MOHD RIZAL BIN RAMLI 1. ) Brig Jen Datuk Jamaludin Bin Jambi 2. ) MEJ JENERAL DATUK HASAN BIN ALI 3. ) ANGKATAN TENTERA MALAYSIA

JA-25-6-02/2020 Page 1 of 21 Kand. 42 22/03/2023 10:02:51 MALAYSIA IN THE HIGH COURT IN MALAYA AT JOHOR BAHRU IN THE STATE OF JOHOR DARUL TAKZIM JUDICIAL REVIEW NO. JA-25-6-02/2020 Dalam perkara permohonan oleh Pemohon, MOHD RIZAL BIN RAMLI (1156919 KPL / NO. K/P: 871202-23- 6155) untuk mendapatkan satu Perintah Deklarasi dan/atau Certiorari Dan Dalam perkara keputusan yang dibuat oleh Pegawai Memerintah, Markas 21 Gerup Gerak Khas, Kem Iskandar Johor pada 20 November 2019 Dan Dalam Perkara Kaedah-Kaedah Mahkamah 2012 dan Aturan 53 Kaedah-Kaedah Mahkamah 2012 BETWEEN MOHD RIZAL BIN RAMLI …APPLICANT AND 1. BRIG JEN DATUK JAMALUDIN BIN JAMBI (3001874) KETUA STAF AM MARKAS 21 GGK KEM ISKANDAR TANJUNG SEKAKAP MERSING JOHOR S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 2 of 21 2. MEJ. JENERAL DATUK HASAN BIN ALI PANGLIMA MARKAS MARKAS 21 GGK KEM ISKANDAR TANJUNG SEKAKAP MERSING JOHOR 3. ANGKATAN TENTERA MALAYSIA 4. KERAJAAN MALAYSIA …RESPONDENTS JUDGMENT [1] This is an application for judicial review against the decision of the respondents in dismissing the applicant from the armed forces of Malaysia for allegedly tested positive for drugs. [2] The statement by the applicant under O53 ROC 2012 is as follows: “3. Saya merupakan seorang anggota tentera yang kini diberhentikan atau/dan dibuang dari perkhidmatan tentera ekoran dikenakan hukuman denda 14 hari gaji bagi satu pertuduhan di bawah Seksyen 87 Akta Angkatan Tentera 1972. 4. Saya memohon kepada Mahkamah Yang Mulia ini untuk diberi kebenaran menurut Aturan 53 Kaedah-Kaedah Mahkamah 2012 bagi memohon untuk satu perintah Certiorari untuk membatalkan dan/atau mengenepikan keputusan/hukuman/perintah Responden-Responden bertarikh 20 November 2019 yang mengenakan hukuman denda 14 hari gaji dan pemberhentian dan/atau pembuangan daripada perkhidmatan tentera. 5. Secara alternatif, saya memohon untuk diberi kebenaran di bawah Aturan 53, Kaedah-Kaedah Mahkamah 2012 bagi memohon untuk satu deklarasi bahawa perintah/keputusan/hukuman yang dijatuhkan oleh S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 3 of 21 Responden-Responden pada 20 November 2019 adalah salah di sisi undang-undang, batal dan tidak sah dan lantaran itu bahawa Responden-Responden dikehendaki menarik balik perintah yang telah dijatuhkan terhadap saya. 6. Saya juga memohon untuk diberikan tunggakan gaji, emolumen, elaun- elaun dan faedah-faedah lain yang sepatutnya menerima dari tarikh saya dibuang kerja sehingga penyelesaian penuh. 7. Saya juga memohon gantirugi teladan daripada Responden- Responden. 8. Saya juga memohon faedah pada kadar 8% setahun dari tarikh saya dibuang kerja sehingga penyelesaian penuh. 9. Saya memohon relif-relif seperti di atas atas alasan: (a) Responden-Responden dalam tindakan ini memungkiri keadilan asasi, keadilan prosedur dan substantive dan kewajipan untuk bertindak secara adil dalam temuduga/bicara saya. (b) Responden-Responden telah mengambilkira pertimbangan yang tidak relevan dalam menjatuhkan perintah tanpa mengambil pengakuan kepada tuduhan ke atas saya. (c) Responden-Responden gagal memberikan semula jadi (Natural Justice/Audi Alteram Partem) kepada saya dalam membicarakan kes saya. (d) Responden-Responden gagal untuk mengambilkira pertimbangan yang relevan dalam menjatuhkan perintah penahanan dan penurunan pangkat kepada saya.” S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 4 of 21 [3] The Applicant in his submissions stated as follows: “5. Judicial Review Application by the Applicant based on the following issues: 5.1 Whether the failure of the First Respondent in refusing/not allowing the Applicant’s witnesses to defend himself has prejudiced his rights as an accused facing charges. 5.2 Whether the failure of the First Respondent in perusing the evidence of Capt (Dr) Ariff Bin Mohd Bakri led to the wrong decision against the Applicant. 5.3 Whether the failure of the First Respondent in calling the complainant to give evidence in direct proceedings (bicara terus) against the Applicant has prejudiced the Applicant’s defence case. 5.4 Whether the failure of the First Respondent in not allowing the Applicant to cross-examine the witness Capt Dr. Muhammad Arif Mohd Bakri prejudiced his rights as an accused. 5.5 Whether the failure of the First Respondent in referring the exhibit P8 in the trial to the Applicant to defend himself has prejudiced the Applicant and violated the fundamental justice of the Applicant. 