Syed Saddiq Bin Syed Abdul Rahman v Perdana Menteri Malaysia (W-01(IM)-38-01/2025)

MUHAMAD FADZLY BIN BISRI - APPELLANTS

KERAJAAN MALAYSIA - RESPONDENTS [In the Matter of the High Court of Malaya at Kuala Lumpur

Syed Saddiq Bin Syed Abdul Rahman

Najib Bin Abu Nawar

Mohd Bakirudin Bin Hj Abdullah

Muhamad Fadzly Bin Bisri - Appellants S/N fIVz66ktkepjJ8q5KS/Aw

Perdana Menteri Malaysia

Kerajaan Malaysia - Respondents] CORAM: HASHIM BIN HAMZAH, JCA AZMI BIN ARIFFIN, JCA HAYATUL AKMAL BINTI ABDUL AZIZ, JCA

Enclosure 17, dated 21 January 2025, is the Appellant's Notice of Appeal to this Honourable Court against the decision of the Kuala Lumpur High Court delivered on 24 December 2024, which dismissed the Appellant's application for judicial review with no order as to costs.

The salient facts are as follows: S/N fIVz66ktkepjJ8q5KS/Aw

Following GE15 and upon being sworn in as the Member of Parliament for Muar, the 1st Appellant and his representatives were invited by an officer from the Implementation Coordination Unit of the Prime Minister's Department (ICU JPM) to attend a briefing regarding the Special Provisions for Parliamentary Areas (“Briefing”).

(ii) According to the 1st Appellant, the ICU Briefing explained that special provisions would be allocated to Parliamentary areas, which include Muar, in the following manner: • RM300,000.00 will be channelled directly to the Pusat Khidmat Rakyat Parlimen Muar (P146) bank account for the purpose of managing the Muar Member of Parliament's service centre; • RM1,700,000.00 will be channelled directly to the Pusat Khidmat Rakyat Parlimen Muar bank account for the purpose of spending on welfare programmes, people's well-being, and disaster relief for the Muar (P146) parliamentary constituency; and • RM2,000,000.00 will be allocated for implementing the Projek Mesra Rakyat, which includes development-oriented projects (the "RM2m Development Funding") such as socio-economic development. S/N fIVz66ktkepjJ8q5KS/Aw

Following the briefing, the 1st Appellant was granted access to the myKHAS system to, inter alia, apply for the RM2 million development funding for the Muar (P146) parliamentary constituency.

From October 1, 2023, to September 10, 2023, the following funding was channelled to the Muar (P146) constituency: • RM300,000.00 to the Pusat Khidmat Rakyat Parlimen Muar bank account to manage the Member of Parliament's service centre; • RM1,200,000.00 to the Pusat Khidmat Rakyat Parlimen Muar bank account to fund welfare, well-being, and disaster programmes; and • RM1,769,700.00 approved and paid for the implementation of "Projek Mesra Rakyat" in the constituency. 1st Impugned Decision

On 10 September 2023, the political party MUDA, of which the 1st Appellant was then the President, withdrew its support for the Unity Government led by the 1st Respondent (the 'Announcement'). S/N fIVz66ktkepjJ8q5KS/Aw

Immediately after the Announcement to withdraw the support was made: • The remaining balance of RM500,000.00 from the total RM1,700,000.00 allocation, which was supposed to be channelled directly to the Pusat Khidmat Rakyat Parlimen Muar for welfare programmes, was terminated and cancelled. • The 1st Appellant's access to the myKHAS system, which manages applications for the RM2,000,000.00 development allocation for the Muar Parliamentary constituency, has been revoked. • Several approved projects totalling RM230,300.00, which had been applied for by the 1st Appellant and approved in the myKHAS system under the RM2,000,000.00 development fund, were all cancelled.

In early 2023, before MUDA decided to quit the Unity Government, the Deputy Prime Minister, Dato' Sri Haji Fadillah bin Haji Yusof (TPM II), was given the mandate by the respondents to consult on the issue of allocations for opposition parliamentary constituencies.

