PETALING JAYA: The mindset of some of the judges hearing judicial review applications must change if there is to be a robust development of constitutional and administrative law, a retired judge said.
Gopal Sri Ram said judges who were previously from the Judicial and Legal Service thought they were still Senior Federal Counsel with a duty to insulate the government from being held accountable.
“It is what we call the civil service mentality. Until that mindset changes you cannot do much,” he told FMT.
Sri Ram said perhaps there was a need for a Promotion of Administrative Justice Act with provisions compelling courts to intervene in administrative law cases.
He said South Africa had such legislation.
Sri Ram said this in response to a statement by Attorney-General Tommy Thomas that the Attorney-General’s Chambers (AGC) would no longer impose a blanket objection to leave applications in judicial review cases.
Thomas, a former lawyer, said the AGC wanted to promote the development of constitutional and administrative law in the country.
Thomas said the AGC would engage with the Bar and the Rules Committee to repeal the requirement in the Rules of Court 2012 for all cause papers to be served on them.
Judicial review applications are filed by aggrieved parties to challenge the decision-making process of public authorities for breaching the rules of natural justice, the written law and the constitution.
Sri Ram said Thomas’s decision would go a long way to help an applicant obtain leave to apply for judicial review.
He said the earlier approach of the AGC was to oppose almost every application for leave.
“Most of the judges hearing leave applications treated leave applications as though they were civil suits.” Sri Ram said.
Sri Ram, who has returned to practice law, recalled on one occasion when he argued for PKR deputy president Azmin Ali’s leave application for a mandamus against the inspector-general of police to arrest fugitive businessman Low Taek Jho or better known as Jho Lo.
“The judge told me that the burden of proof was on me to show that Jho Low had committed a crime. This was in the face of a statement by the home minister in the Dewan Rakyat that Interpol had been asked to locate and apprehend him.
“I was taken aback by the judge’s lack of knowledge of elementary principles governing leave applications,” he added.