5.6 Whether the failure of the First Respondent in referring the exhibit P9 in the trial to the Applicant to defend himself had prejudiced the Applicant and violated the fundamental justice of the Applicant. S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 5 of 21 5.7 Whether the failure of the First Respondent in referring the exhibits / important case items i.e. the test-strips which are said to show positive for methamphetamine and amphetamine for the screening test of the Applicant’s urine sample to the Applicant in direct proceedings (bicara terus) has prejudiced the Applicant’s defence case. 5.8 Whether the failure of the First Respondent in referring the exhibits / important case items, namely the urine specimen bottle which is said to have been received from the Applicant to the Applicant in direct proceedings (bicara terus) has prejudiced the Applicant’s defence case? 5.9 Whether the failure of the First Respondent in calling the maker of Exhibit P8 to determine the validity and accuracy of the Exhibit P8 report (chemist report) and the opportunity for the Applicant to cross-examine the maker of Exhibit P8 (if present) has prejudiced the Applicant’s defense case? 5.10 Whether the failure of the First Respondent in calling the maker of Exhibit P9 to determine the validity and accuracy of the report / content of Exhibit P9 and the opportunity for the Applicant to cross-examine the maker of Exhibit P9 (if present) has prejudiced the Applicant’s defense case? 5.11 Whether the failure of the First Respondent in giving the Applicant a choice of either accepting punishment directly from the First Respondent or referring the case to the Court Martial prejudiced the applicant’s right to uphold justice? 5.12 Whether failure of First Respondent in reading the charge and charge related particulars to the Applicant prejudiced the Applicant’s case?” S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 6 of 21 [4] The main submission of the applicant is in enclosure 19 and the reply is in enclosure 25. The respondents’ submission is in enclosure 23. [5] The respondents’ stand is as follows: “B. BACKGROUND FACTS 2. The Applicant was charged under Perintah Tetap, Bahagian Pertama, in pursuance of S. 51 of the Act 77, as exhibited in JJ-1 – for having a trace of Methampethamine in his urine. 3. S. 96(2) of Act 77 empowers the Commanding Officer (CO) to summarily deal with the Applicant, as the offence and the Applicant himself is a corporal. 4. During the Summary Trial, total witness of four called upon during the hearing. We have offered the Applicant to cross-examine the witness but he refused to do so. 5. The CO found that there is a prima facie on the charged and informed the Applicant the 3 choices in order to proceed with the hearing. The Applicant also has been given the right to adduce any evidence among others regarding the medication prescribed by Pusat Perubatan Kem. However, the Applicant remain silent and did not call any witness, instead he just produced BAT F 256 to show that he undergone a check up on 19/8/2019 and ask for a lesser punishment. C. THE APPLICABLE LAWS 6. As a general principle, the function of the court in judicial review is only to consider the decision making process, be it the hearing, the procedure or the nature of the decision as held in numerous cases: S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 7 of 21 6.1 R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145. 6.2 Harpers Trading (M) Sdn Bhd v National Union of Commercial Workers [1991] 1 MLJ 417. 6.3 Generally, the Court will not interfere with matters of military conduct and purely military law affecting military rules as held by the Federal Court in the case of Peter Chong Ngen Onn & Ors v. Col. Adam bin Abu Bakar & Ors [1977] 2 MLJ 142, at page 147. 6.4 Lt. Kol. Yusof Abdul Rahman v Kol Anuar Md Amin, Yang DiPertua Mahkamah Tentera Pulau Pinang & Anor [1997] 2 CLJ 752. 6.5 Mejar Sundaraj v. Lt Kol. Abdul Aziz Bin Hanafi & Anor [1985] 1 LNS 4 dismissed the remedy of certiorari and held that a certiorari cannot lies just because the Applicant is dissatisfied that upon weighing the evidence the Court Martial finds him guilty. 6.6 Mejar Ali Zaman Bin Ali Hassan v Capt. Abdul Kadir & Anor [1989] 2 CLJ Rep 117 held at page 121. 