(ii) irrationality and (iii) procedural impropriety. This is how he put it: By 'illegality' as a ground for judicial review I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided in the event of a dispute, by those persons, the Judges, by whom the judicial power of the state is exercisable. By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223). 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. Whether a decision falls within this category is a question that Judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the Courts' exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards (Inspector of Taxes) v. Bairstow [1956] AC 14, of irrationality as a ground for a Court's reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decisionmaker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review. I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. Lord Diplock also mentioned 'proportionality' as a possible fourth ground of review which called for development.” [49] Inilah yang menjadi tonggak kepada semakan kehakiman sama ada ia dibenarkan ataupun sebaliknya. Pada masa yang sama prinsip ujian kemunasabahan yang dinyatakan dalam kes Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 juga perlu diberikan perhatian. Lord Greene M.R. menyatakan seperti berikut: “In the present case we have heard a great deal about the meaning of the word “unreasonable.” It is true the discretion must be exercised reasonably. What does that mean? Lawyers familiar with the phraselogy commonly used in relation to the exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably”.” [50] Lord Greene juga menyatakan apakah yang dimaksudkan dengan munasabah atau tidak munasabah bukannya bergantung kepada pandangan Mahkamah terhadap sesuatu keputusan tersebut. Sebaliknya ialah tiada sebarang badan yang munasabah akan membuat keputusan tersebut seperti berikut: “Theoretically it is true to say—and in practice it may operate in some cases—that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is right, but that would require overwhelming proof, and in this case the facts do not come anywhere near such a thing. Counsel in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense, not that it is what the court considers unreasonable, but that it is what the court considers is a decision that no reasonable body could have come to, which is a different thing altogether. The court may very well have different views from those of a local authority on matters of high public policy of this kind.” [51] Walau bagaimanapun terdapat perkembangan yang menarik berkenaan dengan prinsip kemunasabahan di dalam kes Wednesbury Corporation (supra) ini. Ia dapat dilihat dalam satu artikel yang menarik oleh Profesor Madya Undang-undang Adam Perry dari University of Oxford dalam artikelnya bertajuk Wednesbury Unreasonableness 2023, Cambridge Law Journal 82 (3) 483 seperti berikut: “If one look to the case law for the answer, I am afraid one will be disappointed. Wednesbury told us that an unreasonable decision is one that “no reasonable body could have come to”. The “overstated and underexplained” character of this pronouncement is typical of administrative cases influenced by wartime considerations. While one might hope that the law would have been clarified in the 75 years since, especially given the “countless” invocations of Wednesbury, the formulations in later cases are not much better.” [52] Penelitian kepada duluan-duluan kehakiman juga menunjukkan bahawa penentuan sesuatu keputusan itu munasabah atau tidak munasabah Mahkamah perlu melihat sama ada keputusan tersebut terdapatnya justifikasi yang rasional dan adakah ianya sesuatu yang secara pasti ia adalah satu kesilapan. Ini dinyatakan oleh Adam Perry dalam artikel yang sama seperti berikut: “A decision is said to be unreasonable if it is “beyond the range of reasonable decisions”, “beyond rational justification” or beyond what a “sensible person” would do, phrases that are hardly self-explanatory. An unreasonable decision is supposed to be one that “lacks logic”, lacks rationality or “lacks … justification”, as if logic, rationality, and justification are the same thing. It is also said – and for sheer opacity this is my favourite – that an unreasonable decision is whatever causes a judge to think “my goodness, that is certainly wrong”.” [53] Ini dapat dilihat misalnya dalam kes Kennedy v Charity Commission [2014] UKSC 20; [2015] AC 455. Dalam kes tersebut semakan kehakiman telah difailkan bagi keputusan pihak berkuasa awam berkenaan dengan pendedahan maklumat atau dokumen di dalam sesuatu inkuiri berkanun. Lord Toulson menyatakan seperti berikut: “132 Given that a decision by a public authority