Minister of Home Affairs v Persatuan Aliran Kesedaran Negara [SCM]

www.ipsofactoJ.com/archive/index.htm [1990] Part 1 Case 5 [SCM]

Coram

ABDUL HAMID LP

MOHAMED YUSOFF SCJ

AJAIB SINGH SCJ

4 JANUARY 1990

Aliran is a society registered under the Societies Act 1966 (registered on 25 January 1977). Sometime in 1983, Aliran applied to the Minister of Home Affairs (‘the Minister’) for a publication permit under s 7(1) of the Printing Presses Act 1948 to publish in English a monthly magazine under the name and style of Aliran Monthly. Aliran’s application was for the magazine to be published solely in English. By letter dated 27 December 1983, Aliran was granted a publication permit to print the said magazine. The publication permit to publish Aliran Monthly has been renewed annually since 1983.

By an application in writing dated 13 November 1983, Aliran applied to the Minister for a publication permit under s 7(1) of the Printing Presses Act 1948 in respect of a monthly magazine to be published in Bahasa Malaysia under the name and style of Seruan Aliran.

By letter dated 17 March 1984, Aliran’s application for a permit to print and publish Seruan Aliran was rejected by the Minister.

By letter dated 14 April 1984, Aliran appealed to His Majesty the Yang di-Pertuan Agong under s 7(6) of the Printing Presses Act 1948 against the refusal by the Minister to grant a permit to print and publish Seruan Aliran. His Majesty the Yang di-Pertuan Agong did not make any decision on our appeal.

After a two-year interval, Aliran decided to apply again, this time for a fortnightly magazine to be published in Bahasa Malaysia. Our application made in writing dated 12 November 1986 related to a printing and publication permit to print and publish in Bahasa Malaysia a magazine under the name and style of Seruan Aliran. It was made pursuant to s 6(1) of the Printing Presses and Publications Act 1984 (‘the 1984 Act’). We proposed to include in Seruan Aliran reports and comments relating to current affairs with the purpose of developing unity in the country.

By letter dated 27 April 1987, we were informed that the Minister had rejected our application for the printing and publishing of Seruan Aliran. No reasons for the refusal were given in his letter. Accordingly, we are not in a position to comment on his reasons, if he had any.

For the reasons set out in para C of the statement filed in this application, Aliran is of the opinion that the Minister exercised his discretion under s 6 of the 1984 Act wrongly and improperly.

(Paragraph C in the statement supporting Aliran’s application for an order of certiorari sets out the grounds on which the order was sought:

(1)

That the Minister of Home Affairs failed to hear and determine Aliran’s application dated 12 November 1986 according to law.

(2)

That he failed properly to exercise the discretion vested in him under s 6(1)(a) of the Printing Presses and Publications Act 1984 in that he failed and/or omitted to take relevant matters into account, namely:

(i)	that in refusing the application Aliran was denied its constitutional right to freedom of speech and expression as enshrined in art 10(1)(a) of the Federal Constitution;
(ii)	Aliran has not contravened the law or the conditions attached to the permit for the publication of its magazine Aliran Monthly in the English language;
(iii)	Aliran is lawfully registered under the Societies Act 1966 — it is responsible and law-abiding and established with the objective of upholding the Federal Constitution and dedicated to the attainment of justice, freedom and solidarity;
(iv)	Aliran has never infringed the laws of the land and has never been charged for any criminal offence;
(v)	that in denying Aliran the right to print and publish in Bahasa Malaysia, the Minister of Home Affairs failed to act in accordance with art 152 of the Federal Constitution and the National Language Act 1963–1967 in that Aliran is permitted to print and publish in the English language but not in Bahasa Malaysia although the latter is the national language of the nation;
(vi)	that the refusal of Aliran’s application has the effect of discriminating Aliran contrary to art 8 of the Federal Constitution having regard to the fact that similar public interest societies and political parties like UMNO, PAS, DAP and PSRM have been given permits to print and publish in Bahasa Malaysia.

(3)

There was a denial to Aliran of natural justice as the Minister of Home Affairs never afforded an opportunity to Aliran of being heard or consulted prior to the Minister exercising his discretion. Alternatively the Minister of Home Affairs failed to act fairly when exercising his discretion.

