Chapter 6

Contents
• Eligible applicant for the remedies
• Powers of the court in granting relief
• Types of remedies
• When remedy can be refused
Eligible applicant for the remedies
• Applications (O. 53, r. 2) of ROC 2012
(4) Any person who is adversely affected by the decision of any public authority
shall be entitled to make the application.

• Tooheys Ltd v Minister For Business and Consumer Affairs (1981) 36 ALR 64
• Not be narrowly constructed

• Malaysian Trade Union Congress & Ors v. Menteri Tenaga, Air dan Komunikasi &
Anor [2014] 2 CLJ 525; [2014] 3 MLJ 145.
• Test: The applicant has a real and genuine interest in the legality of the
decision made against him/her which adversely affected him/her.
Powers of the court in granting relief
• Application for judicial review (O. 53, r. 1) of ROC 2012
(1) This Order shall govern all applications seeking the relief specified in
paragraph 1 of the Schedule to the Courts of Judicature Act 1964 and for the
purposes therein specified.

• Para. 1 of the Schedule to the Courts of Judicature Act 1964

Prerogative writs
1. Power to issue to any person or authority directions, orders or writs,
including writs of the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, or any others, for the enforcement of the rights
conferred by Part II of the Constitution, or any of them, or for any purpose.
• Applications (O. 53, r. 2) of ROC 2012
(2) An application for judicial review may seek any of the reliefs, including a
prayer for a declaration, either jointly or in the alternative in the same
application if it relates to or is connected with the same subject matter.
Types of remedies
• Declaration
• Certiorari
• Prohibition
• Mandamus
• Injunction

• Qua Warranto

• Habeas Corpus

• Damages
Declaration

• States (declares) the rights of the affected party.

• No coercive force nor does it quash any decision which may have been taken by
admin body.

• Although such remedy is not enforceable per se, but it can be used with other
remedies if successful. It may effectively undermine the enforceability of an
administrative act. For example, an order of the Minister which was declared as
invalid cannot be enforced legally.
• s41 SRA: entitlement to a legal character, or status or right to property. The
phrase ‘legal character’ in s41 is very broad, and it means a position recognized
by law. It includes legal status of a person and covers many situations where
a legal right of a person is infringed by an illegal or ultra vires action of an
administrative authority.

• Mohamad Hassan bin Zakaria v Universiti Teknologi Malaysia [2017] 6 MLJ 586
Certiorari

• Latin word ‘Certiorare’ meaning to inform. It is a decision by the higher

Court to hear an appeal from a lower court to quash a decision of a judicial
or quasi-judicial authority with the intention of restraining any ultra vires
exercise of powers.
• Re Haji Sazali [1992] 2 MLJ 864
• A certiorari is an order exercise by the High Court in its supervisory
jurisdiction over inferior tribunals or public authorities. It includes a
magistrate’s order for detention.
• A retrospective order that brings a decision made by the authority before
the court and prays that such decision to be quashed.
• It is issued when a body has infringed norms of NJ, or acts under an invalid
law, or commits errors of jurisdiction, or there is an error of law (non-
jurisdictional error) apparent on the face of record, or where decision is
based on findings of fact for which there is no legal evidence in support.

• JP Berthelsen v Director General of Immigration, Malaysia & Ors [1987] 1

MLJ 134

• Court may take into account whether the applicant has an alternative legal
remedy available to him.
• Badat bin Drani v Tan Kheat [1953] 1 MLJ 67
Prohibition

• Extraordinary prerogative writ of a preventive nature. The underlying

principle is that ‘prevention is better than cure .’
• A prospective order to quash a decision which is going to be made.
• The writ of Prohibition is issued by the court exercising the power and
authorities from continuing the proceedings as basically such authority has
no power or jurisdiction to decide the case.
• Once the action has been carried out then prohibition is too late and
certiorari is required.
• OSK & Partners Sdn v Tengku Noone Aziz & Anor [1983] 1 MLJ 179
Mandamus
• Directed to private or municipal corporations, or
to any of its officers, commanding the
performance of a particular actor duty mandated
by law
• It is enforced to ensure that the public duties are
performed by the public authorities.
• Mohamad Hassan bin Zakaria v Universiti
Teknologi Malaysia [2017] 6 MLJ 586

More or less the same?

• YB Khalid Abdul Samad v Majlis Agama Islam
Selangor [2016] 1 LNS 604
Injunction
• Mainly to stop the decision from taking effect.
• 4 types:
• Perpetual injunction
• Interlocutory injunction
• Prohibitory injunction
• Mandatory injunction
• Cannot be granted against the government?
• section 54(d) SRA 1950
• section 29 Government Proceeding Act 1956

• M v Home Office [1994] 1 AC 377

• Sabil Mulia (M) Sdn Bhd v Pengarah Hospital Tengku Ampuan Rahimah &
Ors [2005] 3 MLJ 325

• Saonah Bte Bedul v Pentadbir Tanah Dan Daerah Melaka Tengah [1994] 3
MLJ 758