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REMEDIES

GLUP 1113 CONSTITUTIONAL LAW I

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INTRODUCTION
• When a person feels aggrieved at the hands of the administration
because of the infringement of any of his rights, or deprivation of
any of his interests, he wants a remedy against the administration
for vindication of his rights and redressal of his grievances.
• Generally the purposes of judicial review are as follows;
 Protection of the individual against illegal acts of the
administration
 Providing remedies for wrongs done to him
 Ensuring that administrative bodies act lawfully and not
unlawfully
 Ensuring that administrative bodies perform their duties.

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HABEAS CORPUS
 Nature of habeas corpus
 The order of habeas corpus is used primarily to secure the
release of a person who has been arrested unlawfully or without
any legal justification.
 It enables the immediate determination of the right of the
person as to his freedom.
 The high court will quash an illegal arrest of a person by issuing
habeas corpus
 A prayer for the order may be made by the prisoner himself, or
in case he is unable to do so, by someone else on his behalf.

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• Position in Malaysia
 A5(1) of the federal Constitution – ‘No person shall be deprived of
his life or personal liberty save in accordance with law’.
 A5(2) FC – ‘where complaint is made to a HC or any judge thereof
that a person is 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 release him’.
 The power conferred on the HC to issue habeas corpus through
clause I in the schedule, read with section 25(2) of the Courts of
Judicature Act 1964.
 S365 of the CPC – the HC may whenever it thinks fit direct that any
person who ‘is alleged to be illegally or improperly detained in public
or private custody within the limits of the federation’, be set at
liberty.

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• Unlawfully arrested and detained.
 The grant of habeas corpus is as of right and it is not within the
discretion of the Court to issue or not to issue the order if the person
has been unlawfully arrested.
 Habeas corpus is not issued if the complainant is under lawful, and
not unlawful, arrest.
 Ooi Ah Phua v Officer in Charge, Criminal Investigation, Kedah
Ooi was detained as there was reasonable suspicion against him that he
was involved in armed robbery. By the time he filed his application for
habeas corpus, he came to be detained under an order of a magistrate.
His application was rejected because his detention was lawful. When a
person has been detained by a court on a criminal charge, habeas
corpus cannot be issued to release him as he is not illegally detained.

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• A5(3) of the FC has 2 limbs –
 Where a person is arrested he shall be informed as soon as may be of the grounds of
his arrest.
 He shall be allowed to consult and be defended by a legal practitioner of his choice
• Ooi Ah Phua – habeas corpus was sought on the ground that the accused was denied
the right to consult his lawyer while in detention as laid down in A5(3) and
therefore, his detention became unlawful. FC: Yang Amat Arif Sufian (Lord
President) in his judgment had this to say “With respect, I agree that the right of an
arrested person to consult his lawyer begins from the moment of arrest, but I am of
the opinion that that right cannot be exercised immediately after arrest. A balance
must be struck between the right of the arrested person to consult his lawyer on the
one hand and on the other hand the duty of the police to protect the public from
wrongdoers by apprehending them and collecting whatever evidence exists against
them.” In short, this decision allowed the police the deny (or rather stay) the
arrested person’s constitutionally guaranteed right whilst during police detention.

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• On the other hand, if the 1st limb of A5(3) is not complied
with, courts do issue habeas corpus.
• Yit Hon Kit v Minister of Home Affairs, Malaysia
The applicant was arrested under section 3(1) of the
emergency (public Order and prevention of crime)
ordinance 1969 on 26 December 1985 but was informed of
the grounds of his arrest on 21 February 1986, when a
detention order under s4(1) of the ordinance was served on
him. A period of 57 days thus elapsed between his arrest and
his being informed of the grounds therefor. There was
inordinate delay and there was, thus, insufficient compliance
with A5(3) and his arrest under s3(1) became invalid.