(4)

For the above reasons, the Minister of Home Affairs erred in law when exercising his discretion and/or acted without or in excess of his jurisdiction under the Printing Presses and Publications Act 1984, thereby rendering his purported decision of 27 April 1987 a nullity.)

Further, having regard to the fact that Aliran already has a permit to publish in English, Aliran had a reasonable or legitimate expectation that its application for a permit to print and publish Seruan Aliran in Bahasa Malaysia would be similarly granted. This is particularly so when Bahasa Malaysia is the national and official language of the nation and when a substantial portion of the population is conversant in the language. Accordingly, Aliran is advised by its solicitors and verily believe that the Minister is obliged in law to comply with the rules of natural justice in that he ought to have afforded Aliran an opportunity of being heard or should have at least consulted us before he exercised his statutory discretion in refusing us a permit to print and publish Seruan Aliran. No such opportunity was afforded to us before he exercised his discretion. Likewise, we were never consulted.

Further or alternatively and for the reasons set out above, Aliran contends that the Minister was obliged in law to act fairly in the exercise of his statutory discretion — he failed to act fairly by not affording us an opportunity of being heard before he refused our application.

I am the Deputy Minister of Home Affairs and I am authorized to affirm this affidavit on behalf of the Minister of Home Affairs. By virtue of art 43A cl (2) of the Federal Constitution, I am required to assist the Minister of Home Affairs and by reason thereof, I am also empowered to exercise the powers of the Minister under the Printing Presses and Publications Act 1984 (hereinafter referred to as ‘the 1984 Act’).

Aliran was registered as a society under s 7 of the Societies Act 1966 on 25 January 1977. It is not a political party. On 3 April 1979, Aliran made its first application for a permit for publishing a newspaper known as Aliran once in three months pursuant to s 7(1) of the Printing Presses Act 1948 (now repealed but hereinafter referred to as ‘the 1948 Act’). The application was to print the newspaper in Bahasa Malaysia and English.

Pursuant to this application and the 1948 Act, a permit was granted to Aliran to print and publish Aliran once in three months in Bahasa Malaysia/English in one issue. The permit was issued to expire on 31 December 1980.

On 23 October 1980, 23 October 1981 and 3 November 1982, Aliran made similar applications for permits for the years ending 1981, 1982 and 1983 respectively. Aliran was granted a permit for each of these years.

Aliran did make an application dated 24 September 1983 similar to the previous applications for a permit except for three material particulars, namely:

(i)	that the newspaper was to be called Aliran Monthly;
(ii)	that it was to be printed in English; and
(iii)	that it was to be printed monthly.

Pursuant to the said application and the 1948 Act, a permit was granted to Aliran to print and publish Aliran Monthly in English/Bahasa Malaysia in one issue. The permit was issued to expire on 31 December 1984.

Aliran did not appeal under the provisions of the 1948 Act on the grant of the permit which clearly stipulated that the newspaper Aliran Monthly was to be printed in English/ Bahasa Malaysia in one issue notwithstanding that the application was to print in English only. Aliran in fact expressed appreciation for the issue of the permit by letter dated 20 January 1984.

On 1 September 1984, the Printing Presses and Publications 1984 Act came into force (‘1984 Act’).

On 24 September 1984 Aliran applied for a permit for the year 1985 under s 6(1) of the 1984 Act, to print and publish Aliran Monthly in English/Bahasa Malaysia.

Pursuant to the said application and the 1984 Act, a permit was granted to Aliran to print and publish Aliran Monthly in Bahasa Malaysia/English. The permit was issued to expire on 30 November 1985.

On 15 August 1985 and 20 September 1986, Aliran made similar applications for permits in respect of years 1986 and 1987 respectively. Permits for the respective years were granted to Aliran.

In all its yearly applications for permits Aliran has consistently stated:

(i)	that the newspaper would be printed in Bahasa Malaysia/English (Inggeris dan Bahasa Malaysia) with the exception of its application dated 24 September 1983 which was for English only;
(ii)	that the contents of the newspaper would be reports, comments and articles regarding social affairs with book reviews on literary works; and
(iii)	that the purpose of the publication was to foster national unity and social development awareness.

