Dr Amir Hussein

- vs -

Universiti Sains Malaysia

Judgment

Edgar Joseph Jr J

1. The applicant, Dr Amir Hussein Baharuddin, an associate professor of the Faculty of Social Science at the respondent university had applied for leave to apply for an order of certiorari to remove into this court for the purpose of it being quashed the decision of the vice-chancellor of the respondent university made in exercise of his powers under its constitution contained in a letter dated 3 May 1989 refusing to renew the applicant’s term as dean of its Department of Social Science.

2. I would, at this point, interpolate to mention that although the application before me was for leave to commence certiorari proceedings, the appropriate relief which ought to have been sought should have been for leave to commence certiorari proceedings to quash the decision refusing to reappoint him and mandamus proceedings requiring the vice-chancellor to reappoint him as such pursuant to the provisions of s 18(6) of the Constitution. However, in the view I took of the matter, this point was without significance.

3. I approach this application by reminding myself that under O 53 r 3, the court exercises discretion whether to grant leave to apply for judicial review. The court is here first looking only at the ex parte application and is concerned to see whether prima facie there is a genuine case for review. The principles upon which the court should act are set out in R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses [1982] AC 617 by Lord Diplock as follows:

   If, on a quick perusal of the material then available, the court (that is the judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be arguable case in favour of granting to the applicant the relief claimed, it ought in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion which the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.

4. In the present case, having regard to the importance and novelty of the issues raised, I had in the exercise of my discretion, heard not only the applicant but also the respondent in open court. (See R v IRC, ex p National Federation of Self-Employed & Small Businesses [1982] AC 617 at p 642 per Lord Diplock). It is true that by agreement, the oral ex parte hearing may be waived and the first application treated as the application for judicial review itself thus resulting in a saving of time and costs. (See e.g. R v Secretary of State for the Environment, ex p London Borough Brent Council [1982] QB 593 at p 642). But there was neither such agreement nor an order to treat the application for leave as the application for judicial review.

5. Be that as it may, whether the applicant alone or both parties, are heard, in an application for leave, the threshold test is the same: Does the applicant have an arguable case for review, a sufficient interest and has there been undue delay? I had, in the course of the hearing, to remind counsel more than once, to keep the first of these points in the forefront of their minds because of the somewhat emotive arguments addressed to me as though the application were at a full hearing after leave granted.

6. The essential facts fall within a short compass and may be stated thus. The applicant commenced employment with the respondent university as a lecturer in the School of Social Science as from 9 September 1975; his scheme of service comprising three grades, namely, lecturer, associate professor and professor. On 1 August 1981 the applicant attained the post of associate professor, a post he holds to the present day. The applicant had been appointed a deputy dean to the School of Social Sciences from 1 November 1976 to 15 January 1977 and there after reappointed from time to time until 31 May 1980 by the then vice-chancellor of the respondent university.

7. Some four years later, by a letter dated 29 May 1985 the present vice-chancellor of the respondent university had appointed the applicant dean to the School of Social Sciences for the period from 1 December 1984 to 31 May 1985 and thereafter had reappointed him for two consecutive one-year terms ending on 31 May 1989. However, by the letter dated 3 May 1989 addressed to the applicant, the vice-chancellor had intimated his decision not to reappoint the applicant and hence this application.

8. I would add that the affidavit of the vice-chancellor Musa Mohamad affirmed to on 6 June 1989 (exh 12) showed that the applicant has been a staff member of the respondent university since 1975 and so must have been aware that vice-chancellors of the university had in the past appointed deputy deans and deans to the various schools of the respondent university from time to time without regard to seniority so long as they had been lecturers or associate professors or professors and that such persons had not, as a matter of course been reappointed as such. In support, various examples were cited in the affidavit.

9. The affidavit went on to traverse the applicant’s claim that he had been informed by the vice-chancellor of the respondent university that he would be reappointed dean upon expiry of his term, unless there was cause to the contrary. In the view I took of the legal position which I shall be dealing with shortly — I found it unnecessary — and indeed it would have been wrong — to resolve this conflict of evidence at this stage.

