1. TAN SRI ABDUL AZIZ BIN ZAINAL 2. DATUK MUSTAFHA BIN ABDUL RAZAK 3. DATUK RAHIMI BIN YUNUS 1. LEMBAGA PENGARAH BANK KERJASAMA RAKYAT MALAYSIA BERHAD 2. MENTERI PEMBANGUNAN USAHAWAN DAN KOPERASI 3. MENTERI KEWANGAN MALAYSIA 4. KERAJAAN MAL

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA BAHAGIAN KUASA-KUASA KHAS PERMOHONAN SEMAKAN KEHAKIMAN NO: WA-25-188-06 TAHUN 2020 ~ Dalam perkara mengenai suatu permohonan untuk kebenaran memohon perintah Semakan Kehakiman di bawah Aturan 53 Kaedah-Kaedah Mahkamah 2012; Dan Dalam perkara mengenai Seksyen 31 Akta Bank Kerjasama Rakyat Malaysia Berhad (Peruntukan Khas) 1976 [Akta 202]; Dan Dalam perkara mengenai keputusan Menteri Pembangunan Usahawan bertarikh 12.4.2019 dan 23.8.2019 dan/atau keputusan Lembaga Pengarah Bank Kerjasama Rakyat Malaysia Berhad bertarikh 4.5.2020. ANTARA Page 1 of 29 TAN SRI ABDUL AZIZ BIN ZAINAL (NO. K/P: 510826-05-5121) [memohon untuk diri sendiri dan bagi pihak Jawatankuasa Sementara Permohonan Memansuhkan Akta Bank Rakyat] ... PEMOHON PERTAMA DATUK MUSTAFHA BIN ABDUL RAZAK (NO. K/P: 680305-71-5413) [memohon untuk diri sendiri dan bagi pihak Jawatankuasa Sementara Permohonan Memansuhkan Akta Bank Rakyat] . ... PEMOHON KEDUA DATUK RAHIM BIN YUNUS (NO. K/P: 610110-04-5225) [memohon untuk diri sendiri dan bagi pihak Jawatankuasa Sementara Permohonan Memansuhkan Akta Bank Rakyat] ... PEMOHON KETIGA DAN 1. LEMBAGA PENGARAH BANK KERJASAMA RAKYAT MALAYSIA BERHAD 2. MENTERI PEMBANGUNAN USAHAWAN DAN KOPERASI 3. MENTERI KEWANGAN MALAYSIA ; 4. KERAJAAN MALAYSIA ... RESPONDEN-RESPONDEN Judgment Introduction 1... The Applicants had on 26.6.2020 filed an application for leave to commence judicial review proceedings pursuant to Order 53 of the Rules of Court (ROC) 2012 seeking inter alia, for the following orders:- Page 2 of 29 (a) (b) (d) a declaration that the Bank Kerjasama Rakyat Malaysia Berhad (Special Provisions) Act 1978 [Act 202] is a piece of legislation that was meant to be in force only temporarily, and thus section 31 of Act 202 empowers the Minister ‘to declare by order published in the Gazette that Act 202 shall cease to remain in force, which against the backdrop of the facts pleaded by the Second, Third and Fourth Respondents are duty bound to exercise the same forthwith; a certiorari order to vest to this Court, and to quash the decisions made by the 2 Respondent on 12.4.2019 and 23.8.2019 respectively in refusing the Applicants’ representation and appeal for the operation of Act 202 to be terminated as provided for under section 31(2) of Act 202; a certiorari order to vest to this Court, and to quash the decision made by the 1 Respondent on 4.5.2020 in refusing the Applicants’ request that an Extraordinary General Meeting be held for the necessary motion to be tabled to call for the termination of Act 202 under section 31 of Act 202; . a mandamus order to compel the 2"? Respondent to exercise the powers and discretion under section 31 of Act 202 to terminate the operation of Act 202, via the following actions:- (i) thatthe 2"4 Respondent and with the concurrence of the 3" Respondent, direct the Board of Bank Kerjasama Rakyat Page 3 of 29 (ii) (iii) Malaysia Berhad (Bank Rakyat) to call a general meeting of the members of the Bank for the purpose of constituting a Board of Directors, as provided for under section 31(1) of Act 202; that after a Board of Directors has been constituted under the by-laws of Bank Rakyat, the 2"? Respondent shall by order publish in the Gazette and declare that Act 202 shall cease to remain in force; and that the Board of Bank Rakyat shall be divested of the management and administration of the Bank, and such management and administration shall vest in the Board of Directors constituted under the by-laws of Bank Rakyat; and any other transitional steps that may be deemed necessary; and as a matter of precaution, but only if ruled necessary, that the Applicants’ be given leave to initiate the judicial review application referred to in paragraph 1.1(b) above, out of time. The application is supported by a Statement pursuant to Order 53 rule 3(2) of the ROC 2012 and an affidavit affirmed by Tan Sri Abdul Aziz bin Zainal on 25.6.2020. Page 4 of 29 Background Facts The background facts of this application, based on the Applicants Affidavit in Support of the judicial