All yearly permits granted to Aliran since 1979 has consistently stipulated that the newspaper was to be printed in Bahasa Malaysia/English in one issue.

I confirm that on 13 November 1983 Aliran applied for a permit to print and publish a newspaper entitled Seruan Aliran in Bahasa Malaysia pursuant to the provisions of the 1948 Act and that the said application was refused.

On 27 April 1987, after a careful study of Aliran’s application (dated 12 November 1986), and all the information available to me regarding any current permit issued to the applicant, I exercised my discretion under s 12(2) of the 1984 Act and refused Aliran’s application for a permit to print and publish a newspaper entitled Seruan Aliran either in Bahasa Malaysia or English or in Bahasa Malaysia and English in one issue.

In exercising my discretion to refuse the application for the permit I took into consideration the following:

(a)

Aliran is a society registered under s 7 of the Societies Act 1966;

(b)

Aliran is not a political party;

(c)

part C of Aliran’s application for Seruan Aliran and in particular paras 2 and 5 thereof, that is,

(2)

Contents of the publication — reports, comments, articles on social affairs and commentaries on books, writings on literature etc, and

....

(5)

Purpose of the publication — to promote national unity and awareness of the development of the people;

(d)

as at the date of my decision (27 April 1987), Aliran had a current permit expiring on 30 November 1987 for the newspaper Aliran Monthly issued pursuant to an application made on 20 September 1986;

(e)

part C of Aliran’s application for Aliran Monthly and in particular paras 2 and 5 thereof which are identical to Part C paras 2 and 5 of Aliran’s application for Seruan Aliran as stated in (c) above;

(f)

the current permit held by Aliran for Aliran Monthly does not prohibit the printing of the newspaper solely in Bahasa Malaysia;

(g)

the current permit held by Aliran for Aliran Monthly does not restrict the size of the newspaper, that is, in terms of the number of pages or the number of articles;

(h)

it was patent that the subject matters intended to be covered by Seruan Aliran are currently covered by Aliran Monthly;

(i)

any application for a change in name from Aliran Monthly to Seruan Aliran could be favourably considered in respect of the current permit for Aliran Monthly;

(j)

the intended publication of Seruan Aliran was clearly not contemplated as a business venture by Aliran to compete with Aliran Monthly;

(k)

the constitution of Aliran does not permit it to be engaged in any business venture.

I reiterate that in refusing the application for a permit to print and publish Seruan Aliran, I had exercised my discretion in the interest of Aliran and the public at large after a careful consideration of all information supplied by Aliran itself and which discretion bona fide and impartially without any prejudice or discrimination against Aliran.

Although Aliran’s application (dated 24 September 1983) for a publication permit to publish Aliran Monthly was only in the English language, Aliran did not object to the permit granted to publish in English/Bahasa Malaysia. This was because Aliran is and was at all material times committed to the promotion of the national language — hence Aliran was not unhappy with the permit that allowed it to carry one or two articles in Bahasa Malaysia thereby enabling Aliran to expose its English-speaking readership to Bahasa Malaysia.

Aliran expressed its appreciation as alluded to in the Deputy Minister’s affidavit because the Minister allowed Aliran to convert the quarterly publication permit into a monthly one without condition.

All subsequent applications for renewal of Aliran Monthly stated that the publications would be printed in English/Bahasa Malaysia in line with the conditions imposed by the Minister.

I am advised by our solicitors and verily believe that publication of Aliran Monthly solely in Bahasa Malaysia would not have been permissible as it would be an infringement of a condition of the current permit which expressly states that our publication is to be in Bahasa Malaysia/English.

I say that though the subject matters to be covered in Seruan Aliran are currently covered by Aliran Monthly, two separate publications are intended so that both the English-speaking readership as well as the Bahasa Malaysia-speaking readership can be reached. These two sections of the readership comprise of people from different segments of the public as their linguistic media are different. In any case it is intended that Aliran Monthly should remain an English Language publication and Seruan Aliran a Bahasa Malaysia publication.

The Minister says he exercised his discretion under s 12(2) of the 1984 Act. That subsection reads:

The Minister shall have the absolute discretion to refuse an application for a licence or permit or the renewal thereof.