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• Court: ‘it is of the first importance for a person arrested
under s3(1) to know, at the earliest possible moment by
virtue of what power he is being arrested’. If he is not given
this information, he cannot know what his rights and
remedies to challenge his arrest. He must also be informed at
the same time the grounds of his arrest. The expression ‘as
soon as may be’ in A5(3) has been interpreted to mean ‘as
nearly as is reasonable in the circumstances of the particular
case’. The court ruled that his arrest under s3(1) having
become illegal because failure to comply with A5(3), the
order of detention served on him under s4(1) was also
invalid.

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 Restricted residence
 Cheow Siong Chin v Menteri Dalam Negeri, Malaysia
 Fact; an order made under the Restricted Residence
Enactment requiring the applicant to reside within a specified
town for a period of 3 years and also placing him under police
supervision, was challenged through an application of habeas
corpus.
 SC: rejecting the application – ruled that a quantitative
restriction imposed on the liberty of an individual by way of
confinement within a given parameter cannot be challenged
through an application of habeas corpus.

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MANDAMUS
 The order of mandamus is a command issued by the HC asking an authority to
perform a public duty imposed upon it by law.
 Mandamus can be granted only when
 A legal duty is imposed on an authority, and it does not perform the same
 The applicant has a legal right to compel the performance of the public
duty prescribed by law.
 What can be enforced through mandamus is a duty of a public nature, the
performance of which is imperative and not optional or discretionary with the
concerned authority.
 The issue of mandamus is a matter of the court’s discretion – it is not issued if
there is an alternative remedy available
 Under Order 53 of the Rules of the High Court, leave of the HC must be
secured before making an application for an order of mandamus

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• An order in the nature of mandamus can be granted under s44 of the specific relief
act 1950.
• S44(1) – a judge may make an order requiring any specific act to be done or
forborne, by any person ‘holding a public office’ or by any corporation.
• 5 cumulative conditions have to be fulfilled before mandamus can be issued;
 An application for such an order has to be made by a person whose property,
franchise,or personal right would be injured by the forbearing or doing of the
said specific act.
 Such doing or forbearing is clearly incumbent on the person in his or its public
character. There must be under some law some duty cast upon the public
officer
 In the opinion of the judge, the doing or forbearing is consonant with right and
justice
 The applicant has no other specific and adequate legal remedy
 The remedy given by the order applied for will be complete.

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• S44(2) – a judge is not authorised to make an order –
 Binding on theYDPA; or
 On any servant of any government in Malaysia,as such, merely
to enforce the satisfaction of a claim upon that government; or
 Which is otherwise excluded by any law for the time being in
force.
• Mansor bin mat Tahir v Kadi Daerah Pendang Kedah
 HC: refused to issue an order to the chief registrar of
marriages to register the marriage of the applicant as all the
conditions laid down in s44 were not fulfilled on the instant
case

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CERTIORARI & PROHIBITION
 Certiorari is the principal means of invoking judicial review over
tribunal, or quasi judicial bodies and even to any body determining
the rights of the people.
 In Malaysia, certiorari has been frequently invoked to quash the
discretionary decisions of ministers and other administrative
authorities.
 Certiorari is issued when the body in question has completed its
work, disposed of the matter and given its determination.
 Prohibition is issued to prohibit a body from continuing with the
case further – when the body concerned still functioning and is
seized of the matter and has not yet reached its determination.

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• Certiorari & prohibition is an extraordinary and discretionary
remedy with the high court –
 The court may refuse to issue certiorari if the applicant has an
alternative remedy available to him.
 The court may refuse to issue certiorari and prohibition if the
applicant has suffered no real injustice, or the application lacks
real merit, or if the applicant has failed to disclose relevant
facts.
• Issued to whom? - Certiorari has been issued to various types of
bodies, statutory as well as non-statutory
• Standing - Certiorari would be issued on the application of anyone
whose interest was affected by what had been done.

