Shukri Ahmad Shahizam: Beyond the ‘Objective Test’: Towards Stringent Scrutiny of Ministerial Decision-Making
Scrutiny of executive discretion has never been the Malaysian courts’ strong suit. Despite the existence of constitutionally guaranteed rights, history demonstrates a large degree of deference given to ministers in the exercise of their powers. This includes where such powers are manifest infringements of fundamental liberties without procedural safeguards built into the executive’s decision-making process. Undoubtedly, the courts’ willingness to submit to ministerial justifications once the shibboleth of ‘national security’ was uttered by either Parliament or a Minister was, in part, facilitated by the Federal Constitution’s explication of security as a legitimate basis for restricting the exercise of rights (see Articles 9(2), 10(2)(a) and 149 of the Federal Constitution).
This deference manifested in the use of the ‘subjective test’ in the judicial review of discretionary powers, whereby the respondent only needs to show that the minister in question was ‘subjectively’ satisfied with their decision. This was, and is, often done by simply including a bare assertion to the effect in the recitals of a decision or through the presentation of a simple affidavit in court (see Karam Singh v Mentari Hal Ehwal Dalam Negeri  2 MLJ 129). The subjective test displaces the use of an ‘objective’ standard of review , which include normal grounds of review such as illegality, irrationality and procedural impropriety (see Karam Singh, supra). As noted by Neo, it has only been in relatively recent years that the courts have withdrawn from their submissiveness – even in preventative detention cases. Whilst the gradual shift to an ‘objective test’ has undoubtedly been welcomed, there has justifiably been doubt as to whether the courts’ seemingly whole-hearted acceptance (see Titular Roman Catholic Archbishop of Kuala Lumpur v Minister of Home Affairs  4 MLJ 765) would be of any significance in practice.
Mohd Faizal Bin Musa v Menteri Keselamatan Dalam Negeri  MLJU 7 is evidence which, fortunately, indicates otherwise. It concerns a university lecturer whose publications were banned by ministerial order under section 7(1) of the Printing Presses and Publications Act 1984. This was on the basis that they were ‘likely to be prejudicial to public order and security’. On the application for judicial review, the Minister elaborated that the publications were religiously provocative as they allegedly promoted Shiite beliefs (in the context of a majority Sunni-Muslim country). The application was dismissed before the High Court, but was allowed on appeal before the Court of Appeal. In its judgement, the Court of Appeal applied the objective test searchingly to the effect that it found the Home Minister’s justifications insufficient, thus making his order ultra vires the Act.
In doing so, the Court of Appeal has curtailed the permissive nature of the Act. The relevant provision states that ‘If the Minister is satisfied that any publication contains [anything] which is in any manner prejudicial to or likely to be prejudicial to public order…he may in his absolute discretion by order [ban] that publication’. The courts’ use of the objective test has both limited what constitutes adequate ‘satisfaction’, and qualifies the notion of ‘absolute discretion’.
The Court’s decision turned on the proper interpretation of what it is meant for something to be ‘prejudicial or likely to be prejudicial to public order’. Where the High Court accepted that the classification of ‘prejudicial to public order’ did not require the existence of actual public disorder but included anything with the ‘potential’ to disrupt public disorder, this argument was firmly rejected by the Court of Appeal. The latter held that for the Minister to act on the basis that something is ‘prejudicial to public order’, he must demonstrate that there is, in fact, a presence of ‘disorder’ . Since there had been an absence of public disorder following the publication of the relevant materials, the Minister could not ban the publications under the relevant provision of the Act (at para ).
In inspecting whether the Minister was right in finding that they were ‘likely’ to cause public disorder, the Court rejected the ‘simplistic’ approach adopted by the High Court where the mere mention of public order grounds by the Minister was sufficient to fulfil the threshold imposed by the Act (at para ). Instead, it followed its own approach in Dato’ Seri Syed Hamid v SIS Forum  6 MLJ 340 which required strict scrutiny of the Minister’s reasons, taking into consideration not only the abstract reasoning behind the order, but the factual validity of its justification. As in SIS Forum, supra, the fact that there had been no evidence of disorder during the time when the publications were freely available is fatal to the argument that they would ‘likely’ be prejudicial to public disorder (at para ). The Court quashed the order accordingly.
The courts could have adopted a more deferential posture, for example by using ‘light touch’ Wednesbury (un)reasonableness, as applied in CCSU v Minister for the Civil Service (the ‘GCHQ Case’)  AC 374. Indeed, this was the approach accepted by the High Court, which appeared to take the Minister’s reasons at face-value. In contrast, the Court of Appeal closely scrutinised the Minister’s justifications and their validity as applied to the facts. Continuing the analogy with the Wednesbury spectrum, it appeared to apply the ‘anxious scrutiny’ test found in R v Minister of Defence, ex parte Smith  QB 517 (CA) in all but name. Drawing this analogy is further justified as the Court explicitly states that it is ‘only in the clearest case of potential prejudice to public order that this right [to freedom of expression] can be suppressed’ (at para ). Although it is unlikely that the anxious scrutiny standard will be explicitly accepted, the decision is evidence that there has, in fact, been movement on the Court’s behalf to apply more stringent standards in cases involving fundamental rights. Indeed, the earlier case of SIS Forum, supra, only applied Wednesbury simpliciter with no mention of a more exacting standard to be relied upon given the freedom of expression context.
Equally significant is the Court’s brief and obiter consideration of proportionality (at para ). Although it has been accepted as a free-standing ground of judicial review (see Sivarasa Rasiah v Badan Peguam Malaysia  3 CLJ 507) for close to a decade, its application has been limited to the review of primary legislation (see, for example, PP v Lim Guan Eng  MLJU 1854). In the instant case, the Court stated that even if the passages identified by the Minister were ‘prejudicial to public order’, the prohibition of the books in whole would be disproportionate. This lends support to the notion that not only does the general exercise of the power need to be reasonable, but its specific application to the facts must be proportionate. Whilst this principle is easy to apply in the current context, as the ban could have applied to specific pages of the publication versus the publication as a whole), there may be more significant consequences where a power may only be exercised in a binary manner, as with preventative detention and travel bans.
While there is an appeal pending before the Federal Court, the Court of Appeal’s approach is already noteworthy in continuing a movement towards taking constitutional rights seriously. The contemporary emergence of this trend can roughly be traced to Sivarasa Rasiah, supra, where the Federal Court endorsed a broad ‘prismatic approach’ to the interpretation of constitutional rights – as opposed to a narrow, formalistic one. More recently, the enforceability of these rights has been bolstered by progressive decisions by the Federal Court to re-assert judicial power in general and, in particular, with respect to the right to property (see Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat  3 MLJ 561) and the right to freedom of religion (see Indira Ghandi Mutho v Pengarah Jabatan Agama Islam Perak  MLJU 68).
There are, therefore, encouraging signs that the courts are increasingly willing to give full effect to constitutional protections and that this protection extends broadly to rights outside of the civil-political paradigm. It can only be hoped that this trend will continue into the foreseeable future.