Adminstrative Law

Public Body
Use DPP v Manners case. In this case, it was held that public is the body which
has public or statutory duties to perform and performs those duty for the benefit of the
public only. A public body generally obtain its powers from a statute or from a
subsidiary legislation made under a statute or from a non-statute source such as the
prerogative. In the case of O’Reilly v Mackman, the general rule established in this
case is that public law decisions should be challenged in the way of judicial review.
Then just write xxx is a public body so they can be entitled fr judicial review.

Judicial Review Introduction

Judicial review is the procedure to supervise the exercise of public power on the
application of an application of an individual. If a citizen feels that an adminstrative
body or officer exercise their power in an unlawful way or violates his or her rights
then they may apply to the court for judicial review of the decision in order to set
aside the decision and obtain damages. Judicial review is the power of a court to
decide whether a law or decision by the government is constitutional. This power was
established in the case of Marbury v Madison.
Lord Acton says “power corrupts, absolute power corrupts absolutely”.It is well
known that public authorities have wide discretionary powers because not all can be
covered in statute and sometimes statute are silent thus judicial review is essential to
maintain check and balance. For instance, this can be seen in the case of J.P
Berthelson v Director General of Immigration where the plaintiff was given work
permit to work in Malaysia but the home minister revoked it without any reason. Then
the court decided to review the decision of the home minister and held that the way
the license was revoked is not ethical and the court demanded the home minister to
give back the license.
In Malaysia, the person who was affected by the decision of the adminstrative
body or officer can either have the decision reviewed or he/she may request for an
appeal. Under order 53 of Rules of Court 2012, the aggrieved person must file petition
to the high court to review the decision of public authority. The applicant in an
application of Judicial Review has to prove that he had been “adversely affected” by
the adminstrative decision and only then he will be considered as an aggrieved person
for the purpose of judicial review.
In judicial review, the court will only look at the manner the decision was made
which is the overall decision making process and not the correctness of the decision.
The application of judicial review can be seen in the case of Gasing Meridian Sdn
Bhd v Datuk Bandar Kuala Lumpur. In this case, the appellant bought a land for
development but unfortunately it was a hill slope development thus there must be two
stages of approval. The planning permission was granted in the first stage but not in
the second stage. The appallent was not satisfied and appealed to “Appeal Planning
Board” but the board agreed with the view of the respondent. The appellant then
applied to review Appeal Board decision and the court held in favour of the Appeal
Board decision. The court held that it will only look at the decision making process
and not direct them to reverse the decision.
Judicial review doesn’t rely on statutory provisions and it follows the exercise of
judicial functions by the common law courts. This allow the superior court to have an
“inherent power” to ensure all public authorities remain within their limits of their
powers. It should be noted that judicial review is available even if no appeal is
allowed. The three parties of judicial review are superior court, public body and
adversely affected person.

Judicial Appeal
In Judicial Appeal, the power to hear an appeal is entirely statutory. The
elements which should be considered for Judicial Appeal are whether the appeal exist,
to whom it is applied for, on what grounds and the time-limit. Judicial appeal is very
strict and there are many procedures associated with it. In terms of scope, Judicial
Appeal is larger than judicial review. Judicial appeal applicable to ordinary courts,
special tribunals but at times the statute may provide no provision to appeal to any
one. Large number of decisions are not open to appeal to any authority whatsoever.

Procedures for Judicial Review

When it comes to procedures of Judicial Review, the first thing should be noted
is that it is governed under order 53 of Rules of Court 2012. The first provision to be
looked upon is Rule 1(1) in order 53 which allows the application for judicial review.
According to Rule 2(2) in order 53, a person may apply for more than one remedies in
the same application if it connects with the subject matter. However it should be noted
that the court is not confined to the remedy claimed by the applicant and may mould a
remedy according to Rule 2(3) of Order 53. The court has the power to grant damages
according to Rule 5(1) of Order 53. According to Rule 2(4) of Order 53, the person
who has Locus Standi is the person who was adversely affected by the decision,
action or omission of the public body. In the case of Lim Kit Siang v United
Engineers (M) Bhd, the plaintiff had asked for a declaration that the letter of intent
issued by the governmnent to UEM to construct North-South Expressway was invalid.
The Supreme Court the ruled that Lim has no locus standi as he had failed to show
that his private right had been infringed or he suffered a special damage. This case
clearly shows one have to have locus standi in order to apply for judicial review. Rule
3(1) of Order 53 states that an application can only be made if leave is granted by a
Judge in Chambers. Under Rule 3(6), it is stated that an application for judicial review
should be made within three months from the date when the grounds of application
first arose when the decision is first communicated to the applicant.

