversely affected by administrative decisions. Most of all, I was perplexed by the number of public interest litigation actions filed in Malaysia while at the same time, there are no public interest litigation actions brought in Singapore which is regarded as having a good public administration. It is therefore apposite to examine this phenomenon and to evaluate the role of public interest litigation in the promotion of good governance in Malaysia and Singapore.
It is against this background that this paper is intended to serve the following purposes:
first, to examine underlying values of public interest litigation and the definitive role of public interest litigation in an administrative state, primarily in the promotion of good public administration.
second, as public interest litigation is essentially a judicial review of executive actions, to examine the executive’s attitudes towards judicial review and considers the legal and non–legal impediments to judicial review which in turn constitute obstacles to public interest litigation.
third, to examine the scope of public interest litigation, the courts’ approach towards locus standi in public interest litigation, the impact of Lim Kit Siang on public interest litigation in Malaysia and the absence of any public interest litigation in Singapore.
the last part of this paper isto evaluate the extent to which public interest litigation has promoted good governance and administration in Malaysia and Singapore and to conclude that the role of public interest litigation in the promotion of good governance in Malaysia and Singapore is one of pivotal importance.
A. What is public interest litigation?
Firstly, let us examine the concept of public interest litigation. Public interest litigation involves the institution of actions by private citizens in courts to seek redress against public wrongs committed by government or public bodies. It is an adjudication of disputes between private individuals and the state initiated to promote the public good in terms of serving a collective societal interest.
In George John v Goh Eng Wah Bros Filem Sdn Bhd & 2 Ors, Lim Beng Choon J traced the origin of public interest litigation and its justification as follows:
“The concept of “public interest litigation” was said to have first been mooted by the Indian Supreme Court in Fertilizer Corporation Kamgar Union v Union of India AIR 1981 SC 344. The judgment of Krishna Iyer J (ibid at 350) had no doubt influenced greatly the Indian judicial thinking on the concept of public interest litigation. In justifying this concept, Krishna Iyer J said at p 354: “Law, as I conceive it, is social auditor and this audit function can be put into action when someone with real public interest ignites the jurisdiction.”
Therefore, the rights which an individual seeks to assert do not flow from his capacity as an individual with aggrieved interests but are public rights, with the individual seeking to vindicate the public interest. His motivation stems not from personal interest, as in the case of enforcing private rights such as enforcing a breach of contract or vindicating a tortious breach of duty causing personal loss or property damage, but from a sense of public–spiritedness and ontological inclinations. The view of the public interest litigant is that there are rights or collective interests which must be safeguarded to avoid government lawlessness which harms the social interest. These public rights are in nature diffuse, societal and fragmented. The rights to clean air, water and environment, for example, are not just matters of individual concern but affect broad sectors of the larger community.
Public interest litigation is thus distinguishable from applications for the judicial review of administrative action. The latter directly affects the individual, for example, his dismissal and subsequent non–observance of the rules of natural justice by an employment tribunal. It is also not public law litigation which is essentially constitutional law litigation involving, inter alia, referring questions on the effect of any provision of the Constitution to the court for determination. This should not also be confused with actions filed as a result of infringement of constitutional rights by the executive .
The characteristics of public interest litigation are best reflected in the first reported public interest litigation case in Malaysia of Lim Cho Hock v Government of the State of Perak, Menteri Besar, State of Perak and President, Municipality of Ipoh. In this case, a Member of Parliament and State Assemblyman sought declarations that the Chief Minister could not hold the office of the President of the Ipoh Municipal Council at the same time and that the appointment of the Chief Minister as President of the Municipal Council was inoperative and null and void. Even though he was unsuccessful in obtaining the declarations, this public interest litigant was apparently instituting this action on behalf of the community in that area.
B. A Misnomer?
The term ‘public interest litigation’ has been described in some jurisdictions to be a misnomer. Baxi argued that from the Indian perspective, the term ‘social action litigation’ would be more appropriate as public interest litigation in India is more focused on state repression or government lawlessness rather than on public participation in governmental decision making.
Sathe also argued that ‘public interest litigation’ is a misnomer because all public law litigation is inspired by public interest. According to him, even private adjudication serves the public interest because this is served where contracts are honoured; liability for civil wrongs is imposed and property or status rights respected. In his view, public interest is served indirectly by private litigation because the main focus is on the private interest of the litigants. Public interest is also served more directly by public law adjudication because the focus is on the unconstitutionality arising from either lack of power or inconsistency with a constitutionally guaranteed right. To him, public interest litigation is a narrower form of public law litigation.
However, for the purposes of this paper, I shall use the term ‘public interest litigation’ as such term has been used and accepted here in judicial decisions.