review and the Applicants’ written submission are adopted herein and reproduced as follows:- (a) (c) (d) the inception of Bank Rakyat ran back from 28.9.1954, with the establishment of Bank Agong Kampong Bekerjasama-sama Persekutuan Tanah Melayu Dengan Tanggongan Berhad. Initially comprised of 11 bank societies as its members, the bank had the specific aim and objective to provide assistance and raise the standards of living of its members and other cooperative societies, through financial, business and agricultural activities. the bank went through various restructuring process and changes of names, from Bank Agong Kerjasama Malaysia Berhad (Bank Agong) in 1964, to Bank Kerjasama Malaysia Berhad (Bank Kerjasama) in 1966, and opened its door of membership to individual entities apart from cooperative societies; in 1973, the bank amended its by-laws so as to allow the bank to establish subsidiary companies, apart from changing its name to Bank Kerjasama Rakyat Malaysia Berhad (Bank Rakyat); that beginning the late 1970s, however, the Bank was faced with severe and serious financial crises, and sought the Malaysian Page 5 of 29 Government's assistance for loan, in order to avoid turning insolvent; this prompted the then Prime Minister Datuk Hussein bin Onn to submit a proposal in the Dewan Rakyat, in the form of a bill of parliament known as the Bank Kerjasama Rakyat Malaysia ‘Berhad (Special Provisions) Bill, for the Malaysian Government to provide financial assistance to Bank Rakyat, while also at the same time to take over the management of the Bank under the supervision of the Minister in charge of cooperative societies; that the bill was accordingly passed by both houses of Parliament and assented to by the Agong and effectively became an Act of . Parliament on 16.2.1978, and the management of the Bank came under the supervision of the Minister in charge of cooperative societies; that the supervision and taking over of the Bank’s management by the Malaysian Government was however never meant to be permanent. In tabling the bill for the Act in 1977, the then Prime Minister made it expressly clear that it was only a temporary measure, to save the Bank from mismanagement and insolvency, and once that had been rectified, the administration and management of the Bank will accordingly be handed back to the Bank to manage its own affairs:- Page 6 of 29 (i) (k) (!) the Applicants herein had formed a Protem Committee and submitted to the 2"? Respondent a Proposal for the Restructuring of Bank Kerjasama Rakyat Malaysia Berhad on 5.7.2018 [Enclosure 2, Exhibit AAZ-2], and nation-wide discussions and meetings between members of Bank Rakyat in general, as well as the Protem Committee, were held numerous times between January 2019 to March 2020; on 18.3.2019 [Enclosure 2, Exhibit AAZ-5], the Applicants through their Solicitors wrote to the 2.4 Respondent requesting . that the 2" Respondent exercise his powers and discretions under section 31 of Act 202 to terminate the operation of Act 202; on 16.4.2019, the Applicants received the letter dated 12.4.2019 from the Second Respondent informing his decision rejecting the Applicants’ application; on 5.8.2019 again the Applicants’ solicitor wrote to the Second Respondent requesting him to review his decision dismissing their Application; later on 27.8.2019 the Applicant received a letter dated 23.8.2019 from the Second Respondent dismissing the | Applicants’ request; further, on 17.3.2020 the Applicants sent a letter to the First Respondent requesting a special general meeting to pass a Page 7 of 29 resolution to cease the Act 202. Subsequently on 4.5.2020, the First Respondent informed the Applicant via a letter dismissing the application. The First Respondent also stated that the power to cease Act 202 is the discretion of the Second Respondent; and (n) based on thé above background, the Applicant filed the present action before this Court. 4. Atthe conclusion of the hearing, | dismissed the Applicants’ application (Encl. 1). This judgment will contain the full reasons for the dismissal. The Law 5. | The Federal Court in WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd [2012] 4 CLJ 478; [2012] 4 MLRA 257; [2012] 4 MLJ 296 at 303, speaking through Suriyadi Halim Omar FCJ (as he then was) held: “..Leave may be granted if the leave application is not thought of as frivolous, and if leave is granted, an arguable case in favour of granting the relief sought at the substantive hearing may be the resultant outcome. A rider must be attached to the application though ie unless the matter for judicial review is amenable to judicial review absolutely no success may be envisaged.” 