about disclosure of information or documents regarding a statutory inquiry is capable of judicial review, what should be the standard of review? The normal standard applied by a court reviewing a decision of a statutory body is whether it was unreasonable in the Wednesbury sense (ie beyond rational justification), but we are not here concerned with a decision as to the outcome of the inquiry. We are concerned with its transparency. If there is a challenge to the High Court against a refusal of disclosure by a lower court or tribunal, the High Court would decide for itself the question whether the open justice principle required disclosure. Guardian News [2013] QB 618 provides an example. I do not see a good reason for adopting a different approach in the case of a statutory inquiry, but the court should give due weight to the decision and, more particularly, the reasons given by the public authority (in the same way that it would to the decision and reasons of a lower court or tribunal). The reason for the High Court deciding itself whether the open justice principle requires disclosure of the relevant information is linked to the reason for the principle. It is in the interests of public confidence that the higher court should exercise its own judgment in the matter and that information which it considers ought to be disclosed is disclosed.” [54] Dalam kes HMB Holdings Ltd v Cabinet of Antigua and Barbuda [2007] UKPC 37 Majlis Privy telah memutuskan bahawa penentuan sama ada keputusan oleh Kabinet adalah suatu yang tidak rasional atau sebaliknya adalah seperti berikut: “[30] But this does not mean that the decision is immune from judicial review. The Attorney General conceded that the door was not closed entirely. He accepted that the decision could be challenged on the ground that it was manifestly without foundation. He was right to do so, but the principle extends further than that: Vanterpool v Crown Attorney (1961) 3 WIR 351, per Lewis J at pp 366-367. As Lord Wilberforce explained in Anisminic v Foreign Compensation Commission [1969] 2 AC 147, 207D-F, [1969] 1 All ER 208, [1969] 2 WLR 163, however widely the field in which a decision-maker operates is defined by statute, there are always certain fundamental assumptions which necessarily underlie the remission, or delegation, of a power to decide such as the requirement that a decision must be made in good faith. An examination of its proper area is not precluded by a clause which confers finality on its decisions. Clauses of that kind can only relate to decisions which have been given within the field of operation that has been entrusted to the decision-maker. This means that all three grounds for judicial review which Lord Diplock identified in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, [1984] 3 All ER 935, [1985] IRLR 28, may be invoked – illegality, irrationality and procedural impropriety. [31] Their Lordships therefore reject the Respondents' argument that judicial review of the Cabinet's decision is not available. It is open to HMB to challenge the decision on the ground that it was irrational. The test of irrationality will be satisfied if it can be shown that it was one which no sensible person who had applied his mind to the question to be decided could have arrived at. Then there is legitimate expectation as an additional ground of review. As Lord Fraser of Tullybelton explained in Attorney General for Hong Kong v Ng Yuen Shin [1983] 2 AC 629, 636E-F, [1983] 2 All ER 346, [1983] 2 WLR 735, the concept of legitimate expectation is capable of including expectations created by something that falls short of an enforceable legal rights, provided they have some reasonable basis. But if the public body has done nothing or said nothing which can legitimately have generated the expectation that is contended for, the case must end there: R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607, [2002] 1 WLR 237, para 21, 33 HLR 955. The action complained of cannot be said to have been contrary to what the public body could reasonably have been expected to do in the circumstances.” [55] Sementara itu dalam kes R (on the application of A) v Liverpool City Council [2007] EWHC 1477 semakan kehakiman dikemukakan berkenaan dengan keputusan pihak berkuasa tempatan mengenai umur untuk digolongkan sebagai kanak-kanak. Mahkamah menyatakan dalam penentuan sama ada keputusan tersebut adalah wajar atau tidak seperti berikut: “[39] As indicated earlier in this judgment, I did not find the Defendant's submissions persuasive. On the contrary, it seems to me that the Defendant's approach is both contrary to the principles established in the first instance decisions mentioned