Grounds for Judicial Review: Natural Justice

 There are several grounds that courts accept when they allow application of
judicial review. The first ground is the non-compliance of rules of natural justice. In
English Law, natural justice is the technical terminology for the rule against bias
(nemo judax in causa sua) and the right to a fair hearing (audi alteram partem). The
rules of natural justice are incorporated in our federal constitution in Article 5(1) and
Article 8 of the Federal Constititution. The first rule emphasise on the right to be
heard which is hear both sides and no one should be condemned without being heard.
The second rule emphasise on the rule against bias where there should be an absence
in bias with no person being the in the own cause. There are several components to be
looked upon when it comes to right to fair hearing. The first component is the right to
know the charges. This can be seen in the case of Othman bin Ali v Telekom
Malaysia Bhd. In this case, the plaintiff was dismissed by the defendant for two
reasons. The first reason was due to him absent numerous times but the plaintiff had
rebuttal for that since he had medical reasons. The second reason, which was not told
the plaintiff, is he must improve his performance after the notice was given and he
was sacked for that reason particularly. The court held that there was violation of
natural justice. Even in the case of Zamburi Nordin v Ketua Polis Daerah Segamat,
Jeffrey Tan J concluded that a person should has the right to know the accusation
against him in order to prepare for defence and provide useful evidence during the
trial. The second component is the accused have the right to access to documentation.
This can be seen in the case of R v Leyland Justice where it was stated that anything
that restricts or appear to restrict the defendant’s ability to present his case will be
held to be a breach of natural justice. For instance, the defendant is generally entitled
to notice of evidence that might assist his case and concealing such evidence will
result in breach of natural justice. The third component is the opportunity to be heard.
This can be seen in the case of Ridge v Baldwin. In this case, the police officer was
dismissed and the court held that the dismissal was void due to the fact that he wasn’t
given the opportunity to make defence. The court stated in the case that an employee
can only be legally terminated after his procedural right to be heard had be honoured.
Similarly in the case of Chief Constable of North Wales Police v Evans, a chief
constable required a police probationer to resign on account of allegations about his
private life which he has no fair opportunity to rebut. The court allowed judicial
review in this case as it was breach of natural justice. Another case to be looked upon
is Surinder Singh v Federation of Malaya. In this case, a public servant facing
disciplinary proceedings were not supplied with a copy of prejudicial report by a
board of inquiry which the adjudicating officer had access to before the hearing. The
court held that the proceedings had failed to provide him reasonable oppurtunity of
being heard. The fourth component is the conduct of the hearing. In the case of
Secretary of State for the Home Department v AF, the Lord Philips stated that the
best way of producing a fair trial is to ensure a party involve in it has the fullest
information of both the allegations made against him and the evidence relied upon in
support of those allegations. The fifth component is right for decision and reasoning.
The case to be looked upon is the case of Padfield v Minister of Agriculture,
Fisheries and Food. In this case, there was a law stating that if there is any fault
related to agriculture, one must report to the Agriculture Minister. The plaintiff
company who produces milk sells it to the board of agriculture but they didn’t find it
profitable. They report it to the Minister of Agriculture but he failed to form a
investigation committee thus the court held that it is subjected to judicial review.
When it comes to the second rule which is rules against bias, it is essential to
follow the principal of nemo judex in causa sua. It is a principle of natural justice
which establish that no person can judge a case which they have interest in. The first
case to look upon the case of Dimes v Grand Junction Canal. In this case, the
judges owned shares in a company that was a party in the dispute which led the judge
being disqualified from deciding the case. Similar decision was also established in the
case of R v Bow Street Metropolitan where one of the lordship was deemed to have
interest in the case. However a different decision was given in the case of R v Gough.
In this case, one of the jury member is the neighbour of the defendant but the court
dismissed this allegation due to the fact that there was no real danger of bias. Another
case to be looked upon is the case of Darshan Singh v Farid Kamal Hussain. In this
case, there was a sports club and the appellant which is Darshan and the defendant
which is Gitu were part of the club. Both Darshan and Gitu fight in the club and they
was brought to the disciplinary committee. Darshan was suspended for 4 months and
Gitu only received one month suspension. Darshan appealled to the main authority of
the club but they upheld the decision of the disciplinary committee. Darshan then
brought this matter to judicial review. Darshan alleged that the decisions were bias
due to the fact that the members in the main authority had problems with him
previously and they were the ones who gave testimony in the disciplinary committee.
The club supposed to be private body but the court gave an exception as it is private
body which provide public functions and there is deprive in rights of the people. The
court was in favour of Darshan.