7. Thus, it is safe to highlight that the window for judicial interference in respect of military courts decision and matters of military law is limited in so far as the civil rights of a soldier might be affected and in situation when the martial court had exceeded its jurisdiction. 8. In addition, just like any other disciplinary matters, the court keens to opt a stand that employer is the best person to determine the nature and seriousness of misconduct of its employee as held by S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 8 of 21 Asmabi Mohamed J in the case of Mohd Alizun Yusof v. Mejar Zamri Wahid & Ors [2015] 1 LNS 1405.” [6] The respondents further submitted that the Criminal Procedure Code does not apply to the applicant’s case as submitted by his counsel because: “9. We further submit that the Act 77, is a specific Act which only deals with the Army. As such, these are the pertinent salient laws which encompassing the life of an Army, especially the Applicant. 10. Any disciplinary matters which involves army personnel will be dealt by: a. Commanding Officer (C.O) Pegawai Memerintah – Sek. 101(1) Akta Angkatan Tentera 1972; b. Panglima Angkatan Tentera – Sek. 101(2) Akta Angkatan Tentera 1972; or c. Mahkamah Tentera – Sek. 103 Akta Angkatan Tentera 1972. 11. Pursuant to Peraturan 12 Peraturan-Peraturan Angkatan Tentera (Bidangkuasa Terus) (Pindaan) 1999 [P.U.(A) 161], the Commanding Officer is empowered to Summarily Deal any offence committed under s. 51 of the Act 77. 12. The Commanding Officer, who is defined in s. 2 of the Act 77, has the authority vested under s. 101 (1) of the Act 77 and here, based on exhibit JJ 1, the Applicant was charged under s. 51 of the Act 77. S. 96 of the Act 77 explains further the process of effecting Summary Deal of an offence. S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 9 of 21 13. It is clear that, based on exh. JJ 3, the 1st Respondent is duly appointed as Commanding Officer and authorized to try the Applicant summarily. We submit that he has strictly adhered to the prescribed rules in dealing with Summary Deal. 14. We further submit that the exhibit JJ 1 was drafted in accordance with the format laid down in Jadual 3 Peraturan 16 Peraturan-Peraturan Angkatan Tentera (Bidangkuasa Terus) 1976 [P.U.(A) 161]. The items 1 to 5, were prepared for the purpose of Summary Deal. These items were later read out by the 1st Respondent to the Claimant, is meant “Laporan Pertuduhan”. It is during the progress of the Summary Deal until its end, the details was put in writing on 2nd page, column B, signed, dated on the same day the 1st Respondent – 20 November 2019. 15. We further submit that the 1st Respondent had diligently followed steps prescribed in Jadual 3 Peraturan 16 Peraturan-Peraturan Angkatan Tentera (Bidangkuasa Terus) 1976. There is no procedural impropriety during the process. The steps taken are as follows: “Ringkasan Pendek Keterangan” “Pemilihan” “Pependapat” “Rayuan untuk mendapatkan hukuman ringan” “Hukuman” 16. We further submit that rules of Kaedah-Kaedah Acara Angkatan Tentera (Mahkamah Tentera) 1976 [P.U.(A) 163], prescribes few ways in handling investigations such as: “Kaedah 33 – penerangan bentuk siasatan;” “Kaedah 34 – secara lisan;” “Kaedah 35 – Ringkasan keterangan; dan” “Kaedah 36 – cabutan keterangan.” S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 10 of 21 And the Commanding Officer is following rule 34 of the said P.U. (A) 163. 17. We submit that the C.O has strictly adhered to the stipulated rule 34 of P.U. (A) 163 as reflected in the exhibit JJ-1 during the Summary Deal. The fact that the Applicant was given chances to avail his own witness for his defence, connotes that the 1st Respondent has duly complied with the written prescribed rules of P.U.(A) 161 and P.U.(A) 163. Regretfully, the Applicant refused to exercise his rights and remained silent despite he was asked repeatedly. His only voice for his right is during the leniency plea. There is no evidence to show that the Applicant’s civil right was denied by the Commanding Officer. 