LAW 309 Chapter 5 Remedies PDF

LAW 309 Chapter 5 REMEDIES PREPARED BY : IZYAN FARHANA ZULKARNAIN 1  INTRODUCTION  Important aspect of Administrative Law: Remedial and redressal  When a person feels aggrieved at the hand of the administration because of infri...

LAW 309 Chapter 5 REMEDIES PREPARED BY : IZYAN FARHANA ZULKARNAIN 1  INTRODUCTION  Important aspect of Administrative Law: Remedial and redressal  When a person feels aggrieved at the hand of the administration because of infringement of his right or deprivation of his interests, he may want a remedy against the administration  Effective method to secure remedy against the administration is to invoke the power of the Courts to issue orders of habeas corpus, mandamus, certiorari, prohibition, injunction and declaration  Jurisdiction of the High Courts to issue such orders arise from the provision in Paragraph 1 of the First Schedule and Section 25 of the Courts of Judicature Act 1964 (“CJA 1964”) IZYAN FARHANA ZULKARNAIN 2 TYPES OF REMEDIES Habeas Corpus Mandamus Public Law Certiorari (CJA 1964) Remedies Prohibition Relator Action Declaration Private Law Injunction IZYAN FARHANA ZULKARNAIN 3  (1) HABEAS CORPUS Definition of habeas corpus: It is an order issued by the Court to release a person who has been detained unlawfully or without any legal justification Right to habeas corpus: Guaranteed by Federal Constitution – Article 5 Complaint - Court inquire into the complaint – produce the detainee to Court – release the detainee (unless Court finds that the detention is lawful) Power of High Court to issue habeas corpus: i. Courts of Judicature Act 1964 (Revised 1972) – Section 25 (2); and ii. Criminal Procedure Code Revised 1999 – Section 365 IZYAN FARHANA ZULKARNAIN 4  Habeas Corpus  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” IZYAN FARHANA ZULKARNAIN 5  Habeas Corpus Application for habeas corpus: An application for habeas corpus may be made by the prisoner (detainee) himself or by someone else on his behalf Purpose of habeas corpus: It is used to secure a release of a person, detained unlawfully or without just cause Court shall quash an illegal detention of a person by issuing High Court order IZYAN FARHANA ZULKARNAIN 6  Habeas Corpus Ooi Ah Phua v Officer in Charge, Criminal Investigation, Kedah 2 MLJ 198  Ooi’s application for habeas corpus was rejected by the Court because his detention was lawful  He was detained on a reasonable suspicion of his involvement in armed robbery. By the time he filed his application for habeas corpus, he was detained by an order of a Magistrate When a person has been sentenced to imprisonment by the Court on a criminal charge, habeas corpus Reaso cannot be issued to release him as he is not illegally n detained. Habeas corpus cannot be issued to challenge the legality or validity of a trial IZYAN FARHANA ZULKARNAIN 7  Habeas Corpus Re Datuk James Wong Kim Min 2 MLJ 245  Court issued habeas corpus setting free the detainee because the order of detention was served while he was in West Malaysia, but the law relating to his detention applied only in Sarawak and had no legal force outside Sarawak. A detention order was invalid and his detention was unlawful IZYAN FARHANA ZULKARNAIN 8  Habeas Corpus  Habeas corpus will be granted if the authority detained a person without applying the procedure provided by relevant law  Eg. - Procedure under Article 5 (3) of the Federal Constitution was not followed, whereby the detainee was not informed of the ground of arrest “as soon as may be” Yit Hoon Kit 2 MLJ 638 2 MLJ 638 Fact: Applicant was arrested on 26.12.1985 but was informed of the ground of his arrest on 21.2.1986 when a detention order under the Emergency Ordinance was served on him (57 Days) Held: Unreasonable delay and non-compliance with Article 5 (3). His arrest became illegal and the detention order served on him was invalid. Habeas corpus was ordered IZYAN FARHANA ZULKARNAIN 9  Sukumaran s/o Sundaram v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia 2 MLJ 247  Habeas corpus was granted because the detention order was signed by the Deputy Minister and not by the Minister of Home Affairs as required by law Lee Weng Kin v Menteri Hal Ehwal Dalam Negeri Malaysia 2 MLJ 472  An order of restricted residence was