This week at BrainyLaw, we have a very special Guest Writer in Joshua Wu from Sreenevasan, sharing an article on the topic of Judicial Dynamism. The link to Joshua article here can also be found here.
What is judicial dynamism?
Judicial dynamism is a phrase arguably made popular by Court of Appeal judge Hamid Sultan Abu Backer in his speech at the International Malaysia Law Conference 2018 . Parts of the speech containing the said phrase was also repeated by the learned Court of Appeal judge in the highly controversial affidavit, which he affirmed, in Miss Sangeet Kaur Deo’s suit against the current Chief Justice, Tan Sri Richard Malanjum .
In his speech, His Lordship distinguished between “passivism,” “dynamism,” and “rowdyism.”
“a) Passivism- Not acting as per the Oath of Office.
b) Dynamism- Acting as per the Oath of Office.
c) Rowdyism- Acting in breach of the Rule of Law as well as the Federal Constitution.” (emphasis mine)
The latter, I believe, His Lordship would equate with judicial activism.
His Lordship also recollected an exchange he had with a judge from the United Kingdom wherein he said the following:
(b) In constitutional supremacy, the judges must protect fundamental rights of the public and the court is the constitutional guardian of the Rule of Law as well as the Constitution.
(c) The court is not a weaker arm of the Government but it is the supreme policing authority of the Constitution as well as the Constitutional functionaries.
(d) The judges need to demonstrate judicial dynamism to protect public interest inclusive of the poor, needy and the oppressed.” (emphasis mine)
To His Lordship, it may be considered judicial activism by others when a judge decides a case in a manner which preserves, protects and defends the Constitution. This is particularly true for those who come from countries which do not subscribe to Constitutional Supremacy . This perceived rowdyism/activism is, in fact, judicial dynamism.
Facts of Peguam Negara Malaysia v Chin Chee Kow
The Respondent/Applicant, Chin Chee Kow, wanted to “initiate proceeding for the purpose of appointing an additional trustee or a new trustee in public charitable trust of Liam Hood Thong Chor Seng Thuan Pulau Pinang.”
In order to do so, pursuant to Section 9 of the Government Proceedings Act 1956, the consent of the Attorney General is required. The latter refused to grant the said consent. Chin Chee Kow then proceeded to institute judicial review proceedings to challenge the Attorney General’s decision to withhold consent.
What was decided in Chin Chee Kow?
At the High Court, the learned judge granted the applicant leave to commence judicial review proceedings. The learned judge had this to say:
“ The submission by the Senior Federal Counsel that “the decision of the AG belongs to the AG” is untenable.
 This court is of the considered opinion that the absolute discretion of the respondent (if at all it exists) is only pertaining to criminal offences whereas this case involves the discretion or authority of the Respondent in a non-prosecutorial role hence it should not involve an unfettered discretion.”
Unsurprisingly, the Attorney General’s Chambers disagreed with the decision and appealed the matter to the Court of Appeal. The latter came to the same conclusion as the High Court.
“ … The respondent herein did not file a suit to enforce the criminal law. His application was for a judicial review on the refusal of the Attorney General to grant him consent to file a civil proceeding. Granted, it cannot be disputed that the Attorney General has unfettered discretion in relation to prosecution of criminal offence based on Article 145 of the Federal Constitution. However, there is no such unfettered discretion in a non-criminal matter like in this instant appeal.”
After having “carefully considered the judgement of the Court of Appeal,” the Federal Court concluded the following:
“ We found there was no flaw in [the Court of Appeal’s] reasoning in holding that the power of the AG to give or refuse consent under section 9(1) of Act 359 is amenable to judicial review. We are in total agreement with the Court of Appeal’s reasoning as alluded to earlier in paragraph 18.”
The Federal Court went on to say that, “ The AG’s discretionary power to give or refuse consent pursuant to section 9(1) of Act 359 derives from a statute law and any restrictions and conditions applicable to statutory power cannot be ignored.”
