The Study of the Doctrine of Propotionality in Malaysia

Noor ‘Ashikin, Hamid and Noraida, Harun and Nazli, Ismail@Nawang and Kamaliah, Salleh and Asiah, Bidin (2017) The Study of the Doctrine of Propotionality in Malaysia. In: The International Conference On Shariah And Globalisation (ICSG) 2017, 5-6 April 2017, Fakultas Hukum, Universitas Muhammadiyah Yogyakarta, Indonesia.

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Abstract

Judicial review is the process by which the courts exercise a supervisory jurisdiction (or control) over the activities of public authorities in the field of public law. The first principle of judicial review is concerned with the decision making process and not the merits, substance or justification. Whilst the second principle provides that there can be an exception to the first principle when the court could examine the substance or justification to satisfy itself that the decision maker has not transgressed the principles of procedural impropriety, illegality or irrationality. The objective of this paper is to determine whether the court may review for substance in cases where the principle of proportionality is at stake. The methodology used in this qualitative research is library research where relevant data from primary and secondary law documents are analysed. It is thus submitted that the principle of proportionality may also be added to the above categories thus widening the scope of judicial intervention of administrative action by way of judicial review.

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