Dato' Seri Dr Ahmad Zahid Bin Hamidi v Soo Lina (Q-01(NCVC)(A)-384-12/2015)

DATO’ SERI DR AHMAD ZAHID BIN HAMIDI

KEMENTERIAN DALAM NEGERI PENDAFTAR

PERTUBUHAN MALAYSIA SARAWAK GOVERNMENT OF MALAYSIA … APPELLANTS

SOO LINA

HUGH LAWRENCE ZEHNDER

TAMBI ANAK PILANG (WN KP: 560515-13-5875) (For and on behalf of the Sarawak Society For People’s Aspiration (SAPA)) … RESPONDENTS (In the Matter at the High Court in Sarawak at Kuching Application for Judicial Review No: KCH-13NCVC-2/1-2015 Between

Soo Lina

Hugh Lawrence Zehnder

Tambi Anak Pilang (WN KP: 560515-13-5875) (For and on behalf of the Sarawak Society For People’s Aspiration (SAPA)) … Applicants And

Dato’ Seri Dr Ahmad Zahid Bin Hamidi Menteri Dalam Negeri

Kementerian Dalam Negeri Pendaftar Jabatan Pendaftaran

Pertubuhan Malaysia Sarawak Government of Malaysia … Respondents) CORAM MOHD ZAWAWI SALLEH, JCA ABDUL RAHMAN SEBLI, JCA ABDUL KARIM ABDUL JALIL, JCA JUDGMENT OF THE COURT Introduction [1] This is an appeal against the decision of the High Court of Sabah and Sarawak at Kuching (Rhodzariah Bujang J (as she then was), presiding) dated 30.10.2015, granting the respondents’ application, inter alia, for an order of certiorari to quash the 1 st appellant’s order dated 14 November 2014 which declared the Sarawak Association For Peoples’ Aspiration (“SAPA”) an unlawful and/or illegal society with costs of RM8,000.00. [2] After hearing the parties, we dismissed the appeal and affirmed the decision of the learned High Court Judge. We now give our reasons. Background Facts [3] The background facts relating to this appeal have been set out in the grounds of judgment of the learned High Court Judge. We do not propose to repeat them in entirety, save to highlight the facts that are germane to the appeal. [4] The respondents are committee/office bearers of SAPA. The 1st respondent, Soo Lina, is SAPA’s president, Hugh Lawrence Zehnner its deputy president, and Tambi anak Pilang its assistant secretary. [5] SAPA is a human rights society which has been registered under the Societies Act 1966 (Act 335) on 12 November 2013. [6] As stated in clause 3 of its Constitution, SAPA’s objectives are as follows –

(a) To uphold and promote universal respect for, and observance of human rights and fundamental freedoms as enshrined in the United Nations Universal Declaration of Human Rights;

(b) To defend the right of every Sarawakian to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, medical care and other social services;

(c) To defend the right to education for every Sarawakian irrespective of race, creed, gender, language, religion, social origin, birth or other status;

(d) To support and empower communities working for peace and justice, indigenous and human rights, democracy and gender equality;

(e) To initiate and support community programmes for the eradication of poverty;

(f) To provide a forum for like-minded citizens to exchange ideas and experiences;

(g) To accept from government, purchase, take on lease or in exchange or otherwise occupy or acquire any land or building for the attainment of the objectives of the Association; and