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 Chief Building Surveyor v Makhanlall & co
 Fact: the tenants in a building challenged an order to demolish the building
as being unfit for human habitation on the ground that they had not been
given any hearing before the order was passed. The question whether the
tenants had standing to ask for certiorari to challenge the said order.
 Held: the respondents had standing in the matter because, as tenants in the
building, they had legitimate, ‘direct and substantial’ interest. The order
prohibiting the use of the building for human habitation and calling upon
the occupants of the building to vacate was an order against the
respondents and enforceable against them and so they had locus standi to
challenge the order.

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 District Council Central, Province Wellesley vYegappan
 Fact: the district council approved the site plan and building
constituting a housing scheme on a piece of land. The
respondent, the owner of an adjacent piece of land, challenged
the council’s approval of the plans. He moved the court for the
issue of an order of certiorari to quash the council’s sanction
on the ground of breach of certain by-laws, excess of
jurisdiction etc.
 FC: the applicant had no legal standing to seek certiorari for
neither his right of ownership nor that of possession of his
land were affected by the alleged breaches of the by-laws.

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 Grounds for issue of certiorari & prohibition
1. Natural justice
 Malayawata Steel Bhd v Union of Malayawata Steel
Workers – certiorari was granted for denial of
natural justice to one of the parties before it by the
labour court.
 Coelho v Public Services Commission – certiorari
was issued to the commission quashing its decision
to dismiss a civil servant without giving him a
hearing.

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2. Error of jurisdiction
• Fung Keong Rubber Manufacturing (M) Sdn Bhd v Lee Eng Kiat
 Fact: a workman made representation under s20(1) of the Industrial
Relation Act after the statutory time-limit of one month after his
dismissal. So, it was time-barred, but the Minister referred the
matter to the Industrial Court.
 FC: this time-limit was ‘so strict that it goes to the jurisdiction of the
industrial court to hear the complaint. By that we meant that, if the
claim is presented just one day late, the court has no jurisdiction to
consider it’. The Minister exercised his discretion to refer the matter
to the industrial court wrongly and the court could interfere with
the Minister’s discretion. In the circumstances, prohibition could be
issued to the Industrial Court as it had made an error of law to its
jurisdiction.

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3. Error of law
• Tan Hin Jin v Prabhulal G Doshi – Tun Suffian FJ, to succeed in an
application for certiorari, the applicant must show that not only did the
tribunal err in law but also that the error in law was apparent on the face
of the record.
• Mohamed v Commissioner of Lands
 Fact: some lands was acquired by the husband during the coverture
and the wife also contributed to the development of the land. There
is a presumption in such a situation that the wife if divorced gets a
share in the land. The commissioner in the instant case denied any
such right to the wife.
 Held: this decision was held to be based on an error of law apparent
on the face.

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4. Procedural defects
• Certiorari may be issued to quash the decision arrived at without
observing the mandatory procedure.
• WongYet Eng v Chin Cheng Foo
 Fact: the Appeal board failed to decide within the stipulated time-
limit and this was challenged.
 FC: the requirement as to the time limit within which to decide was
‘directory rather than mandatory’ and that non compliance
therewith would not nullify the board’s decision. The court pointed
out that the purpose behind the rule in fixing the time limit for
hearing an appeal was to ensure that appeals are speedily dealt with.
But the composition of the appeal board makes it difficult to
implement the time limit.

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DECLARATION
 A declaration merely declares what the legal rights of the
concerned parties are.
 A declaratory order has no coercive force as such nor does it quash
any decision which may have been taken by an administrative
authority.
 S41 of SRA – any person entitled to any ‘legal character’ or to any
‘right as to any property’, may institute a suit against any person
denying, or interested to deny, his title to the ‘character’ or
entitled.
 Order 15 rule 16 Rules of Court 2012– the plaintiff needs to
establish only that his legal interests are peculiarly affected.