C. What is Good Governance?
Secondly, let us examine the concept of good governance as it constitutes the thrust of this paper that public interest litigation promotes good governance.
What then is good governance? It is submitted that good governance is synonymous with good public administration.
The mission statement of the Singapore Attorney General’s Chambers is: “To enhance the rule of law and constitutional government in Singapore by providing sound legal advice and assistance in developing a fair and responsive legal system, furthering good public administration and protecting the interests of the state and of the people.” [Emphasis added.] This is prominently displayed on its website. So do other governmental departments both in Singapore and Malaysia, and some prefer to call it grandiloquently as a ‘Client’s Charter’. Other examples include the Malaysian police’s motto of “Mesra, Cepat dan Betul” (Courteous, Swift and Accurate) and Dr Mahatir Mohamad’s slogan of a “Clean, Efficient and Trustworthy Government” when he first took office.
Whether such governmental department or leaders are treating these mission statements or slogans as their lodestars or merely paying lip service remains to be seen. But this is an encouraging trend as it is prompted by a desire to observe good governance in public administration. It is also an act which in itself is consonant with good public administration. The public can use this as a barometer to gauge whether the performance of that governmental department has lived up to its self–proclaimed standards. If the public should walk away thinking that what is contained in the mission statement is a standing joke or a shibboleth, then that department has obviously performed miserably. Conversely, if the citizens are satisfied with the service provided by that department, then this is a good sign that that department is operating efficiently.
But good public administration is not just about having mission statements or slogans. In R v Monopolies and Mergers Commission and another, ex parte Argyll Group plc, Sir John Donaldson catalogued five requirements of a good public administration as follows:
it is concerned with substance rather than form.
it is concerned with the speed of decision.
it requires a proper consideration of the public interest.
it requires a proper consideration of the legitimate interests of individual citizens, however rich and powerful they may be and whether they are natural or juridical persons. But in judging the relevance of an interest, however legitimate, regard has to be had to the purpose of the administrative process concerned.
it requires decisiveness and finality, unless there are compelling reasons to the contrary.
I should also add the following to the list:
it requires a proper consideration of the legitimate interests of individual citizens irrespective of race, religion, creed and colour.
non–discriminatory application in public administration of the procedural norms established by past practice or published guidelines.
all persons who are in a similar position should be treated similarly.
good administration requires complaints to be investigated.
transparency and accountability in decision–making process.
public authorities should behave in a consistent manner; act diligently particularly in response to queries from the public; and if possible state the reasons for their decisions so that it gives those affected something to challenge, if they are minded, and gives the courts something concrete to review.
good public administration requires an independent judiciary and civil service.
The above list is not exhaustive. If these principles are observed by administrative bodies in their decision–making process, a lot of time can be saved including judicial time in trying to remedy bad decisions.
In addition, each of the three organs of government, namely legislature, executive and judiciary plays an important part in promoting good governance. Good governance is not exactly a new phenomenon in the administration of government. For centuries, governments have fallen due to poor governance and corrupted public administration. Correspondingly, a government that pushes for good governance will have the support of the people.
Undoubtedly, this concept requires decision–makers to strike a balance between the conflicting private and public interests, albeit the process may be a difficult one especially when the need for fairness usually has to make way for efficiency. Good governance will therefore ensure good decision–making procedures which should in turn contribute to good substantive decisions.
D. Public interest litigation in the promotion of Good Governance
This concept of good governance can be promoted through actions taken by public interest litigants in the courts to right any administrative wrongdoing. In this age when government departments and public authorities possess great powers and influence over the affairs and rights of the community, public interest litigation as a socially–motivated check on administrative excesses can no longer be ignored, especially when public criticism tends to fall on deaf ears.
Public interest litigation has been proven to have promoted good governance in public administration. For example, the earlier practice of appointing the Chief Minister of a State also as a President of a Municipal Council has now ceased after the case of Lim Cho Hock v Government of the State of Perak, Menteri Besar, State of Perak and President, Municipality of Ipoh, even though the public interest litigant in that case failed to obtain the declarations sought. In one case, the government had to pass an amending act with retrospective effect in order to avert a suit brought by a public interest litigant. In The Discipline of Law, Lord Denning narrated how several senior police officers were prosecuted for corruption after a taxpayer and his wife took the Metropolitan Police Commissioner to courtwhen he discovered that the laws against pornography were not enforced.
The concept of public interest litigation therefore affords socially concerned citizens an avenue to be involved in the promotion of good governance in public administration. By this way, administrative bodies will be mindful of making good decisions if they know that what they decide may be subject to challenge by the citizens, particularly by those citizens who have the means and intellect to subject such decisions to microscopic examination.