declared null and void as the copy of the order served on the applicant was not signed by the Minister and merely the rubber stamp of his name IZYAN FARHANA ZULKARNAIN 10  (2) MANDAMUS Definition: An order issued under Section 44 of the Specific Relief Act 1950 by the High Court requiring the public authority to perform a public duty imposed by law Purpose: * 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 IZYAN FARHANA ZULKARNAIN 11  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 Mandamus is a discretionary remedy Application for mandamus must be with the consent of the High Court Section 2 (a) of Public Authorities Act 1948 (Revised 1978) – 3 Years to bring an action for mandamus against any public authority IZYAN FARHANA ZULKARNAIN 12  Conditions to be fulfilled before mandamus is issued - Section 44 of Specific Relief Act 1950: Applicant must show that his personal right would be injured or defeated if the order were not made by the Court There must be a provision under the law imposing such duty on the public officer In the opinion of the Judge, the doing or forbearing is consonant with right and justice Applicant has no other remedy A remedy given by the order applied for will be completed IZYAN FARHANA ZULKARNAIN 13 Restrictions on Issuing Mandamus Government Servant It is merely to enforce the satisfaction of a claim upon that government If it is YDPA excluded by any law Section 44 (2) Specific Relief Act 1950 – Mandamus will not be issued against: IZYAN FARHANA ZULKARNAIN 14  What if alternative remedy is available? No Mandamus will be issued Semantan Estate Sdn. Bhd. V Collector of Land Revenue Wilayah Persekutuan 2 MLJ 345 A Collector of Land Revenue made an award for land acquired by the government, and the award was lower than demanded. The appellant had a right to appeal against the award. Appellant did not seek for appeal. After the lapse of the right of appeal, appellant seek for mandamus. Supreme Court refused to grant mandamus because the alternative remedy is available (right to appeal) IZYAN FARHANA ZULKARNAIN 15  Can it be issued to Government? In Malaysia, mandamus cannot be issued to the government A Chandera Segaran v PM of the Federation of Malaya MLJ 278 It was decided that no one has a right to pension and mandamus cannot be issued directing the government to give pension to the applicant IZYAN FARHANA ZULKARNAIN 16  Mandamus Mandamus may be issued to enforce a mandatory legal duty against a public official Khoo Siew Bee v Ketua Polis Kuala Lumpur 2 MLJ 49 High Court directed Ketua Polis Kuala Lumpur under Section 44 (1) of Specific Relief Act 1950 to supply the applicant (“the accused”) with a certified copy of the cautioned statement made by him, as it was a public document in which the applicant was interested IZYAN FARHANA ZULKARNAIN 17  (3) CERTIORARI Definition: Certiorari is a remedy available to quash a determination or decision already made Function: * 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 Nature: Certiorari is a discretionary remedy IZYAN FARHANA ZULKARNAIN 18  Certiorari  Certiorari will 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 IZYAN FARHANA ZULKARNAIN 19  Badat Drani v Tan Kheat MLJ 67  High Court refused to grant certiorari to quash an order of the Rent Board because the petitioner can appeal to the High Court against the Rent Board’s order Appeal to High An alternative remedy Court available to the petitioner IZYAN FARHANA ZULKARNAIN 20  Certiorari  Conditions to apply: Only those whose interest was affected by the administrative decision can apply for certiorari (standing) Application must be made with the consent of the High Court Application for certiorari must be made within 6 Weeks of the date of the decision to be challenged (proceeding) IZYAN FARHANA ZULKARNAIN 21  Eg. of decided cases where certiorari was granted i. Denial of natural justice Coelho v The Public Services Commission MLJ 12 Certiorari was issued to the PC quashing the decision of the Public Services Commission to dismiss a civil servant without giving him a hearing IZYAN FARHANA ZULKARNAIN 22 ii. Error of jurisdiction  Error of jurisdiction arises when there is a complete absence of jurisdiction in an authority over the subject of matter of the dispute Re Ijot Bte