Their Lordships reiterated “the important pronouncement in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case  3 MLJ 561 . In this case, the Federal Court emphatically declared that the power of judicial review “cannot be changed or altered by Parliament by way of a constitutional amendment”. The Court further stated, “ The power of judicial review is essential to the constitutional role of the courts, and inherent in basic structure of the constitution”. The Federal Court’s reassertion of constitutional judicial power and its status as superior court meant that the power of the AG to grant or refuse consent under section 9(1) of Act 359 is amenable to judicial review.” (emphasis mine)
Why does Chin Chee Kow matter?
1) Unfettered discretion is dangerous
The Court of Appeal aptly pointed out that, “ … there cannot be any absolute discretion in civil law particularly when it involves public, as this can lead to abuse.”
The Federal Court went to the extent of saying that: “ … unfettered discretion is contradictory to the rule of law. Therefore, the AG’s power to give consent or otherwise under section 9(1) of Act 359 is not absolute and is subject to legal limits.”
The Singapore Court of Appeal in Chng Suan Tze v Minister for Home Affairs  2 SLR(R) 525,  SGCA 16 (CA) [cited by the Federal Court in Chin Chee Kow] held that, “… the notion of a subjective or unfettered discretion was contrary to the rule of law. All powers has legal limits and the rule of law demands that courts should be able to examine the exercise of discretionary power.”
2) Seminal case for civil actions where the AG’s consent is necessary.
A good example would be cases involving the assertion of public rights. According to Section 8(1) of the Government Proceedings Act 1965, as a general rule, in a case of public nuisance, only “the Attorney General, or two or more persons having obtained the consent in writing of the Attorney General, may institute a suit.”
In Dewan Pemuda Masjid Malaysia v SIS Forum (Malaysia)  1 MLJ 126 (HC), it was held that:
“ Locus standi is the legal capacity or the right of a party to appear and be heard before an adjudicator. It is trite law that the issue of locus standi is governed by two fundamental rules:
(a) the plaintiff must possess an interest in the issues raised in the proceedings; and
(b) where the private plaintiff relies upon a public right interest and not of a private right, standing will be denied unless the attorney general consents to a relator action, or the plaintiff can demonstrate some special interest beyond that possessed by the public generally.
 It is a fundamental principle that private rights can be asserted by individuals, but public rights can only be asserted by the attorney general as representing the public. The courts have no jurisdiction in any circumstance to clothe a plaintiff with the right to represent the public interest.”
See also inter alia Government of Malaysia v Lim Kit Siang  2 MLJ 12;  1 CLJ Rep 63 (SC)
Should the Attorney General refuse consent in such cases, thanks to Chin Chee Kow, the exercise of his discretion can be challenged by way of Judicial Review.
3) Judicial dynamism is well and alive
Chin Chee Kow joins a list of recent cases exemplifying this point. Other examples include Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals  1 MLJ 545, and the above mentioned Semenyih Jaya (supra).
Will the bin Abdullah case, wherein the Federal Court’s decision has been deferred from 22nd November 2018 till today, join this illustrious list? One sincerely hopes so.
4) The Court will intervene where necessary
The Court of Appeal, in no uncertain terms, said the following:
“ … This appeal in our considered view, obviously involved public interest. 35 years had lapsed and there still had been no effort by the existing Trustee to carry out the wishes of the Testator’s will. On the face of section 9 of GPA, the respondent cannot take action without the Attorney General, where else could the respondent turn to but the court. We opined, the law cannot be too rigid. To borrow the words of Lord Denning in the English Court of Appeal of Gouriet ’s case  QB 729, “What is to be done about it? The courts to stand idly by? Is the Attorney General the final arbiter as to whether the law should be enforced or not?” We were of the considered view, looking at the facts of this case, this was the appropriate situation for the court to exercise its judicial supervision.”
 see paragraph 9 of the Affidavit dated 14th February 2019
 E.g. the United Kingdom which holds to Parliamentary Supremacy
All of us at BrainyLaw would like to thank Joshua for sharing his article with us! You can find more of Joshua’s article at Joshua’s site at: https://rebuttedopinions.wordpress.com/2019/03/29/another-win-for-judicial-dynamism-peguam-negara-malaysia-v-chin-chee-kow/