Chapter 6

Contents
• Eligible applicant for the remedies
• Powers of the court in granting relief
• Types of remedies
• When remedy can be refused
Qua Warranto

• Means “by what warrant or authority”.

• Only when someone has taken/usurped the office of another – the order seeks to
look for a reason which justifies the taking of such a office.
• It is issued to restrain the authority or candidate from discharging the functions
of public office.
• Lim Cho Hock v Gov of the State of Perak, Menteri Besar, State of Perak and
President, Municipality of Ipoh [1980] 2 MLJ 148
• Various factors to consider as well (page 259)
Habeas Corpus

• Issued to secure release on illegal detention of a person.

• Very common if an individual's right is infringed under art. 5 of the

Federal Constitution and a right for a habeas corpus to requested under
art. 7

• section 365 CPC

• Grant is as of right and is a non-discretionary remedy. Therefore, Other

availability of remedies does not effect the court to grant this remedy.
• Yeap Hock Seng @ Ah Seng v Minister for Home Affairs, Malaysia & ors
[1975] 2 MLJ 279

• Madjai Bin Sanusi v Pengarah Imigresen, Johor & Ors [2000] 5 MLJ 116

• Murugan S/O Palanisamy & Ors v Deputy Minister Of Home Affairs &
Ors [1999] 6 MLJ 334
Damages

• Order 53, r5 of ROC

• 2 conditions:
• Included in the statement in support of his application for leave a claim
for damages, AND
• the Court is satisfied that, if the claim has been made in an action
begun by the applicant at the time of making his application, he could
have been awarded damages.

• Mohd Faizal bin Musa v Minister of Home Affairs [2017] 11 MLJ 397
• Sabil Mulia (M) Sdn Bhd v Pengarah Hospital Tengku Ampuan Rahimah &
Ors [2005] 3 MLJ 325

• Empayar Canggih Sdn Bhd v Ketua Pengarah Bahagian Penguatkuasa

Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna
Malaysia & Anor [2018] Supp MLJ 16
When remedy can be refused
• Fault-due to delay on the part of the
applicant or due to the conduct claimant.
• Therewas no error in the decision making
process.
• If an ouster clause prevents the review.
• Policy consideration.
Ouster clause
• The meaning of ouster clause
• Examples of ouster clause
• Instances when courts can overlook these clauses
• English approach on ouster clause
• Malaysia approach on ouster clause
The meaning of ouster clause
• The Parliament recognizes the rule of law – by granting the power to one
body to make decisions and allows the other to question the validity of its
decision making process through the judicial review.

• However, the right to question this decision making process comes with
limitations.

• Partial or total ouster clause.

• The Parliament when drafting the statute may insert a finality clause – which
prevents judicial reviews.
Examples of Ouster Clauses

• s9(6) Industrial Relations Act 1967

• s33B of the Industrial Relations Act 1967

• Section 59A Immigration Act 1959/63

English courts in ouster clause

• The English courts have disregarded such clauses if the decisions made by
the body are caused by jurisdictional error.

• Anisminic v Foreign Compensation Commission [1969] 2 AC 47.

Cases where an ouster clause can be set aside in
Malaysia
• The earlier examples clearly
prevents judicial intervention
• But, there are possible
circumstances which could
allow judicial intervention
• R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147

• The case discussed the scope of the Court`s jurisdiction and its role in
judicial review and the effect of ouster clauses
• A decision susceptible to judicial review is not only open to challenge on
the ground of procedural impropriety but also on the grounds of illegality
and irrationality; and in practice, this permits the Court to scrutinize such
decisions not only for process but also for substance, that is the merits of
the decision itself.
• Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and
other appeals [2018] 1 MLJ 545
• “Nevertheless, it was settled law that the supervisory jurisdiction of
courts to determine the legality of administrative action could not be
excluded even by an express ouster clause. It would be repugnant to the
rule of law and the judicial power of the courts if the registrar’s decision
was immune from review.”

• Other case?
Policy Consideration
• What is policy consideration?
• A course or principle of action adopted or proposed by an organization or
individual.
• The general principles by which a government is guided in its management
of public affairs, or the legislature in its measures to the welfare or
prosperity of the state or community.
• Dr Michael Jeyakumar Devaraj v Peguam Negara Malaysia [2013] 2
MLJ 321
• “We have no hesitation in accepting that the executive's discretion,
whether by statute or prerogative is amenable to judicial review.
However, whether such discretion is amenable to judicial review is
dependent on the facts of each case…”
• “Courts must be wary of unduly extending its judicial arms to policy
matters which are exclusively within the domain of the executive.
Unwarranted usurpation and transgression by the judiciary into the
realm of the executive and vice versa will bring about disrepute to
our system of government which upholds the separation of powers
between the three main components vis a vis the executive, the
legislature and the judiciary.”