It is submitted that it is a citizen’s right to a good public administration. If not a legal right, a citizen certainly has a moral right to it. As taxpayers, such right extends to having a government which not only practises good governance, but is seen to be doing so.
While it cannot be denied that judicial review of administrative acts has always been a remedy for aggrieved citizens via the O 53 procedure, however not all citizens have the means or fortitude or are civic–minded enough to take on the executive if administrative decisions affect a larger number of the community. It is for this reason that socially concerned individuals and bodies such as non–governmental orgainsations (“NGOs”) have a role to play. It will be demonstrated later that such public participation will be viewed with suspicion by the government, used for decades to the belief that executive government is empowered, pursuant to the doctrine of separation of powers, to govern with the least interference from the other branches of government.
However, effectiveness of public interest litigation depends on whether the government will heed every judicial pronouncement to practise good governance. But judicial control of the executive is the sine qua non to having a good public administration. And public interest litigation is the raison d'être for ensuring there is one.
II. PUBLIC LAW –PRIVATE LAW DIVIDE
A. Are we bound by the shackles of O’Reilly v Mackman?
Public interest litigation is ignited by public interest. As public interest litigation is essentially a form of judicial review of administrative actions of public authorities undertaken by public–spirited citizens, the oft–repeated debate of public law–private law divide will invariably influence the courts in deciding whether such socially–motivated judicial review is permissible in situations where:
the rights sought to be protected or vindicated are in fact a combination of public rights and private rights or solely an accumulation of private rights which turn such rights into public rights; and
whether the bodies which are being challenged were performing public functions or merely private functions when making the decisions.
This involves the issue of amenability of public authorities to judicial review since judicial review is a “public law” remedy. It is, therefore, apposite to first examine some English authorities on the issue of public–private law divide as it has been acknowledged that Malaysian courts have, in the development of administrative law, been considerably influenced by the English courts.
The need to divorce public law and private law became an obligation when the House of Lords in O’Reilly v Mackman held that it is an abuse of process of the court for a person seeking to challenge the decision of a public authority to proceed by way of an ordinary action and not by way of judicial review proceedings. In that case, four appellants who were prisoners serving long jail sentences commenced separate actions, three by writ and one by originating summons, for a declaration without resort to the new O 53. This was done with the hope that ordinary actions for declaration would entitle them the right to call oral evidence and cross–examine witnesses. Lord Diplock held that public interest in good administration requires public authorities to be protected in that the new O 53 requiring leave and filing application for judicial review within a stipulated time should be observed. In following Goulding J in Heywood v Hull Prison Board of Visitors, Lord Diplock disapproved of the idea that O 15 r 16 governing declaratory relief should be of unlimited application in cases of public law.
This approach ran contrary to the views expressed by Lord Wilberforce two years earlier in Davy v Spelthorne BC that English law fastens not on the separate systems of public law and private law but upon remedies. In fact, prior to the new O 53 introduced in 1977, a plaintiff could choose whether to apply for a prerogative order or to sue for a declaration. In Pyx Granite Co. Ltd. v. Ministry of Housing and Local GovernmentLord Goddard said (quoting from the report of Heywood v. Board of Visitors of Hull Prison):
It was also argued that if there was a remedy obtainable in the High Court it must be by way of certiorari. I know of no authority for saying that if an order or decision can be attacked by certiorari the court is debarred from granting a declaration in an appropriate case. The remedies are not mutually exclusive, though no doubt there are some orders, notably convictions before justices, where the only appropriate remedy is certiorari.
In this respect, Wade argued that for several decades before 1977 the courts were actively encouraging ordinary actions for declarations in order to evade the handicaps of certiorari, yet it did not appear that public authorities were lacking any protection. Indeed, any baseless actions could always be struck out under O 18 r 19 and this was often done by the public authorities. According to Wade, points of law could be tried as preliminary issues and this often saved trial of facts and, therefore, the House of Lords had obviously overstressed such procedural privileges when the public authorities themselves did not appear to feel the need for this protection. For example, the repeal of the Public Authorities Protection Act 1893 in 1954 was met with general approval. In his view, “despite some incongruities, public and private law worked harmoniously together without any need for exclusive forms of action, and the system of remedies efficiently supported the great expansion of administrative law during those years.”
In Malaysia, it has been held that restriction expounded by Lord Diplock in O’Reilly v Mackman does not apply as the decision was based on the new English O 53 which has not been accepted here. In other words, the court's discretion to make declaratory judgments under O 15 r 16 Rules of High Court is unlimited and cannot be fettered simply by the fact that in a particular case certiorari is also an available remedy but not applied for by an applicant. It follows that even if certiorari is available to the applicant, this does not debar him from seeking declaration instead as declaration and certiorari are concurrent remedies and not mutually exclusive.