Ground for judicial review: Illegality

Public bodies must correctly understand and apply the law that regulates their
decision making powers. If they don’t follow the law correctly, their
decision/action/failure to act will be considered unlawful. An action or decision may
be unlawful if the decision maker had no power to make it or exceeded the powers
given to him/her or if they misapplies the law. If the public authority is acting beyond
their powers, they are considered to be acting ultra vires. The first case to be looked
upon is the case of Yit Hon Kit v Minister of Home Affairs. In this case, the
detention of plaintiff without telling the grounds of arrest for 57 days is deemed
unreasonable and it is can be considered illegality as t contradicts Art 5(3) of FC.
Then in the case of Lui Ah Yong v Superintendent of Prisons Penang, the plaintiff
was detained for 8 years before he was released back to his homeland under the
immigration act. Plaintiff apply for habeas corpus to justify that his detention was
unlawful. The court was in favour of the plaintiff and held that the detention was
unlawful as it contradict s.34(1) of the Immigration Act. The next case to look upon is
the case of Anisminic v Foreign Compensation. Following the abandonment of
military equipment in Egypt, the Foreign Compensation Act 1950 allowed recovery of
compensation left abandoned. Anisminic applied to foreign commission to get some
money for the confiscation of their mining company by the Egypt government which
they changed the named to ‘Tedo”. The statutory claim for compensation failed on the
basis that the mine is owned by “Tedo” and it is not British company. Anisminic
applied for judicial review since an error of law has been made. Despite the existence
of ouster clause, judicial review was allowed. In the case of Attorney General v
Fulham Corporation, the defendant was empowered to open non-profit baths and
washhouses for the benefit of the residents but the defendant set up a commercial
laundry service instead. It was held in this case the defendant had acted ultra vires as
the Baths and Washhouses Act didn’t give the power to the defendant to spend money
on laundry service. In the case of Roberts v Hopwood, the local authority was
empowered by the statue to pay their workers ‘as it thought fit’. The council however
paid wages that were greatly higher and the council was held to act beyond powers. In
the case of Mohammed Ezam bin Mohd Noor v Ketua Polis Negara, the court held
that an order of detention would be mala fide if it is found that the order was made
with an ulterior purpose rather than the original purpose given by the statute which
bestowed the power upon the relevant public body. The non-exercise of discretion is
also illegality and this can be seen in the Padfield case.

Ground for Judicial Review: Irrationality

Under Diplock’s classification, a decision is irrational if it is “so outrages in
its defiance of logic or accepted moral standards that no sensible person who had
applied his mind to the question could have arrived at it”. The case of Lui Ah Yong
can be used for irrationality. The case of Othman bin Ali v Telekom Malaysia Bhd
can be used as well since the judge agreed that it was irrational and unfair to terminate
the applicant who has given 21 years of good service for the defendant. Another case
to be looked upon is the case of Regina v Cambridge District Health Authority. In
this case, the plaintiff claimed funding of chemotheraphy and second bone marrow
transplant for their child which the defendant refused as the doctors were in opinion
that the treatment will be ineffective. The court held the decision is irrational. In the
case of Backhouse v Lambeth London Borough Council, the council was under the
statutory duty to increase the average rents by certain amount. The defendants didn’t
want to increase rents generally thus he only raised notional rent of one empty bulding.
The court held that this was totally unreasonable

. Limitation on Judicial Review: Ouster Clause

Ouster clauses prevents the right of the aggrieved party to apply for judicial
review or appeal. It is basically a clause in Act or legislation that basically barred the
decision of public authority to be challenged. The rationale behind the existence of
ouster clause is to prevent the interruption of exercise of power by the authority. It
should be noted that ouster clause defeat the purpose of rule of law, separation of
power and etc because it hinders check and balance and give superior power to the
executive. One prime example of ouster clause can be seen in the s.59A of the
Immigration Act where the provision authorize the Director General or the Minister to
come up with the decision on travel ban and it cant be reviewed. This means that the
director general or the minister can ban a person from travelling anytime and they
can’t challenge the decision in court. The English Courts have disregarded such
clauses if the decisions made by the body are caused by jurisdictional error. This can
be seen in the Anisminic case. Malaysia courts initially adapted the principles
established in the Anisminic case and this can be seen in the case of Syarikat
Kenderaan Melayu Kelantan Bhd v Transport Workers’ Union where it was held
ouster clause is not absolute and it can be reviewed. However the federal court reverse
the decision cases dealt with ouster clauses. This can be seen in the case of Sugumar
Balakrishnan v Pihak Berkuasa Negeri Sabah where the plaintiff was banned to travel
to Sabah under s.59A of Immigration Act and the court held the decision can’t be
reviewed. This principle was followed by many cases include Maria Chin.

