T3 DENTAL SDN. BHD. v 1. ) YANG DIPERTUA MAJLIS BANDARAYA SHAH ALAM 2. ) Majlis Bandaraya Shah Alam (MBSA)

Case Significance

A dental clinic's certiorari challenge to signage compounds, rejected because the Malaysia Dental Council Guidelines are advisory and lack the force of law to oust the local authority's advertising-licensing jurisdiction.

This High Court decision concerns an application for judicial review by a dental clinic company seeking an order of certiorari to quash compounds issued against it by a local authority for failing to obtain the requisite licences for its signage and banners. The applicant is a dental clinic registered under the Private Healthcare Facilities and Services Act 1998 (Act 586) and subject to the Dental Act 2018 (Act 804), managed by dentists holding practising certificates under Act 804. The second respondent is the local authority for Shah Alam, which had issued the compounds for the unlicensed advertising signs.

The applicant's central contention was that its signage was governed by the professional regime applicable to dental practice — Act 804, Act 586 and the Malaysia Dental Council (MDC) Guidelines — rather than by the ordinary local-authority licensing requirements for advertisements, so that the compounds were bad. The decisive question was the legal status of the MDC Guidelines. The Court held that the MDC Guidelines are advisory in nature and do not have the force of law. It drew a pointed contrast with the Legal Profession (Publicity) Rules 2001, which are subsidiary legislation made under the Legal Profession Act 1966 (Act 166) and therefore carry statutory force; the MDC Guidelines, lacking that legislative footing, could not displace or override the local authority's statutory power to require licensing of advertisements and to issue compounds for non-compliance. The precedents the applicant relied upon, and the legal maxim it invoked, were held to be inapplicable to its situation.

The Court agreed with the local authority that the applicant's arguments did not assist it. The judgment is a useful illustration of the distinction between advisory professional guidelines and subsidiary legislation with the force of law, and of the principle that a professional body's non-binding guidelines cannot oust a local authority's statutory jurisdiction over advertising licences and compounds.