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• Rhina Bar v Malaysian Bar council
 Fact: the plaintiff, a practising lawyer, was suspended for 3
months by the disciplinary committee concerned under the
legal profession act. She appealed to the HC but did not
succeed. She then filed an appeal to the FC and engaged a
lawyer to appear on her behalf. The bar council barred the
lawyer from appearing for the plaintiff on the ground of
conflict of interest.
 HC: on an application by the plaintiff, the HC granted a
declaration to the effect that the bar council’s resolution
barring the lawyer to appear on her behalf was null and void
and of no effect.

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• Datuk Syed Kechik bin Syed Mohamed v the Government of Malaysia and Sabah
 Fact: the applicant was a Malaysian citizen by operation of law. On 6
October 1965, he was sent by the federal government to Sabah as political
secretary in the federal ministry of information and broadcasting there.
Later he became political secretary to the federal minister of Sabah affairs.
He resigned on 31 august 1967. since the day of his entry into Sabah, he
had been continuously resident in Sabah, where he had his permanent
residence. His 3 children were all born there. On 16 June 1967, he
obtained an entry permit for permanent stay. In December 1967, he was
admitted to the Sabah bar and practised law there ever since. He obtained
an order from the native court at KK that he was ordinarily resident in
Sabah, was a member of people indigenous to the federation of Malaysia,
had lived as, and had been a member of, a native community for a
continuous period of 5 years immediately preceding his claim to be a
native, had a good character throughout that period and his stay in Sabah
was not limited under the immigration ordinance.

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 He was a senator of the Dewan Negara for 5 years from 29 September 1973 and
had acquired considerable immovable properties and commercial interests. He
was issued with a Sabah identity. As a result of the change in government in
Sabah in April 1976. he became apprehensive that he would be expelled from
Sabah. He sought declaration from the HC that he was a person belonging to
the state and a permanent resident thereof under the relevant law.
 HC: declined to make the declarations sought on the ground that the
application was premature.
 FC: rejected the initial objection of the government that the action was
premature and maintainable since the government had not yet acted in the
matter. ‘in my view, the applicant has a real fear that he may be expelled from
Sabah, and it is desirable for the court to declare whether or not the federal and
state government have a right to expel the applicant, so that all parties
concerned will know exactly where they stand’.

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INJUNCTION
• A court orders a person not to do a thing, or to do something.
• The most common use of injunction is in the negative sense, as a
preventive measure to restrain a person from doing a wrongful act.
• In Malaysia, the provisions for the issue of injunctions are contained in
section 50 to 55 of the SRA.
• S50 – preventive relief can be granted at the discretion of the court by
an injunction, temporary or perpetual.
1.Temporary injunction
 S51(1) – a temporary injunction continues for a specified time, or
until the further order of the court
 It may be granted at any stage of a suit, and is regulated by the law
relating to civil procedure.

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 The purpose is to maintain the status quo pending hearing of the suit
and final determination of the issue on merits.
 It is known as an interlocutory injunction and can be granted ex parte
 Wong Keng Sam v Pritam Singh Brar
 Fact: the public services commission appointed a committee of
inquiry to inquire into certain charges against the plaintiff but the
commission directed it to take further evidence against him. The
plaintiff sought several declarations against the committee, viz that
it had become functus officio, and that the taking of further
evidence by it was illegal and void. He also sought an injunction
restrain the committee from taking further evidence and also
interlocutory injunction pending the making of the declaration an
the issue of the injunction as sought.

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 Held: the court refused to issue an interim/interlocutory injunction saying that to
get such an injunction, the plaintiff must make out a prima facie case that he would
succeed in his claim for the declaration which he was seeking. The court found no
prima facie case.
• Majlis Perbandaran Pulau Pinang v Boey Siew Than
 Fact: the majlis sought an injunction against the respondent to restrain him
from illegally operating an eating house.
 FC: before a court issue an interlocutory injunction, it s necessary for it to be
satisfied that there are serious question of law or fact to be tried. If the court so
satisfied, and if the applicant has a real prospect of ultimate success, it will then
consider the question of balance of convenience. This depends on whether the
inconvenience or injury which the applicant is likely to suffer if the injunction
is refused outweighs, or is outweighed, by the injury which the respondent will
suffer if an injunction is granted. The balance of convenience was in favour of
the majlis, and the authority had bought the case solely to protect public
interest.

