Right of review
New Straits Times (Columns)
12 Sep 2006

SHOULD the courts be allowed to review the decisions of ministers? Legal eagles have been debating this issue for the past month, criticising ouster clauses in various laws that prevent these decisions from being questioned in court.

Of course, such clauses do not remove judicial review completely. Lawyers can still find a loophole providing them with a reason to go to court. Although a plaintiff cannot challenge the facts or the reasons for a decision, the courts can still hear cases where the legal procedure has not been followed: For example, when a minister has signed the wrong form or issued an order with the wrong date.

While it is important that the people have the right of access to the courts, it may be counter-productive to subject all ministerial decisions to judicial review as this will affect the day-to-day running of the country.

But the government could, perhaps, revisit some of these clauses from time to time to see if they are still relevant. Many have called for a review of the ouster clause for preventive detention under the Internal Security Act 1960.

Former Attorney-General Tan Sri Abu Talib Othman argued over the weekend that while ouster clauses might be acceptable in certain emergency regulations, they could only be temporary and when the situation changed, the laws must change. So, no emergency law should be a permanent feature.

This argument is gaining currency in other parts of the world with emergency regulations. There is merit here from the point of view of human rights, but it may be different from the security perspective.

The reality is that some of these regulations are needed to help ministers deal expeditiously with elements who are less than desirable in society.

And in cases where people cannot go to court for a review, those who disagree with ministerial decisions can turn to the ballot box.

They have the option of voting the minister out in the general election. Perhaps such ouster clauses should be limited to ministers and not extended to appointed officials, as has been done recently in regard to a director-general and the disciplinary board of a professional grouping.

One way of gaining public support for such legislation is by having more consultation as each Bill makes its way to and through Parliament.

Members of Parliament should also be involved in the drafting process, instead of seeing a Bill for the first time a few days before it is debated in Parliament.