Remedies: Certorari
Certiorari is the order from the superior court to the inferior court or tribunal to
make them transfer the note of proceeding to the High Court for review. The High
Court will examine the proceeding to ensure there was no ultra vires, breach of
natural justice, error of law, fraud, prejury or duress. If there are any defects, the court
will quash the previous proceeding. The effect of certiorari is to restore the status quo
prior to the inferior court or tribunal proceedings. In the Re Haji Sazali case, the
definition of certiorari was extended to public authority. There are several grounds
where certiorari can be applied. The first ground is breach of natural justice(bias and
fair hearing). The second ground is breach of doctrine of ultra vires(illegality,
irrationality and procedural impropriety). The third ground is error of law on the face
of the record. In this circumstances, the notes of the proceeding itself must have error
law and it is not an error if the authority have possibility of interpretation. The fourth
ground is the existence of fraud or prejury or duress. Certiorari can be issued by the
high court only against inferior courts and tribunals and not against upper authority
such as the superior court. High Court cannot issue certiorari to another high court
either. Apart from that, certiorari cannot be done against parliament or those authority
who perform legislative function. Thus the validity of act or legislation made by the
parliament cannot be challenged via certiorari. In that sense, one have to use
declaration instead. Certiorari can be issued against a judicial (court) or quasi judicial
body (Suhakam, MCMC, SPR). Up to 1960, the law on certiorari was not available
against public authority (only applicable to judicial and quasi judicial at that time).
Only after 1960, the court started looking at the function of public authority and
divided them into two category which are purely adminstrative functions and
adminstrative functions which has legitimate expectations.
The cons of certiorari is that it is not an remedy of right unlike habeas corpus
thus the court have wide discretion to refuse the it. Apart from that, it cannot be
combined with other remedies such as injunction, damages and declaration. However
it could be combined with mandamus and prohibition. Certiorari is also generally not
available in private law disputes and it is not applicable to private bodies or tribunal.
It is also not available against a public body which involves in a purely private law
matter such as contract and tort. Certiorari is also irrelevant against legislative
function and cannot be used to challenge the validity of an Act of parliament, state
enactment or a subsidiary legislation.

Remedies: Prohibition
The prohibitory order is issued by the court before or during the proceeding on
the basis that there is no power or jurisdiction to decide the case. It is a prospective
order to quash a decision which is going to made. If the decision have been made, one
can’t rely on prohibition and have to opt for certiorari. Prohibition remedy is used to
prohibit a tribunal from enquiring the case due to the potential breach of natural
justice or ultra vires. Prohibition is not available for error of law on the face of records
since by the time such error appears, it is too late for prohibition and certiorari is
applicable. If one knew that by appointing a person to take charge of the tribunal will
result in a bias decision, they can apply for writ of prohibition to stop the person from
asserting their power. The case to be looked upon is the case of R v Kent Police
Auhority, ex parte Godden. In this case, there was a guy named Gorddon and he
was the chief inspector. Godden was examined by police authority’s chief medical
officer and they found that he is unfit as he have mental disorder. Godden was ordered
to be in sick leave and subsequently he consult his own specialist and found out that
he have no psychiatric illness. Because of the contradictory finding, the department
informed they will appoint the chief medical officer to assess Godden again to see
whether he is permanently disable in order to make him retire. The court of appeal
found that since the medical officer previously formed the opinion that Godden was
having mental disorder, he could not be impartial assessing If Godden was
permanently disabled. Thus an order of prohibition was issued to prohibit the medical
officer from carrying out his assessment.