earlier, and in any event lacks logic to such a degree as to be unreasonable.” [56] Seterusnya dalam kes R (on the application of Mackay) v Parole Board [2019] EWHC 1178 semakan kehakiman adalah dibuat berkaitan dengan keputusan Lembaga Parol yang enggan untuk membebaskan Pemohon atau memindahkannya ke penjara lain. Hakim Kramer menyatakan seperti berikut: “38. In this case, irrationality is the basis of the challenge. That is to say Wednesbury unreasonableness. Although irrationality and unreasonableness are often used interchangeably, the former is only a facet of the latter; De Smith on Judicial Review 8th Ed para 11.032. Here I am concerned with irrationality and, in particular whether the decision lacks sensible logic or comprehensible justification.” [57] Akhirnya dalam kes Devon County Council v George [1989] A.C 573 semakan kehakiman dilakukan terhadap keputusan penyediaan pengangkutan percuma kepada Pemohon untuk ke sekolah. Dalam kes tersebut Lord Donaldson of Lymington M.R. menyatakan seperti berikut: “The applicant's case is that it is wholly unreasonable to expect him to walk to school unaccompanied. If he were to be accompanied, it would have to be by his mother or father. His mother could not undertake this task, because she had to look after his younger sister. His father was concerned that if he undertook this task, it might be said he had not been available for employment and was thus disentitled to unemployment benefit. In any event, accompanying the applicant on foot would involve his father in walking nearly 60 miles each week. I am not overimpressed by the argument concerning unemployment benefit. The prospect of father having to walk 60 miles a week is another matter, but, as was pointed out, the non-availability of bicycles and the unsuitability of the route for that means of transport does not seem to have formed any part of the applicant's case and so not explored. There was, however, another factor which might be considered to be relevant, namely, that a school bus connected the home to the school and that the older brother was entitled to use it free of charge under section 55 (1), because he was asthmatic. In theory this could produce a situation in which the applicant set out on his walk to school an hour before his older brother stepped into his bus and drove there in comfort, and that in the evening that brother had been at home for an hour before the applicant arrived after his return walk, sometimes no doubt both wet and cold. It is not a scenario which is calculated to produce family unity and family disunity created in an educational context is not likely to improve in the process of education itself. However, that too was a matter for the council which would also have to take account of the effect on near neighbours and their children (if there were any) that family A should all be transported to school free of charge because one member had to be so transported and family B were left to walk. This would not be an easy decision and one which would be much easier if section 55(1) did not call for a disregard of the means of the families or if necessity under that subsection could take account of the extent to which the council was exercising its powers under section 55(2). Resentment at one child being carried free on medical grounds would be much lessened if other children, otherwise in the same position, were carried free, partly subsidised or wholly at the parents' expense, according to the financial circumstances of the parents. As I have said, it is for the council and not for the courts to decide whether the criteria set out in section 55(1), read in the light of section 55(3), are met and whether the discretionary powers under section 55(2) should be exercised. The courts' power and duty to intervene only arises if (a) the council's decision was "Wednesbury unreasonable" or, to put it in the more homely language of May L.J. in Neale v. Hereford and Worcester County Council [1986] I.C.R 471, 483, admittedly not in the context of judicial review, but in an analogous context, "my goodness, that is certainly wrong" or (b) the council erred in law by misunderstanding their powers and duties and, as a result, failed to take account of relevant matters or took account of irrelevant matters.” Pengecualian / pelepasan (exemption) dan mengenepikan (waive) [58] Peguam Pemohon-Pemohon juga menyatakan bahawa keputusan YB Menteri untuk mengenepikan bayaran deposit tersebut tidak dibuat mengikut Akta Pemajuan Perumahan (Kawalan dan Pelesenan) 1966. Ia adalah disebabkan keputusan tersebut tidak digazetkan seperti yang dinyatakan di bawah seksyen 2 Akta tersebut seperti berikut: “2 Saving and exemption