The 1st Appellant subsequently issued letters to him on September 20, 2023, and December 4, 2023, regarding the S/N fIVz66ktkepjJ8q5KS/Aw cancellation of the allocation for the Muar parliamentary constituency. The 1st Appellant had also met with him on February 20, 2023 and October 9, 2023, to discuss the cancellations.

Despite the consultations with TPM II, the respondents still failed and/or refused to channel the remaining allocation for the Muar Parliamentary constituency.

Subsequently, the 1st Appellant submitted a letter dated 29 March 2024, which stated, among other things, that if the Respondents and/or TPM II failed to channel the remaining allocation within 7 days, the 1st Appellant would assume the Respondents refused to do so: “Saya berharap bahawa kedua-dua peruntukan ini dapat disalurkan dalam masa 7 hari dari tarikh surat ini diserahkan untuk pengetahuan YAB Dato’ Seri agar kebajikan rakyat di Parlimen Muar tidak terabai dan dihukum oleh pentadbiran Kerajaan Madani. Jika tiada sebarang kata putus diterima setelah siri rundingan diadakan, saya menganggap YAB Dato’ Seri dan Kerajaan Malaysia enggan berbuat demikian.”

The 1st applicant did not receive any response from the Respondents in respect of the said letter. S/N fIVz66ktkepjJ8q5KS/Aw 2nd Impugned Decision

The Second Impugned Decision denied the Muar parliamentary constituency access to constituency funding. In contrast, opposition MPs who expressed their support for the Prime Minister and the Unity Government received constituency funding for their respective constituencies almost immediately. The Members of Parliament include:

YB Dato' Indera Suhaili Abdul Rahman, Member of

(ii) YB Zahari bin Kechik, Member of Parliament for Jeli (P030);

(iii) YB Mohd Azizi bin Abu Naim, Member of Parliament for Gua Musang (P032);

(iv) YB Dato' Iskandar Dzulkarnain Abdul Khalid, Member of Parliament for Kuala Kangsar (P067); and

YB Dato' Dr. Zulkafperi Bin Hanapi, Member of Parliament for Tanjong Karang (P095).

In addition to the 1st Impugned Decision, which concerned funds allocated in 2023, the respondents also refused and/or failed to approve and/or provide any provision to the 1st applicant in his capacity as the Member of Parliament for the S/N fIVz66ktkepjJ8q5KS/Aw Muar parliamentary constituency or for programs under the Projek Mesra Rakyat or similar initiatives in 2024 (the 2nd Impugned Decision) while Government MPs continued to receive their full allocations from the Respondents.

Aggrieved by the 1st and 2nd Impugned Decisions, the Appellants initiated this application for leave for judicial review on April 25, 2024, seeking an order of certiorari to quash those decisions. Additionally, the Appellants seek an order of mandamus to compel the Respondents to channel funds to the Pusat Khidmat Rakyat Parlimen Muar and to approve the allocations applied for under the myKHAS system in 2023 for the benefit of various Muar-based organisations. This leave application is supported by the affidavit of the 1st Appellant in Enclosure 3 (“AIS-3”).

The primary ground for this application is that the respondents breached the Appellants’ legitimate expectations. The Appellants also contend that the 1st and 2nd Impugned Decisions are illegal, unreasonable, disproportionate, or vitiated by mala fide, as they effectively penalize the constituents of Muar simply because their Member of Parliament belongs to the opposition.

The Appellants’ application was subsequently dismissed by the High Court. Dissatisfied with the decision, the Appellants now appeal before this Honourable Court. S/N fIVz66ktkepjJ8q5KS/Aw

The primary issue to be determined is whether the application for leave for judicial review was filed out of time.

Order 53, rule 3(6) Rules of Court 2012 stipulates: “(6) An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant.” The High Court's Finding

