INGENIEUR
The courts may only review a decision on four grounds – illegality , procedural impropriety , unreasonableness , and proportionality .
INGENIEUR
The courts may only review a decision on four grounds – illegality , procedural impropriety , unreasonableness , and proportionality .
a decision to cancel his registration as his legal rights are directly affected and he is deprived of the benefit he was permitted to enjoy as a result of that decision ( Members of the Commission of Enquiry on the Video Clip Recording of Images of A Person Purported to be an Advocate and Solicitor Speaking on Telephone on Matters of Appointment of Judges v Tun Dato ’ Seri Ahmad Fairuz bin Dato ’ Sheikh Abdul Halim [ 2011 ] 6 MLJ 490 ).
The Board ’ s disciplinary process or procedure which has not been concluded or exhausted cannot ordinarily be challenged unless the aggrieved party can show that the decision is conclusive of any matter gravely affecting his rights . Otherwise , the courts would be undermining the powers and duties of the Board and the constituted committees which are conferred under the Act and Regulations as well as the domestic remedies available to any unsatisfied party . Theoretically , it may be the case that a judicial review application can only be brought after a decision is made by the AB . However , in practical terms , an engineer who is adversely affected by a decision of the DC may bring a judicial review application before the AB returns a verdict if he can show that the DC ’ s order to suspend or cancel his registration has taken effect . The three-month timeline under Order 53 rule 3 ( 6 ) of the Rules of Court 2012 to make an application from “ when the grounds of application first arose or when the decision is first communicated ” may also render it necessary for one to file the judicial review application sooner than later .
The courts may only review a decision on four grounds – illegality , procedural impropriety , unreasonableness , and proportionality . In simpler terms , where there is an abuse of power or unfair treatment by the decision-making authority or where the decision would not be made by a reasonable authority having properly considered the facts and evidence , then there is ground for the court to interfere . Things may have been made a little murkier now that the courts seem to be moving in the direction of considering errors on the merits to justify a review when historically they would only consider fundamental procedural errors .
Having said that , the courts generally do not interfere with the exercise of discretion by public authorities given the powers conferred on them . The purpose of the powers being conferred by statute to the Board would be defeated if the courts frequently assumed the Board ’ s duties . In this sense , the courts ’ roles as overseer of the Board ’ s powers and duties and reviewer of the Board ’ s administrative determinations are limited .
Conclusion
The Board functions as a regulator of the professional conduct of registered engineers or engineering consultancy practices whilst the Malaysian courts play the role of an overseer to ensure the Board does not exercise its discretion arbitrarily . The Board ’ s complaint or dispute handling process is stipulated in the Act or Regulations guided by the Code which is to be observed by registered engineers or engineering consultancy practices . The Board ’ s discretion as to its procedures is balanced by the court ’ s ability to review the Board ’ s decisions . Such division of powers entails as well as enhances the specialisation of functions intended by our laws and the laws governing engineers .
12 VOL 98 APRIL - JUNE 2024