JUDGMENT

Eusoffe Abdoolcader J:

Exordium

Merdeka, proclaimed Tunku Abdul Rahman to the resounding echo of the populace, and so it came to be. But, the cry for Merdeka University has not achieved the same response and result. And thus the matter comes before the Court.

The future of the nation is on trial before me, so I am solemnly told, in this case in which the plaintiff, Merdeka University Bhd., seeks declarations against the defendant, the Government of Malaysia, that the rejection of its petition for the establishment of a private university to be known as Merdeka University is null and void in contravening the Federal Constitution and constituting an unreasonable and improper exercise of the discretion conferred on the Yang di-Pertuan Agong by s. 6 of the Universities and University Colleges Act 1971.

Let me immediately reiterate what I said in Court at the outset of these proceedings: I am not concerned with the political undertones or overtones or whatever that may affect the questions raised in this action, and in this trial I am moved by no considerations other than that of determining the issues involved purely and strictly within the confines of the Federal Constitution and the law, abjuring any concomitant political or emotional offshoots springing like Athena from the head of Zeus in its wake. The Attorney-General, meaning well no doubt, presents a vision of doom when he speaks of the grim consequences that might ensue if grave circumspection is not exercised in weighing the respective interests involved, but my short answer to this is, as I said in Court in anticipating Mr. Beloff for the plaintiff, fiat justitia, ruat coelum - let justice be done, though the heavens should fall. I said in Mak Sik Kwong v. Minister of Home Affairs, Malaysia, and I say again, the Courts constitute the channel through which His Majesty's justice is dispensed to his people and are accordingly the bastion of their rights and the Courts, must therefore necessarily be the ultimate bulwark against the excesses of the executive though I should add that unconstitutionality and illegality of administrative action and not the unwisdom of legislation or executive discretion is the exclusive and narrow concern of judicial review and control of administrative acts.

It would perhaps be appropriate to clarify two matters at this exordial stage. First, the Yang di-Pertuan Agong is a constitutional monarch and is required under Article 40(1) of the Federal Constitution in the exercise of his functions (except on certain matters that do not concern these proceedings) to act in accordance with collective or individual ministerial advice and not on his own initiative (Balakrishnan v. Ketua Pengarah Perkhidmatan Awam Malaysia and Government of Malaysia [1981] 2 MLJ 259). The exercise of discretion impugned in the matter before me is accordingly in effect that of the defendant.

Second, a very material facet of the arguments addressed to me and which in effect constitutes the nub of the case around which they would appear to primarily revolve is the national education policy. Policy is a somewhat nebulous and amorphous concept difficult for the Courts to discern as such until and unless it becomes apparent from a legislative measure which reflects and effectuates it. Salmon LJ, (now a Law Lord) stressed in Blackburn v. Attorney-General [1971] 1 WLR 1037, 1041 (at p. 1041) that political decisions have nothing to do with the Courts which are concerned only with the effect of such decisions if and when they have been implemented by legislation. The national education policy has indeed been so implemented in the Education Act 1961, and is disclosed and declared in the preamble thereto and more especially, in relation to the present proceedings, in the third recital thereof which refers to the requirement in securing the effective execution of the policy for provision in particular for the progressive development of an educational system in which the natio