Remedies: Mandamus
Mandamus is a mandatory order that enforce decision-making body to perform
their public duties. It is a form of command or compel public officer or authority to
carry out his/her duty. A mandatory order is given by the high court and the duty of
the authority must be public in nature and not private. Mandamus can be combined
with other remedy and usually it is combined with certiorari where one quash the
decision and the compel the public body to reconsider the matter and do something
about it. It was established in the case of R v Justices of Kingston that by applying
mandatory order, the court will only tell the public authority to perform their duty and
not explicitly mention how they should perform their duty. How the public authority
do their duty is not part of mandamus. There are several requirements for mandamus.
The first requirement is it must be public duties and not private in nature. This can be
seen in the case of Koon Hoi Chow v Preetam Singh where an infant who was
involved in accident and whose leg was amputated, sued the hospital for damages and
asked for the relevant documents to be produced before the court. The court held that
it is a private matter which falls under tort action thus mandamus cannot be granted.
The second requirement is the mandamus only lies relation to duties and not
discretionary powers. If there is an ouster clause then mandamus is not applicable.
This can be seen in the Loh Wai Kong v Government case where it was held
mandamus did not lie to compel the issuance of passport as direction of immigration
have such powers which cannot be challenged under s.59A of Immigration Act.
The advantages of Mandamus are it overlaps with certiorari and cen be combined
with it to quash a decision and order a rehearing which can be seen in the case of
Sabah Plantation Industry Employee’s Union v Sama Subur. Apart from that,
mandamus is positive in nature where it only orders the doing of something unlike
certiorari, prohibition and declaration. Mandamus can be enforced to authority in
Judiciary, Quasi-judiciary and adminstrative function. The weaknesses are when there
is an ouster clause, then the mandamus will be useless as the court cannot compel
performance of discretionary functions just like in the Loh Wai Kong case. Apart
from that, mandamus cannot be issued against YDPA due to the existence of Article
150 of FC. Mandamus is also not a remedy of right thus the court have wide
discretion to refuse it on several grounds. Lack of locus standi is another weakness in
Mandamus as the applicant of mandamus must prove that he or she is an aggrieved
party and have sufficient legal interest in the matter. Unreasonable delay will result in
no mandamus given.

Remedies: Injunction
An injunction is a public and private law remedy. When there is a ultra vires, the
court can issue writ of injunction. Injunction forbids an act which are unlawful or
ultra vires even if there is no breach of contract or torts. Injunction can be temporary
or perpetual. Injunction can be a restrain order as well. Under s.29 of GPA, it states
that one cannot apply for injunction towards public body in the case of Sabil Mulia v
Pengarah Hospital Tengku Ampuan Rahimah, the court of appeal held that the
courts have jurisdiction to grant interim and permanent injunction against public body.
In order to apply for injunction, there must be a breach of contract, tort, statutory right
or breach of statute.

Remedies: Declaration
Declaration is basically useless. Declaration doesn’t quash or tell the public
authority to do something and it is merely used to declare the rights of the affected
party. Declaration is normally coupled with other remedies and it is not enforceable
per se. For instance, Article 149 of FC says one is not entitled to get answer from
government authority if they say it is related to national security. However in India, if
the government authority gave similar statement, it can be declared in court and the
court will decide whether it is under national security. In order to seek for declaration,
there must be a justifiable issue. It must be something that happened and not purely
academic matters. A declaration is not binding where if the court made a declaration
and the public authority didn’t take necessary actions, it will not be regarded as
contempt of court. This can be seen in the case of Webster v Southwark London
Borough Council. In this case, the plaintiff was a parliament candidate for one of the
party and he was a far-right (conservative). The plaintiff wanted to do a meeting in the
hall owned by the defendant but his wish was refused as they didn’t agree with the
plaintiff’s political views. The court made a declaration that the plaintiff is legally
entitled to use the hall. However, the defendant still refused to allow the plaintiff to
use the hall and the court held that it was not contempt of court.
The advantages of declaration are it is applicable even if there is ouster clauses
just like certiorari. It also can be applied even when there is alternate remedy. For
instance, this can be seen in the case of Barnard v National Dock Labour Board
where Dock employees successfully obtained a declaration that the Board was not
entitled to delegate its disciplinary powers to a manager, notwithstanding the fact that
the employees could have sued for damages for wrongful dismissal. Apart from that,
it is a wide remedy which is only limited by court’s discretion on whether or not it
should be issued. This can be seen in the case of Cheah Foong Chiew v Lembaga
Jurutera Malaysia where the court was asked to intervene and declare that the
domestic tribunal had no jurisdiction to hear the charge. Disciplinary proceedings had
not yet been commenced at that time so the court held that the application was
premature (remember I told you it cannot be academic so don’t use it if the issue
haven’t happen yet). There is also no special time limit for declaration. It is also a
positive remedy.
The disadvantages are it is not binding as mentioned earlier. Apart from that, it
cannot be combined with certiorari since a declaration doesn’t quash an illegal
decision. Apart from that, it is not a remedy of right so court may refuse when there is
more effective remedy available.

Remedies: Qua Warranto

Qua Warranto is a remedy to stop a person from acting as public
authority. It is a remedy used to stop the appointment of a public authority since he or
she might be bias when it comes to giving the decision. Thus if one feel that the
public authority will be bias against them then they can apply for Qua Warranto. In
Malaysia, to establish Qua Warranto is very rare as it needs a specific person who is
the aggrieved person in the case and not everyone can apply for it.

