A-G’S CHAMBERS TO REPEAL RULE
It will discuss with Bar Council, Rules Committee, says Thomas
THE Attorney-General’s Chambers will discuss with the Bar Council and Rules Committee to repeal the requirement in Order 53 Rule 3(3) of the Rules of the Court 2012 that all cause papers be served on the chambers.
“To promote the development of judicial review by our courts in the twin branches of public law — constitutional law and administrative law — the chambers will engage with the Bar and the Rules Committee to repeal the rule,” Attorney-General Tommy Thomas said.
He said, pending this coming into effect, the A-G’s Chambers would dispense with the requirement.
This was particularly so, he added, when the majority of judicial review cases concerned employment disputes between employers, on the one side, and trade unions or individual employees, on the other, often emanating from awards of the Industrial Court.
“Such disputes are intrinsically private in nature, and have no public element in them.
“For such cases, it is preferable to treat them like ordinary litigation by private parties which do not involve the government.”
He said even in cases involving challenges to decisions of the executive or statutory corporations, which necessarily would involve public interest, service was henceforth dispensed with at the leave stage under Order 53.
Hence, the A-G’s Chambers, said Thomas, would give effect to the letter and spirit of the two-stage procedure under Order 53.
“It is for the applicant to satisfy the court on an ex-parte basis, that the threshold, however small, has been satisfied.”
There is, however, one exception.
Thomas said, in cases where the A-G’s Chambers would represent the respondent at the inter-partes stage, it “reserves the right to appear by counsel” at the leave stage.
“Likewise, if we are invited by the court to assist it.”
Thomas said the A-G’s Chambers recognised the importance of promoting judicial review as a means of developing public law.
“To that end, we shall not, unless exceptional circumstances warrant it, seek costs in the event it succeeds in judicial review proceedings.”
Likewise, said Thomas, the chambers expected adverse parties and their counsel to reciprocate, so that the jurisprudence already developing in Malaysian courts that public law litigation should be “cost free” would become an established feature of Malaysian Law.