Singapore courts took almost a similar approach by adopting the old English O 53 procedure of not granting declaratory reliefs on an application for judicial review because declaration was not a prerogative order. O 53 Rules of Singapore Supreme Court was based on the old English O 53 which did not confer any express power on the courts to grant a declaration notwithstanding that the High Court had the power to grant a declaration by virtue of s 18(2) and the First Schedule of the Supreme Court of Judicature Act (Cap 322). It can be gleaned from these authorities that O’Reilly v Mackman has no application in Singapore as declaratory reliefs can be obtained not under O 53 but by ordinary action, either begun by writ or originating summons, against a public authority.
B. New Malaysian O 53 RHC versus O’Reilly v Mackman
The current Malaysian position of not confining actions against public authorities to judicial review proceedings propounded by Lord Diplock in O’Reilly v Mackman remains notwithstanding the coming into force of the new O 53 RHC of Malaysia. Under the new O 53 which is now entitled ‘Application for Judicial Review’, public law remedies of prerogative orders and private law remedies of declaration, injunction and damages are both available in judicial review proceedings. Declaration can now be claimed either jointly or in the alternative to the prerogative orders. In the first reported case under the new O 53, Sivarasa Rasiah v Badan Peguam Malaysia & Anor, the Court of Appeal ruled that it was not required that application for declaratory reliefs under O 53 should be made jointly with other reliefs. In this case, the appellant had asked for leave to apply for judicial review by seeking only declaratory reliefs.
In fact, public law practitioners should now adopt the suggestion by Lord Woolf MR in Trustees of the Dennis Rye Pension Fund & Anor v Sheffield City Council if one is not sure whether judicial review or an ordinary action is the correct procedure. In this case, Lord Woolf suggested that it will be safer to make an application for judicial review than commence an ordinary action so that the question of the procedure adopted being treated as an abuse of the process of the court by avoiding the protection provided by judicial review will not arise.
In the words of Lord Woolf MR:
In the majority of cases it should not be necessary for purely procedural reasons to become involved in arid arguments as to whether the issues are correctly treated as involving public or private law or both. (For reasons of substantive law it may be necessary to consider this issue). If judicial review is used when it should not, the court can protect its resources either by directing that the application should continue as if begun by writ or by directing it should be heard by a judge who is not nominated to hear cases in the Crown Office List. It is difficult to see how a respondent can be prejudiced by the adoption of this course and little risk that anything more damaging could happen than a refusal of leave.
It follows that the restrictive approach of O’Reilly v Mackman should now be condemned to oblivion; otherwise only lawyers and not litigants will rejoice in this state of affairs which creates procedure disputes. As Michael Beloff put it, “procedural law should be the servant, not the master, of substantive law.” Likewise, Gopal Sri Ram JCA observed in Sivarasa Rasiah that a rule of court should not be interpreted in such a way as to result in unfairness or produce a manifest injustice. His lordship expressed disappointment that in this day and age, applications and suits were disposed of on purely technical and procedural grounds without even slightest attempt to ensure that justice according to the merits of a particular case was done. In this respect, the court should not forget its duty to do justice according to law and the substantial merits of each case.
In the circumstances, as far as a public interest litigant is concerned, if the only remedy sought is declaration, he can now proceed under O 53 or by an ordinary action. On the other hand, if the remedies sought are only prerogative orders or jointly with declaratory reliefs, then O 53 must be resorted to but it will be demonstrated later that this will not be a wise move as the new O 53 imposes a more restrictive standing criterion.
C. Public law–Private law Divide – Is it necessary?
Michael Beloff argued that the dichotomy of procedures actually provides the citizens with a trap and not a target. In Malaysia, it can be safely concluded that such dichotomy is no longer applicable with the new O 53 in operation. Under the new O 53, apart from being able to obtain the traditional private remedies, a litigant proceeding under O 53 can now also seek discovery and inspection of documents; administer interrogatories or cross–examine deponents of any affidavit which are procedures traditionally associated with an ordinary action. This begs the next question whether a dichotomy of public law and private law is necessary after all.
In this regard, Dawn Oliver argued that there is in fact no such divide and that any distinctions between the two are purely artificial. Oliver is of the view that there exist common underlying values which indicate that common law is capable of developing supervisory jurisdiction akin to that of judicial review over private bodies by imposing public law principles such as fairness and rationality in private law on those exercising private functions. In other words, public law and private law have similar objectives, namely to protect the interests of individuals in their autonomy, dignity, respect, status and security; to control exercises of power and to promote democracy and citizenship both in the public and in the private sphere. In her view, an integrated approach to substance, remedies and procedures should be taken in place of the public–private divide so as to enable the development of common law and equity in promoting the protection of individuals and public interests against abuses of all kinds of power.