Remedies: Habeas Corpus

Habeas Corpus is a remedy to quash an illegal detention of a person.
Art 5(2) of FC vested the rights for Habeas Corpus thus it is a constitutional right. The
court have no discretion to refuse Habeas Corpus. The detaining authority, regardless
of public or private, must explain to the court regarding the reason for detaining the
person. If the reasons are “not in accordance with law”, the court will order release. A
person released on Habeas Corpus can also sue for damages for false imprisonment.
Habeas corpus can be used when there is illegality, irrationality or procedural
impropriety occured.
 When it comes to illegality, if the detention exceeds the dates on
detention order, one can apply for Habeas Corpus just like in the Yit Hon Kit case. If
the detainee is not subject to the law such as a Juvenile is tried under a law which is
not applicable for him, he or she can apply for Habeas Corpus. If a person was
detained as illegal immigrant when he in fact entered the country lawfully, he or she
can apply for Habeas Corpus.
When it comes to irrationality, if the grounds of the detention are not
relevant to the object of law, he or she can rely on Habeas Corpus. Habeas Corpus can
also be applied in the circumstances where the immigration law permits detention for
purpose of removal is used to detain an illegal immigration for numerous years which
can be seen in Lui Ah Yong case. Apart from that, in the case of Abdul Gani
Haroon v Ketua Polis Negara, the court held there was mala fide because the police
had prematurely decided to detain the plaintiff beyond 30 days and in such
circumstances, Habeas Corpus can be applied.
When it comes to procedural impropriety, Habeas Corpus can be
applied. This can be seen in the Yit Hon Kit case. Meanwhile in the case of Che
Hong Yee v TMKDN, the plaintiff was detained under Restricted Residence Act. A
copy of the order was given to him only 14 days after the detention thereby depriving
his right to appeal to deputy minister within 14 days. One day before the first order
was granted, he was ordered to be restricted for 3 years by second order. The High
Court invalidate the second order.

Remedies: Damages
Damages is not only exclusively available in Judicial Review but can
be found in other areas of law as well. Rule 5 of order 53 in Rules of Court 2012 gives
the applicant the jurisdiction to apply for damages. However there are two
requirements to be fulfilled which are must apply during the leave and the court must
be satisfy that one is eligible for obtaining damages which means courts have the
discretion whether to grant it or not. Damages can be combined with other remedies
except certiorari.

When remedies can be refused

Remedies can be refused when the person doesn”t have locus standi. This can be
seen in the case of Lim Kit Siang v United Engineers (M) BHD. Apart from that,
similar decision can be seen in the case Abdul Ahmad v Kerajaan Negeri Johor
where the plaintiff brought a suit against a commercial project and he represent it as a
tax payer. The court held that he have no locus standi. In Malaysia, if one doesn’t
have locus standi, then they cannot bring the case to the court and that’s the reason
why there is no public interest litigation in Malaysia. Another ground which remedies
can be refused is when there is error in decision making process. In judicial review,
the court will only see error on law and not error in decision making process. Ouster
Clause can also be the reason why remedies can be refused. Ouster clause will only be
active if there is error of law. However, if the decision itself is erroneous then judicial
review can be made under the common law. Another ground where remedies can be
refused is when there is fault on applicant. If the applicant delay the application or for
instance only submit application for review after being sacked unlawfully 2 years
back then the overall application and remedy will be refused. The concept of
non-justiciability is another ground where remedies can be refused. For instance, the
existence of Article 149 and Article 150 in FC cannot be reviewed in all
circumstances.

Liability and protection (not related to Judicial Review)