The learned High Court Judge, in his findings on the issue of the application for judicial review which was filed out of time, had this to say: “[35] Let me begin with the question of whether the application for leave is made within the time stipulated under O 53 r 3(6) of the ROC. The matter is raised by the learned SFC in its written submission objecting to this S/N fIVz66ktkepjJ8q5KS/Aw application of leave. There was no further affidavit filed by the applicants in reply to this contention. [36] In the absence of any affidavit explaining the delay or any specific prayer under O 53 r 3(7) of the ROC to extend the time specified in r 3(6), I can only conclude that the applicant’s position is that they are within the time stipulated. [37] The applicants’ position is probably anchored on the failure of the putative 1st respondent to reply to his letter dated 29.3.2024. As alluded to earlier, in the said later, the 1st applicant requested the putative 1st respondent to respond within seven days, failing which the 1st applicant would treat his demand to reinstate the Peruntukan Khas untuk Kawasan Parlimen Muar would have been refused by the putative 1st respondent. [38] Since seven days from the date of the letter had lapsed, I can only assume that the applicants treat that the 1st impugned decision commenced on 5.4.2024. In short, the failure of the putative 1st respondent is considered a “deemed decision”. This means that the applicants’ position is that they are still within the time stipulated under O 53 r 3(6) since this application for judicial review was filed on 23.4.2024. S/N fIVz66ktkepjJ8q5KS/Aw [39] Is this the correct proposition of law? With respect, I do not think so. If that is the correct proposition, then an aggrieved person, who is already out of time to file an application for leave for judicial review, would only need to send an ultimatum letter specifying a certain period for the decision maker to respond, failing which he would treat it is a “deemed decision” thereby circumventing the need to file an application to extend the time. [40] In Abdul Rahman bin Abdullah Munir & Ors v. Datuk Bandar Kuala Lumpur & Anor [2008] 6 MLJ 704 CA, one Desa Kiara Condominium Residents and Owners Association issued a letter giving a one-week time frame for the Datuk Bandar Kuala Lumpur (“Datuk Bandar”), the 1st respondent therein, to reply to their request, if not the 1st respondent would be deemed to have made a contrary decision i.e., to allow the buffer land which was the subject matter in dispute, to be used as a burial ground. [41] The Datuk Bandar did not respond to that letter. [42] The appellants then took the stand that the actual decision was made on 5.1.2005 (one week after the Datuk Bandar received the letter, i.e., on 27.12.2004). Thus, they argued, there was no delay in filing the application for judicial review. S/N fIVz66ktkepjJ8q5KS/Aw [43] The Court of Appeal did not accede to this line of argument. Abdull Hamid Embong JCA (later FCJ), in delivering the judgment of the Court, held that the contention was fallacious. His Lordship, in a strongly-worded judgment, remarked as follows: To say that the decision was only made on 5 January 2005 after the first respondent had failed to revert to their letter of 22 December 2004, is fallacious. We also find it ludicrous for the appellants to hold the view that a decision was only arrived at when the first respondent failed to respond to the one-week time period ultimatum in their letter. The latter was not duty-bound to respond to what we feel, corresponded to a threat. Thus, our view is that no decision was made by the first respondent pursuant to that letter. No decision need in fact be made as it was already made earlier. [44] Applying the law to the facts of the case, there was no decision made by the putative 1st respondent pursuant to the 1st applicant’s letter dated 29.3.2024. It was not even a “deemed decision”. According to Abdul Rahman bin Abdullah Munir, there is no legal obligation on the part of the putative 1st respondent to respond to the ultimatum anyway. The only decision that is amenable to being challenged, if at all, was made on 10.9.2023, which was S/N fIVz66ktkepjJ8q5KS/Aw immediately after MUDA withdrew its support to the Unity Government. [45] Since this application for leave was filed only on 23.4.2024, I am therefore of the view that this application for leave for judicial review is made out of time. More pertinently, at least in abundance of caution – ex abundanti cautela-the applicants should have sought for an extension time in one of their prayers. Unfortunately, there was none. [46] Flowing from the aforementioned, this Court no longer has the jurisdiction to adjudicate on the matter, irrespective of its merits. The Federal Court in Wong Kin Hoong & Anor v. Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 CLJ 193 FC held that when the Court has no jurisdiction to hear the application for judicial review, the question of merits of the application is no longer relevant.” The Appellant’s stand

The Appellant’s position is that the 3-month limitation period under Order 53, rule 3(6), Rules of Court 2012 ought to commence from 05.04.2024, after the Appellants wrote to the Respondents’ representative to confirm their position following several consultation sessions. The question of the limitation period for judicial review applications must necessarily begin S/N fIVz66ktkepjJ8q5KS/Aw with an analysis of Order 53, rule 3(6) of the Rules of Court

It reads: “(6) An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant.”