18. In pursuance of the abovesaid format, we further submit that there is nothing in the said rule which is in pari materia with s. 173 of Criminal Procedure Code [Act 593] in taking the plea of guilt or the exact details of process of hearing before the Commanding Officer. Merit Hukuman 19. We further submit that the sentence of fine of 14 days salary and the subsequent dismissal with disgrace from the His Majesty’s Service is proportionate, reasonable and fair. As such there is no error of constitutional rights, law, irrationality or procedural impropriety in the decision making process by the duly authorised Commanding Officer against the Applicant. Therefore, the Application for Judicial Review is without merit and should be dismissed with cost.” [7] In the Federal Court case of PETER CHONG NGEN ONN & ORS v COL ADAM BIN ABUBAKAR & ORS [1977] 2 MLJ 142 at 147, the court opined: “…….. I do not think that there is merit in this appeal, since the law is that the court will not intervene in matters relating to military law S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 11 of 21 prescribing rules for the guidance of officers. It was so held in The King v the Army Council Ex parte Ravenscrof [1917] 2 KB 504. By regulations made under section 70 of the Army Act in the United Kingdom for holding military courts of inquiry, it is provided that previous notice should be given of the time and place of the meeting of a court of inquiry, and of all adjournments of that court, to all persons concerned in the inquiry; and that whenever an inquiry affects the character or military reputation of an officer, full opportunity must be afforded to the officer of being present throughout the inquiry. An officer whose conduct was brought before a court of inquiry by the order of a general officer in command, complained that the above regulations had not been complied with, and that as the result of evidence given before the court he had been ordered by the Army Council to revert to half-pay. He applied to the Army Council, who refused to reopen the matter. He applied for mandamus to command the Army Council to cause the court of inquiry to reassemble to hear and determine the case according to law. His application was rejected by the Divisional Court. Viscount Reading C.J. at pages 509, 510 and 511 said: "It is to be observed that the complaint of the [applicant] before this court is that he had no notice of the reassembly of the court of inquiry, and therefore no opportunity of cross-examining the witnesses and giving his own explanation. These matters would be very relevant If we were considering the procedure of a civil court. He relies on the Regulations for Courts of Inquiry which, as he says, have been infringed. … It appears to me that this is a military matter. The [applicant] was under military law. His complaint, if any, is against his superior officer who directed the convening of the court of inquiry and the officer who in his view wronged him by not giving him a proper opportunity of presenting himself on the last two occasions when the court of inquiry met." S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 12 of 21 The learned Chief Justice dismissed the application because of the general principle which he stated earlier on during his judgment at page 508: "… I have no doubt that this court has no power to interfere with matters of military conduct and purely military law affecting military rules for the guidance of officers or discipline generally." In R v Secretary of State for War Ex parte Martyn [1949] 1 All ER 242 the Divisional Court said that the court could only interfere with military courts and matters of military law in so far as the civil rights of a soldier might be affected, and, therefore, if a court martial had not been convened in accordance with the Rules of Procedure the court had no jurisdiction to interfere. Lord Goddard C.J. said at page 243: "If the court martial in the present case has not observed the proper rules of procedure, that is a matter for the convening officer, and, if necessary, the Judge Advocate General to deal with, but it is not a matter for this court, which can only interfere with military courts and matters of military law in so far as the civil rights of the soldier or other person with whom they deal may be affected. This application really amounts to asking us to decide that the members of the court martial were wrong in holding that they had been convened in accordance with the Rules of Procedure, but that is purely a matter of military law and procedure and not one to interfere with which this court has any jurisdiction." [8] In the Court of Appeal case of LT KOL YUSOF BIN ABDUL RAHMAN v KOL ANUAR BIN MD AMIN & ANOR [1997] 1 MLJ 562, 579, the court stated as follows: S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 13 of 21 “We have not lost sight of the fact that by electing to come to court for certiorari rather than appeal as provided for by the