G Samuel, on the other hand, argued that not dividing public law and private law would equate the state with a private person entitled to the same rights of privacy, reputation, property and the like which is not healthy in protecting civil liberties. Woolf LJ writing extra–judicially in 1984 also expressed the view that this dichotomy needs to exist not only because public law requires the court to perform a different role from that which it has traditionally adopted in private law disputes, but the interest of the public in the outcome of litigation over public duties requires procedural safeguards which are not necessary in disputes over private rights. His lordship also said that while the difference between the two systems must exist and their parameters recognised, this does not mean that the systems do not need to coalesce because if public law has been able to develop by adopting private law principles and remedies, private law can also emulate the supervisory role which so far has been the hallmark of the courts’ public law role.
Having said that, any divorce between public law and private law, if it is necessary, is only relevant as far as public interest litigation as a form of judicial review is concerned. The reason is that such a distinction enables the court to decide which particular public body or authority is amenable to judicial review. Indeed it is difficult to draw a definite line between the two especially in this age when private bodies such as privatised entities also exercise public functions. It is submitted that public interest litigation is generally confined to actions against infringement of public law rights whether committed by public or private bodies. Matters which have been characterised as ‘private’ claims would be inappropriate for public interest litigation as a public interest litigant will not be able to establish a privity of contract or that a duty of care is owed to him or to the larger community. Hence public interest litigation will not be permitted if the nature of the claim is seen as ‘private’. But this is not easy to distinguish: even the British House of Lords had difficulty deciding which side of the public–private divide a claim falls. However, the functions and powers of the decision–making body, whether private or body, should involve a sufficient public element which will determine whether a decision is susceptible to challenge by way of public interest litigation.
III. THE ROLE OF PUBLIC INTEREST LITIGATION IN AN ADMINISTRATIVE STATE
A. Public interest litigation an important part of administrative law
We all live in an administrative state which continues to be shaped by government policies implemented by a large number of administrative bodies. Policy formation has replaced the operation of common law as the primary means of social regulation and agencies have displaced the courts as the primary means by which that regulation is effectuated. But all these are sanctioned by the legislature which enacts policies that are an embodiment of the administrative state. In some instances, government policies are treated as if they have the force of law because of the legal and administrative consequences if they are not followed. In this sense, the formulation of policies is often influenced by the political regime which is in power.
The courts also have a major influence on the nature and shape of the administrative state in the sense that they will decide what particular constraints to impose on administrative action, and more generally on the overall purpose of judicial review. As was argued by Professor Paul Craig, “administrative law, when viewed in this way, is always a combination of what is going on in the political world, combined with the reactions of the judiciary.” In fact, the judiciary is a political institution. It is political simply because they are appointed by politicians who are obviously aware of the political views and inclinations of a particular judge before appointing such judges. A judge’s political view and outlook will, therefore, influence his judgments.
As policies and politics are interwoven in the administration of a state, such government policies will affect the community as a whole. Public interest litigation which involves judicial review of these policies is an important aspect of administrative law. It seeks to uphold the fundamental principle of rule of law. Regrettably, public interest litigation is a subject largely ignored by local writers of administrative law.
B. Role of individuals in developing public interest litigation in an administrative state
Generally, the Malaysian and Singaporean public are reluctant to take the government and public bodies to courts. There is always this perennial fear that the government department will ‘punish’ them by administrative means such as making his life difficult in future dealings with that government department. But such timorous public reaction is perhaps understandable given that the Chinese and Malay culture was rooted in a time when emperors or the raja–raja would have someone beheaded for having the temerity to question or criticise their actions. These communities are also less anti–establishment, and more inclined to kow–tow to the establishment, preferring to shy away from a challenge if dissatisfied with a government decision unless provoked by suffering grave personal injustice. To them, acceptable inconvenience is preferable to avoid the greater trouble if the government is taken to courts.
With such a high price awaiting an unsuccessful public interest litigant, that litigant will find it more expedient to obtain political justice by resorting to seeking help at service stations run by the political parties, especially the ruling party. A man in the street will also find an immediate affinity for pro–government personalities such as “Michael Chong” compared with names like “Karpal Singh” who are more associated with the anti–establishment movement which the government will be less likely to listen to. To them also, having the rice bowl intact is more important than standing up for their rights or having an assertive judiciary to confront the executive let alone trying to promote good governance in government administration! In other words, only a well–fed man will have nothing better to do than offending the establishment or in the Chinese Hokkien dialect, “chup ba bo dai chi zo” since public interest litigation involves upholding and preserving diffuse rights which sometimes do not really concern a particular individual. In other words, unless one’s personal interest is harmed, whatever sense of citizenship or collective interest beyond self will make no sense to such individual.