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2. Perpetual injunction
 S51(2) – a perpetual injunction can only be granted by a decree
made after a hearing and upon the merits of the suit.
 By such an injunction, the defendant is perpetually enjoined
from asserting a right, or from committing an act, which
would be contrary to the rights of the plaintiff.
 s52(1) – a perpetual injunction may be granted to prevent the
breach of an obligation existing in favour of the applicant,
whether expressly or by necessary implication.

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 S52(3) – when the defendant invades or threatens to invade the
plaintiff’s right to or enjoyment of property, the court may grant a
perpetual injunctions in a case where
 there exists no standard for ascertaining the actual damage caused,
or likely to be caused, by the invasion, or
 where pecuniary compensation would not afford adequate relief, or
 where it is probable that pecuniary compensation cannot be
obtained for the invasion.
• S53 – when to prevent the breach of an obligation, it is necessary to
compel the performance of certain acts which the court is capable of
enforcing, the court may in its discretion grant an injunction to prevent
the breach complained of, and also to compel the performance of the
requisite acts.

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 S54 – certain injunction cannot be granted
 To interfere with the public duties of any
department of any Government in Malaysia
 To stay proceedings in any criminal matter
 When equally efficacious relief can certainly be
obtained by any other usual mode of proceeding
 The conduct of the applicant or his agent has been
such as to disentitle him to the assistance of the
court

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 Tan Suan Choo v Majlis Perbandaran Pulau Pinang
 The majlis being a local authority under section 2 of the local
government act 1976 would not fall within the scope of the
words ‘any department of any government in Malaysia’ found
in s54(d) of the SRA. These words mean the government of a
state or the government of Malaysia or any department
thereof. Reading the provisions of the local government act,
the court concluded that the local authorities are significantly
free from government control and do not exercise government
functions. Therefore, an injunction can be issued against a local
government.

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• S29(1)(a) of the Government Proceedings Act 1956
 Where in any proceedings against the government any such relief is
sought as might in proceeding between subjects be granted by way
of injunction or specific performance, the court shall not grant an
injunction or make an order for specific performance but may in
lieu thereof make an order declaratory of the rights of the parties
• S29(2) –
 The court shall not in any civil proceedings grant any injunction or
make any order against an officer of the government if the effect of
granting the injunction or making the order would be to give any
relief against the government which could not have been obtained in
proceedings against the government.

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 Haji Ismail bin Che Chik v State Commissioner, Penang
 Fact: the applicant sought an injunction against the
commissioner restraining him from making any revision or
demand for or collecting the increased rent on the ground that
the several subsidiary legislations providing for an enhanced
rate of rent payable on the land held in the grant were void and
of no effect.
 HC: refused to grant an injunction against the commissioner of
lands and mines, a state official, but in lieu thereof it could
only grant a declaration.

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• Tengku Haji Jaafar v Government of Pahang
 Fact: the appellants claimed that the land in question was given
to them by the Sultan of Pahang. The state government
disputed this claim. The appellants had filed a civil suit against
the government. They alleged that the government was likely
to proceed with the alienation of the said land for development
despite the pending proceedings in the court and, they
requested that he court issue an interim injunction restraining
the government from dealing with the property in question
pending the settlement of the dispute by the court.
 HC: an interim injunction against the state government was
not barred under s29(1).

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 Lim Kit Siang v UEM
 Lim sought an interlocutory prohibitory injunction
restraining UEM from signing the proposed contract
with the government.
 HC: refused to grant such an injunction on the
ground that although in form it was sought against
UEM, ‘it would, if granted, operate in substance and
effect as an injunction against the government in
Malaysia, the fourth defendant’.

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