It is common ground that although the discretion is absolute, it is not unfettered. It follows that the exercise of the discretion is subject to judicial review. In the instant case, Aliran has complied with all the requirements for a permit. There is no evidence that the granting of the permit asked for is against the public interest.

In my view, the granting of a permit to print and publish a magazine under the 1984 Act should be made as a matter of course provided, of course, if all the requirements for such a permit have been complied with. The 1984 Act is a regulating Act and generally intended to police publications available to the public requiring a permit to print and publish so that the authorities know who the printers and publishers are and the desirability of such publications being exposed to the general public. At the granting of permit stage the consideration for the exercise of the Minister’s discretion is limited to protecting the public interest or national interest in respect of public order, morality and security as is shown in ss 4 and 7 of the 1984 Act. But these considerations must be obvious from the application itself or from other information made available to the Minister. In the present case, the Minister relied entirely on the information supplied by the applicant. Except in obvious cases, the discretion to refuse to grant a permit cannot be exercised in anticipation that the applicant is likely to publish material which may offend against any law. Should such undesirable material be published, then the Minister has the power to revoke the permit under s 6(2) of the 1984 Act. The printer and publisher is open to prosecution under the Official Secrets Act 1972, the Sedition Act 1948, the Penal Code (FMS Cap 45) and to suits for defamation. Both the government and the public are well-protected by these laws.

On the facts of this case, I found that the Minister had no good reasons in refusing the application for a permit and accordingly granted the orders prayed for with costs.

Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’.

By ‘illegality’ as a ground for judicial review, I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

By ‘irrationality’, I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ (Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decisions. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred even where such failure does not involve any denial of natural justice.

Before considering the rival submissions in more detail, it will be convenient to make some general observations about the process now known as judicial review. Today, it is perhaps commonplace to observe that as a result of a series of judicial decisions since about 1950 both in this House and in the Court of Appeal there has been a dramatic and indeed a radical change in the scope of judicial review. That change has been described — by no means critically — as an upsurge of judicial activism. Historically, the use of the old prerogative writs of certiorari, prohibition and mandamus was designed to establish control by the Court of King’s Bench over inferior courts or tribunals. But the use of those writs, and of their successors, the corresponding prerogative orders, has become far more extensive. They have come to be used for the purpose of controlling what would otherwise be unfettered executive action whether of central or local government. Your Lordships are not concerned in this case with that branch of judicial review which is concerned with the control of inferior courts or tribunals. But your Lordships are vitally concerned with that branch of judicial review which is concerned with the control of executive action. This branch of public or administrative law has evolved, as with much of our law, on a case by case basis and no doubt hereafter that process will continue. Thus far, this evolution has established that executive action will be the subject of judicial review on three separate grounds. The first is where the authority concerned has been guilty of an error of law in its action as for example, purporting to exercise a power which in law it does not possess. The second is where it exercises a power in so unreasonable a manner that the exercise becomes open to review upon what are called, in lawyers’ shorthand, Wednesbury principles (Associated Provincial Picture Houses Ltd v Wednesbury Corp [1984] 1 KB 223). The third is where it has acted contrary to what are often called ‘principles of natural justice’. As to this last, the use of this phrase is no doubt hallowed by time and much judicial repetition, but it is a phrase often widely misunderstood and therefore as often misused. That phrase perhaps might now be allowed to find a permanent resting place and be better replaced by speaking of a duty to act fairly. But that latter phrase must not in its turn be misunderstood or misused. It is not for the courts to determine whether a particular policy or particular decisions taken in fulfillment of that policy are fair. They are only concerned with the manner in which those decisions have been taken and the extent of the duty to act fairly will vary greatly from case to case, as indeed the decided cases since 1950 consistently show. Many features will come into play including the nature of the decision and the relationship of those involved on either side before the decision was taken.

My noble and learned friend, Lord Diplock, in his speech, has devised a new nomenclature for each of these three grounds, calling them respectively ‘illegality’, ‘irrationality’ and ‘procedural impropriety’ — words which, if I may respectfully say so, have the great advantage of making clear the differences between each ground.