(h) Any other initiatives to enhance the progress, empowerment and holistic development of the people of Sarawak. [7] The main activities of SAPA since its inception are to promote human rights education, especially Sarawakian rights. In this respect, public talks and forums are held which touch on the history of Sarawak, the formation of Malaysia and the Malaysia Agreement. All SAPA forums and other activities are open to the public. [8] The 1st appellant (Minister of Home Affairs) had declared SAPA as an illegal society pursuant to section 5 of Act 335 via a Federal Government Gazette published on 14 November 2014. The 1st appellant was of the opinion that ‘SAPA is being used for the purposes prejudicial to the interest of the security of Malaysia and public order’. [9] SAPA was deregistered following the said decision. [10] Aggrieved with the impugned decision, the respondents filed an application for a judicial review and sought, inter alia, an order for certiorari to quash the impugned decision, costs and other reliefs deemed fit by the court. [11] The nub of the respondents’ contention is that the impugned decision struck at the very tenets of democracy and fundamental civil liberties i.e. freedom of speech and expression, freedom of thought and freedom of association guaranteed by the Federal Constitution. [12] The respondents further contended that the impugned decision is totally unjustified. According to the respondents, SAPA never carried out any activities or was being “used for the purposes prejudicial to the interest of the security of Malaysia and public order”. [13] The respondents posited that the impugned decision is illegal, unreasonable and/or irrational, or based on procedural impropriety which is amenable to judicial review. [14] In response, the 1st appellant vide Affidavit in Reply dated 11.5.2015 denied all the allegations put forward by the respondents and stated that he had considered all the relevant facts and exercised the power provided under section 5 of Act 355 judiciously in declaring SAPA an unlawful society. [15] As alluded to earlier, the learned High Court Judge found in favour of the respondents and allowed the respondents’ application with costs of RM8,000.00 to the respondents. [16] Being dissatisfied the decision, the appellants appealed to this Court. Hence, this appeal before us. The Appeal [17] The appellants assail the decision of the learned High Court Judge on the following grounds –

(a) The learned High Court judge had erred in fact and in law when Her Ladyship had decided that the 1st appellant’s decision is unreasonable and/or irrational even though there are sufficient evidence on record to justify the 1st appellant’s decision;

(b) The learned High court Judge had erred in law and in fact when Her Ladyship decided that the 1st appellant had not proved any untoward incidents to the activities involving the SAPA when the 1st appellant made his decision under section 5 of Act 335;

(c) The learned High Court Judge had erred in law when Her Ladyship usurping the power of the 1st appellant in relation to the matters pertaining to the national security as provided under section 5 of Act 335; and