Rules, the accused was now opening two – if not three – further opportunities to ventilate his grievances if this matter gets to the Federal Court. Rule 101(2) only allows one chance for review or reconsideration. Echoing Mejar Ali Zaman bin Ali Hassan v Captain Abdul Kadir & Anor [1989] 3 MLJ 32 we think that the civil courts should be very careful to ensure that in the guise of an application for certiorari the courts are not converted into appellate courts. It is only in exceptional circumstances that we should interfere; eg, a failure of natural justice because the accused was convicted for an offence with which he was never charged, and that offence was an offence which was distinct and materially different from the charge on which he was tried.” The law [9] The Malaysian Civil Procedure (White Book) 2018 edition provides: “Relief under Order 53—The rule enables an applicant to seek any combination of remedies, including mandamus, prohibition, quo warranto, certiorari, declaration, injunction and monetary compensation. The court may grant any relief and is not confined to the relief claimed by the applicant (Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2002] 2 AMR 1900; [2002] 2 MLJ 413). See further, Abdul Aziz bin Mohamed Ginan & 108 Ors v Datuk Bandar Kuala Lumpur [2007] 4 AMR 388; [2007] 3 MLJ 12; [2008] 1 CLJ 464, HC. Broadly, if the proceedings are directed to challenging a decision of a public law nature, and are not for the enforcement of private rights, an application for judicial review is the only permissible course; the court will not permit an action for a declaration to be used as a means of circumventing the procedural restrictions on the availability of judicial review, in particular the rule that leave to apply for judicial review must be obtained and the time limit of three months (see O’Reilly v Mackman [1983] 2 AC 237; [1982] 3 All ER S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 14 of 21 1124, HL). Hence, such proceedings if brought by way of private action without resorting to Order 53 is an abuse of process of the court: Bencon Development Sdn Bhd v Majlis Perbandaran Pulau Pinang & Ors [1999] 2 AMR 1440; [1999] 2 MLJ 385; Yahya bin Kassim v Government of Malaysia & Anor [1997] 3 MLJ 749, CA; O’ Reilly v Mackman (above); Subramaniam Vythilingam v The Human Rights Commission of Malaysia (Suhakam) & 5 Ors [2003] 3 AMR 213; [2003] 6 CLJ 175; Heywood v Hull Prison Board of Visitors & Anor [1980] 3 All ER 594. The Court of Appeal in Permodalan Negeri Selangor (PNSB) & Anor v Citrasama Projek Sdn Bhd & Anor [2017] AMEJ 0082; [2017] MLJU 25 dismissed the appellant’s appeal on the basis that the claim for infringement concerned private law relief rather than public law relief. The Court of Appeal, following Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865, held that if the claim for infringement is based solely on substantive principles of public law then relief must be by way of an application for judicial review under Order 53. However, if the matter is within the realm of private law, though concerning a public authority, Order 53 is not suitable. In some situations, although the party sued is a public authority that has made a decision or exercised a function, it does not mean that the courts must in every case strictly insist that the aggrieved party pursue his cause via Order 53 only. See Abdul Aziz bin Mohamed Ginan & 108 Ors v Datuk Bandar Kuala Lumpur [2007] 4 AMR 388; [2007] 3 MLJ 12 at 35–36; [2008] 1 CLJ 464, HC. It would not be equally appropriate to convert an action begun by proceedings other than under Order 53 into an application for judicial review without the need on the part of the applicant to comply with Order 53: Re Muhamad Ali bin Hamid [1999] 2 MLJ 703 (a criminal application for revision). S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 15 of 21 If however, when judicial review is resorted to when it should not be, the court is at liberty to convert the proceedings to their proper mode. In this regard, the dicta by Lord Woolf in Trustees of the Dennis Rye Pension Fund & Anor v Sheffield City Council [1997] 4 All ER 747 at 755 are highly instructive. Further on the distinction between public and private law proceedings see O’Reilly v Mackman [1983] 2 AC 237; [1982] 3 All ER 1124, HL. Certiorari— Certiorari is an order which brings up into the High Court a decision (which includes administrative actions) of an inferior court or tribunal or public