Law Quiz PDF

QUIZ 1. REMEDIES - 5 2. OMBUDSMAN - 7 3. TRIBUNAL - 8 4. PUBLIC INCORPORATION - 9 MCQ - 20Q (20 marks) T/F - 20Q (10 marks)  REMEDIES TOPICS SUB-TOPIC ELABORATION // EXPLANATION INTRODUCTION...

QUIZ 1. REMEDIES - 5 2. OMBUDSMAN - 7 3. TRIBUNAL - 8 4. PUBLIC INCORPORATION - 9 MCQ - 20Q (20 marks) T/F - 20Q (10 marks)  REMEDIES TOPICS SUB-TOPIC ELABORATION // EXPLANATION INTRODUCTION Remedies address grievances against administrative actions infringing rights or interests. High Courts derive authority from the Courts of Judicature Act 1964, Paragraph 1 of the First Schedule, and Section 25. TYPES OF REMEDIES HABEAS CORPUS Definition & Purpose It is an order issued by the Court to release a person who has been detained unlawfully or without any legal justification May be made by the prisoner (detainee) himself or by someone else on his behalf. Ensures protection against unlawful detention. Federal Constitution Article 5 (1) = “No one shall be deprived of his life or personal liberty save in accordance with law” Article 5 (2) = “Where complaint is made to a High Court or any judge thereof that a person being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and released him” CASES 1. Ooi Ah Phua v Officer in Charge, Kedah (1975): Application rejected as detention was lawful. 2. Re Datuk James Wong Kim Min (1976): Habeas corpus granted as detention law was invalid outside Sarawak. 3. Yit Hoon Kit (1988): Delay in informing detainees rendered detention unlawful. MANDAMUS Definition & Purpose Commands a public authority to perform a mandatory duty imposed by law. To compel public authorities to exercise the power given to them by the law within a reasonable time To keep the public authority and officers exercising public functions within the scope of their jurisdiction Nature of Mandamus May be used in combination with other remedy, commonly certiorari  Decision of the public authority can be quashed by certiorari and a fresh decision will be obtained by mandamus A discretionary remedy Application for mandamus must be with the consent of the High Court Section 2 (a) of Public Authorities Act 1948 – 3 Years to bring an action for mandamus against any public authority Conditions to be Fulfilled 1) Applicant must show that his personal right would be injured or defeated if the order were before Mandamus not made by the Court 2) There must be a provision under the law imposing such duty on the public officer 3) In the opinion of the Judge, the doing or forbearing is consonant with right and justice 4) Applicant has no other remedy 5) A remedy given by the order applied for will be completed Restriction Section 44 (2) Specific Relief Act 1950 – Mandamus will not be issued against: YDPA Government Servant (merely to enforce satisfaction of a claim upon government) If it is excluded by any law CASES Semantan Estate Sdn Bhd v Collector of Land Revenue (1987): Denied mandamus due to an available appeal. Khoo Siew Bee v Ketua Polis Kuala Lumpur (1979): Directed police to provide a public document. CERTIORARI Definition & Purpose a remedy available to quash a determination or decision already made To quash the discretionary decisions of Minister and administrative authorities Can be issued to any body or authority whether quasi judicial or administrative, which has legal authority to determine the rights of the people Not be Issued if; The applicant has suffered no real injustice The applicant lacks real merit The applicant has failed to disclose relevant facts The applicant has an alternative and adequate legal remedy Condition to Apply 1) Only those whose interest was affected by the administrative decision can apply for certiorari  2) Application must be made with the consent of the High Court 3) Application for certiorari must be made within 6 Weeks of the date of the decision to be challenged (proceeding) CASES Coelho v Public Services Commission (1964): Dismissal of civil servant without a hearing. Re Ijot Bte Beliku (1966): Officer lacked jurisdiction over property division. Captain Alimudin v Lembaga Pelabuhan Kelang (1994): Jurisdictional fact was absent Lian Yit Engineering Works Sdn. Bhd. v Loh Ah Fob & Ors. (1974): Error of law on the face of the records PROHIBITION Definition Prevents future acts that are ultra vires or breach natural justice. Grounds for the issuance; - Denial of natural justice - Error of jurisdiction Nature Issued to prohibit or prevent the commision of a future act which would be ultra vires or in breach of natural justice A discretionary remedy CASES Case: Kee Peng Kwan v Colonel VN Stevenson (1975): Issued due to lack of jurisdiction. RELATOR ACTION Definition Enables a public member to restrain administrative breaches through the Attorney General’s intervention. Advantage: - Any citizen may request the Attorney General to institute a relator action, so, eliminating the requirement of standing or locus standi Disadvantage: - The Court will not interfere with the exercise or non-exercise of such discretion by the Attorney General in the matter. CASES McWhirter v Independent Broadcasting Authority (1973): Public action granted despite AG's refusal. Gouriet v Union of Post Workers (1978): HOL upheld AG's decision not to act. DECLARATION Definition & Nature An order that declares the legal rights of the parties concerned Granted at the discretion of the court. Provides declaratory relief under Section 41 of the Specific Relief Act 1950. Flexible remedy with no special procedures. CASES Joseph v Government of Sarawak (1981): Declaration granted for employment recognition. Mahan Singh v Govt of Malaysia (1978): Termination voided due to denial of hearing. INJUNCTION Definition & Function An order by the court requiring a person to do a thing or no to do something To restrain an administrative authority from an unlawful ultra vires exercise of power = to restrain a person from doing a wrongful act Governed by Sections 50-55 of the Specific Relief Act 1950. Types 1) Temporary Injunction Section 50 of SRA 1950 = for a specified time or until further order of the court Can be granted at any stages of the proceeding 2) Perpetual Injunction Section 51 of SRA 1950 = can be granted after a hearing and upon merits of the case Granted permanently CASES Tan Suah Choo v Majlis Perbandaran (1983): Injunction allowed against a local government body.  OMBUDSMAN TOPICS ELABORATION // EXPLANATION DEFINITION Independent government official addressing maladministration and protecting public rights. Acts as an external agency outside the administrative hierarchy. REASONS FOR THE 1) Inadequacy of the Court System GROWTH Formal, costly, and time-consuming judicial proceedings. Limited review of discretionary decisions and administrative facts. 2) Build-up of Biasness Administrators defending earlier decisions lead to unfairness. Independent agencies provide more impartial assessments. 3) Overlapping of Legislative and Executive Powers Legislatures prioritize national issues, leaving complaints unresolved. FUNCTION Investigates complaints related to administrative decisions, actions, or inactions. Can act suo motu (initiate investigations on its own). Offers remedies such as: ○ Highlighting defective decisions. ○ Recommending corrective actions or procedural changes. Cannot override administrator decisions but suggests solutions. ADVANTAGES An independent authority = eliminates the element of dissatisfaction or non-confidence among the public It has access to departmental files No court fees are payable for filing a complaint No lawyer needed to be engaged Proceedings are not formalized or routine and does not take long OMBUDSMAN IN SPECIFIC 1. New Zealand: JURISDICTION ○ Established by the Ombudsman Act 1975. ○ Focuses on maladministration, delays, and procedural flaws. ○ Provides remedies for unjust or improper administrative actions. 2. Australia: ○ Two-tier system (State and Commonwealth levels) under the Ombudsman Act 1976. ○ Investigates administrative actions, but excludes Ministers’ decisions. ○ Emphasizes citizen protection against unreasonable or oppressive actions. 3. England: ○ Established under the Parliamentary Commissioner Act 1967. ○ Focus on maladministration, including corruption and bias. ○ Complaints must be submitted through a Member of Parliament. ○ Investigations are private, with reports presented to Parliament for unresolved injustices.  TRIBUNAL TOPICS ELABORATION // EXPLANATION INTRODUCTION Traditionally, adjudication was the sole domain of courts. Tribunals, established under statutes, now share adjudicatory functions, resolving disputes between individuals and between individuals and government agencies. Tribunal: A specialized body with the authority to decide disputes under relevant laws. CHARACTERISTICS An independent body It reaches a binding decision in relation to the case heard Decisions will be reached by a panel of tribunal members Adopt a procedure similar in Court but much simpler and flexible Operate outside traditional court systems. Handle specific disputes, often involving technical or policy-based matters. REASONS FOR GROWTH 1. Expansion of Administrative Functions & Responsibilities: ○ Increased socio-economic activities and disputes. ○ Judiciary alone cannot handle the volume, leading to delays. 2. Preservation of Judicial System: ○ Courts are formal, rigid, and unsuitable for small claims and policy disputes. ○ Tribunals provide a less technical, more flexible process. 3. Cost and Time Efficiency: ○ Tribunals are quicker and less expensive than courts. STRENGTH 1. Expedition: Faster resolution due to less formal procedures. 2. Informality: Relaxed rules and processes tailored to specific cases. 3. Expertise: Tribunal members are often experts in their fields. 4. Independence from Administration: Autonomous, lending credibility to decisions. 5. Cost Efficiency: Affordable filing costs, ideal for minor disputes. WEAKNESS 1. Lack of Independence: ○ Tribunals may have administrative links, raising objectivity concerns. 2. Limited Legal Expertise:  ○ Members may lack legal training, complicating statutory interpretation. 3. Lack of Transparency: ○ Decisions often lack reasoning or publication. 4. Policy Bias: ○ Overcommitment to departmental policies may override individual case merits. 