6. The test laid down for leave to commence a judicial review in WRP Asia Pacific Sdn Bhd (supra) are as follows: Page 8 of 29 (i) | whether the subject matter is amenable to judicial review; and if so (ii) | from the materials available, whether the application is frivolous and if not thought as frivolous, to consider that the applicant has an arguable case to obtain the relief sought at the substantive hearing. The principles governing applications for leave to commence judicial review proceedings have also been set out in Tang Kwor Ham & Ors v. Pengurusan Danaharta Nasional Bhd & Ors [2006] 1 MLRH 507; [2006] 1 CLJ 927; [2006] 5 MLJ 60 at 69 where Gopal Sri Ram JCA (as he then was) held: [10] “.... the High Court should not go into the merits of the case at the leave stage. Its role is only to see if the application for leave is frivolous.... So too will the court be entitled to refuse leave if it is a case where the subject maitter of the review is one which by settled law (either written law or the common law) is non-justiciable.” lt is trite that the Applicant will have to satisfy the tests propounded in the abovementioned cases in order to secure the leave to commence the judicial review proceedings. At this stage, the court need not go into merits of the case, but only to see if the subject matter is amenable to judicial review or whether the application for leave is frivolous. Page 9 of 29 Preliminary Objections (PO) by the Attorney General’s Chambers (AGC) 9. Atthe outset of the hearing, the learned Senior Federal Counsel (SFC) raised a PO. The PO was premised on the following grounds:- (a) whether the application is within time and if the answer is negative,- whether there are any good reasons to warrant an extension of time; and (b} whether the Second Respondent's decision in dismissing the Applicants’ application to cease the operation of the Act 202 is amenable to judicial review. Decision of the Court Whether the application is within time and if the answer is negative, whether there are any good reasons to warrant an extension of time 10. It is to be noted that the decision that the Applicant sought to challenge is the refusal of the Second Respondent to cease the operation of Act 202. Therefore, it is important to identify the date of the decision. 11. It is the submission of the AGC that the Applicant had failed to comply with Order 53 rule 3(6) of the ROC 2012 which provides as follows:- Page 10 of 29 12. 13. 14. 15. “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’. (emphasis added) Having perused the cause papers, | find that the Second Respondent’s decision was made through a letter dated 12.4.2019 (Exhibit AAZ-6). The decision was communicated to the Applicants as admitted by them on 16.4.2019. Therefore, it is my view that any application for judicial review must be made within 3 months after 16.4.2019. The last date to file would be on 16.7.2019. As the present application was filed on 26.6.2020, there is a delay of almost 11 months. — The Applicant argued on the status of the subsequent letters by the First and Second Respondent. As narrated above, after the said decision on 12.4.2019, the Applicant’s solicitor wrote to the Second Respondent to review his earlier decision. The letter was dated on ‘5,.8.2019 (Exhibit AAZ-7). Conveniently, this letter was issued after the __ expiry of the 3 months’ period from the Second Respondent's decision. The Second Respondent had responded through a letter dated 23.8.2019 and maintaining his earlier decision on 12.4.2019. Thus, the Second Respondent's letter dated 23.8.2019 is nol a decision in relation to the Applicants’ application. It is just a reply to the Applicants’ request to review the earlier decision. Page 11 of 29 16. 17. 18. 