Case Study: Plaintiffs Vs Appellant - Subsidiary Legislation Essay.

There are two plaintiffs in this case and both of them were workers of the well-known Co-operative Bank Ltd ('CCB'). Moreover, it is important to state that the plaintiffs were the respective respondent while the defendant, in this case, was the appellant. Thereafter, one of the plaintiffs had attained RM424, 428.81 in the respective Industrial Court with regards to the wrongful dismissal on the part of CCB. Correspondingly, the second plaintiff also attempted to obtain a judgment for RM425, 412.50 to get fair results against CCB from the significant High Court because of service termination initiated by CCB^[1]. These are the facts based on which this case has been initiated.

Procedural History: The financial collapse of CCB along with an intended rescue operation that has been initiated with regards to its associated depositors. Apparently, "the Central Bank under reg 9(1)(c) of the Essential (Protection of Depositors) Regulations 1986 ('the Regulations of 1986') applied to the High Court for the appointment of two receivers to manage the affairs and properties of CCB. The Regulations of 1986 were made under the Emergency (Essential Powers) Act 1979 ('the parent Act')"[2]. In this regard, the receivers who have significantly applied in the High Court for a significant ‘order of priority’ to take place so that CCB can make payments to varied individuals involved in the case[3], which have been concluded by the High Court for CCB to pay plaintiffs for (i) depositors, and (ii) charges, costs, and expenses. This made the plaintiffs appeal to the Supreme Court so that a better judgment can be attained.

Judgment Issues: The judgment issues had started with the subsidiary legislation in question. The case has turned into a complication because of changes in an existing statute and the application of new law along with its efficacy in a previously initiated case was the main area of concern.

Issues: The main problem in this regard was concerned about the party to whom the subsidiary legislation can be offered where two plaintiffs have brought in serious charges against the appellant. In other words, the problem was the confusion surrounding the fact if any possible ‘subsidiary legislation’ could be brought into effect with a fair conclusion despite the ‘absence of power’ offered by the Parent Act.  However, based on the ‘Interpretation Acts 1948 and 1967 ('the Interpretation Acts'), both of which made subsidiary legislation initiated before the commencement of the Parent  Act in a definite manner.[4] This can be perceived as the main issue bothering the case.

Holding: High court had substantially ruled that the case will be dismissed with the help of costs.

Rationale: The rationale of this case was to understand the way subsidiary legislation can offer fair judgment to the plaintiffs. The need was also to find if subsidiary legislation can be implemented into an impact even though the parent Act's power is missing.

Dicta: The dicta of this case were to offer fair judgment to the sufferers with questions that are raised regarding the applicability of subsidiary legislation. Precisely, the need for fair judgment was immensely important in this case.

Procedural History

Dissent: The dissent that had taken place, in this case, was regarding the law that was issued by the High Court in dismissing the entire case with costs.

Party’s Arguments: The argument initiated by the party was to ensure some definite and fairways through which their issue can be solved.

Comments: The comment that can be offered, in this regard is the judgment passed by Eusoff Chin J., which suggests that ‘20 of the Interpretation Acts’ do not at all imply any emergency regulations, which have been issued under ‘s 2 of the 1979 Act (Emergency (Essential Powers) Act 1979)’. Moreover, as ‘s 2 of the 1979 Act’ is found to not contain any kind of provision that could empower Yang Di-Perruan Agong to initiate any kind of emergency regulations with demonstration effect.  Thus, both the significant ‘new regs 9B and 13(2)’ implied into the regulations by thoroughly amending in the most needful manner[5]. Thus, these are the comment or jurisdictions initiated by the judge concerning this case.

Facts of the case: The applicant or respondent, Chin Chee Kow desired to initiate proper proceedings to newly appoint a trustee in Liam Hood Thong Chor Seng Thuan Pulau Pinang's 'public-charity trust'. However, the actions that are required to be taken to fulfil the proceedings involve the need of "Section 9 of the Government Proceedings Act 1956". In this regard, it is important to realize that two significant appeals were associated with the want of Chin Chee Kow “Civil Appeal 58 (the first appeal) and Civil Appeal 59 (the second appeal)”[6]. These explain the facts that were significantly emphasized by the judges when the need was to offer a judgment in this case.

Procedural History:  The case was significantly judged at the respective High Court wherein, the associated judge had permitted the respective candidate to initiate ‘judicial review proceedings’. Moreover, “the Senior Federal Counsel decided AG belongs AG. The learned judge found the submission to be “untenable.”” [7]This shows the procedural conditions of this case. However, there was a disagreement shown by the ‘Attorney General’s Chambers’ with the already impacted decision and thus, had requested the ‘Court of Appeal’ to get a proper decision.