This rule provides two alternative temporal triggers for the commencement of the 3-month period. The distinction between the two limbs is that the factual element underlying the first limb is the “grounds” itself, while the factual element underlying the second limb is the “communication” of the decision. They are to operate in the alternative, the operative term being the disjunctive “or”. Neither is to supersede the other, and the determination of which of the two applies depends on the facts and circumstances of the case.

The computation of time for the purposes of limitation must be grounded in the point at which the applicant acquired actual knowledge of the impugned decision. Hence, the learned High Court Judge erred when His Lordship held that the impugned decision occurred on 10 September 2023, the day that MUDA withdrew its support for the Unity Government.

This error was further stressed by the Appellant in that the ‘withdrawal of support’ on 10 September 2023: S/N fIVz66ktkepjJ8q5KS/Aw

was a decision of the 1st Appellant, and not the

(ii) did not communicate the Respondents’ position regarding the termination, cancellation, and/or revocation of the constituency funds; and, in any event,

(iii) was not a crystallization of the Respondents’ decision, as the 1st Respondent continued to negotiate further, followed by consultations on 20 February 2023 and 9 October 2023 with the Respondents’ representatives.

The Appellants’ claim is premised on the termination, cancellation, and/or revocation of the constituency funds approved and/or allocated to the Muar constituency. As such, the date on which there was a finality to the decision communicated to the Appellants was 5 April 2024, 7 days after the Appellants issued their 29 March 2024 letters to ascertain the Respondents’ final position. The upshot is that the Appellants had actual knowledge of a final decision on the Impugned Decisions on 5 April 2024; hence, the application for judicial review was made in time. S/N fIVz66ktkepjJ8q5KS/Aw The Respondent’s response

The learned Senior Federal Counsel (SFC) highlighted that the Appellants failed to state when the Impugned Decisions were made, if at all, by the Respondents. There was no date of the “decision” specified in the application statement under Order 53 rule 3(2) of the Rules of Court and AIS-2. It remains unclear when the decision the Appellants sought to challenge was made. The Appellants must state the specific date of the alleged decision when filing the Judicial Review Application in court. However, no dates were specified in the Affidavit nor in Exhibit SS-3 (p. 100, PDF Encl. 3).

Furthermore, the cancellation of the fund was communicated to the 1st Appellant via the myKHAS system. Since the application for leave for judicial review must be made within three months from the date of the decision, which was on September 10, 2023 (the day MUDA withdrew its support from the Unity Government), the Appellants should have filed their application by December 10, 2023. However, the application for leave was only filed on April 25, 2024. Consequently, the learned SFC submitted that the application is clearly out of time. S/N fIVz66ktkepjJ8q5KS/Aw

This is an appeal against the High Court's refusal to grant the Appellant leave to proceed with a judicial review, an application where the threshold for leave is well-acknowledged to be low.

We begin by emphasizing that judicial review is a legal process in which a challenge is mounted against the decision of a relevant authority by questioning the lawfulness of its decision-making process. This is trite law. Generally, a court exercising judicial review acts in a supervisory capacity and must not delve into the substantive merits of the case; it does not reassess the evidence. The court's role is merely to quash the impugned decision, if necessary, and not to substitute it with its own view of the correct decision. We are not here to usurp the powers of the designated authority.

Having heard submissions from both parties, we are unanimous in our view that the learned High Court Judge committed no reversible error. We find no reason to interfere and now provide our reasons.

The impugned decision sought to be challenged by the Appellants is not specifically identified in their Application, Statement, or Affidavit. Furthermore, no date of the 'decision' is specified in the cause papers. This is evident in the Application itself (p. 28, PDF Encl. 3), which reads as follows: S/N fIVz66ktkepjJ8q5KS/Aw ●

1.1. Keputusan untuk memberhentikan dan/atau membatalkan baki RM500,000.00 daripada jumlah RM1,700,000.00 yang sepatutnya disalurkan secara terus kepada akaun bank Pusat Khidmat Rakyat Parlimen Muar (P146) bagi tujuan perbelanjaan untuk program-program bentuk kebajikan, kesejahteraan rakyat dan bencana bagi kawasan parlimen Muar (P146); ●

