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2023 MarsdenLR 490
COURT OF APPEAL PUTRAJAYA
TAN SRI ABDUL AZIZ ZAINAL & ORS – Appellant
Versus
LEMBAGA PENGARAH BANK KERJASAMA RAKYAT MALAYSIA BERHAD & ORS – Respondent
[Civil Appeal No: W-01(A)-127-03/2021]
Judicial review applications must be filed within three months of the decision communicated, and policy decisions made by ministers are generally non-justiciable.
Headnote:(A) Bank Kerjasama Rakyat Malaysia Berhad (Special Provisions) Act 1978 - Section 31 - Judicial review - Application for leave to commence judicial review proceedings dismissed due to delay in filing - High Court found the decision non-justiciable and not amenable to judicial review - The discretion to terminate the operation of the Act lies with the Minister, and the Court does not interfere with policy decisions. (Paras 6, 30, 32)
(B) Time frame for filing judicial review - Application must be made within three months of the decision being communicated - Delay of 11 months was not adequately explained, leading to the dismissal of the application. (Paras 11, 21)
Facts of the case:
The applicants sought to challenge the enforcement of the Act 202, claiming it was intended to be temporary and arguing for the termination of its operation. The Minister's decisions to maintain the Act's enforcement were communicated to the applicants in April 2019, but their application for judicial review was filed in June 2020, exceeding the time limit.
Findings of Court:
The High Court found the applicants did not provide a satisfactory explanation for the delay in filing their application for judicial review and ruled that the Minister's decision was non-justiciable.
Issues: The main issues included whether the application for judicial review was filed in time and whether the Minister's decision was subject to judicial review.
Ratio Decidendi: The court held that the Minister's discretion under the Act is a policy decision that courts typically do not review, and the failure to file within the prescribed time limit is fatal to the application.
Result: The appeal was dismissed with costs.
| Table of Content |
|---|
| 1. judicial review appeal against administrative decisions. (Para 1) |
| 2. background facts of bank rakyat's establishment and financial issues. (Para 3) |
| 3. ag's preliminary objections regarding time frame. (Para 5) |
| 4. high court's agreement on time frame and non-justiciability. (Para 6 , 11) |
| 5. applicants' arguments on interconnected decisions and judicial review. (Para 8 , 9 , 10) |
| 6. court's clear rules on time limits for judicial review. (Para 12 , 21) |
| 7. jurisdiction issues regarding judicial review applications. (Para 24 , 26) |
| 8. non-justiciability of the minister's decision. (Para 30) |
Introduction
[1] This is an appeal against the decision of Kuala Lumpur High Court dated 10 February 2021 in dismissing the appellants'/applicants' application for leave to commence judicial review proceedings to quash the purported administrative decision made by the Menteri Pembangunan Usahawan dan Koperasi (2nd Respondent) and Lembaga Pengarah Bank Kerjasama Rakyat Malaysia Berhad (1st respondent) in relation to the enforcement of Bank Kerjasama Rakyat Malaysia Berhad (Special Provisions) Act 1978 (Act 202). Two others named in the judicial review were Menteri Kewangan Malaysia (3rd respondent) and Kerajaan Malaysia (4th respondent). The reliefs sought by Abdul Aziz Zainal, Mustafha Abdul Razak and Rahim Yunus (appellants/ applicants) in the judicial review if the appellants/applicants were granted leave are as follows:
a. A declaration that the Bank Kerjasama Rakyat Malaysia Berhad (Special Provisions) 1978 [Act 202] is a piece of legislation that was meant to be in force only temporarily, and thus s 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 4th respondents are duty bound to exercise the same forthwith;
b. A certiorari order to vest to this Court, and to quash the decisions made by the 2nd Respondent on 12 April 2019 and 23 August 2019 respectively in refusing the Applicants' representation and appeal for the operation of Act 202 to be terminated as provided for under s 31(2) of Act 202;
c. A certiorari order to vest to this Court, and to quash the decision made by the 1st Respondent on 4 May 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 s 31 of Act 202;
d. A Mandamus order to compel the 2nd Respondent to exercise the powers and discretion under s 31 of Act 202 to terminate the operation of Act 202, via the following actions:
(i) that the 2nd Respondent, with the concurrence of the 3rd Respondent, direct the Board of Bank Kerjasama Rakyat 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 s 31(1) of Act 202;
(ii) that after a Board of Directors has been constituted under the by-laws of Bank Rakyat, the 2nd Respondent shall by order publish in the Gazette and declare that Act 202 shall cease to remain in force; and
(iii) 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
(iv) any other transitional steps that may be deemed necessary; and
e. 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 para 9(b) above, out of time.
[2] For ease of reference, parties will be referred to as they were in the High Court, that is, the applicants and the respondents. The 2nd applicant has since withdrawn his appeal via Notice of Discontinuance dated 26 April 2022 in encl 29.
Background Facts
[3] The factual background that prompted the applicants to file an application for lea
