Recent developments in judicial review of administrative action in Malaysia: A shift from grounds based on common law principles to the federal constitution

The year 2007 not only marks the celebration of fifty years since we achieved independence, it also sees the completion of fifty years since our Federal Constitution, the foundation of our nation's strength, was enacted. The past decade has witnessed tremendous developments, .both progressive and retrogressive, in the field of Administrative Law. Prior to the year 1996, the Malaysian courts referred to the rigid and technical common law rules governing judicial review of administrative actions. In 1996, with the trail blazing judgment of the Court of Appeal in tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor, I the judicial trend shifted from referring to common Jaw principles concerning the grounds of judicial review to the Federal Constitution. Recent case law in Malaysia shows that the courts are bold, creative and dynamic enough in the matter of judicial review by construing the fundamental rights provisions in the Federal Constitution' broadly and liberally. In particular, a fresh breath of life has been infused into Articles 5 and 8 of the Constitution and both articles have now become important weapons in the artillery of the judiciary to control the abuse of administrative power. The purpose of this paper is to highlight some of these developments based on four grounds of judicial review, i.e. procedural fairness, substantive fairness, proportionality and the right of access to justice