JCW

[Judicial Review — refusal of Universiti Malaya scholarship and paid study leave — time-barred, locus standi, non-amenability of “academic judgment”, and requirement for true judicial review prerogative reliefs] Justin acted as counsel for the Respondents in this judicial review application (High Court, Kuala Lumpur). Novel / Important Issues: Amongst others, we highlight that: 1. The case involves the novel issue whether a university’s refusal to grant a scholarship (to an academic staff applicant) is amenable to judicial review. 2. The Court decided that without the main judicial review remedies (e.g. certiorari and/or mandamus) being specifically prayed for, it is not a true judicial review application. The declaratory reliefs and damages are, at most, ancillary. Background (brief): The Applicant (a Universiti Malaya academic staff member) sought to challenge Universiti Malaya’s decisions rejecting her application for a Skim Latihan Akademik IPTA Tahun 2022 (“SLAI Scholarship”) and "Cuti Belajar Bergaji Penuh Tanpa Biasiswa" (“CBBPTB”)** (paid study leave without scholarship), and sought declarations and damages. Points of Law / Grounds of Judgment: The High Court dismissed the judicial review application and, amongst others, held as follows: (a) Out of time / time-barred: The judicial review was filed out of time. Although the Applicant contended there was an appeal process, the Court found there was no appeal process in reality and any “appeal” was assumed by the Applicant on her own terms. The rejection communicated on 31/5/2022 remained the final decision, and the filing on 27/9/2022 exceeded the 3-month statutory time limit. (b) No locus standi due to resignation: The Applicant had no locus standi and disabled herself from being able to seek the scholarship / study leave remedies because she resigned from UM (not forced to resign). Having resigned, she no longer held a position with UM and was no longer in a position to receive the benefits. (c) The Court held the prayers were academic. If the Applicant’s main purpose was to obtain damages, this became an abuse of process when she no longer had a right to the SLAI Scholarship / CBBPTB after resignation. (d) UM’s decision to prioritize another candidate for the scholarship was in accordance with the Human Talent Management (HTM) Policy and was not open to judicial review. The Court followed Sivapalan Govindasamy v Universiti Malaya [2020] 12 MLJ 354 (CA), holding that academic judgment / academic matters are generally not amenable to court supervision and this principle applies not only to conferment of a PhD but also to conferment of scholarships. (e) The CBBPTB application was assessed using the relevant application form and factors including manpower sufficiency, which were not open to judicial review. (f) The Court emphasized that "eligibility certainly does not equate to entitlement”. There was no taking away of an inherent right to the scholarship or study leave in the first place. (g) Order 53 requires main judicial review remedies. A judicial review application must comply with Order 53 rule 2(1) ROC, in which the application must seek reliefs in paragraph 1 of the Schedule to the Courts of Judicature Act 1964 (i.e. certiorari, mandamus, quo warranto, etc.). The Application sought declaratory reliefs and damages only. While declarations/damages may be ancillary under Order 53 r 2(2)–(3), this does not remove the requirement for main judicial review prayers. (h) The Court found the Applicant omitted certiorari/mandamus because she was not in a position to seek mandamus to compel UM to award SLAI Scholarship/CBBPTB after resigning. Any attempt to “include” such reliefs via a residual prayer was not bona fide and appeared to be an attempt to conceal that the main JR prayers were no longer relevant to her. (i) None of the persons allegedly making representations to the Applicant had the authority or power to decide on the success of her SLAI Scholarship / CBBPTB applications. (j) Damages were not proven, and the Court viewed the claim as effectively seeking UM to fund the Applicant’s private studies and pay future salary despite her resignation amounting to an unjust enrichment.