Surat bertarikh 21.03.2022 – Permohonan Untuk Mendapatkan Pengesahan Bagi Kerja-Kerja Penandaan Dan Sempadan Kawasan Di Blok A : Kompt. 75 & 88 Seluas : ± 260.22 Hektar B : Kompt. 87 & 88 Seluas : ± 245.90 Hektar C : Kompt. 89 & 90 Seluas : ± 343.79 Hektar Hutan Simpan Berkelah, Mukim Chenor, Daerah Temerloh, Pahang Darul Makmur Seluas : 849.91 hektar – KDYMM Sultan Pahang Harapan Yang Sah (Legitimate Expectation) [66] Mahkamah sedar bahawa sesuatu semakan kehakiman boleh dibuat sekiranya terdapat keadaan di mana Pemohon mempunyai harapan yang sah (legitimate expectation). Ia telah diperkenalkan oleh Lord Denning dalam kes Schmidt and Another v. Secretary of State for Home Affairs [1969] 2 Ch. 149 seperti yang berikut: “The third point is whether there is any ground for saying that the Home Secretary did not observe the precepts of natural justice. Mr. Quintin Hogg submitted that the Minister ought to have given the students a hearing before he refused to extend their stay in this country. I see no basis for this suggestion I quite agree, of S/N Izryl24Yd066qIpA2x/dzQ course, that where a public officer has power to deprive a person of his liberty or his property, the general principle is that it is not to be done without his being given an opportunity of being heard and of making representations on his own behalf. But in the case of aliens, it is rather different: for they have no right to be here except by licence of the Crown. And it has been held that the Home Secretary is not bound to hear representations on their behalf, even in the case of a deportation order, though, in practice he usually does so. It was so held in Rex v. Leman Street Police Station Inspector and Secretary of State for Home Affairs, Ex parte Venicoff [1920] 3 K.B. 72, which was followed by this court in Soblen's case [1963] 2 Q.B. 243. Some of the judgments in those cases were based on the fact that the Home Secretary was exercising an administrative power and not doing a judicial act. But that distinction is no longer valid. The speeches in Ridge v. Baldwin [1964] A.C. 40 show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.” [67] Sementara itu di negara ini Mahkamah Rayuan dalam kes Darahman Ibrahim & Ors v. Majlis Mesyuarat Kerajaan Negeri Perlis & Ors [2008] 4 CLJ 538 telah menghuraikan secara mendalam prinsip harapan yang sah dan perkembangannya seperti yang berikut: S/N Izryl24Yd066qIpA2x/dzQ “[50] The principle of legitimate expectation was first perceived by Lord Denning MR in Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch 149, CA to denote something less than a right which may nevertheless be protected by the principles of natural justice. Put in another way, a legitimate expectation amounts to an expectation of receiving some benefit or privilege to which the individual has no right. It has been used by the courts on numerous occasions and in different contexts with the result that "there are many semantic confusions which have bedevilled this area of our law" (per Simon Brown LJ, in R v. Devon County Council, ex p. Baker [1995] 1 All ER 73, CA). In the words of Taylor J, in R v. Secretary of State for the Home Department, ex p. Ruddock [1987] 2 All ER 518, "the doctrine of legitimate expectation in essence imposes a duty to act fairly." The duty to act fairly applies in the context of legitimate procedural expectations as demonstrated by the case of R v. Liverpool Corpn, ex p. Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299, CA. In R v. Secretary of State for the Home Department, ex p. Ruddock (supra), the substantive benefit was that individuals not falling within the government's published criteria for telephone tapping would not have their telephone calls intercepted by the security services. [51] I venture to say that even where no promise of a benefit has been made and there is no established practice of granting that benefit, the person concerned is, elementarily, entitled to be treated fairly. Thus, stall-holders in a market are entitled to be S/N Izryl24Yd066qIpA2x/dzQ consulted before charges are increased (R. v. Birmingham C.C. ex p. Dredger [1993] COD 340). But residents in an old people's home to whom no promise of consultation has been made need not be consulted before the local authority closes the home (R. v. Devon County Council ex p. Baker (supra) at p. 89 adopting the approach of A.G. for New South Wales v. Quin [1990] 93 ALR 1 at 39). [52] Whether an expectation exists, is clearly a question of fact. So, if a person did not expect anything, then there is nothing that the doctrine of legitimate expectation can protect. Here, the appellants expected the respondents to keep to their promises and so the appellants expect that the doctrine of legitimate expectation to protect them and the said doctrine can be invoked to protect them. As I said, the statement of claim made reference to the doctrine of legitimate expectation and I must give effect to it in this judgment. But if a person is unaware of an undertaking made by a public authority, then he cannot expect compliance with that undertaking (Chundawara v. Immigration Appeal Tribunal [1988] Imm. AR 161, where an unincorporated but ratified treaty of which the claimant was unaware could not found legitimate