authority for it to be quashed. For an account of the development of this procedure of certiorari see R v Northumberland Compensation Appeal Tribunal [1952] 1 All ER 122. See also See Choo @ See Guat Kiok v Suruhanjaya Sekuriti [2005] 2 AMR 579; [2005] 2 CLJ 20, CA at 44–45 (the remedy of certiorari is an extraordinary and discretionary exercise of jurisdiction of the High Court). In certain cases, certiorari by itself may not be adequate remedy. For instance in cases of judicial review of decisions of the Industrial Court, an order of certiorari quashing the Industrial Court’s decision may need to be accompanied by an order of mandamus to compel the Industrial Court to re-adjudicate the matter. But see the court’s remarks in Cik Aniza Yaacob & 763 Ors v Mostek Malaysia Sdn Bhd & 2 Ors [1988] 1 MLJ 451 that an order of certiorari without any accompanying mandamus is sufficient by itself. YAB Dato Dr Zambry bin Abd Kadir & 6 Ors v YB Sivakumar Varatharaju Naidu; A-G Malaysia (Intervener) [2009] 5 AMR 604; [2009] 4 MLJ 24, FC highlighted that this award and declaration are concurrent remedies and not mutually exclusive. See Ranhill Worley Sdn Bhd v Franz Jozef Marie Schefman & Anor [2009] 3 AMR 161; [2009] 8 CLJ 364. S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 16 of 21 Development of certiorari —Historically, certiorari only lay for an error of law on the face of the record (R v Bell Liquors [1922] 2 AC 128, HL) and only against a body that is under a duty to act judicially (see R v Electricity Commissioners [1924] 1 KB 171, CA (Eng), per Atkin LJ). It did not lie to quash purely administrative acts or decisions. However, administrative law advanced after the historic decision in Ridge v Baldwin [1964] AC 40, HL, which held that the true question was whether there was a duty to observe the rules of natural justice. The present position is that judicial review will lie to when powers are exercised unfairly or exceeded or abused or where the repository of a statutory power or duty does not discharge its functions when the occasion for their performance has arisen. See Halsbury’s Laws of England (5th edn) vol 61 para 601 et seq. Where a challenge is made on traditional Wednesbury grounds (see Associated Provincial Picture Houses Ltd v Wednesbury Corpo [1948] 1 KB 223; [1947] 2 All ER 680, CA (Eng)), the administrative authority is the primary decision-maker and the court is only the secondary decision-maker so that it is only concerned with the decision making process and not with the merits of the decision. See R v Home Secretary, ex p Brind [1991] 1 AC 696 at 749; [1991] 2 WLR 588 at 593, HL, per Lord Bridge of Harwich: “The primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make that primary judgment.” See also, Apparel Export Promotion Council v Chopra AIR 1999 SC 625 at para 17per Anand CJ: S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 17 of 21 “Even though judicial review of administrative action must remain flexible and its dimension not closed, yet the Court in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, is directed not against the decision, but is confined to the examination of the decision-making process”. However where the challenge is taken on the ground that a fundamental right guaranteed by the Constitution has been violated, the intensity of review shifts gear and the test is one of proportionality. See Om Kumar v Union of India AIR 2000 SC 3689. The test is whether in taking the decision that violates a fundamental right the primary decision-maker must (i) have an objective that is sufficiently important to justify limiting the right in question; and (ii) ensure that the means used to impair the right are no more than is necessary to accomplish the objective. See de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, PC; Sivarasa Rasiah v Badan Peguam Malaysia [2010] 2 AMR 301. Grounds for relief—A court will grant the appropriate form of relief upon the applicant establishing one or more of the following grounds formulated by Lord Diplock in Council of Civil Service Unions & Ors v Minister for the Civil Service [1985] AC 374; [1984] 3 All ER 935, HL: (A) Illegality. If an act or decision of a public authority is ultra vires its statutory powers, the decision may be quashed or declared invalid: Sydney Municipal Council v Campbell [1925] AC 338, PC; Westminster City Council v S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 18 of 21 Great Portland Estates plc [1985] AC 