1.2. Keputusan untuk membatalkan akses Pemohon Pertama terhadap sistem myKHAS yang menguruskan permohonan Peruntukan Pembangunan RM2,000,000.00 untuk Kawasan Parlimen Muar (P146); dan ●

1.3. Keputusan untuk membatalkan beberapa projek-projek yang secara kolektif berjumlah RM230,300.00 yang telah pun dipohon oleh Pemohon Pertama dan malah telah diluluskan dalam sistem myKHAS untuk Peruntukan Pembangunan RM2,000,000.00. ●

Suatu perintah certiorari untuk membatalkan Keputusan Yang Disangkal No.2 Responden-Responden, iaitu keengganan dan/atau kegagalan Responden-Responden untuk meluluskan dan/atau memberikan apa-apa peruntukan kepada Pemohon Pertama sebagai Ahli Parlimen Muar (P146) ataupun untuk program-program di bawah "Projek Mesra Rakyat" ataupun yang seumpama dengannya buat tahun 2024.” S/N fIVz66ktkepjJ8q5KS/Aw

On this issue, we rely on the case of Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 CLJ 65, which is directly on point. In that case, the Federal Court, through the judgment delivered by Edgar Joseph Jr FCJ (as he then was), held as follows: Identifying The Impugned Decision It is right to say, at the risk of being trite, that administrative law is much concerned with the legality of procedures leading up to a decision and, of course, of the decision itself. It is therefore a matter of the first importance to correctly identify the decision sought to be impugned. Furthermore, when the date on which a decision is made is important, it may be necessary to know which of a series of acts constituted the effective decision for the purpose of the scheme in question. The same is true where statute allows an appeal to be brought from a decision. Failure to observe these basic requirements could have fatal consequences, as the following authorities will serve to illustrate: In Co-operative Retail Services Ltd. v. Secretary of State for the Environment [1980] 1 All ER 449, the Secretary of State fixed the date on which an inquiry was to be held pertaining to an appeal to him. The plaintiff had applied to the Secretary of State to postpone the date of the inquiry, but the Secretary of State declined the request, whereupon the plaintiff S/N fIVz66ktkepjJ8q5KS/Aw applied to the court for the refusal to be quashed. The question then arose: was the refusal "a decision by the Secretary of State on an appeal"? If it was, then proceedings could have been brought. However, the Court of Appeal held that it was not. "Decision on appeal" would appear to mean a decision which disposes of an appeal, in contradistinction, to a decision in the course of an appeal. Similarly, in R. v. Immigration Appeal Tribunal, ex parte Lila [1978] Imm AR 50, the Divisional Court had held that the "determination thereon" referred to the adjudicator's determination or decision on the appeal either allowing it or dismissing it. Consequently, in that case, an appeal did not lie to the Tribunal against an incidental or interlocutory decision arising in the course of an appeal. So, also, in Firestone Tyre and Rubber Company Ltd. v. Challoner [1978] 1 ICR 175, where an industrial tribunal had found in May that C had been unfairly dismissed by F, it made a recommendation of reinstatement and then "adjourned for further consideration of the matter" - that is to say, the matter of the appropriate reliefs. In the month of October, the Appeal Tribunal assessed the compensation payable. An Appeal lay to the Employment Appeal Tribunal within forty-two days of the decision. As it happened, F's appeal from the finding of unfair dismissal was within forty-two days of the second hearing but more than forty-two S/N fIVz66ktkepjJ8q5KS/Aw days of the first hearing. The Tribunal said, "We see no reason why what was done here (sc. at the first hearing) should not be considered to be a decision, and not what (counsel) for the employers would like us to say it is - merely a finding.”

With these observations in mind, we turn to examine the present application for leave for judicial review, which eventually led to the appeal before us.

It is important to recognise that the granting of leave is not a mere formality in judicial review proceedings. It is imperative that the Appellants specifically identify and state the impugned decision in their application and demonstrate an arguable case that warrants judicial review.

At this juncture, it is unclear when the decision the Appellants sought to challenge was made. The Applicants must state the specific date of the alleged ‘decision’ when filing the Judicial Review Application to the court. This they have failed to do. Failure to observe these basic requirements could have fatal consequences.