19. Further, | find that there is nothing under Act 202 that provides for an appeal or review against the Second Respondent's decision. Hence, to me the letter dated 23.8.2019 should not be considered as a decision. Even though this court is to consider the letter dated 23.8.2019, still the present application is out of time as the 3 months’ period had expired on 27.11.2019 (the Applicant received the letter on 27.8.2019). Case laws seem to suggest that the three (3) months’ time limitation is a rigid rule that must be complied with by any party seeking to make an application for judicial review. In the case of Menteri Besar Negeri Pahang Darul Makmur v. Seruan Gemilang Makmur Sdn Bhd [2010] 1 MLRA 325; [2010] 5 CLJ 123; [2010] 4 MLJ 360 at 371 the Court of Appeal held as follows:- “(16] The High Court in its judgment was of the view that the 40 days specified under 0.53 r.3(6) was not rigid. | am of the view the judge erred in ruling that the time frame prescribed by the rules is not rigid. | am in agreement with the appellant's counsel that compliance with the time frame prescribed by the rules is fundamental as it goes to jurisdiction. (See Mersing Omnibus Co. Sdn Bhd v. The Minister of Labour & Manpower & Anor [1983] 2 CLJ 7; [1983] CLJ (Rep) 266)”. (emphasis added) Page 12 of 29 20. The Federal Court in Wong Kin Hoong & Anor v. Ketua Pengarah Jabatan Alam Sekitar Anor [2013] 4 CLJ 193 at 203, 207 held as follows:- [17] The same provision was adopted in the Rules. of Court 2012 that came into effect on 1 August 2012. Under the Rules of Court 2012, the time frame to apply for judicial review was extended from 40 days to three (3) months. Order 53 r. 3(6) and (7) of the Rules of Court 2012 provides as follows: (6) An application for judicial review shall be made promptly and in any event within (3) three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant. (7) | The court may, upon an application, extend the time specified in rule 3(6) if it considers that there is good reason for doing so. [18] A common factor in the above provisions is that an application for leave for judicial review must be made promptly but the court may upon application and if it considers that there is good reason for doing so, extend it. Thus, whether an extension of time ought to be granted or otherwise is an exercise of judicial discretion. And it is a well-settled principle that an appellate court will rarely interfere with the court exercise of judicial discretion unless it is clearly satisfied that the discretion had been exercised on a wrong principle. (See Federal Court decision in Vasudevan Vazhappulli Raman v. T Damodaran PV Raman & Anor [1981] CLJ 84; [41981] CLJ (Rep) 101; [1981] 150 and Privy Council case of Ratnam v. Cumarasamy & Anor [1964] 1 LNS 237; [1965] 31 MLJ 228). Page 13 of 29 21. 22. 23. 24. [30] In conclusion, we are of the view that the time frame in applying for judicial review prescribed by the Rules is fundamental. It goes to jurisdiction and once the trial judge had rejected the explanation for the delay for extension of time to apply for judicial review, it follows that the court no longer has the jurisdiction to hear the application for leave for judicial review. Whether the application has merits or not, is irrelevant. (emphasis added) Based on the above authorities, it is clear that measured from 16.4.2019, the last date for the Applicants’ to file the leave application therefore fell on 16.7.2019. As such, the Applicants were 11 months out of time by the time the Applicants filed the leave application on 26.6.2020. It is not disputed that in this present application as a matter of precaution, the Applicants did pray for extension of time. Upon perusal of the cause papers, | find that there is only one ground stated in the Applicants’ Statement and Affidavit. They blamed the Second Respondent's letter dated 23.8.2019 of requesting them to obtain the resolution from the members of Bank Rakyat. The Applicants alleged after the said letter; they conducted 12 road shows throughout the couniry to obtain the mandate from the members of Bank Rakyat. After the said road show, they wrote to the First Respondent on 17.3.2020 seeking for a special general meeting. Page 14 of 29 25. 26. 27. 28. 29. 