'Do away with ouster clauses'

KUALA LUMPUR (Oct 7): Ouster clauses should be made unconstitutional, says former Federal Court justice Datuk Seri Gopal Sri Ram, referring to laws passed by Parliament that seek to prevent a judicial review of decisions made by the executive branch of the government.

“We should rule that ouster clauses are unconstitutional because they impede on the access to justice, which is a guaranteed fundamental right,” he said, stressing that ouster clauses strip the courts of their supervisory judicial function.

Sri Ram was speaking during a panel discussion on the role of the judiciary in public administration at Lawasia’s inaugural Constitutional and Rule of Law Conference last Friday.

The former judge, who is a senior prosecutor in the ongoing 1Malaysia Development Bhd-Tanore trial, said this is one of five changes involving the Malaysian judiciary that he would like to see.

The second change he sought was for Malaysian courts to abandon the distinction between jurisdictional errors and non-jurisdictional errors.

“In other words, the Anisminic formula should be accepted in total. It’s there but I don’t see it mentioned in any of our cases for the last 10 years,” he noted.

The Anisminic formula is based on a 1968 UK House of Lords case, which ruled that ouster clauses cannot prevent the courts from examining an executive decision. Prior to the case, an ouster clause could only be used to prevent a judicial review, and only where a non-jurisdictional error of law was involved.

Following the case, ouster clauses do not prevent courts from dealing with jurisdictional and non-jurisdictional errors of law.

A jurisdictional error refers to a party overstepping their boundary and making a decision outside the scope of their powers.

Sri Ram also wants to see courts being more flexible in doling out legal remedies, such as monetary damages.

He noted that Paragraph 1 of the Courts of Judicature Act 1964 is derived from Article 226 of the Indian Constitution, which has been interpreted by judges to mean that the legal remedy prescribed by the court will go to wherever injustice may be found.

The ex-judge also said that cases that do not involve constitutional issues should debunk the Wednesbury principle, which sets out the standard of unreasonableness of public body decisions that would make them liable to be quashed on judicial review.

The principle derives from a UK case in 1948 in which the court held that it could not intervene to overturn the decision of the defendant simply because the court disagreed with it. The court would have to see if the decision was so unreasonable that anyone else in the same position would make the decision.

Sri Ram said Malaysia should be more critical of administrative action through the doctrine of proportionality.

“The heightened scrutiny of administrative action is through the application of the doctrine of proportionality by engaging the second limb, the equal protection clause, in Article 8(1) of the Constitution,” he said.

This means that courts should evaluate administrative action by weighing the severity of the action and crime asserted.

Sri Ram also called for Malaysian courts to adopt a flexible approach to both the threshold and substantive locus standi or the right to initiate a case, and encourage public interest litigation.

“There is already a procedural mechanism that allows it, but I do not know why the hesitation is there. The apex court has ruled that there is an area in which public interest litigation may lie. But nothing has moved forward. I can’t understand why,” he observed.

Substantive locus standi means that a litigant has substantive grounds to initiate a case, while threshold locus standi refers to those grounds being at the minimum threshold.

This article first appeared in The Edge Financial Daily, on Oct 7, 2019.

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