expectation). A taxpayer, for instance, must rely upon a representation from the Revenue before his expectation will be protected (R. v. Inland Revenue Commissioners ex p. Matrix-Securities Ltd [1994] 1 WLR 334). But taxpayers seeking revenue clearance for their proposals must make full disclosure before the revenue's assurances will be binding (R. v. Inland Revenue S/N Izryl24Yd066qIpA2x/dzQ Commissioners ex p. MFK Underwriting Agencies Ltd [1990] 1 WLR 1545).” [68] Mahkamah Agong dalam kes JP Berthelsen v Director General of Immigration, Malaysia & Ors [1987] 1 MLJ 134 setelah merujuk kepada keputusan Megarry V.C dalam kes McInnes v Onslow Fane [1978] 1 WLR 1520 dalam menyatakan keadaan di mana mahkamah berhak untuk campur tangan di dalam keputusan pihak berkuasa pentadbiran menyatakan seperti yang berikut: “Third, there is an intermediate category, which he termed the expectation cases, which differ from the application cases only in that the applicant has some legitimate expectation from what has already happened that his application will be granted. This head includes cases where an existing licence-holder applies for a renewal of his licence, or a person already elected or appointed to some position seeks confirmation from some confirming authority.” [69] Mahkamah juga merujuk kepada artikel bertajuk Abdoolcader SCJ, Legitimate Expectation and Locus Standi: A Note [1994] 3 MLJ liv oleh Wan Azlan Ahmad dan Mohsin Hingun yang membincangkan isu harapan yang sah dan locus standi ekoran daripada keputusan dalam kes JP Berthelsen v Director General of Immigration, Malaysia & Ors (supra) seperti yang berikut: S/N Izryl24Yd066qIpA2x/dzQ “In Berthelsen, the appellant's employment pass, issued under reg 19 of the Immigration Regulations 1963, was terminated on the ground that he had contravened or failed to comply with the terms of its issuance, and that his continued presence in the country would be prejudicial to the security of the country. The appellant was not given a hearing before the pass was revoked and the Supreme Court, rightly, emphasized the nature of judicial review: that the decision to cancel the permit was an executive discretion which as far as merit is concerned, remains outside the purview of the courts. While this discretion is one for the executive, it remains a discretion to be exercised according to law. Fundamental in this respect is the operation of the rules of natural justice, and we may also add, they include what are now established components of these common law procedural safeguards: the doctrine of legitimate expectation and the duty to act fairly.” [70] Harapan yang sah (legitimate expectation) adalah berasal daripada prinsip German yang dikenali sebagai “Principal of Vertrauenschutz – the protection of promises and of trust in the administration”. Ini telah dinukilkan oleh C. Forsyth dalam artikelnya bertajuk The Provenance and Protection of Legitimate Expectation [1988] C.L.J. 238. Di bawah Undang-undang Inggeris terdapat dua harapan yang sah iaitu satu yang dikenali sebagai harapan yang sah substantif (substantive legitimate expectation) dan kedua adalah harapan yang sah prosedur (procedural legitimate expectation). Perbincangan berkenaan dengan kedudukan harapan yang sah S/N Izryl24Yd066qIpA2x/dzQ substantif (substaintive legitimate expectation) dinyatakan oleh Professor Alison L Young di dalam artikelnya Stuck At A Crossroad? Substantive Legitimate Expectations In English Law [2021] Cambridge Law Journal (C.L.J.) 179. [71] Dalam konteks harapan yang sah prosedur (procedural legitimate expectation) rumusan yang dibuat oleh Lord Carnwath di dalam kes R (on the application of Gallaher Group Ltd and others) v Competition and Markets Authority [2019] AC 96 menjelaskan seperti yang berikut: “38 In Ex p Unilever plc the Court of Appeal held that the revenue should not be permitted without warning to apply a strict time limit for submission of claims to loss relief, when to do so departed from a practice accepted by them without objection for some 20 years. The judge (Macpherson of Cluny J) had held that the revenue's conduct amounted to “a representation in Preston terms”, or, if not, had led to “unfairness” and “an abuse of power”: p 689. In the Court of Appeal the main issue seems to have been whether the taxpayer could succeed in the absence of a representation by the revenue which was “clear, unambiguous and devoid of relevant qualification”, as stated in previous Court of Appeal authority: p 693. Bingham MR held that, on “the unique facts” of the case, to reject the claims was “so unfair as to amount to an abuse of power” (p 691), and “so unreasonable as to be, in public law terms, irrational”: p 692. S/N Izryl24Yd066qIpA2x/dzQ 39 In a concurring judgment, Simon Brown LJ, at pp 693–695, under the heading “Legitimate expectation or nothing?”, sought to relate the case more directly to Lord Diplock's famous definition of irrationality as a decision “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410. It was in that context that he introduced the idea of “conspicuous unfairness”: He said [1996] STC 681, 694–696: “ 'Unfairness amounting to an abuse of power' as envisaged in Preston and the other Revenue cases is unlawful not because it involves