5. Procedural Informality: ○ May lead to arbitrary decisions without a legal or factual basis. ADJUDICATORY BODIES IN 1. Special Commission of Income Tax: MALAYSIA ○ Established under the Income Tax Act 1967. ○ Resolves tax assessment disputes. ○ Commissioners can summon witnesses and evidence, with appeals to the High Court on legal questions. 2. Industrial Court: ○ Formed under the Industrial Relations Act 1967. ○ Resolves trade disputes referred by the Minister. ○ Decisions based on equity and good conscience, with limited judicial review. PUBLIC INQUIRIES Different from tribunals; inquiry officers report findings to higher authorities. Governed by statutes like the Companies Act 1965 and Commissions of Enquiry Act 1950. Purpose: - To get the truth - Enable the decisions maker to be better informed about the state affairs before making decisions - To democratize the administrative process by law of giving opportunity to the public to express their objections to any proposed government measure Commissions of Enquiry Act 1950 empowers the YDPA to appoint 1 or more Commissioners & authorise the Commissioner to enquire into: A conduct of any federal officer A conduct or management of any department of the public service of Malaysia A conduct or management of any public institution which is not solely maintained by the state funds Any other matter in which an enquiry would,in the opinion of YDPA, be in the public welfare Powers of the Commissioner: To procure all necessary evidence  To examine witnesses on oath To compel the attendance of any person to testify To admit any evidence whether written or oral which might otherwise be admissible in civil or criminal proceedings Commissioner & Witness are protected under the Act: Shall not be liable to any suit or other proceeding for any act or thing done him as a Commissioner All evidences given for the purpose of any inquiry under the Act shall be absolutely privileged so that the witness giving such evidence shall not be liable to any suit or other civil proceeding in respect of such evidence FRANKS COMMITTEE (UK, Appointed to make an in depth inquiry into the composition and working of the tribunal system 1955) emphasized that the tribunals ought to be regarded as a machinery provided for independent adjudication outside the department concerned Emphasized on 3 basic characteristics 1) Openness: Public hearings and reasoned decisions. 2) Fairness: Clear procedures ensuring rights are upheld. 3) Impartiality: Freedom from departmental influence. Recommendation made by Frank’s Committee: 1) Appointment of tribunal chairpersons by independent authorities like the Lord Chancellor. 2) Legal qualifications for tribunal personnel. 3) Public hearings with the option for legal representation.  PUBLIC INCORPORATION TOPICS ELABORATION // EXPLANATION INTRODUCTION Modern governments actively participate in trade, business, and commerce through public incorporations. Government involvement occurs via companies it incorporates. REASONS FOR GROWTH 1) To promote economic regeneration of the country 2) Becomes an acceptable instrument of economic development 3) Lack of financial or managerial capacity in private entrepreneurs 4) To plan and develop select regions 5) To gain control over economic resources 6) To ensure a fair share to the Bumiputeras in the national economy LEGAL CHARACTERISTICS Its property is not a government property = does not enjoy any immunities or privileges OF A CORPORATION Its servant are not civil servants Corporations are distinct legal entities, separate from the government. Legal cases: ○ Tamlin v Hannaford (1949): Corporation property is subject to regular law. ○ N.T.S. Arumugam Pillai v Government of Malaysia (1977): Corporations cannot be equated with the government. CLASSIFICATION OF 1) Financial Institutions: PUBLIC INCORPORATIONS Example: Bank Negara Malaysia (BNM), which manages currency, reserves, and monetary policy. 2) Promotional and Developmental Undertakings: Focus: Supporting agricultural and non-agricultural activities. Examples: MARA, FELDA, UDA. 3) Commercial and Industrial Undertakings: Profit-driven entities involved in trading and services. Examples: FAMA, MAS, PERNAS. ORGANIZATION OF 1) Departmental Undertakings: PUBLIC ENTERPRISES Example: Malayan Railway, owned and funded by the government but faces bureaucratic inefficiencies. 2) Government Companies: Registered under the Companies Act, controlled by the government as the sole shareholder.  3) Statutory Corporations: Created by specific legislation, e.g., FAMA under the Federal Agricultural Marketing Authority Act 1965. CONTROL OVER PUBLIC 1) Audit Control: ENTERPRISES a) Governed by the Statutory Bodies (Accounts and Annual Reports) Act, 1980. b) The Auditor General ensures funds are efficiently used. 2) Parliamentary Control: a) Statutory bodies must submit audited accounts to Parliament. b) Limited discussion in Parliament on financial matters. 3) Ministerial Control: a) Ministers oversee corporation operations and appointments. b) Government companies follow Companies Act regulations. 4) Judicial Control: a) Courts ensure corporations act within their defined powers (ultra vires doctrine). b) Example: PETRONAS v Chaeh Kam Chiew (1987) case on public interest litigation.