TEH GUAT HONG v PERBADANAN TABUNG PENDIDIKAN TINGGI NASIONAL [2017] 4 MLJ 521

Court of Appeal (Putrajaya)

Application for judicial review

1.    The Appellant graduated from University of London Bachelor of Laws (“LLB”) at a local private institution of higher learning in 2002.

2.    On 5 August 2003, the Appellant applied for an exemption from repaying her study loans (“loans”) based on a 2003 circular from the Perbadanan Tabung Pendidikan Tinggi Nasional (“PTPTN”)(hereinafter referred to as the Respondent) as she had obtained a First Class Honours in her bachelor’s degree.

3.    Three years later, the Appellant received a letter from the Respondent requesting for repayment of her loans.  The request was based on the fact that the Appellant did not produced a copy of the certificate of accreditation for the LLB course that she attended, thus, the Respondent could not process her application.

4.    The Respondent then obtained a judgment in default from the Sessions Court against the Appellant for her failure to repay the loans which prevented the Appellant from leaving the country as per Section 22A of the Perbadanan Tabung Pendidikan Tinggi Nasional Act 1997 (“Act 566”).

5.    The Appellant then sought leave to file for a judicial review in the High Court on the ground that the Respondent had acted without its jurisdiction as follows:

(a) the rejection of the Appellant’s appeal despite the Appellant having obtained the Degree of Laws with First Class Honours;

(b) the imposition or interpretation of a condition which contradicted its own action; and

(c)  the imposition of the additional condition and/or requirement to prevent the Appellant from benefitting from the exemption for repayment provision under the 2003 circular.

6.    The leave was refused by the High Court on the ground that the High Court would not be in a position to decide on the appropriateness or adequacy of any particular policy by the Government.  The Appellant then appealed to the Court of Appeal.

1.    Whether the matter brought by the Appellant was amenable to judicial review on the ground of irrationality as the Respondent has failed to interpret and apply the 2003 circular appropriately.

1.    Finding of the High Court –

(a) The Court was of the view that the formulation of the ‘dasar pinjaman boleh ubah’ is a policy unlike the findings of the High Court.

(b) The Respondent was in fact exercising its statutory duty pursuant to Section 19 of Act 566.

(c)  Therefore, the Court of Appeal disagreed with the findings of the High Court that there shall not be any intervention in the policy decision by the Respondent.

2.    The Interpretation of the 2003 circular –

(a) The 2003 circular stipulates two (2) conditions for any graduate to enjoy the exemption as follows:

(i)            Obtained a First Class Honours

(ii)           Attended a course which attained a certificate of accreditation.

(b) As the Respondent had continuously made no reference of the requirement that the certificate of accreditation must be obtained during the Appellant’s study, the Court took its stand that the 2003 circular must be given its plain and literal meaning.

(c)  The Court was of the view that the spirit of the formulation of the policy is to give recognition to excellent students, therefore, the focus should be on whether the accreditation granted to the course itself and not to the period when the graduate was attending the said course.

(d) This is also supported by the fact that the date of the accreditation was proven to proven to be not significant as in the 2005 circular –

“3.1 Syarat-syarat kelayakan memohon pinjaman pendidikan yang dipinda adalah seperti berikut:

(vi) Bagi pelajar-pelajar IPTS, mereka hendaklah telah mendaftar untuk mengikuti kursus yang diluluskan oleh Jabatan Pengurusan IPT (Sektor Pengurusan IPTS), Kementerian Pengajian Tinggi dan telah mendapat Sijil Perakuan Akreditasi daripada Lembaga Kelayakan Negara (LAN). Kelulusan kursus dan Sijil Perakuan Akreditasi hendaklah belum tamat tempoh sah laku semasa permohonan dikemukakan. IPTS yang belum mendapatkan Sijil Perakuan Akreditasi bagi kursuskursus yang dijalankan masih dibenarkan mengemukakan permohonan pinjaman untuk pelajar-pelajar mereka sebelum 1 Julai 2006.”

(e)  The Court of Appeal took the position that it was never the Respondent’s intention that the accreditation must be obtained through the whole period of the Appellant’s study as the Respondent failed to express it in the 2003 circular.

1.    The Court of Appeal allowed the appeal with no order as to costs.

1.    Judicial review is defined as the power of court to revise the decision of the administrative power.  The importance of this legislative action was echoed in Pengarah Tanah dan Galian,Wilayah Persekutuan v. Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135 where “Every legal power must have legal limits; otherwise, there is a dictatorship.”

2.    Nevertheless, there are limitations to apply for judicial review which are as follows:

(a) A declaration of emergency where the Parliament executed its special power to combat subversion.

(b) Parliamentary privileges as the privileges are attached collectively as the Parliament may function without any interference from the judiciary.