conduct such as would offend some equivalent private law principle, not principally indeed because it breaches a legitimate expectation that some different substantive decision will be taken, but rather because either it is illogical or immoral or both for a public authority to act with conspicuous unfairness and in that sense abuse its power.” “In short”, he regarded the “MFK category of legitimate expectation” as “essentially but a head of Wednesbury unreasonableness”: p 695A–B. On the facts of the case, he held, at p 697C, that the test was satisfied, observing that he S/N Izryl24Yd066qIpA2x/dzQ could think of “no surer guide than Macpherson of Cluny J” in determining “the border between on the one hand mere unfairness— conduct which may be characterised as 'a bit rich' but nevertheless understandable—and on the other hand a decision so outrageously unfair that it should not be allowed to stand.” 40 I have quoted at some length from these judgments to show how misleading it can be to take out of context a single expression, such as “conspicuous unfairness”, and attempt to elevate it into a free-standing principle of law. The decision in Ex p Unilever plc [1996] STC 681 was unremarkable on its unusual facts, but the reasoning reflects the case law as it then stood. Surprisingly, it does not seem to have been strongly argued (as it surely would be today) that a sufficient representation could be implied from the revenue's consistent practice over 20 years: see e g De Smith's Judicial Review, para 12-021. It seems clear in any event from the context that Simon Brown LJ was not proposing “conspicuous unfairness” as a definitive test of illegality, any more than his contrast with conduct characterised as “a bit rich”. They were simply expressions used to emphasise the extreme nature of the Revenue's conduct, as related to Lord Diplock's test. In modern terms, and with respect to Lord Diplock, “irrationality” as a ground of review can surely hold its own without the underpinning of such elusive and subjective concepts as S/N Izryl24Yd066qIpA2x/dzQ judicial “outrage” (whether by reference to logical or moral standards). 41 In summary, procedural unfairness is well-established and well-understood. Substantive unfairness on the other hand—or, in Lord Dyson MR's words [2016] Bus LR 1200, para 53, “whether there has been unfairness on the part of the authority having regard to all the circumstances”—is not a distinct legal criterion. Nor is it made so by the addition of terms such as “conspicuous” or “abuse of power”. Such language adds nothing to the ordinary principles of judicial review, notably in the present context irrationality and legitimate expectation. It is by reference to those principles that cases such as the present must be judged.” [72] Malahan baru-baru ini Mahkamah Rayuan di United Kingdom telah tidak membezakan di antara harapan yang sah prosedur dengan harapan yang sah substantif iaitu di dalam kes R (on the application of MP) v Secretary of State for Health and Social Care [2021] 1 All ER 326 seperti yang berikut: “[51] Mr Coppel argued that procedural and substantive legitimate expectation need to be distinguished. On that footing, he submitted that the key authorities in the context of the present appeal are those dealing with the former, such as CCSU, BAPIO and Brooke Energy, and, as regards the last of these, he observed that the case was a bad one on the facts and that there was no reference in the judgments to S/N Izryl24Yd066qIpA2x/dzQ either CCSU or BAPIO. The upshot, Mr Coppel maintained, is that a procedural legitimate expectation can be established by showing a 'sufficiently settled and uniform practice'. There is, he said, no need for a practice to be 'unequivocal', and the Judge erred in law in approaching matters on the basis of such a requirement and by ignoring the qualifier 'sufficiently' before 'settled and uniform practice'. [52] In my view, however, the distinction which Mr Coppel sought to draw between procedural and substantive legitimate expectation is not justified. Mr Palmer argued that cases concerned with substantive legitimate expectation are also of relevance when considering procedural legitimate expectation, and I agree. The 'clear, unambiguous and devoid of relevant qualification' formula first appeared when it was as yet still controversial whether legitimate expectation extended to substantive rather than merely procedural benefits and it and its analogues have not hitherto been held to apply only to substantive legitimate expectation. In fact, Flaux LJ referred to a practice needing to be 'clear, unequivocal and unconditional' in Brooke Energy, a consultation case, and the Court of Appeal spoke of the 'fundamental ingredients' of procedural and substantive legitimate expectation being the same in Heathrow Hub. It is true that in Badger Trust Bean LJ said that a 'representation or promise which is clear, unambiguous and devoid of relevant qualification' is a requirement for establishing a substantive legitimate expectation, but he had no occasion to S/N Izryl24Yd066qIpA2x/dzQ comment on whether procedural legitimate expectation also requires such a representation or promise. [53] The correct position appears to me to be as follows: