Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene. The courts are the only defence of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizen: so that the courts can see that these great powers and influence are exercised in accordance with law.
HRH Azlan Shah in Pengarah Tanah dan Galian Wilayah Persekutuan v. Sri Lempah Enterprise [1978] 1 MLRA 132; [1979] 1 MLJ 135 (FC) as quoted in the Harris Mohd Salleh case.
At a time when
government actions are seen to be taken without regard to public expectations
of transparency and accountability, the 2023 ruling in Harris Mohd Salleh v. Chief Secretary and Government of Malaysia
sends a powerful message that government actions must not only be legal within
the terms of the Constitution but must be perceived as lawful and legitimate by
the public.
Christopher Chin
J’s decision applies the test of legitimacy (the first time a court has applied
the test) to balance state rights with the rights of the public. Central to
this test is the principle that the public must perceive government actions as
lawful and legitimate. The judgment emphasises that "the legitimacy of the
government in the eyes of the populace is critical; the public must recognise
both the law and the government as legitimate. Otherwise, the public will not
trust or adhere to the rule of law." The case marks a potential turning
point in actions for judicial review, suggesting that public trust and
perceptions of fairness are factors that courts may take into account.
Facts of the Case
The case
concerns a judicial review application by Harris Mohd Salleh, former Chief
Minister of Sabah, for the declassification of a government report on the
airplane crash on June 6, 1976, known as the Double 6 Tragedy.
The crash killed
11 people, including the then Chief Minister of Sabah, Tun Fuad Stephens, and
several cabinet members. Harris Mohd Salleh, who was appointed Chief Minister
immediately after the crash, was directly implicated in the tragedy due to
ongoing public speculation that the crash was politically motivated.
The Malaysian
government investigated the crash, but the findings were classified under the Official
Secrets Act 1972 (OSA) in 1976. Despite repeated requests over the years by the
people of Sabah, politicians, and the victims' families, the report has
remained secret.
Harris Mohd
Salleh applied to the Minister of Transport to declassify the report under
discretionary powers vested on the Minister vide s. 2C of the OSA, but there
was no forthcoming decision by the Minister. The judicial review application
challenged the Minister’s refusal to exercise the discretion to declassify the
reports allowed by the OSA and sought orders from the court to compel the
declassification of the Double 6 report.
The government,
however, maintained that the decision to keep the report classified was within
the discretion of the Minister under the OSA. The Minister did not provide any
reasons for continuing the classification, citing national security and governmental
discretion.
The
Judge’s Dilemma
The court faced
compelling arguments from both sides. On one hand, the government maintained
that the OSA conferred absolute discretion on the Minister, who was under no
express obligation to provide a reason for continued classification. On the
other hand, the Applicant argued a constitutional right to information as a
corollary to free speech, suggesting that the doctrine of proportionality
required the Minister’s power to declassify to align with the importance of the
right to information.
The court found
it difficult to choose between the two sides because of the respective weight,
legality and cogency of the arguments. He found the scale of justice was
“finely balanced,” leading to a judicial dilemma: Should the court defer to the
minister’s broad discretion, or should it enforce the Applicant’s and the
public’s right to information in the interest of transparency?
Legitimacy
Confronted with
the dilemma, the judge invoked the test of legitimacy to resolve his dilemma.
Legitimacy, he observed, was a “common underlying and unmistakable thread
running through all these precepts and doctrines” that were applied in an
action for judicial review.
“For example, we have judicial review by
the Courts, the basic structure represented by separation of powers and the
doctrine or proportionality, are all to ultimately afford legitimacy to the
actions of the legislature or of a statutory act or decision by the executive.”
His Lordship
expanded on the test of legitimacy in the following passages.
“The foundation of our democracy is the
Federal Constitution. So long as laws, the citizens, the legislature, the executive and the judiciary are or act within the confines of the Federal
Constitution, there is law and order. With such mutual compliance comes an
innate sense of legitimacy by the citizens of their government. This sense of
legitimacy is critical for society to survive and thrive.”
“Legitimacy of the government in the eyes
of the populace is critical as the public must recognise the law and the
Government as legitimate, failing which, the public will not believe in, and
follow, the rule of law.”
His Lordship
went on to add that the legitimacy of any law will be established if it
conforms to the Federal Constitution. At the same time, the legitimacy of the
exercise of statutory discretion will depend on the wider perception of the
people of their government.
Applying the
test of legitimacy to the case before him, the judge concluded that although
the Minister had the right under the OSA not to declassify, by not
declassifying the report, his legitimacy as the people's representative in our
democratic Government is diminished and further prejudices the legitimacy of
the Government he serves.
The judge felt
resolved in his dilemma because by applying the test of legitimacy, he found
the balance of the arguments before him was no longer finely tuned but had
tipped in favour of the Applicant. After 47 years, there was no compelling
reason for continued classification, and the judge ordered the declassification
of the report, reinforcing that the public’s and the Applicant’s right to
information was crucial to maintaining trust and the legitimacy of government
actions.
Conclusion
Harris Mohd
Salleh is the first reported case to apply the test of legitimacy to assess
government discretion, although the judge was at pains to point out that the
concept of legitimacy pervades “landmark decisions of the Federal Court on the
standing of the basic structure, proportionality and judicial review, among
others” and that the ultimate aim of those decisions was to preserve the
legitimacy of the legislature and the executive. While the judgment may seem
groundbreaking, the judge remained firmly within the boundaries of judicial
decision-making. By carefully anchoring the legitimacy test in the principles
of public trust and constitutional conformity, the judgment respects
established doctrines while also setting a framework that future cases testing
government actions may build upon.
Ultimately, the
court’s decision in Harris Mohd Salleh invites a more transparent and
accountable standard of governance in Malaysia, highlighting that legality
alone may not be sufficient - legitimacy, as seen through the eyes of the
public, is equally essential to uphold the rule of law.