(d) The learned High Court Judge had erred in law when Her Ladyship quashed the decision of the 1st appellant dated 14.11.2014 even though the decision arrived by the 1st appellant is in compliance with section 5 of Act 335. Discussion and Decision [18] Learned Senior Federal Counsel appearing for the appellants opened her case by reminding us of some elementary principles of administrative law that a court undertaking judicial review of an administrative decision is concerned only with the legality of the decision and not with its merits. (See Minister of Labour Malaysia v Lee Seng Fatt [1990] 2 MLJ 9). [19] Learned Senior Federal Counsel emphasized that it is the duty of the court to guard against any tendency to “trespass into the forbidden field of review of the merits.” (See Minister for Immigration and Ethnic Affairs v Guo [1997] 191 CLR 559 at 577; National Union of Hotel, Bar and Restaurant Workers [1980] 2 MLJ 189). [20] Learned Senior Federal Counsel vigorously argued that it is not for the court to substitute its view for the Minister’s as to whether SAPA is being used for the purposes prejudicial to the interest of the security of Malaysia and public order. [21] Learned Senior Federal Counsel further submitted that this instant appeal involves considerations of security and public order. These are areas that on their face are within the province of the Executive branch of government (1st appellant). The Judiciary should accord deference to another branch of government in relation to a subject matter that is more comfortably situated within the latter’s province. [22] In support of her submission, learned Senior Federal Counsel relied on Karam Singh v Menteri Hal Ehwal Dalam Negeri (Minister of Home Affairs) [1969] 2 MLJ 129 where the learned judges sitting in the Federal Court stated as follows – Azmi LP (page 140 paragraph A-B): “Finally I wish to quote the following the judgment of Lord Macmillan in Liversidge v Sir John Anderson & Anor [1942] AC 206 at page 253: “But how could a court of law deal with the question whether there was a reasonable cause to believe that it was necessary to exercise control over the person proposed to be detained, which is a matter of opinion and policy, not of fault? A decision on this question can manifestly be taken by one who has both knowledge and responsibility which no court can share”. Ong Hock Thye CJ (Malaya) (page 142 paragraph H): “Once we accept that the Cabinet did satisfy themselves as to the propriety of the order that is the end of the matter”. Suffian FJ (page 150 paragraph E-G): “In this matter with respect I agree with the reasoning of the minority judgment by Sastri J in Atma Ram AIR 1951 SC 157 that when the power to issue a detention order has been made to depend on the existence of a state of mind in the detaining authority, which is purely a subjective condition, so as to exclude a judicial inquiry into the sufficiency of the grounds to justify the detention, it would be wholly inconsistent to hold that it is open to the court to examine the sufficiency of the same grounds to enable the person detained to make a representation”. And at page 151 paragraph E-G: “Finally, in my opinion, it is not for a court of law to pronounce on the sufficiency, relevancy or otherwise of the allegations of fact furnished to him. The discretion whether or not the appellant should be detained is placed in the hands of the Yang di Pertuan Agong acting on Cabinet advice. Whether or not the facts on which the order of detention is to be based are sufficient or relevant, is a matter to be decided solely by the executive. In making their decision, they have complete discretion and it is not for a court of law to question the sufficiency or relevance of these allegations of fact”. Gill FJ (page 154 paragraph B-C): “There is ample authority for the proposition that it is not the function of the court to act as a court of appeal from the discretionary decision of the Cabinet and to inquire into the grounds upon which they came to the belief that it was necessary or desirable in the interests of the security of Malaysia to hold the appellant in detention”. Ali FJ (page 159 paragraph B-D): “Lastly, there is also the appellant’s affidavit in which he categorically denies each and every one of the allegations of fact and contends in each case that even if the allegation is true, it cannot constitute a threat to the past or future security of Malaysia. In this connection, I shall be content to say that in habeas corpus proceedings, such as this, the court is not concerned with the truthfulness or otherwise of the allegations because the question whether it is necessary that a person be detained under section 8(1)(a) of the Internal Security Act, 1960 is a matter for the personal or subjective satisfaction of the executive authority. Accordingly, no consideration can be given to the appellant’s denial and no opinion need be expressed on his consideration”. [23] Learned Senior Federal Counsel posited that courts and judges are not best – equipped to scrutinise the decision which are laden with issues of policy or security or which call for polycentric political considerations. Court and judges are concerned rather with justice and legality in the particular case that come before them. [24] With respect, we disagree with the submission. The current state of law on judicial review in Malaysia permits a review of process and merit. In Ong Ah Hooi v Pentadbir Tanah Larut, Matang dan Selama & Anor [2017] 6 CLJ 228, this Court said – “[10] In our view, the law on