This apathetic “chup ba bo dai chi zo” attitude is a worrying trend to public interest and human rights group. But to the executive, neither is there a need to create public awareness of the benefits of public interest litigation when it can become a curse to the administration and a bane to politicians.
Therefore, for public interest litigation to thrive, the public must have the gumption to bring complaints to the courts. Axiomatically, unless the complaint of administrative abuse is brought to the courts, the courts have no opportunity to adjudicate on it. This in turn impedes the development of public interest litigation related jurisprudence.
C. Diceyan concept of rule of law the bête noire of an administrative state?
Judicial control of the executive is crucial irrespective of which constitutional system we are in – whether in a system which subscribes to the supremacy of the legislature or the paramountcy of a written constitution.
Public interest litigation which seeks to judicially control the executive in an administrative state will be heretical to the gospel of rule of law preached by Dicey. From a Diceyan perspective which framed the early development of English administrative law, ‘administrative law’ was alien to the common law jurisdiction and non–existent within British common law. Any existence of such a notion of law is due to misapplication of the French system of 'droit administratif’ which is a separate body of rules for administrative authorities applied by special administrative courts. In other words, any separate judicial system of adjudicating disputes between private citizens and executive authorities would be incompatible with the constitutional principle of separation of powers and the rule of law as there should be equal subjection of all classes to the ordinary law administered by ordinary law courts. The UK Courts were therefore not positioned to review legislative acts where parliamentary supremacy was the primary legal–political principle of constitutional government.
It follows that the Diceyan concept of rule of law has become otiose. It is no longer compatible with today’s administrative state particularly with the development of the tribunal system in the UK which is in fact a de facto separate regime. Neither is today’s role of UK courts in reviewing legislative acts inconsequential in the system of parliamentary supremacy particularly with the continued expansion of judicial review and the courts’ powers under the Human Rights Act 1998 to invalidate any subordinate legislation which is incompatible with the European Convention of Human Rights.
D. Powerful executive reigns in unwritten and written constitutions
Indeed in the absence of a written constitution, the British Parliament reigns supreme as far as its legislative powers are concerned. This is fundamentally majoritarian in that Parliament can make, unmake and amend any law it likes, however substantively illiberal or undemocratic in nature, with the only check being the political one of the ballot box.
With a strong government based on the Westminster system of parliamentary democracy operating within the context of what has been termed an elective dictatorship, Parliament is in fact answerable to Downing Street. With political patronage and controls, and by employing all sorts of inducements and arm–twisting, a powerful party whip can quite easily keep the legislators in check. This left the control over executive excesses to the judiciary, regarded for centuries as the bulwark of Englishmen’s freedoms and liberties. The advent of a welfare state framed around a substantially increased number of legislative regulations which affected an Englishman’s rights from his cradle to his grave made the need for some form of judicial check more pressing.
In the case of Malaysia and Singapore, both countries imported the unwritten British common law and its parliamentary institutions, but framed government through adopting a written constitution, declared as the supreme law of the land.
However, the Constitution can still be easily amended by the powerful executive which controls the Parliament. The Malaysian Government has always maintained two–thirds majority in Parliament successively for many decades. Singapore has always been governed by one political party since Independence, and almost her entire unicameral Parliament is in the hands of that party. Therefore, any dissenting voice and disobedience to the party will be dealt with severely. The notion that ministers are both individually and collectively responsible to Parliament is but also an illusion because of the overwhelming majority which the government enjoys in the legislature. What happens is that our ministers spend more time pleasing the Prime Minister than pleasing Parliament! Consequently, the supremacy of the constitution is perhaps only a myth if the sacrosanct law of the land is subservient to the powerful executive which controls the legislative powers.
Since both the Malaysian and Singapore Constitutions are the supreme law of the land in that any legislative acts inconsistent with the Constitution would be invalidated, a fortiori, the judicial branch should play a more active role in order to uphold and give effect to the written constitution. As my British professor of public law, Professor Graham Zellick would tell me during my student days, the reason why Britain had prepared written constitutions for all her former colonies despite not having one herself stemmed from the belief that the legislative arm in these former colonies could not later be trusted to act responsibly and fairly.
However, a Malaysian judge was of the view that that explains why the English common law “has to grope about in the dark and unlit passages of constitutional and administrative law, and undergo a rather slow and gradual development” as it lacks the distinct advantage of a written constitution. Gopal Sri Ram JCA said, “it is wholly unnecessary for our courts to look to the courts of England for any inspiration for the development of our jurisprudence on the subject under consideration. That is not to say that we may not derive useful assistance from their decisions. But we have a dynamic written constitution, and our primary duty is to resolve issues of public law by having resort to its provisions.”