10. One other point appearing in the affidavit evidence deserves mention. The applicant had himself admitted that he had whilst a member of the staff of the respondent university engaged in business (see cl 3 para 5) although he maintained that this was with ‘the permission’ of the respondent university. However, it was alleged by the vice-chancellor in his affidavit affirmed to on 16 June 1989 (encl 12), and not challenged by the applicant, that such permission was by r 5 of the University Sains Malaysia (Discipline of Staff) Rules 1979 (‘the Rules’) required to be given expressly in writing by the vice-chancellor upon application made in a prescribed form and that the applicant had not even made such application much less been given such permission.

11. Now, in considering the application before me, I had to determine the policy of the Constitution and the powers and duties created by it to give effect to that policy. Next, I had to consider whether, on the facts before me the body under review had carried out the policy in the manner prescribed. If it had, I could not interfere with the decision reached whether I agreed with it or not, unless it was so unreasonable that no reasonable body of persons or person could have reached that decision.

12. The court will not substitute its discretion for that of the body under review but only determines whether that body has acted lawfully in the manner prescribed by the Constitution. As was aptly put by Lord Brightman in Chief Constable of the North Wales Police Force v Evans [1982] 1 WLR 1155 at p 1174, judicial review ‘is not an appeal from a decision, but a review of the manner in which the decision was made’.

13. Having made these general observations, it would be convenient if at this point I mentioned the role of the vice-chancellor so far as is relevant to the present application. He is appointed by the Yang di Pertuan Agong and is the principal executive and academic officer of the university (see s 9(1) and (2) of the Constitution). It is his duty to appoint a dean to each school of the university. (See s 9(1) and (2) of the Constitution). A dean shall be appointed for a period not exceeding two years but shall be eligible for reappointment. (See s 18(6) of the Constitution). By ‘eligible’, as applied to the selection of persons, means simply ‘legally qualified’ or ‘fit to be chosen’ (per Lord Chelmsford in Baker v Lee 8 HL Cas 495; 11 ER 522). So, it has been held that a provision in the Prison Rules that prisoners are in certain conditions ‘eligible for remission’ does not create a legal right to remission. (See Morriss v Winter [1930] 1 KB 243.)

14. In these circumstances, the question of law central to this application is whether the refusal of the vice-chancellor to exercise his statutory power of reappointment pursuant to the provisions of s 18(6) of the Constitution, reappointing the applicant the dean could arguably be amenable to the prerogative order of certiorari.

15. Clearly, the applicant was eligible for reappointment as dean and, indeed, there was no dispute on this score. However, the fact that he was eligible as such could, in no way, confer upon him an entitlement to that appointment. Moreover, his appointment as dean could in no way relate to his contract of service with the respondent university. Consequently, his appointment as dean under s 18(3) of the Constitution could not possibly carry with it any traces of security of tenure. There was no question therefore of his rights or interests being affected by the refusal to appoint him dean.

16. The more difficult question was whether it was arguable that the applicant had a legitimate expectation of being reappointed dean. If so, it would be arguable that he should have been given the opportunity of making representations (see Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 at p 170 and Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629).

17. However, to qualify as an expectation which attracts procedural protection, it must be ‘legitimate’. The closest the courts have come to explaining the idea of legitimacy is that the expectation must be reasonable. The epithet most frequently used by the courts as a substitute for ‘legitimate’ is ‘reasonable’ (see AG of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 at p 637), although reference has also been made to

    • ‘well founded’ (Salemi v MacKellar (No 2) (1977) 137 CLR 396 at p 439 per Stephen J),

    • ‘settled’ (R v Liverpool Corporation; ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299 at p 304 per Denning MR),

    • ‘natural’ (FAI Insurances Ltd v Winneke [1982] 151 CLR 342 at p 348 per Gibbs CJ) or

    • ‘real’ (Barbaro v Minister for Immigration & Ethnic Affairs [1982] 46 ALR 123 at p 130 per Smitthers J).

18. ‘Reasonableness’ connotes that the expectation must be objectively justified. A subjective hope is therefore not enough (see Mclnnes v Onslow-Fane [1978] 1 WLR 1520 at pp 1529-30). However, its use has been discouraged recently by the House of Lords (see Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 per Lord Fraser, Lord Diplock and Lord Roskill). The chief reason advanced being that some expectations, although they might well be entertained by reasonable persons will not necessarily have consequences to which effect will be given in public law (at pp 408–409 per Lord Diplock). Furthermore, the possibility that there may be some reasonable expectations which are not ‘legitimate’ has emerged with the extension of the concept of legitimate expectation into areas other than procedural fairness; for example, standing to bring an application for judicial review. See Re Findlay [1985] AC 318 a case on parole policy.

