Back
2022 MarsdenLR 618
HIGH COURT MALAYA KUALA LUMPUR
TENGKU FAEDZAH RAJA FUAD & ORS – Appellant
Versus
KERAJAAN MALAYSIA & ORS – Respondent
[Judicial Review Application No: WA-25-148-04/2021]
A mandamus order can only be issued when there is a clear legal duty imposed on the Respondent, which was not established in this case.
Headnote:(A) Order 53 of the Rules of Court 2012 – Judicial review – Mandamus – The Applicants sought an order compelling the 3rd Respondent to respond to a letter regarding COVID-19 issues – The Court found no legal duty on the Respondents to reply, leading to a dismissal of the application. (Paras 1, 6, 17, 28)
(B)
Legal duty – The court emphasized that for a mandamus order to be issued, a clear legal duty must be imposed on the authority, which was not present in this case. (Paras 5, 12, 26)
(C)
Federal Constitution – Art 10(1)(a) – The court held that the freedom of speech does not confer a right to information. (Paras 18, 25)
Facts of the case:
The Applicants, being representatives of a consumer rights NGO and doctors, requested clarification on COVID-19 handling from the Respondents, which was not provided, prompting the judicial review.
Findings of Court:
The Court found no duty by the Respondents to reply, deeming the application for judicial review frivolous.
Issues
: Whether the Respondents had a legal duty to respond to the Applicants' inquiries and if the right to information exists under the Federal Constitution.
Ratio Decidendi:
The absence of a clear legal duty negated the issuance of mandamus; freedom of speech does not equate to a right to receive information.
Result:
Application for judicial review dismissed with costs.
JUDGMENT
Introduction
[1] The Applicants had on 27 April 2021 filed an application for leave to commence judicial review proceedings (encl 1) pursuant to O 53 of the Rules of 2012 ( ROC ) seeking inter alia, for the following orders:
1.1 An order of mandamus to compel the 3rd Respondent to reply to a letter sent by the 1st Applicant dated 20 January 2021 (the Letter) for the purpose of giving a comprehensive explanation and details on issues relating to COV1D-19 in Malaysia; and
1.2 An order that the Respondents are responsible to explain to the Applicants on the issues raised by the 1st Applicant via the Letter to the 3rd Respondent.
[2] After the hearing, I dismissed the Applicants' Application (Enclosure 1). This judgment contains the full reasons for the dismissal.
Background Facts
[3] The background facts of this Application are largely undisputed. The narration of the background facts herein is adopted with and/or without modifications from the Statement filed under O 53 r 3(2) of the ROC , the Affidavit in Support and the Written Submissions of the parties which can be summarised as follows:
3.1 The 1st Applicant holds the office of Treasurer for the Persatuan Pengguna Islam Malaysia (PPIM) and the 2nd, 3rd and 4th Applicants are doctors;
3.2 PPIM is a Non-Government Organisation (NGO) that serves in protecting and upholding the Muslim consumers' rights in Malaysia. Its vision is to be at the frontier in the fight of upholding the rights and the development of consumers, and its mission is to execute the duty of fard al-kifayah on the importance of Muslim consumer rights;
3.3 The Government of Malaysia (1st Respondent) had imposed the first Movement Control Order (MCO) throughout Malaysia for a period of two (2) weeks starting 18 March 2020; [See: Applicants' Affidavit 1 - paragraph 10 and Applicants' Affidavit 2 - paragraph 9]
3.4 Following the announcement of MCO 2.0 to begin on 13 January 2021, the Applicants had submitted the Letter to the 3rd Respondent. In the Letter, the Applicants requested for explanation on issues such as method of identification of COVID-19, mRNA Vaccines technology, the handling of the purchase of the mRNA Vaccines by the Ministry of Science, Technology and Innovation and the conditional approval from the National Pharmaceutical Regulatory Agency (NRPA), the use of other medication for COVID-19 other than the Vaccine, and closure and restriction relating to mosques; [See: Applicants' affidavit 1 - paragraph 11, Exhibit PPIM- 1 and Applicants' Affidavit 2 - paragraph 10, Exhibit PPIM-1]
3.5 The Respondents did not reply to the Letter. Hence, the present judicial review application by the Applicants.
Principles In An Application For Leave
[4] The law in relation to application for leave is under O 53 (3) of the ROC . These principles are stated in the following cases:
a) In the case of Bandar Utama Development Sdn Bhd & Anor v. Lembaga Lebuhraya Malaysia & Anor, at 225; Visu Sinnadurai J (as he then was) held that:
"...The Court, in exercising its discretion that an application for leave be granted, must be convinced by the applicants that prima facie the application is genuine and there is some substance in the grounds supporting the application. The test's threshold is very low; a prima facie case of reasonable suspicion, an arguable case must be shown, not a prima facie case. Additionally, an application will fail if it is frivolous, vexatious, misconceived, made by busybodies with misguided or trivial complaints of administrative errors, groundless, where there are more appropriate alternative remedies, and where the application for judicial review is inappropriate".
[Emphasis Added]
b) In Dr Amir Hussein Bin Baharuddin v. Universiti Sains Malaysia , at 298; Judge Edgar Joseph J (as he then was) held that:
"...the test in an application for leave is whether the applicant has an arguable case for review, a sufficient interest and whether there has been any undue delay".