30. Therefore, it would be incumbent upon this court to examine and determine whether the reason given is a good reason to justify an extension of time. Based on the reason given by the Applicants, | find that there is no sufficient or good reason given for this court to exercise its discretion for an extension of time. From the reason given by the Applicants, they are saying the Respondents caused the delay. To me, this is just an excuse. Upon perusal of the cause papers, | find that the Applicants knew and were aware on the decision making process to cease the Act 202. This is evident when the Applicants wrote to the Second Respondent on 18.3.2019. When their application was rejected on 12.4.2019, again they wrote to the Second Respondent to consider his earlier decision. The manner to cease operation of the Act is prescribed under section 31 of Act 202. Since the legislation gives such discretion to the Minister, then any challenge should be against the said Minister's decision. More importantly, the Applicants were represented by a solicitor from the very beginning. | find that even the application dated 18.3.2019 (Exhibit AAZ-5) was written by their solicitor. Hence, there is no excuse Page 15 of 29 31. for the Applicants not to be aware of the provision provided under Act 202. In Ravindran P. Muthukrishnan v. Malaysian Examinations Council [1984] 1 CLJ Rep 320 at 321, 322, the Federal Court held as ‘follows:- The order to disqualify his examination results was made by the Council on 6 July 1983. He received the order on 15 July 1983. Order 53 r. 1A of the Rules of the High Court, 1980 provides that leave to apply for an order of certiorari shall not be granted unless made within six weeks after the date of the proceeding objected to except where the delay is accounted for to the satisfaction of the Court or Judge to whom the application is made. Therefore, if time began from the date the Council’s decision was served, that is on 15 July 1983, then the period expired on 22 August 1983 in which case the application was 8 days out of time. If time was computed from the date of the decision of the Council, then the application would be 13 days out of time. - The trial Judge heard the appellant's explanation for the delay. Briefly his explanation was that by 6 July 1983 the appellant had already been . admitted into the Universiti Sains Penang. It was also stated in his affidavit that the notification of the Council was not brought to his solicitor’s attention until much later. The explanation for the delay was not accepied by the trial Judge and he ruled that the delay had not been satisfactorily explained. Looking at the explanation we cannot honestly say that the Judge was wrong in rejecting the explanation as being unsatisfactory ....... The Judge dealt with two aspects of what he thought was the issue before him. Firstly, he dealt with the reason for the delay in applying for an Page 16o0f29 . 32. enlargement of time. Secondly he dealt with the merits of the case if the explanation for the delay was accepted. In our view the whole issue is clearly one of jurisdiction. In the event only the first consideration of the Judge is relevant. Since the judge rejected the explanation for the delay it follows that the Court had no jurisdiction to hear the application for leave for an order of certiorari. Whether the application for an order of certiorari had merits or not was irrelevant. | have scrutinized the explanation of the delay proffered by the Applicants. Apart from blaming the Respondents for causing the delay, | find that there is nothing advanced by the Applicants to show that they had a good reason or any reason at all for that matter, for failing to file the application promptly. Thus, this application should be dismissed in ‘limine. Whether the Second Respondent’s decision in dismissing the Applicants’ application to cease the operation of the Act 202 is amenable to judicial review 33. 34. It is the AGC’s submission that the Minister's decision is an administrative decision based on policy considerations, which are best left to the administrators and are not within the competence of this court. | agree with the AGC’s submission on this point. The decision of the Minister to cease the operation of the Act 202 is not a decision which should be reviewed by this court on the merits of the application. To Page 17 of 29 do so would amount to reviewing the wisdom of the policy decision of the Minister. 