|  New Sunday Times
by Sonia Ramachandran
KUALA LUMPUR: Thousands are denied the right to justice because of ouster clauses, say law experts.
That is why they are suggesting the setting up of an arbitration body to hear appeals against any decision that involves the use of the ouster clause.
An ouster clause relates to a provision in an Act of Parliament that overrides the authority of the court. Bar Council vice-president Ragunath Kesavan said access to justice was a fundamental right.
"Anyone aggrieved at a decision of a minister or an administrative body or tribunal must have the right to the court. "This is because the final arbiter between the state and the individual is the court.
"If you have a situation where you stipulate by an Act of Parliament that a minister's decision is final, you're removing a fundamental democratic right where the aggrieved individual has no access to challenge the decision of the minister."
Ragunath said a decision by a minister or administrative body must comply with the rules of natural justice.
"These are rights protected by the court, so an aggrieved individual must have the right to challenge a decision which does not comply with any of these rules of natural justice."
As the law stands, he says, there is a remedy of habeas corpus in instances where there is an ouster clause.
However, said Ragunath, courts had taken a very conservative view of their powers to review if it was related to the ISA.
"Their position, basically, is that if it relates to procedure they will allow the review.
"But they have not gone beyond that. The courts have been reluctant to review the decision of a minister and, if it is a decision based on national security, it's a blanket 'no' from the courts."
Ragunathan said there had been instances, where ISA was not involved, that the courts had examined the issue of national security.
"The higher courts have taken a much more progressive view of national security.
"There have been instances where they have rejected the reason for national security forwarded by the minister.
"For instance, in the case of Parti Sosialis Malaysia chairman Dr Mohd Nasir Hashim for the registration of his party, one reason forwarded was national security. The court rejected that ground."
(This matter came about after the Registrar of Societies, on Jan 27, 1999, rejected PSM's application to be registered as a national political party.)
An appeal to the home minister was turned down. On Sept 23, 1999, Dr Nasir filed an application for judicial review at the High Court in Kuala Lumpur.
He wanted the minister's decision quashed and the party registered.
However, the home minister in his affidavit said the party had been officially notified of the rejection, and that the party, based on police feedback, was a threat to national security.
On Jan 13, 2003, High Court judge Datuk Abdul Hamid Said dismissed PSM's application, maintaining that national security was the responsibility of the Executive and did not rest with the court.
The Court of Appeal on Aug 16 2006 upheld the High Court's decision but rejected the national security argument.
It upheld the decision based on the assumption that the party had been registered at Selangor level, which had never happened at all.
"It would seem that by merely stating that it is a threat to national security, in cases other than involving the ISA, the courts are a bit more progressive," said Ragunath.
"They seem to be able to move forward to examine the reason.
"However, in ISA cases, there seems to be a blanket refusal to review."
Former Universiti Malaya faculty of law dean Datuk Dr Sothi Rachagan suggested the setting up of a special body like the Australian Administrative Appeals Tribunal (AAT) or the State Administrative Tribunal (SAT) of Western Australia
The AAT can be established as a special division of the court to provide independent merit reviews of administrative decisions.
The SAT is an additional layer which takes an informal, flexible and transparent approach to the review of administrative decisions before they are reviewed by the court.
"It (SAT) is not a court. Therefore, strict rules of evidence do not apply. It encourages the resolution of disputes through mediation."
The problem with ouster clauses, Sothi said, was that most decisions were not taken by those at the top but by a subordinate on his behalf.
"Thousands of decisions are made daily and the minister or top-level officer cannot be making all of them, so this is delegated to officers under him.
"The ouster clause then prohibits this decision from being questioned. There is no accountability for the decision made."
Ragunath agreed. "We should look at something like that (AAT or SAT). Many administrative decisions are made daily so there must be a situation where you have access to justice."
At present, said Ragunath, a decision of an administrative body could only be challenged by a judicial review application in court.
"Even if there is no ouster clause, your only remedy against a decision by a minister or administrative body is by judicial review.
"It's not easy and it's also an expensive process. For judicial review, you also need the leave of the court. For example, you can deny a person a passport with no reason provided and the person has no recourse to the courts."
In some instances, said Sothi, a person could appeal to the minister for a review of the decision. However, this process could take ages to be resolved.
"When the decision comes, the result is usually the minister concurring with the decision of his officers."
The Human Rights Commission of Malaysia (Suhakam), in its 2007 annual report, proposed that the government repeal the arbitrary ouster clause, particularly in the Internal Security Act (ISA) 1960 and in other provisions generally.
"Suhakam is concerned that judicial review is ousted in quite a number of instances, including habeas corpus challenges.
"An ouster clause is contrary to the fundamental concept of human rights -- an aggrieved person should have access to a court of law," said the report.
It further stated that detention without trial must be subject to judicial review and that those who authorise detention should be held accountable.
"The current practice of adopting ouster clauses undermines the right to justice and the right to a fair trial. The ouster clause is now being used increasingly in laws which deal with non-security matters.
"For example, the Water Services Industry Act 2006 states that any decision by the minister shall be final and conclusive, and that such decisions shall not be challenged and appealed," the report stated.
ADMINISTRATIVE APPEALS TRIBUNAL
THE Administrative Appeals Tribunal (AAT) provides independent review of a wide range of administrative decisions made by the Australian government and some non-government bodies.
It aims to provide fair, impartial, high quality and prompt review with as little formality and technicality as possible. Both individuals and government agencies use the services of the AAT.
The tribunal is an independent body that reviews a wide range of administrative decisions made by government ministers, officials, authorities and other tribunals.
The tribunal can also review administrative decisions made by state government and non-government bodies in limited circumstances.
On the facts before it, the tribunal decides whether the correct -- or, in a discretionary area, the preferable -- decision has been made in accordance with the applicable law. It will affirm, vary or set aside the decision under review.
The tribunal is not bound by the rules of evidence and can inform itself in any manner it considers appropriate.
The tribunal consists of a president, other presidential members (comprising judges and deputy presidents), senior members and members.
The president has established a number of committees comprising tribunal members and senior staff to provide advice and assistance in specific areas.
The president must be a judge of the Federal Court.
Source: Administrative Appeals Tribunal website at http://www.aat.gov.au/
STATE ADMINISTRATIVE TRIBUNAL
THE State Administrative Tribunal (SAT) was established in Western Australia in 2005 as an independent body that makes and reviews a range of administrative decisions.
Individuals, businesses, public officials and vocational boards can bring before the SAT many different types of applications related to civil, commercial and personal matters.
These range from reviews of multi-million-dollar tax judgments and dog destruction orders to disciplinary proceedings, guardianship questions and town planning and compensation issues.
The SAT's approach is informal, flexible and transparent. The SAT:
- aims to make the correct or preferable decision based on the merits of each application; - is not a court and, therefore, strict rules of evidence do not apply; - encourages the resolution of disputes through mediation; - allows parties to be represented by a lawyer, a person with relevant experience or by themselves; and, - holds hearings in public in most cases; and provides reasons for all decisions and publishes most of them on its website. |
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