661, HL; Lam Eng Rubber Factory (M) Sdn Bhd v Pengarah Alam Sekitar, Negeri Kedah dan Perlis & Anor [2005] 2 AMR 471 [2005] 2 CLJ 159; Menteri Sumber Manusia v Association of Bank Officers, Peninsular Malaysia [1999] 2 AMR 1837; [1999] 2 MLJ 337; Syed Mubarak v Majlis Peguam Negara [2000] 3 AMR 3048; [2000] 4 MLJ 167. (B) Irrationality. This refers to what has come to be known as “Wednesbury unreasonableness”, i.e. “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” (per Lord Diplock in Council of Civil Service Unions & Ors v Minister for the Civil Service [1985] AC 374; [1984] 3 All ER 935, HL). Under this head, a “decision may be struck down, for being contrary to substantive principles” (per Edgar Joseph Jr FCJ in R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 AMR 433; [1997] 1 MLJ 145; [1997] 1 CLJ 147, FC). The Federal Court in Malaysia Airline System Bhd v Wan Sa’adi @ Syed Sa’adi bin Wan Mustafa [2015] 1 AMR 629; [2015] 1 MLJ 757, FC, affirmed that a decision could be considered manifestly unreasonable if no body of persons could have reached it, and that in order to come to such conclusion there must be overwhelming evidence to support it. (C) Procedural impropriety. This head connotes the wider concept of “fairness”. In essence, the complaint is that the decision-maker had failed to observe basic rules of natural justice and or procedural rules. Accordingly, failure to give reasons is a ground which can be brought under the heading of procedural impropriety (see M Sentivelu a/l R Marimuthu v Public Services Commission Malaysia & Anor [2005] 5 MLJ 393). S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 19 of 21 See further Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union [1995] 2 MLJ 317 at 342; Kelab Lumba Kuda Perak v Menteri Sumber Manusia, Malaysia & Anor [2005] 5 AMR 361; [2005] 5 MLJ 193. It must be noted that the Federal Court in R Rama Chandran v Industrial Court [1997] 1 MLJ 145, FC, also recognised the concept of “proportionality” whereby it commented that there were cases in the United Kingdom which pointed to the conclusion that even where EEC law was not applicable, such a principle has been recognised as a general principle of English law, and when applied, it enables the court to review an impugned decision for substance as well as process. See also Petroliam Nasional Bhd v Nik Ramli Nik Hassan [2004] 2 MLJ 288; Kumpulan Perangsang Selangor Bhd v Zaid bin Haji Mohd Noh [1997] 1 AMR 1008; [1997] 2 CLJ 11; [1997] 1 MLJ 789; Amanah Butler (M) Sdn Bhd v Yike Chee Wah [1997] 2 AMR 1653; [1997] 2 CLJ 79; [1997] 1 MLJ 750; Swedish Motor Assemblies Sdn Bhd v Haji Mohd Ison bin Baba [1998] 2 AMR 1929; [1998] 3 CLJ 288; [1998] 2 MLJ 372. However, the Federal Court in the case of Kumpulan Perangsang Selangor Bhd v Zaid Noh [1997] 1 AMR 1008; [1997] 1 MLJ 789; [1997] 2 CLJ 11, FC, after affirming the Rama Chandran decision held that there may be cases in which for reasons of public policy, national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate.” [10] The applicant in this case argued the matter as though it was an appeal from the Court Martial’s decision. However, the applicant has failed to show that the Court Martial’s decision was either illegal, irrational or was tainted with procedural impropriety. [11] There was nothing wrong whatsoever with the decision-making process. It was the decision with which the accused was aggrieved. S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 20 of 21 [12] Suffice to say based on what has been adumbrated above, this judicial review lacks merit and was therefore dismissed with costs. [13] Ergo cadit quaestio. Dated 22nd March 2023 -Signed- ………………………….. (ASLAM B ZAINUDDIN) Judge High Court in Malaya Johor Bahru Note: This judgment is subject to correction of typographical errors, grammatical mistakes and editorial formatting, if any. S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 21 of 21 Counsel for the Applicant: Mr. Mathan Anandaram Messrs Mathan Anandaram & Co Advocates & Solicitors JC 3493-1, Jalan Jasin Perdana 1 Taman Jasin Perdana 77200 Bemban Melaka [MACO/CV/DIS/1/20] Counsel for the Respondents: Tuan Hj. Jailani Bin Hj. A Rahman Peguam Kanan Persekutuan Pejabat Penasihat Undang-Undang Negeri Johor Aras 2, Bangunan Dato’ Jaafar Muhammad Kota Iskandar 79100 Nusajaya [PN/JR/FC/02/04/2020] S/N LEIeRqCNdUmimbbZdlCAUw **Note : Serial number will be used to verify the originality of this document via eFILING portal