35. Section 31 of the Act 202 reads as follows:- Power to terminate operation of Act (1) “If at any time it appears to the Minister that it is no longer necessary that this Act should remain in force, the Minister may, with the concurrence of the Minister of Finance, direct the board to call a general meeting of the members of the Bank for the purpose of constituting a Board of Directors under the by-laws of the Bank.” 36. . This provision clearly gives the discretion to. the Minister with the concurrence of the Minister of Finance to decide when the time has come for the Act to cease operation. 37. In order to better understand this issue, it is best to look on the historical facts prior to the formation of the Bank Rakyat. In 1970s, Bank Rakyat was facing a serious financial crisis. This had been reflected in the speech of the then Prime Minister at Dewan Rakyat during the tabling of the bill. 38. The Hansard dated 19.12.1977 (Exhibit AAZ-2 Annexure B) at page 6713 to 6716 is reproduced as follows:- Tuan Yang di-Pertua, benarkan saya membaca dan memberi gambaran atas perkara yang disebutkan. Ini ialah gambaran tentang pergerakan bank Page 18 of 29 yang tidak mengikut lunas-lunas perjalanan sesebuah badan perniagaan yang cekap dan maju. (1) (2) (3) (4) (5) (6) (7) Pinjaman kepada anak syarikat wang asal dan faedah - $64.6 juta sehingga tahun 1975; Memberi pinjaman kepada anak-anak syarikat tanpa membuat kajian syarat bertulis dan tanpa cagaran; Dasar pinjaman kepada ahli; Menggunakan wang-wang penyimpan tanpa menghiraukan keselamatannya dengan memberi pinjaman jangka panjang lebih daripada 80% dari jumlah wang-wang penyimpan. Tatacara; Tatacara pengeluaran pinjaman, meluluskan pinjaman tanpa membuat kajian teliti dan tidak ada cagaran. Kutipan kembali pinjaman; Kutipan kembali pinjaman tidak dihiraukan langsung. Kos pembiayaan yang tinggi; Kos pembiayaan adalah 3% lebih tinggi daripada kos amalan biasa bank perdagangan. Dasar pelaburan; Page 19 of 29 (8) (9) Bank melaburkan dalam pasaran saham tanpa membuat kajian dan kebenaran, tiada menyimpan daftar berhubung dengan pelaburan-pelaburannya. Perbelanjaan modal; Membuat perbelanjaan modal tanpa peruntukan dan telah menggunakan wang-wang penyimpan. Tatacara pentadbiran; Pentadbiran dijalankan tanpa panduan dari tatacara tertentu. Benarkan saya beri gambaran, Tuan Yang di-Pertua, berkenaan dengan perkara-perkara yang dijalankan oleh Bank ini tanpa mematuhi peruntukan-peruntukan tertentu di bawah Ordinan Syarikat Koperatif tahun 1948. Melanggar peruntukan Ordinan Syarikat Koperatif 1948, memberi pinjaman kepada peminjam yang bukan ahli. Memberi jaminan bank kepada pemohon yang bukan ahli. Menubuhkan 8 ‘buah anak syarikat dan melaburkan wang bank ini dengan banyak seperti yang diterangkan di bawah ini tanpa kelulusan Ketua Pendaftar Koperasi. lanya berjumlah $103 juta. Dan ia melanggar peruntukan kaedah Syarikat Koperatif 1948:- (a) Memberi pinjaman di atas cagaran saham Bank Rakyat sendiri; Page 20 of 29 (b) (c) (d) (f) (g) Membeli atau memajak tanah dan membuat pembinaan bangunan tanpa mendapat kelulusan “Ketua Pendaftar; Membayar dividen tahun 1974 di atas kadar faedah melebihi 10% tanpa mendapat kebenaran daripada Ketua Pendaftar; Membayar dividen tanpa kebenaran Ketua Pendaftar bagi tahun 1972, 1973 dan 1974 melibatkan wang sebanyak $2.4 juta; ; Membentangkan timbangan kira-kira tahun 1972, 1973 dan 1974 kepada Mesyuarat Agung Tahunan tanpa mendapat kebenaran daripada Ketua Pendaftar; Melanggar Peraturan Undang-Undang Kecil (By-laws), kegagalan. menyediakan mudah-tunai (liquidity) sebanyak 20% daripada jumlah wang penyimpan iaitu 8.4% pada 31.12.1976; dan Menggunakan wang-wang penyimpan — untuk melaburkan dalam projek-projek jangka panjang. Tuan Yang di-Pertua, krisis kewangan yang dihadapi oleh Bank Rakyat pada masa ini amatlah teruk dan serius. Mengikut kajian yang telah dijalankan, Bank ini mungkin tidak dapat meneruskan perjalanan aktiviti- ‘ aktivitinya tanpa bantuan kewangan yang segera. Page 21 of 29 39. The intervention by the government at that time was not merely to give financial aid as reflected in the Hansard at page 6710 — 6711 below:- Tuan Yang di-Pertua, ialah perjanjian Kerajaan memberi jaminan supaya simpanan wang ahli-ahli yang berbelas-belas ribu itu dijamin oleh Kerajaan. Maka dengan membentangkan Rang Undang-Undang ini, saya akan menerangkan persetujuan Kerajaan memberi bantuan bagi peringatan pertama dan jumlah yang sebenarnya