judicial review has developed over the years. In R. Ramachandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145, the Federal Court revisited this area of law and laid down crucial new principles to bring our law into harmony with the development in administrative law. The Federal Court stated at p.p 186 – 187: “It is often said that Judicial Review is concerned not with the decision but the decision making process. (See eg Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155). This proposition, at full face value, may well convey the impression that the jurisdiction of the courts in Judicial Review proceedings is confined to cases where the aggrieved party has not received fair treatment by the authority to which he has been subjected. Put differently, in the words of Lord Diplock in Council of Civil Service Unions & Ors v Minister for the Civil Service [1985] AC 374, where the impugned decision is flawed on the ground of procedural impropriety. But Lord Diplock’s other grounds for impugning a decision susceptible to Judicial Review make it abundantly clear that such a decision is also open to challenge on grounds of “illegality” and “irrationality” and, in practice, this permits the courts to scrutinize such decisions not only for process, but also the substance.”. (Emphasis is ours) [11] The law was clearly explained and clarified by Raus Sharif FCJ (now PCA) in the Federal Court case of Ranjit Kaur S. Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629 where His Lordship said – “Historically, judicial review was only concerned with the decision making process where the impugned decision is flawed on the ground of procedural impropriety. However, over the years, our courts have made inroad into this field of administrative law. Rama Chandran is the mother of all those cases. The Federal Court in a landmark decision has held that the decision of inferior tribunal may be reviewed on the grounds of "illegality", "irrationality" and possibly "proportionality" which permits the courts to scrutinise the decision not only for process but also for substance. It allowed the courts to go into the merit of the matter. Thus, the distinction between review and appeal no longer holds.”. [12] In Datuk Justine Jinggut v Pendaftar Pertubuhan [2012] 3 MLJ 212, this Court reaffirmed the application of the Ramachandran principle in the following terms (at para 56) – “The court has the power to scrutinise the authority's decision not only for process, but also for substance (R Ramachandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145; [1997] 1 CLJ 147).”. [13] In the case of Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri & Ors [2014] 8 CLJ 629, the Federal Court held that the current position of the law on judicial review in Malaysia permits a review of process and substance in determining the reasonableness of a decision by an administrative body and the test applicable in judicial review now is the objective test. [14] We hasten to add that the Court is permitted to review the decision on the basis of a material mistake of fact on the part of the person who made the decision or where the decision was arrived at arbitrarily, capriciously or mala fide or as a result of unwarranted adherence to a fixed principle or in order to further an ulterior or improper process, or where the functionary misconceived the nature of the discretion conferred upon him or her and took into account irrelevant considerations or ignored relevant ones; or where the decision of the functionary was so grossly unreasonable as to warrant the inference that he or she had failed to apply his or her mind to the matter.”. [25] In the same vein, the Federal Court in Ketua Pengarah Hasil Dalam Negeri v Alcatel Lucent Malaysia Sdn. Bhd & Anor [2017] 2 CLJ 1 stated – “[69] A judicial review is a court proceeding where a challenge is made on the decision of the relevant authority or entity (in this case the appellant) ie, by challenging the lawfulness of the decision-making process. This is trite law. Generally, the court dealing with the judicial review application in a supervisory capacity is not to delve into the merits of the case. In other words, the evidence is not reassessed. The court is merely to quash the decision of the relevant authority, if need be, and not to substitute with what it thinks is the correct decision. We are not here to usurp the powers of the designated authority. [70] Lord Brightman in Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155, at p. 1174 had occasion to state that a judicial review "is not an appeal from the decision but a review of the manner in which a decision is made". The book authored by Mr Michael Supperstone QC and Mr James Goudie QC in Judicial Review at p. 72, was also referred to, and reads: “It is easy to understand why this is so. The paradigm case of a Judicial Review challenge arises where a body whose functions are conferred by statute are said to have acted in a manner in which the law does not allow. But if the only complaint is that the body has reached a decision unfavourable to the applicant on the facts, and the claim put forward is a plea to the court in effect to substitute a different decision, the proceedings would amount to an invitation to the court to exercise the very function which statute had confided to the body reviewed; to accede to such an invitation would be to usurp the will of Parliament. Since, of course, Parliament includes the elected element of the legislature, any such stance by the court might reasonably be castigated as