Beliku 1 MLJ 22 2 claimants over the deceased’s estate. A probate officer ordered that the said property be divided equally. High Court quashed the decision of the probate officer by issuing certiorari because the officer has no jurisdiction to issue such order IZYAN FARHANA ZULKARNAIN 23 iii. Question of fact Captain Alimudin v Lembaga Pelabuhan Kelang 1 MLJH 685 Respondent (a statutory body) suspended the applicant’s pilot licence for a month. High Court issued certiorari to quash the decision because there was no valid licence issued to the applicant by the respondent. Thus, the respondent has no jurisdiction on him. Certiorari was issued because jurisdictional fact was absent IZYAN FARHANA ZULKARNAIN 24 iv. Error of law Lian Yit Engineering Works Sdn. Bhd. v Loh Ah Fon & Ors. 2 MLJ 41 High Court quashed a decision of the Industrial Court on the ground of errors of law on the face of the records. In this case, the strike of the employees was illegal. Industrial Court found it legal and thus erred in the law IZYAN FARHANA ZULKARNAIN 25 v. Procedural defect Certiorari may be issued to quash the decision made without observing the mandatory procedure only IZYAN FARHANA ZULKARNAIN 26  (4) PROHIBITION Nature: Prohibition is issued to prohibit or prevent the commission of a future act which would be ultra vires or in breach of natural justice Prohibition is a discretionary remedy Grounds for the issuance of prohibition Denial of natural Error of justice jurisdiction IZYAN FARHANA ZULKARNAIN 27  Prohibition  Principles applied for an application of Prohibition is similar to that of certiorari Kee Peng Kwan v Colonel VN Stevenson 2 MLJ 139  Prohibition was issued against the Court Martial on the ground of lack of jurisdiction to proceed with the trial of the applicant IZYAN FARHANA ZULKARNAIN 28  Prohibition  Differences between Certiorari and Prohibition: Certiorari Prohibition Order issued by the High To bring a decision made by Court directed to inferior inferior court or tribunal or court or tribunal or public public authority to the High authority to forbid them Court for review i.e. to from acting in excess of quash the earlier decision jurisdiction or contrary to law Concerned with the Concerned with the decisions of the past (which decisions of the future has already been made) (which has yet to be made) IZYAN FARHANA ZULKARNAIN 29  (5) RELATOR ACTION Definition: Remedy to restrain the administration from continuing a breach of public law although his own personal right is not affected Attorney General may proceed against the public authority which is abusing its powers either at his own motion or at the instance of a member of a public i.e. to apply for an injunction or declaration to restrain public authority from overstepping their lawful powers IZYAN FARHANA ZULKARNAIN 30  Relator Action Advantage: Any citizen may request the Attorney General to institute a relator action, so, eliminating the requirement of standing or locus standi Disadvantages: Absolute Discretion of the Attorney General to institute a relator action or not. Court will not interfere with the exercise or non-exercise of such discretion by the Attorney General in the matter. Attorney General is a member of Government. So, will he institute relator action against Minister or the Government? IZYAN FARHANA ZULKARNAIN 31  Relator Action AG ex rel Mc Whirter v Independent Broadcasting Authority (1973) QB 629 Facts: A member of public sought for an injunction against IBA as they were planning to show an indecent film on TV. Attorney General refused to undertake a relator action. Locus Standi of Mc Whirter was attacked on the ground that since the Attorney General refused to take an action against IBA, thus Mc Whirter could not institute an action on his own Court of Appeal: A member of public could maintain the action. An interim injunction was granted by the Court of Appeal against IBA IZYAN FARHANA ZULKARNAIN 32  Relator Action Gouriet v Union of Post Workers (1978) AC 435  Facts: In 1977, the Post Office Union announced that postal workers should stop all transmission of mail to South Africa for one week. Gouriet ask the Attorney General to give his consent to file a case against UPW for an injunction, but the Attorney General refused. Gouriet