E. The role of the constitutional court in an administrative state
(i) Judicial Intervention
The extent of public interest litigation, therefore, depends on the limits of judicial enforcement of executive actions. It can exercise either judicial activism or restraint in this regard, but an overzealous judiciary will certainly put the executive and the judiciary on a collision course. But this in no way means that the courts have no role to play in checking administrative action. Lord Diplock in 1979 noted:
… judicial modesty must go hand in hand with judicial courage. If the Federal or a State legislature attempts to legislate in breach of the Constitution which is the supreme law of Malaysia, if any executive or administrative authority, however exalted or however lowly, has so acted that it has failed to observe or to apply the law, it is the responsibility of the Judiciary of Malaysia, so to declare and to refuse to give legal effect to such ultra vires legislative or administrative act: for this is the only way in which the rule of law will continue to be preserved.
As Professor Wade also said in his Appendix to Dicey’s Law of the Constitution: “The last word on the question of legality rests with the courts and not with the administration.”
In Malaysia, the position is best summed up in the words of HRH Raja Azlan Shah, acting CJ (Malaya) (as he then was), in Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd. His Royal Highness said trenchantly:
Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene. The courts are the only defence of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizen: so that the courts can see that these great powers and influence are exercised in accordance with law. I would once again emphasize what has often been said before, that ‘public bodies must be compelled to observe the law and it is essential that bureaucracy should be kept in its place’, (per Danckwerts LJ in Bradbury v London Borough of Enfield (1967) 3 All ER 434 at p 442).” 
These views were echoed by the Singapore Court of Apeeal in Chng Suan Tze v Minister of Home Affairs, Singapore & Ors. The position of Singapore courts is reinforced by art 93 of the Constitution which provides that the judicial power is vested exclusively in the Supreme Court and the Subordinate Courts in that the courts are empowered to review of the exercise of arbitrary powers of the executive.
However, there is the other concern advocating judicial restraint in reviewing administrative decisions in that if the courts were allowed to venture into every area of decision–making of administrative bodies, how then would the autonomy of decision–makers be preserved? Should the courts adopt an expansive view of judicial review? It heightens the danger of courts transgressing the orthodox conceptual limits of review: that what is being supervised is not the decision itself but the decision–making process. This concern is often made with the rejoinder that judicial control is necessary because the courts are the guardian and protector of liberties and freedoms. But is that ideal practically realisable, given that Singapore and Malaysia have only recently adopted such principles, without the institution of the judiciary sufficiently maturing to be mature, strong and fearless so as to be an effective check?
Inspired by the free–for–all public interest or social action litigation and a highly active judiciary in India, Malaysia’s conservative judiciary has been urged to be more judicially active in promoting social justice in a speedier fashion. While this approach has obvious benefits, the danger is that excessive judicial zeal which has unelected judges venturing into the domain of the elected government can bring the government of the day to a standstill. Who then can ensure that judges do not transgress their constitutional role and duty by engaging in politicised judgments?
But India is not a good example to follow as far as the expanded growth of judicial review is concerned. Its judicial activism has now become judicial ‘populism’ or judicial ‘excessivism’. The Indian courts now appear to be acting as a government by judiciary. For example, the courts there have gone to the extent of giving judicial directions on the number of new cars that could be registered each month in New Delhi. Other examples include the courts ordering 100 buses to be converted from using diesel to clean compressed natural gas; giving directions as to the width of a road; setting guidelines for inter–country adoption of children; prescribing qualifications for bus drivers of educational institutions; asking a State to enact laws to proscribe ragging of college students and issuing directions to the Municipal Council to construct public latrines, drains, etc.
In any event, judicial intervention is a necessity in an administrative state these days when administrative bodies are adopting the practice of anything is permissible unless and until it is stopped by the courts. It is no longer the case that if the legality of a course of action was in doubt, it would not be adopted. The involvement of the courts and judges in public interest litigation has also become inevitable if justice is to be done in an increasingly regulated society. It is within this context that the judicial arm in the separation of powers is best positioned to curb administrative abuses and excesses or to use the words of HRH Sutan Azlan Shah, ‘departmental aggression’.
(ii) The role of courts in promoting Good Governance
The judiciary should help enforce the concept of good governance in public administration. It is a principle that is based on equity and fairness. Corrupt and intolerant regimes will find good governance as a threat to their surviving in power.