However, reading paragraph 16 of the Appellants' Affidavit, we can say that the decision for the termination, cancellation, and/or revocation of the constituency funds was communicated to the Appellants on September 10, 2023, the day MUDA withdrew its support for the Unity Government. Nevertheless, S/N fIVz66ktkepjJ8q5KS/Aw no dates were specified in the Affidavit nor in Exhibit SS-3 (pg. 100-101, PDF Enclosure 3). “Pemberhentian/Pembatalan Peruntukan Buat Ahli

Pada 10.9.2023, MUDA telah membuat keputusan untuk menarik diri daripada Kerajaan Persekutuan ataupun "Kerajaan Perpaduan" yang diketuai oleh Responden Pertama ("Pengumuman").

Sejurus selepas Pengumuman tersebut:

17.1. Baki RM500,000.00 daripada jumlah RM1,700,000.00 yang sepatutnya disalurkan secara terus kepada akaun bank Pusat Khidmat Rakyat Parlimen Muar (P146) bagi tujuan perbelanjaan untuk program-program bentuk kebajikan, kesejahteraan rakyat dan bencana bagi kawasan parlimen Muar (P146), telahpun dihentikan dan/atau dibatalkan; 2:59 MyKHAS Assalamualaikum dan Salam Sejahtera, YBhg./YB Datuk Seri Dato' Seri/Dato' Sri/Datuk/Dato'/Tuan/Puan, S/N fIVz66ktkepjJ8q5KS/Aw Adalah dimaklumkan bahawa permohonan berikut telah dibatalkan melalul Sistem MyKhas. Tajuk: SUMBANGAN BAGI MEMBIAYAI KOS BAIKPULIH BUMBUNG BANGUNAN SMK PEKAN BARU MUAR TELAH BATAL Kos Permohonan: RM33,480.00 Catatan: - Harap Maklum. Sekian, terima kasih Pentadbir Sistem MyKHAS E-mall ini dijana oleh Sistem MyKHAS, ICH JPM.”

Based on the aforementioned document, it is beyond dispute that the decision was brought to the Appellants' actual notice or knowledge on 10 September 2023. Furthermore, the cancellation of the fund was officially communicated to the 1st Appellant via the MyKHAS system.

As said, under Order 53 rule 3(6) of the Rules of Court 2012, the application must be filed promptly. In any event, it must be filed no later than three months from the date the grounds first arose or the decision was first communicated to the applicant. S/N fIVz66ktkepjJ8q5KS/Aw

However, the 1st Respondent’s decision on September 10, 2023, was not challenged by way of judicial review when the decision was first communicated to the Appellants within 3 months after September 10, 2023 and the last date of filing would be on December 10, 2023. Thus, Appellants cannot now turn around and blame the Respondents for their own unwarranted delay and must live with the consequences of their own fault.

As the period for the challenge had expired, the Appellant ought to have either filed fresh proceedings for judicial review or filed an application for an extension of time pursuant to Order 53 rule 3(7) of the Rules of Court 2012. Nevertheless, they failed to do so.

In Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent (M) Sdn Bhd & Anor [2017] 2 CLJ 1, the Federal Court speaking through Suriyadi Halim Omar FCJ (as he then was) stated: “[97] Under O. 53 r. 3(6) of the RHC 1980, an application shall be made promptly, or within 40 days when grounds for the application first arose, or when the decision was first communicated. If an applicant is out of time he then must apply for an extension of time. If none is made or no extension of time is granted the judicial review application therefore becomes incompetent. S/N fIVz66ktkepjJ8q5KS/Aw [98] On the issue of timeliness the first flaw detected is the issue of when the decision was made by the appellant. From the chronology of events we noted that the letter dated 28 March 2008 addressed to the first respondent had already decided as to the amount to be paid by the latter. Paragraph 2 reads: Adalah dimaklumkan bahawa, setelah meneliti secara terperinci rayuan yang dikemukakan oleh pihak tuan, pihak kami mendapati isu-isu ketidakpatuhan cukai pegangan bagi tahun tahun taksiran tersebut seperti berikut: