Public procurement in Malaysian local authorities: Antecedents of procedural rationality in decision making

The Malaysian public sector is oversaturated with comprehensive procurement procedures. These measures aim to deter unwarranted behaviours from public officers. Nevertheless, there have been recurring irregularities over the past decade in Malaysian local authorities, including work delays, non-compliance with regulations, wasteful purchasing, substandard workmanship etc. This study aimed to investigate factors undermining rationality in public procurement decision making from the cognitive perspective. The cognitive and behavioural science literature was reviewed systematically, focusing on procedural rationality to develop a predictive model of procurement irregularities. This research adopted a quantitative approach. A total of 289 datasets were collected from the procurement officers of Malaysian local authorities and analysed using the Partial Least Square Structural Equation Modelling technique. The empirical findings showed that work experience, prior knowledge, and accountability correlate directly with procedural rationality in procurement decision-making, which would impact the procurement outcome. The research offered insights into the decision-making behaviour of procurement officers from the cognitive psychology perspective. From the managerial standpoint, public procurement procedures should incorporate the elements of accountability, experience, and prior knowledge as part of the quality assurance and control measures.

THE PRINCIPLE OF LEGALITY AND THE REQUIREMENTS OF LAWFULNESS AND PROCEDURAL RATIONALITY Law Society of South Africa v President of the RSA (2019 (3) SA 30 (CC))

Apart from conferring a wide range of powers on the President, the Constitution also regulates the manner in which the President may exercise these powers. One of the ways in which the Constitution does this is by imposing an obligation on the President to exercise his or her powers in accordance with the principle of legality, which is an incident of the rule of law. A necessary consequence of this requirement is that a decision of the President may be reviewed and set aside on the grounds that it infringes the principle of legality.From its relatively modest beginnings in Fedsure Life Insurance v Greater Johannesburg Transitional Metropolitan Council (1999 (1) SA 374 (CC)) – where the Constitutional Court held that the exercise of public power is only legitimate when it is lawful – the principle of legality has expanded in leaps and bounds over the past 21 years; today, it encompasses several other grounds of review, including lawfulness, rationality, undue delay and vagueness.Of all of these broad grounds of review, substantive rationality has received the most attention from the courts and today encompasses several other grounds of review itself, such as procedural fairness, procedural rationality, relevant and irrelevant considerations (Democratic Alliance), non-jurisdictional mistake of fact, and, on occasion, the giving of reasons.Unfortunately, the development of the principle of legality has not been all plain sailing, and the rationality jurisprudence of the Constitutional Court has given rise to complex and difficult questions. This is particularly the case when it comes to procedural fairness and procedural rationality. It is not entirely clear what the difference between these two requirements is and in what circumstances the one should be applied rather than the other. The court attempted to address some of these questions in Law Society of South Africa v President of the Republic of South Africa (2019 (3) SA 30 (CC)) (Law Society). The purpose of this note is to discuss this case critically.

Health Crisis Measures and Standards for Fair Decision-Making: A Normative and Empirical-Based Account of the Interplay Between Science, Politics and Courts

This paper examines, in the light of the COVID-19 crisis, the room for judicial oversight of health crisis measures based on the public’s expectations of how governments should act in the interplay with experts. The paper explains how trust theory and procedural rationality review help to address concerns related to legitimacy and expertise. The paper argues that courts should distinguish between two stages. In the initial stage, fear as a driver for government support based on expertise justifies that the proportionality test is limited to the question of whether measures were based on virologist expert advice. In the next stage, people expect the government to take expert-informed decisions, but also require that the government takes into account societal needs. Procedural rationality review in this stage demands that courts examine whether the decision was based on an informed balance of rights and interests.

An exposition of trade policy formulation through the issuing of "Trade Policy Directives" by the Minister of Trade, Industry and Competition under the International Trade Administration Act 71 of 2002

ABSTRACT Section 5 of the International Trade Administration Act 71 of 2002 (ITAA) provides that the Minister of Trade, Industry and Competition has the power to issue "Trade Policy Directives" subject to the procedures and requirements of the Constitution of the Republic of South Africa, 1996 (Constitution) and other laws. However, there is uncertainty as to how trade policy is formulated under section 5 of the ITAA and the rights of affected parties in this regard. Thus, this article offers an exposition of the process of trade policy formulation under section 5 of the ITAA. To this end, it is my view that trade policy formulation under section 5 must be guided by section 195 of the Constitution, which requires that the public must be "encouraged" to participate in policy formulation and that this must occur in a climate of openness, transparency and accountability. In the narrower sense, it is also my view that interested parties must be given an opportunity to participate in trade policy formulation on the ground of procedural rationality and to avoid a charge of arbitrariness as twin components of the rule of law. Keywords: Trade policy; International Trade Administration Act; rule of law; legality; rationality; arbitrariness; transparency; accountability; governance.