yang dikehendaki oleh Bank Rakyat itu kelak. Bagaimana saya katakan tadi, Tuan Yang di-Pertua, jaminan yang diberikan oleh Kerajaan yang dikeluarkan oleh Jabatan saya dengan arahan saya berbunyi demikian, dan saya minta izin daripada Yang di- “Pertua membacakan siaran akhbar itu yang dikeluarkan dengan nama Kerajaan daripada Jabatan saya. Pengumuman yang bertarikh pada 12hb March, 1976 Jabatan Perdana Menteri telah mengeluarkan kenyataan seperti berikut:- “Dalam tempoh kebelakangan ini Kerajaan telah merasa amat bimbang mengenai perjalanan Bank Kerjasama Rakyat Malaysia Berhad dan berikutnya penyiasatan yang telah dijalankan oleh Pendaftar Syarikat Kerjasama mengenai kegiatan Bank itu. Memandangkan adanya tindakan yang telah . diambil dan akan diambil oleh pihak polis ke atas beberapa orang pegawai Bank Rakyat itu Kerajaan mengambil sepenuh perhatian tentang adanya kebimbangan penyimpan-penyimpan wang di Bank Rakyat tersebut mengenai keselamatan wang yang mereka simpan di Bank Rakyat itu. Oleh yang demikian, Kerajaan ingin memberi jaminan kepada -setiap penyimpan wang tersebut bahawa keselamatan wang mereka adalah terjamin. Kerajaan juga menimbangkan, adalah menjadi sebagai satu tanggungjawabnya untuk membantu dalam menyusun semula pemgurusan Bank Rakyat supaya menjamin bahawa Bank Page 22 of 29 40. 41. Rakyat diuruskan atas asas yang kukuh demi kepentingan semua pemegang saham dan penyimpan wangnya. Pegawai- pegawai yang berkelulusan dan amanah akan diambil untuk membantu dalam pengurusan Bank Rakyat ini di masa depan supaya Bank Rakyat Malaysia Berhad dapat mencapai tujuannya.” Further at page 6719 of the Hansard, it is stated as follows:- Tuan Yang di-Pertua, oleh kerana Kerajaan memahami sangat iaitu Bank ini ialah Koperatif Bank dan wangnya ialah wang ahli-ahlinya, maka Undang-Undang ini ialah bagi sementara sahaja dan jika difikirkan sudah sampai masanya dan kemas tersusun pentadbiran serta pengurusannya, maka Fasal 31 memberi kuasa_ untuk menamatkan perjalanan kuatkuasa Akta ini...... . Tuan Yang di-Pertua, sebagaimana yang telah saya jelaskan tadi bahawa Rang Undang-Undang ini penting bagi membolehkan Kerajaan mengawasi dan mengawal pengurusan dan pentadbiran Bank Rakyat supaya ianya dapat diletakkan di atas aras yang lebih kukuh serta mempastikan supaya krisis kewangan seperti yang dialaminya sekarang ini tidak berulang lagi....... , (emphasis added) It is not disputed that the Government since 1978 had approved a loan of RM155 million to Bank Rakyat. Even though the Applicants contended that the loan had been fully paid, however it was not the © sole criteria for the Minister to exercise his power to cease the Act. Page 23 of 29 42. 43. 4A. l take the view that based on the above excerpt of the Hansard, there are other conditions that the Minister needs to consider before deciding to cease the operation of the Act. | am also of the view that such considerations and conditions are within the domain of the Minister alone. This court is not equipped with the necessary tools to examine the policy decision made by the Minister. In the case of Dominic Lau Hoe Chai v. Maszlee Malik & Ors [2019] MLRHU 1449; [2020] 2 CLJ 131, the Applicant challenged the same cabinet decision on tulisan jawi. Amarjeet Singh JC in dismissing the leave application had stated as follows:- [17] [18] | now turn to the second issue: whether the policy to implement Jawi writing at the said schools is amenable to judicial review. - | have considered the material produced by the applicant and am satisfied that the policy decision to implement Jawi writing is not amenable to judicial review. It follows that no arguable case can therefore arise for further investigation at the substantive hearing. My reasons are as follows. The policy to implement teaching of Jawi writing in the Malay Language subject at the said schools is the exclusive right of the Federal Government which decides what kind of education policy should be implemented in the whole of Malaysia. The Minister of education explained in Parliament, as reported in the Hansard dated 21 October 2019, on the policy to implement Jawi writing as follows: Page 24 of 29 ... ingin dijelaskan di sini bahawa tulisan jawi bukanlah merupakan satu mata pelajaran atau subjek, tetapi diperkenalkan sebagai aspek seni Bahasa yang merupakan strategi