undemocratic... [71] However, the Federal Court in the landmark decision of R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145 held that the decision of an inferior tribunal may be reviewed on the grounds of "illegality", "irrationality" and possibly "proportionality", which not only permits the courts to scrutinise the decision-making process but also the decision itself. In short, it allows the courts to delve into the merits of the matter. [72] The approach of illegality and irrationality was recognised and applied by Malaysian Trade Union Congress & Ors v. Menteri Tenaga, Air dan Komunikasi & Anor [2014] 2 CLJ 525; [2014] 3 MLJ 145. This court in succinct terms said: “On the facts of this case, we find MTUC had failed to show that the Minister's decision was illegal, irrational and flawed on the grounds of procedural impropriety.” [73] It is now clear, and here to stay, that the decision of an inferior tribunal may also be reviewed on the grounds of illegality and irrationality. The distinction between a review application and an appeal thus appears to no longer exist (see also Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629). [74] Despite the introduction of the grounds of "illegality", "irrationality" and possibly "proportionality", and the liberal approach, R Rama Chandran self-checked itself when it stated at pp. 183-184 (CLJ); p. (MLJ) that: Needless to say, if, as appears to be the case, this wider power is enjoyed by our courts, the decision whether to exercise it, and if so, in what manner, are matters which call for utmost care and circumspection, strict regard being had to the subject matter, the nature of the impugned decision and other relevant discretionary factors. A flexible test whose content will be governed by all the circumstances of the particular case will have to be applied. For example, where policy considerations are involved in administrative decisions and courts do not possess knowledge of the policy considerations which underline such decisions, courts ought not to review the reasoning of the administrative body, with a view to substituting their own opinion on the basis of what they consider to be fair and reasonable on the merits, for to do so would amount to a usurpation of power on the part of the courts. [75] Petroliam Nasional Bhd v. Nik Ramli Nik Hassan [2003] 4 CLJ 625, in no uncertain terms said that the reviewing court may scrutinise a decision on its merits but only in the most appropriate case. At p. 635 we said: Clearly therefore, not every case is amenable to the Rama Chandran approach. It depends on the factual matrix and/or the legal modalities of the case. This is certainly a matter of judicial discretion on the part of the reviewing judge...”. (See also District Plantation Services Sdn. Bhd. v Ahmad Adnan & Anor [2001] 1 CLJ 25; Dato’ Seri Syed Hamid Syed Jaafar Albar (Menteri Dalam Negeri) v SIS Forum (Malaysia) [2012] 9 CLJ 297. [26] With the above principles in mind, we now proceed to consider the grounds put forward by the appellants. [27] Learned Senior Federal Counsel submitted that under section 5 of Act 335, the 1st appellant has absolute discretion to cancel the registration of a society based on the ground that it can affect the national security. [28] Learned Senior Federal Counsel posited that the learned High Court Judge had erred in holding that what is considered to be as national security within the context of the case is amenable to judicial review. In support of her submission, reliance was placed, inter alia, on the case of Kerajaan Malaysia & Ors v Nasharuddin Nasir [2004] 1 CLJ 81 where the Court held at page 97 paragraph a – b that – “It seems apparent from these cases that where matters of national security and public order are involved, the court should not intervene by way of judicial review or be hesitant in doing so as these are matters especially within the preserve of the executive, involving as they invariably do, policy considerations and the like. If however, the court found itself compelled to intervene, as it had done in the instant case, notwithstanding the ouster clause in s.8B or the cautionary advice I mentioned a moment ago, it must necessarily resolve the important question of whether the objective or the subjective test applies to the exercise of the Minister's discretion under s.8(1) of the ISA. In Malaysia, that question has been answered by the Federal Court in Karam Singh, supra, consisting of a strong panel of eminent judges including Ong Hock Thye CJM and Suffian FCJ (as he then was)…”. [23] Further, at page 98 paragraph f – g, it was held that – “It is in the light of the principles enunciated in Karam Singh that the present case ought to be examined. ... From this, it is immediately clear that the said report related to matters of national security which involved the respondent. The Minister was satisfied that the activities of the respondent threatened national security. That satisfaction was a subjective one. From that perspective, there would be no violation of the principles established in Karam Singh. (See also Kumpulan Perangsang Selangor Bhd v Zaid bin Hj. Mohd. Noh [1997] 1 MLJ 789). [29] Learned Senior Federal Counsel vehemently argued that the learned High Court Judge had erred in probing into the issue of sufficiency or otherwise of the evidence before the 1st appellant and therefore, had failed to be cautious from turning a judicial review proceedings to an appeal on merit. [30] Now, Section 5 of Act 335 is in the following terms – “Power of the Minister to declare s society unlawful.