19. Now, in the area of employment, the concept of legitimate expectation is elusive at least where used in relation to the expectation of promotion (see Hamblin v Duffy (No 2) [1982] 37 ALR 297 at p 304). Indeed, it has been held that the decision of a health authority not to appoint to the post of consultant orthopaedic surgeon a candidate recommended by the advisory appointment committee was not justiciable at all and so not susceptible of judicial review. See R v Trent Regional Health Authority, ex p Jones [1986] The Times, 19 June 342.

20. More to the point, the reluctance of courts to interfere in all matters concerning the domestic affairs and internal management of a university stems from their enthusiasm for the jurisdiction of the university visitor (equivalent in this country to that of vice-chancellor) in such matters (see Patel v University of Breadboard Senate [1978] 1 WLR 1488 at pp 1499–1500). The English courts have continued to assert the exclusivity of the university visitor’s jurisdiction (Glynn v Keele University [1971] 1 WLR 487), and even to enlarge it (Patel (1978) 1 WLR 1488).

21. Thus, in the present case, the question whether the applicant should have been reappointed dean following the expiry of his term, by the vice-chancellor pursuant to the powers conferred by s 18 of the Constitution was exclusively a domestic matter involving academic judgment, to be resolved internally. No economic loss, social stigma, difficulty in securing future employment or dislocation was involved in the vice-chancellor’s decision declining to reappoint the applicant dean. In such circumstances, I regarded the applicant as having no more than a pious ‘hope’ of being reappointed dean; ‘nothing was being taken away, and in all normal circumstances there are no charges, and so no requirement of an opportunity of being heard in answer to the charges’ (see Mclnnes v Onslow-Fane (1978) 1 WLR 1520 at pp 1529–30 and also, Paterson v Dunedin City Council (1981) 2 NZLR 619 where the width of the discretion defeated any legitimate expectation).

22. Accordingly, it was manifestly clear that the issues arising upon this application were not justiciable and so this court had no jurisdiction to grant the relief sought therein.

23. By way of postlude, I would add that I had considered the question whether if, contrary to my primary opinion, the applicant had a legitimate expectation of a hearing, his alleged previous misconduct hereinbefore mentioned, might be relevant. So, for example, in Cinnamond v BAA[1980] 1 WLR 582 misconduct on the part of hire-car drivers absolved the relevant public authority from observing natural justice when banning the drivers from operating at the airport. Brandon LJ in that case made it clear that no prejudice was suffered by the plaintiffs by the lack of a hearing, as the opportunity ‘would have availed (them) nothing’. But, at the end of the day, I did not think it would have been fair to place any reliance on this particular ground considering that the application before me was only for leave. I accordingly wholly disregarded it when arriving at my decision.

24. In all the circumstances, the application was dismissed and with costs.

Cases

R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses [1982] 1 AC 617; R v Secretary of State for the Environment, ex p London Borough Brent Council [1982] 1 QB 593; Evans v Chief Constable of the North Wales Police [1982] 1 WLR 1155; Baker v Lee (1860) 8 HL Cas 495; ER 11 522; Winter v Moriss [1930] 1 KB 243; Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149; Attorney General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 9; Salemi v Mackellar [1977] 2 137 CLR 396; R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299; Winneke v FAI Insurances Ltd (1982) 151 CLR 342; Barbaro v Minister for Immigration and Ethnic Affairs [1982] 1 ALR 123; Mclnnes v Onslow-Fane [1978] 1 WLR 1520; Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374; Re Findlay [1985] 1 AC 318; Hamblin v Duffy [1981] 2 37 ALR 297; R v Trent Regional Health Authority, ex p Jones [1986] 1 The Times 342; Patel v University of Bradford Senate [1978] 1 WLR 1488; Glynn v Keele University [1971] 1 WLR 487; Paterson v Dunedin City Council [1981] 2 NZLR 619; Cinnamond v BAA [1980] 1 WLR 582; Darshan Singh v NG Sivanandan