then brought the action himself  COA: By following the case of McWhirter, Gouriet was granted an interim injunction  HOL: A plaintiff without a special interest could not seek a declaration or injunction, unless the action was brought in the name of the Attorney General IZYAN FARHANA ZULKARNAIN 33  Relator Action  Order 15 Rule 11 of the Rules of High Court 1980 explains the condition to be followed in respect of the right to sue in the relator’s name  As for example, in order to give validity to the use of the relator’s name in an action, the prior written consent to act as such must be filed at the time of or before the issue of writ IZYAN FARHANA ZULKARNAIN 34  Relator Action AG at the Relation of Pesuruhjaya Ibu Kota v Wan Kam Fong (1967) 2 MLJ 72  Facts: Attorney General sought for a permanent injunction against R to restrain them from using, causing or permitting the premises to be used as a restaurant without the license of the Pesuruhjaya  Court: Attorney General as the guardian of public rights was competent to bring a relator action to restrain interference with a public right or to abate a public nuisance or to compel the performance of a public duty IZYAN FARHANA ZULKARNAIN 35  (6) DECLARATION Definition: An order that declares the legal rights of the parties concerned Nature: Granted at the discretion of the Court IZYAN FARHANA ZULKARNAIN 36  Declaration  Section 41 of the Specific Relief Act 1950 makes a provision for a “declaratory order”  A flexible remedy – no special procedure, not limited to any specific matter, no leave of Court is required, no limitation period for getting a declaration IZYAN FARHANA ZULKARNAIN 37  Declaration Leong Kum Fatt v AG 2 MLJ 197 Court refused to grant a declaration that the applicant’s dismissal from the police force was null and void as there was no breach of natural justice in the inquiry proceeding Joseph v Government of Sarawak 2 MLJ 18 Federal Court upheld the High Court decision granting a declaration that the appellant was a servant of the Sarawak Government from 16.07.1956 onwards. Court refused to grant him a declaration regarding arrears of pay IZYAN FARHANA ZULKARNAIN 38  Declaration Mahan Singh v Govt of Malaysia 2 MLJ 133  Appellant was terminated from a permanent service. He brought an action against the government for a declaration that the termination was void because no reasonable opportunity had been given to him to be heard as required by Article 135 (2)  Privy Council declared his dismissal as void for denial of the right of hearing. A declaration was made that he was remained a member of public service until he was require to retire and he was entitled to receive salary from the date of the termination of service IZYAN FARHANA ZULKARNAIN 39  (7) INJUNCTION Definition: An order by the Court requiring a person to do a thing or not to do something Function: To restrain an administrative authority from an unlawful or ultra vires exercise of power i.e. the purpose is to restrain a person from doing a wrongful act Section 50 until 55 of Specific Relief Act 1950 – Provisions for the issue of injunction IZYAN FARHANA ZULKARNAIN 40  Injunction Types of Injunctions Temporary Perpetual Injunction Injunction S. 50 of SRA S. 51 of SRA 1950 1950 An Can be An A perpetual injunction granted at injunction injunction for a any stage granted can be specified permanent granted of the after a time or until proceeding ly hearing and further order of the upon merits Court of the case IZYAN FARHANA ZULKARNAIN 41  Injunction  Section 54 of SRA 1950 - Injunction cannot be granted: (i) To interfere with the public duties of any department of any government – Section 54 (d) Tan Suah Choo v Majlis Perbandaran PP 1 MLJ 323 Majlis Perbandaran is a local authority under Section 2 of the Local Government Act 1976 (i.e. not within the scope of any department of any government). As such, an injunction can be issued against a local government IZYAN FARHANA ZULKARNAIN 42  Injunction (ii) To stay proceedings in any criminal matters – Section 54 (e) (iii) If an equal relief can be obtained – Section 54 (f) (iv) If the conduct of the applicant has been such as to disentitle him to the assistance of the Court – Section 54 (j) IZYAN FARHANA ZULKARNAIN 43 THANK YOU IZYAN FARHANA ZULKARNAIN 44