(a) Firstly, the Court held that Karam Singh (supra) and other cases following it were no longer good law in so far as they applied Liversidge v Anderson [1941] UKHL 1; [1942] A C 206, which were World War II cases from the United Kingdom. The House of Lords and Privy Council had since recognised that the majority judgments in Liversidge had been wrong and preferred Lord Atkin’s dissenting judgment in Liversidge which advocated the objective approach.

(b) Secondly, the Court concurred with judicial opinion expressed in other Commonwealth jurisdictions that courts can objectively review the executive’s exercise of discretion in the context of preventive detention on national security grounds.

(c) Thirdly, applying the subjective test in reviewing the exercise of discretion under the ISA would mean giving the executive arbitrary powers of detention, rendering such powers unconstitutional and void; and

(d) Fourthly, support for the applicability of the objective test was found in Teh Cheng Poh v Public Prosecutor [1980] AC 458, a Privy Council decision on appeal from Malaysia, in which it was held that “as with all discretions conferred upon the executive by the Act of Parliament, (the Malaysia ISA] does not exclude the jurisdiction of the courts to inquire the purported exercise of the discretion was never ultra vires either because it was done bad faith or because as a result misconstruing the provisions of the Act”. [34] On the approach adopted by Chung Suan Tze, the Court of Appeal of Singapore in Tan Seet Eng v. Attorney-General and another matter [2015] SGCA 59 had this to say at paras 98 and 99 – “98. It is true that Chng Suan Tze was subsequently legislatively overruled by amendments to the Constitution and the ISA (see Teo Soh Lung (CA) at [20]- [21] which confirmed that the post-amendment position was that stated in Lee Mau Seng at [53], but those amendments do not affect the position before us because we are not concerned with the ISA. In our judgment, the following propositions flow from the foregoing passage in Chng Suan Tze, and continue to be relevant to this case:

(a) Unfettered discretion is contrary to the rule of law. All power has legal limits and it is within the province of the courts to determine whether those limits have been exceeded.

(b) It follows that if discretion is vested in the Executive branch by the Legislature, it remains a matter for the courts to decide:

(i) what the boundaries are of the jurisdiction or power that is vested in the Executive; and

(c) The follows also by reason of Art 93 of the Constitution, which vests the judicial power in the courts.

(d) Therefore, the courts, in the final analysis, are the arbiters of the lawfulness of actions including government actions.

Where the Executive is acting within the ambit of the powers that have vested in it by Parliament, then the court’s concern is not with whether it agrees with the way in which the powers have been exercised. To suggest otherwise is to displace the choice that has been made by Parliament as to which branch of the government is to be entrusted with the powers in question. The court’s role in judicial review which engages the manner in which the power is exercised will then be limited to such things as illegality, irrationality and procedural impropriety. This perspective is premised on a proper understanding of the role of the respective branches of government – especially, in this context, the Executive and the Judiciary – in a democracy where the Constitution reigns supreme.”. [35] Based on the authorities above, it is clear that the test applicable to review the decision of the Minister under section 5 of Act 355 is the objective test and not the subjective test. [36] We now turn to consider the impugned decision within the ambit of “Wednesbury unreasonableness”. The case of Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 JCB 223 came to be regarded as an authoritative statement of the standard of legal unreasonableness imposed on decision – makers exercising discretionary powers. In his often cited judgment, Lord Greens MR stated – “The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to have taken into account or conversely have refused … or neglected to take into account matters which they ought to have taken into account. Once that question is answered in favour of the local authority, it may still be possible to say that … they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case I think the court can interfere.”. [37] The invocation of unreasonableness as a ground of judicial review has often been controversial because it is such a subjective concept and opinions can obviously vary widely on whether a particular decision is reasonable or not. Several attempts have been made to reformulate the test. In Council of Civil Service Unions v Minister of State for Civil Service [1984] AU ER 935, Lord Diplock fashioned the principle of unreasonableness and preferred to use the term ‘irrationality’ as follows – “By ‘irrationality’ I mean what can now be succinctly referred to as “Wednesbury unreasonableness”… It applies to a decision which is 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.”. [38] In Tan See Eng (supra), the Singapore Court of Appeal opined that ‘illegality’ and ‘irrationality’ are separate and serve a different purpose. The Court said at para 80 – “80 In our judgment, illegality and irrationality are separate, though overlapping, heads of review because at their core, each serves a different purpose. A decision may be legal in the sense that it is within the legislative scheme, but nevertheless impugned for being substantively unlawful (Thio Li-ann. “Law and the Administrative State” in The Singapore Legal System (Kevin Y L Tan ed) (Singapore University Press, 2nd Ed. 1999) (“Law and the Administrative State”) at p 185). This is because illegality serves the purpose of examining whether the decision-maker has exercised his discretion within the scope of his authority and the inquiry is into whether he has exercised his discretion in good faith according to the statutory purpose for which the power was granted, and whether he has taken into account irrelevant considerations or failed to take account of relevant considerations (Harry Woolf et al, De Smith’s Judicial Review (Sweet & Maxwell, 7th Ed, 2013) (“De Smith’s Judicial Review”) at para 5-001). Conversely, irrationality is a more substantive enquiry which seeks to ascertain the range of legally possible answers and asks if the decision made is one which, though falling within that range, is so absurd that no reasonable decision-maker could have come to it (see Law and the Administrative State at p 186). In short, illegality examines the source and extent of the Minister’s power and whether the power has been informed by relevant and only relevant considerations, while irrationality looks at the decision that was made and asks if it was so unreasonable that after considering the correct factors, no reasonable decision-maker could have come to it.”. What is the meaning reasonableness in judicial review? [39] The test of reasonableness has been the subject of many cases over the decades in other Commonwealth jurisdictions. For example, in dealing with the circumstances under which the Court could intervene to quash the decision of an administrative officer or tribunal on ground of unreasonableness or irrationality, Henchy J of the Irish Court in State (Keegan) v Stardust Victims Compensation Tribunal [1986] I.R. 642 set a number of such circumstances in different terms. They are – “1. It is fundamentally at variance with reason and common sense.