Many a time, the citizens’ right to freedom of speech is curtailed so that any administrative skeletons can be concealed at the expense of an ignorant and misinformed public. A judiciary operating in such an environment is beholden to set the rules of good governance for the general good of the citizenry when the legislature controlled by a corrupt and intolerant regime fails in its constitutional duty. Under these circumstances, judicial creativity and activism are necessary to shield the rights of the citizens from encroachment. It is submitted that it is also justifiable under these circumstances for judges to ‘make’ laws while interpreting them! Of course, if the judicial arm of the government is equally corrupt, then it spells disaster for the country for the wealth of the country will be plundered and the citizens’ rights trodden with impunity.
The judiciary should therefore lend a hand to public interest litigants who have taken upon themselves to ensure that administrative agencies do not act beyond their powers. In this sense, the judiciary too has to observe principles of good governance in dispensing justice. When the other arms of the government may be a let–down to the people, the judiciary must rise to the occasion to act against any transgressions of the nation’s laws. It is fundamentally necessary that judges must not only remain independent but be seen to be independent. Judges must also act impartially without fear or favour. A good judge must not betray the oath of this high judicial office which has been bestowed upon him. He must also be passionately committed to defending the fundamental principle of rule of law and the Constitution. Most of all, he must dispense justice even though heavens fall – fiat justitia ruat coelum!
In this sense, the role of courts in an administrative state is to help create a good public administration. The role of the courts is not just about complaint or grievance handling, but rather complaint avoidance. It is through the pronouncements of the courts that governmental departments are mindful of the limits and excesses of their administrative powers. Such pronouncements will later represent the dos and don’ts in public administration and mistakes previously made will not be repeated. Therefore, administrative procedures can always be improved from time to time with reference to such judicial pronouncements.
F. Comparative Review of Public Interest Litigation
Unlike Malaysia and Singapore, there has been a spate of public interest litigation cases in the Commonwealth in recent years, albeit it has not taken on the radical nature of the Indian experience.
These cases could not have had been instituted without public spirited citizens and bodies such as Raymond Blackburn of England and Greenpeace. They obviously fervently believed that a citizen action or the general approach of actio popularis is necessary to keep public authorities within their powers in order to uphold the rule of law and achieve social justice for communal good. The state should not, therefore, transgress the rights of the citizens which belong to the community. After all, the source of all law–making power is the people.
(i) UK Experience
The first of the string of what is now commonly known as the Blackburn cases was R v Commissioner of Police of Metropolis, ex parte Blackburn where Mr Blackburn, a one time Member of Parliament, successfully applied for mandamus to compel the Commissioner of Police to act against the gaming clubs in London which were openly breaking the law.
In Blackburn v Attorney General, he sought a declaration against the government when the government decided to join the Common Market arguing that by signing the Treaty of Rome, the government would be surrendering the sovereignty of the Crown in Parliament.
He took the Police Commissioner to court again in R v Police Commissioners, ex parte Blackburn (No 3).This time with his wife to require the police to enforce the laws against pornography. When the Greater London Council did nothing to stop the exhibition of pornographic films, he also applied for a writ of prohibition and succeeded.
NGOs also resorted to public interest litigation on various issues. For example, complaining about the Independent Broadcasting Authority for its plan to broadcast a television film described as “a shocker, the worst ever”; payment of a large sum of money by the government to the European community; the government ratifying the Treaty of Rome; social security claims; writing off taxes for the previous two years and environmental issues.
(ii) Australian Experience
In Australia, public interest litigation has increased in the last seventeen years while reform has been proposed to ameliorate the restrictive rules of standing.
Public interest litigation has been invoked by three priests against the decision of the Censorship Board to allow the importation of an allegedly blasphemous film; an environmental group attempting to stop a proposed building development with regard to the validity of purported compliance with certain environmental laws; members of an aboriginal community to prevent allegedly criminal interference with tribal relics protected by a statutory penal provision; the Right to Life Association against the decision of the Secretary of the Department of Health and Human Services not to stop three clinical trials of a ‘morning after’ abortion drug; a passive smoker against tobacco advertising for a sporting event; a parent challenging religious activities at a government school; an applicant challenging the Minister’s decision to have outdated military weaponry melted down for scrap; a citizen attempting to stop the presentation of a Mental Health Bill for the Governor’s assent; largest environmental organisation in Tasmania challenging the decision of the Minister for Resources to grant a licence to a company to export 200,000 tonnes of woodchips.
(iii) Canadian Experience
With regard to the Canadian experience, it has been noted that the following quartet of standing cases has provided a new opportunity for public interest litigation in Canada when much of Canadian law had previously been immune from legal challenge because of stringent standing rules or other barriers to access.
In Thorson v. Canada (A.G.) (No. 2),