Liability of Government
The governing act for liability of government is Government Proceeding Act
1956(GPA). s.5 of GPA allow the public to sue the government under tort law. Under
s.5 of GPA, it is stated that the government is liable for any wrongful act done or any
neglect or default committed by any public officer in the same manner and to the
same extent as that in which the principal, being a private person. s.5 of the GPA
should be read together with s.6 of GPA which states that the claim must be against
the relevant officer personally. If one wishes to sue the government, they cannot
directly sue it and must find the relevant authority who did the mistake in order to sue
the government on whole That relevant authority must be an officer of the
government and paid by the government itself. The first case to recognize the doctrine
of suing the government is the case of Hill v Chief Constable of West Yorkshire. In
this case, the plaintiff made several complaints regarding the safety of her daughter
but the police didn’t take into consideration. The daughter was eventually murdered
and the plaintiff sued the whole police force. Since the exact police who were
negligent cannot be pin pointed by the plaintiff, the claim of the plaintiff was
dismissed. However the court established in this case one can bring action against the
government and there are several limitations to it. Another case to be looked upon is
the case of Haji Abdul Rahman v Government of Malaysia & Anor. In this case,
the plaintiff was riding a motorcycle at night and he end up hitting a steam roller
placed in the road by Jabatan Kerja Raya. He sued the government but he failed to
identify the relevant officer who placed the steam roller in the middle of the road thus
his claim was dismissed. Then in the case of Kerajaan Malaysia v Lay Kee Tee, the
plaintiff sued the department of health since they failed to carry out their duty to
prevent Nipah virus to spread. The plaintiff managed to find the relevant authority
behind this issue thus he was allowed to sue the government.
Meanwhile, s.7 of GPA stated that the government will not be liable in
“exercising his public duties” unless there is breach of contract. S.7(2) of GPA allows
the public to sue the government for negligence or trespass. The case to be looked
upon is the case of Government of Malaysia v Akasah bin Ahad. In this case, the
plaintiff wanted to build a highway. The defendant had petrol station in that area and
when they made the highway, the plaintiff closed the access point to the defendant’s
petrol station. The defendant filed for nuisance instead of trespass and failed to prove
nuisance occur. If the defendant claimed for trespass, she might have succeeded in the
claim. The implication of both s.5 and s.7 of GPA is that the one must find the officer
who commit the act when exercising his public duty and one cannot sue the
government unless it is breach of contract, negligence or trespass.
S.29 of GPA provides relief for successfully suing the government and one is
entitled for declaration. It was stated in the act that one cannot seek for injunction or
specific performance. This provision in line with s.54(d) of Specific Relief Act which
also state no injunction can be granted against public duties. However there is an
exception which can be seen in the case of Sabil Mulia (M) Sdn Bhd v Pengarah
Hospital Tengku Ampuan Rahimah & Ors case where the plaintiff managed to get
injunction because it is a civil proceeding case. In this case, the plaintiff is a canteen
officer and they applied for tender to operate the canteen in the defendant’s premise,.
At first, the tender was granted and the plaintiff set up the canteen but suddenly the
contract was terminated and was given to another party. The plaintiff seek for
interlocutory injunction and the court granted it.

Liability of Public Authority

The difference between government and public authority is that some public
authority may not be paid by the government and they are not governed under GPA.
Public authority will be liable for omission if they did something or failed to do
anything to make the situation worse. This can be seen in the case of Kirkham v
Chief Constable of Manchester where the police detained the person who they know
will definitely commit suicide but they failed to inform the prison authorities
regarding it. The person eventually commit suicide and the police was held liable.
Misfeasance in public office occur when the public authorities exercise unlawful
activities. Or in other words, the public authority have the power to do it but they do it
in unlawful or not in a proper way. For instance unlawful detention by the police
officer can fall under misfeasance in public office. In the case of Dato Pahlawan
Ramli bin Yusuff v Tan Sri Abdul Gani bin Patail, the court stated that a public
authority is liable for tort of misfeasance in public office where there must be an
exercise or non-exercise of public power which is either affected by malice towards
the plaintiff or the decision maker know it is unlawful and the plaintiff was either
deprived of benefit or suffer from loss due to it. Another case to be looked upon is the
case of M Indra Nallathamby v Datuk Seri Khalid Abu Bakar. In this case, there
was a guy named Kugan who was arrested for theft and died in detention. When
Kugan was detained, his detention was not informed to his family. When the family
wanted to do the burial rites, they found bruises and injuries in Kugan’s body. Then
one of the police officer release a press statement that Kugan died because he drank
alot of water in custody. This matter was brought to the court and the family sued the
police force. The second defendant was held guilty.
 Breach of statutory duty occur when the authority failed to carry out their duty to
act as provided by the statute. The requirements to bring an action against breach of
statutory duty are the statutory duty give rise to action of damages, the defendant own
duty to plaintiff, the defendant breach the duty and the plaintiff suffer loss as a result
of it. Can use M Indra Nallathamby case as the police breach their public duty by not
providing and protect the life as well as safety of the deceased.
When it comes to nuisance, under GPA, one cannot sue the government under
this. Nuisance occur when the right of quiet enjoyment of one being disrupted to such
level that a tort is being committed. Nuisance can be private or public nature. Public
nuisance affect everyone and private nuisance only affect two party. Most of the
nuisance are illegal nuisance except if the nuisance happen when it is authorized by
the law itself. The case to be looked upon is the case of Manchester Corporation v
Farnworth. During the era the case occur, power station used coal. The plaintiff was
authorized to run power station and it was built near a corp field of the defendant. The
chimney of the plaintiff’s power station was tall enough to pollute the crop field. The
defendant claimed using tort but the court dismissed the claim as the plaintiff was
authorized to run the power station.
Exercise of statutory discretion occur when the public authority beyond the
means of statute. In general, one can sue the public authority if they act outside their
discretion. The case to be looked upon is the case of Barett v Enfield London
Borough Council. In this case, the plaintiff claimed that the defendant had treated
him negligently by moving him to 6 different foster homes which resulted in him
having significant mental injury. Since there was no common law duty for the council
to not do such, it was held that the defendant was not acting beyond his discretion.
Meanwhile in the case of Chai Choon Hon v Ketua Polis Daerah, the condition that
only 7 speakers will be allowed which was attached to a police permit to hold a
political dinner was struck down by the court as the police were acting beyond their
discretion.