It is indefensible for being in the teeth of plain reason and common sense.

Because the court is satisfied that the decision-maker has breached his obligation whereby he “must not flagrantly reject or disregard fundamental reason or common sense in reaching hi decision”. [40] In O’Keeffe v. An Bord Pleanala [1993] 1 I.R 39, Finlay CJ said: “[T]he circumstances under which the courts can intervene on the basis of irrationality with the decision-maker involved in an administrative function are limited and rare.” A court could not interfere just because it would have come to different conclusions or because “the case against the decision made by the authority was much stronger than the case for it.” For the court to intervene, “it is necessary [to establish] ... that the decision-making authority had before it no relevant material which would support its decision.” [41] In Meadows v. Minister for Justice, Equality and Law Reform, Ireland and the Attorney General [2003] IESC Denham J in her dicta (ratio) set out the following test – “This test includes the implied constitutional limitation of jurisdiction of all decision-making which affects rights and duties. Inter alia, the decision-maker should not disregard fundamental reason or common sense in reaching his or her decision. The constitutional limitation of jurisdiction arises inter alia from the duty of the courts to protect constitutional rights. When a decision-maker makes a decision which affects rights then, or reviewing the reasonableness of the decision: (a) the means must be rationally connected to the objective of the legislation and not arbitrary, unfair or based on irrational considerations; (b) the rights of the person must be impaired as little as possible; and (c) the effect on rights should be proportional to the objective.”. [42] Now, we turn to the facts of this instant appeal. The 1st appellant deposed in his Affidavit in Reply that there were police reports lodged against SAPA with respect to the activities of SAPA which he claimed were prejudicial to the interest of the security of Malaysia and public order, hence the declaration on its illegality with effect 14th November 2014. [43] The learned High Court Judge had summarised the said police reports in his grounds of judgment and we reproduce the same hereunder – “(i) Kuching Sentral Report No. SENTRAL/008390/13 dated 27th December 2013 made by one Abdul Rahman bin Nazirin who complained that Soo Lina was inviting a number of NGOs through the social media to assemble at a ceremony called Sarawak Nationalist Year End Gathering 2013. The complainant alleged that the intention of Lina and her associates was to influence (“menghasut”) the people of Sabah and Sarawak to hate the Federal Government who were not fair to the two States and to agitate for the two States to leave Malaysia which action is disruptive of the harmonious relations in the two States. The report is in Bahasa Malaysia and the above summary is my own translation of the same. I noted that the Association was not mentioned in this report.

(v) Kuching Sentral Report No. SENTRAL /003967/14 dated 22nd July 2014 about the gathering of the Association participated by about eighty to one hundred persons carrying placards and gathering signatures who marched to the old courthouse and assembled infront of the Square Tower. The situation was under control, he said.