Judgment Issues: The judgment issues can be highlighted with the two appeals that have been made in this particular case and it involves the 'first appeal' and the 'second appeal', which were intended significantly. Precisely, the question or the query that has been targeted suggests that when the decision of a public officer can attain judicial review, does the same happen in case of a decision taken by an attorney general? In this regard, the first appeal’s query was if the attorney general's consent that was written under the respective ‘Section 9’ with regards to the civil cases were non-reviewable or non-justifiable [8] while the second appeal involved the same query[9]. These are the issues that are associated highly with this particular case.

Issues: Precisely, a testator has significantly willingly lent lands and funds to trustees that ran a ‘public charitable trust’ so that a pagoda can be built for the worshippers of a Buddhist deity. However, the trustees, after many long years did nothing that was required on their part and suggested that all the funds, which existed were spent. This was followed by deeming consent of the Attorney General in this regard so that a fair decision can be taken. Moreover, the respondent left the court to initiate file proceedings to quash the refusal of AG’s decision to offer him permission. “The AG objected to the leave application on the ground his refusal was non-justiciable. d) The High Court disagreed with the AG and granted the association leaves to file for judicial review. The Court of Appeal upheld the decision. e) Aggrieved with the decision of the Court of Appeal, the AG had applied for and obtained leave to appeal from the Federal Court”[10]. These are the issues that were associated with this particular case.

Holding: The holding of this particular case has suggested that the power of the AG to refuse or give permission under the respective ‘section 9 (1) GPA 1965’ is highly amenable to attain judicial review.[11]Thus, this is the holding that was associated with the concerned case.

Rationale: The rationale is all about finding out an answer to find out if the decision that is initiated by AG can come under judicial review as it happens in the case of any decisions, which are taken by a 'public officer'[12]. Thus, this was the notion that has been directly aimed at in this particular case.

Dicta- The dicta that are associated with this case is that even AG's decision can be judicially reviewed when a case demands it. The reason for this dictum is to ensure that a fair judgment is passed when the plaintiff has raised concern about the actions of the AG.

Dissent- The dissent has been expressed by AG. 

Party’s Arguments: Precisely, the plaintiff had requested to appoint an additional trustee but then under the ‘Section 9 of the Government Proceedings Act 1956', it is important for AG to give a decision in this regard. However, the latter largely disapproved of this condition and that is why Chin Chee Kow (plaintiff) had to proceed to introduce ‘judicial review proceedings’ to directly challenge the decision made by Attorney General to withhold consent respectively[13]. These are the arguments that have been presented by two different parties.

Comments: The comment that can be passed is that judicial power is not at all subjected to be removed right away from any existing civil courts. The jurisdiction that has been made in the High Court cannot be infringed or truncated. Therefore, thus, if governing statute finalizes an administrative decision, an aggrieved party must not at all be barred from attaining the court’s supervisory jurisdiction.[14] This can be understood as the final comment for this concerned case.

References

LexisNexis, 2022,  ‘Kerajaan Malaysia V Wong Pot Heng & Anor, [1997] 1 Mlj 437’ Latest Subsidiary Legislation, pp. 1-11.

Gan Partnership, 2020, ‘Attorney general’s discretion is not unfettered’, ILO, viewed 28 April, 2022, https://www.ganlaw.my/attorney-generals-discretion-is-not-unfettered/#:~:text=In%20Peguam%20Negara%20Malaysia%20v,59%20(the%20second%20appeal).

Khong, G. & Ching, L.S., 2019, ‘Attorney general's discretion is not unfettered’, Law Business Research, viewed 28 April, 2022, https://www.lexology.com/commentary/litigation/malaysia/gan-partnership/attorney-generals-discretion-is-not-unfettered

Legalease Ltd., 2021, ‘The growing trends of judicial review against government: Overview’, Webinars, viewed 28 April, 2022, https://www.legal500.com/developments/thought-leadership/the-growing-trends-of-judicial-review-against-government-overview/.

Malayan Law Journal Reports, 2019, 'Peguam Negara Malaysia v chin chee kow and another appeal', Lexis Nexis, pp. 1-20.

UNEP/UNDP/Dutch Government Joint Project on Environmental Law and Institutions in Africa, 2008, ‘COMPENDIUM of Judicial Decisions on Matters Related to Environment’ UNEP, pp. 3-477.

Wu, J. & Shan, Y. L., 2019, 'Another win for judicial dynamism – peguam Negara Malaysia v chin chee kow' Legal Network Series, pp. 1-8