dan aktiviti bagi menyokong pelaksanaan kemahiran Bahasa, selain memperkayakan murid dengan pengetahuan mengenai seni, warisan dan Bahasa Melayu itu sendiri....Selain daripada itu, tulisan jawi juga akan diperkenalkan sebagai national heritage atau pun sebagai warisan kebangsaan dan national identiti atau indentiti kebangsaan. Ini selaras dengan tulisan jawi yang tercatat dan termaktub dalam jata negara dan jata negeri. [20] The Federal Government through the Education Minister has explained the policy of Jawi writing in Parliament. The policy clearly concerns matters of the Malay language, national heritage and national identity which were amongst the factors taken into account by the Cabinet. These are clearly considerations of non-legal factors. In my judgment, any evaluation of these factors would be an act of entering into the domain which belongs solely to the executive. Therefore, any inquiry weighing the pros and cons of the policy and to test the degree of its beneficial disposition based on however sound and good reasoning advanced by the Applicant should be avoided. (emphasis added) 45. In Marcel Jude Joseph v. the Minister of Education Malaysia [2011] 13 MLRH 281; [2012] 4 MLJ 555; [2017] 7 CLJ 196, Abdul Rahman Sebli J (now FCJ) held that:- (6) The decision by the respondent to abolish the PPSMI is a non- justiciable decision and is not capable of judicial determination. The litigation process and the expertise of the court are not suited for Page 25 of 29 46. resolving the question in hand: see De Smith’s Judicial Review (6! edn). lts resolution is beyond the institutional competence of the court and would involve the court stepping outside its appropriate constitutional role: see The Concept of ‘Justiciability’ in Administrative Law in Groves & Lee, Australian Administrative Law (2007). (7) It is not for the court to interfere with the decision of the Government because the wisdom and policy decision of the Government belongs to the Government. (emphasis added) The then Supreme Court in the case of Kumpulan Perangsang Selangor Bhd v. Zaid bin Hj Mohd Noh [1996] 2 MLRA 398; [1997] 2 CLJ 11; [1997] 1 AMR 1008; [1997] 1 MLJ 789 at 799 held as follows: Of course, there may be cases in which — for reasons of public policy, national interest, public safety or national security — it may be wholly inappropriate for the courts to attempt any substitution of views. Unlike the executive, the judiciary is not armed with all the information relevant to such matters and one could well understand a High Court, in the exercise of its discretionary power, declining to enter into the merits of a decision involving these considerations. Each case must be considered on its own facts and it would be quite unwise to attempt the formulation of an all-embracing rule. (emphasis added) Page 26 of 29 47. Further, the Federal Court in R. Rama Chandran v. industrial Court of Malaysia & Anor [1996] 1 MLRA 725; [1997] 1 MLJ 145; [1997] 4 AMR 433; [1997] 1 CLJ 147 at 183 held as follows:- Needles to say, if, as appears to be the case, that this wider power is enjoyed by our Courts, the decision whether to exercise it, and if so, in what manner, are matiers which call for the 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 underlie 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. (emphasis added) 48. Based on the above, | take the view that the decision of the Second Respondent is non-justiciable and not amenable to judicial review. Conclusion 49. This court finds that the Applicants did not have an arguable case to warrant for further investigation at the substantive stage. Page 27 of 29 50. Thus, this application for leave to commence judicial review proceeding is dismissed with costs of RM500.00 to be paid by each Applicant to the Respondents. Dated: 0S November 2021 Ahmad Kamal bin Md. Shahid Judge High Court Kuala Lumpur Page 28 of 29 Counsels - For the Applicants: En. Mohamed Haniff Khatri Abdullah (Cik Nur Fadilah with him) Tetuan Haniff Khatri Peguambela dan Peguamcara _No. 26, Tingkat Atas, Jalan Camar 4/3, Seksyen 4, Kota Damansara, 47800 Petaling Jaya. (Ruj: HK/L951/KAPB/18) For the Attorney General’s Chambers: En. Ahmad Hanir bin Hambaly @ Arwi, SFC . Bahagian Guaman, Jabatan Peguam Negara, No. 45, Persaiaran Perdana, Presint 4, 62100 Putrajaya. Page 29 of 29