Suhakam
Non-judicial redress receive claims that can be pursued via rules and procedures
that are more formalized than those applying via political campaigns but less
formalized than judicial rules and procedures. Malaysia have many non-judicial
redress such as “Malaysia Communications and Multimedia Commission” which
deals with communication and multimedia industry in Malaysia and “Public
Complaints Biro” which deals with the complaints by the public regarding the
government servants. The Human Rights Commission Of Malaysia (SUHAKAM) is a
form of non-judicial redress as well. The SUHAKAM was established under the
Human Rights Commission of Malaysia Act 1999 (HRCM) thus it can be deemed as a
statutory body. Humans right is vested in Federal Constitution and the agency which
advocate such rights is the SUHAKAM. SUHAKAM came into existence because of
the “Reformasi” movement where the Dato Seri Anwar Ibrahim as well as his
followers were detained under Internal Security Act (ISA). Many criticisms were
placed regarding the detention and even United Nations placed their criticisms thus
Malaysia decided to create this body to protect human rights which is vested in Part 2
of Federal Constitution.
The functions of SUHAKAM can be found in s.4(1) of HRCM act. Among the
functions of SUHAKAM are to receive complaints on infringement of human rights
and conduct an inquire. Apart from that, SUHAKAM also promote awareness and
provide education relating to human rights, advise and assist the government in
formulating legislation and procedures as well as recommend necessary measures to
be taken, and recommend the government regarding the international treaties which is
related to human rights field. Basically SUHAKAM is an independent body which
helps the government to protect the people and ensure their rights are not deprived.
Despite such powers are vested to SUHAKAM, this statutory body has no power to
make decision.
According to s.12(1) of HRCM, SUHAKAM can have their own initiative to
investigate acting on behalf of the aggrieved person or behalf of everyone overall if
there is an allegation that infringement had occur towards the particular person or
overall everyone. According to this provision, SUHAKAM can conduct their own
hearings or investigation and they have the power to investigate even before the
problem arises. There are sufficient right vested to SUHAKAM and some of the rights
are redundant with the court. According to s.12(2), SUHAKAM wont entertain cases
which is in proceeding in court or already decided by the court. In a public point of
view, it is unfair as they would have nowhere to go if the court couldn’t settle the
issue and they can’t go to SUHAKAM to find a solution. Under s.23 of HRCM, the
SUHAKAM has powers to make inquiries and powers to make regulations but they
need to approval from the minister in order to make the regulations. s.5 of HRCM
deals with the members of the commission and term of office. According to s.5 (1),
the commission should not consist more than 20 members. According to s.5 (2), the
members of the commission is appointed by YDPA on the advice of Prime Minister.
According to s.5 (3), no racism should be involved when appointing the SUHAKAM
members and there should be equality overall. According to s.5 (4), the member of the
commission shall hold the office for a period of three years and they can be
re-appointed back once their term is over. According to s.5(5), the Prime Minister can
change the functions of the body including appropriate key performance indicators.
s.6 states that the YDPA should designate one of the members appointed under s.5 to
be the chairman of the commission. S.8 allows the members to gain remunerations
and allowance which will be fixed by YDPA. According to s.11A, the committee
should consist the chief secretary of the government who shall be the chairman, the
chairman of the commission and three other members from civil society who have
knowledge or practical experience in human right matters.
Among the case which involved SUHAKAM is Subramaniam v Human
Rights Commission. In this case, the court held that it is not an obligation for the
SUHAKAM to investigate a case and they have choice whether to conduct an inquiry
or not.