Suggested answer: Certiorari and Mandamus

6,405 views

Published on

disclaimer:
this is reference for students of Administrative Law (LAW506) in Universiti Teknologi MARA, Malaysia. It's compiled by Azrin Hafiz

0 Comments
2 Likes
Statistics
Notes
  • Be the first to comment

No Downloads
Views
Total views
6,405
On SlideShare
0
From Embeds
0
Number of Embeds
3
Actions
Shares
0
Downloads
178
Comments
0
Likes
2
Embeds 0
No embeds

No notes for slide

Suggested answer: Certiorari and Mandamus

  1. 1. October 2012 06/04/2014 prepared by: Azrin Hafiz 1 Suggested Answer for Final Examination January 2012 LAW 506 – Administrative Law Universiti Teknologi MARA Malaysia prepared by: azrin hafiz / Oct 2012 1 Part B : Question 1 Certiorari is an order used to quash the unlawful act of the public authority, while mandamus is a command issued by the High Court requiring an authority to perform a public duty imposed upon it by law. Demonstrate how effective these remedies are in controlling the actions or decisions of the public authorities in the administration of a state. (20 marks) prepared by: azrin hafiz / Oct 2012 2
  2. 2. October 2012 06/04/2014 prepared by: Azrin Hafiz 2 Certorari Nature: An order exercise by the High Court in its supervisory jurisdiction over inferior courts, tribunals or public authorities. It includes a magistrate’s order for detention - Re Haji Sazali [1992] Used to quash the decision which was made by inferior tribunals in excess of jurisdiction or abuse of jurisdiction or contrary to rules of natural justice or there is error of law on the face of record Power to issue the order is within the court’s discretion - R v Stafford Justices, ex p Stafford Corp [1940] - Khoo Imm @ Chong Bee Kian v Datuk Bandar Kuala Lumpur [1997] prepared by: azrin hafiz / Oct 2012 3 Principles governing certiorari: 1. when authority has to make decision on the basis of an objective condition or fact, it must proceed judicially before reaching a decision. 2. when authority has power to affect the civil rights of individuals, it has a duty to proceed in a judicial manner. 3. If authority action is not purely of ministerial nature, it will be subject to order of certiorari and prohibition if it commits or attempts to commit any act which is ultra vires its authority or is mala fide even though it is not subject to natural justice in its procedure. 4. Even though the authority has discretion in making its decision, it is amenable to order certiorari and prohibition if it has duty to act judicially in order to reach that decision. 5. The character of the act sought rather than the character of the administrative authority whose act is sought to be questioned is the controlling factor in determining the right to an order of certiorari or prohibition. prepared by: azrin hafiz / Oct 2012 4
  3. 3. October 2012 06/04/2014 prepared by: Azrin Hafiz 3 Situations where certiorari may be granted : 1. breach of natural justice - Coelho v Public Service Commission [1964] 2. excess of jurisdiction - Federal Hotel Sdn Bhd v National Union Hotel, Bar and Restaurant Workers [1983] 3. error of law - Mak Sik Kwong v Minister of Home Affairs Malaysia (no.2) [1975] 4. breach of legitimate expectation - JP Belthelsen v Director General of Immigration [1987] 5. bias - MPPP v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor 6. Where certiorari is granted the court may direct the inferior court, tribunal or public authority to reconsider the matter to arrive at a fresh decision. - Malayawata Steel Bhd. V Mohd Yusof bin Abu Bakar & Anor [1968] prepared by: azrin hafiz / Oct 2012 5 • Concluding remarks on the effectiveness of certiorari as a remedy in controlling actions or decisions of public authorities in administration of a state prepared by: azrin hafiz / Oct 2012 6
  4. 4. October 2012 06/04/2014 prepared by: Azrin Hafiz 4 Mandamus An order requiring a decision maker to perform a public duty imposed on him It is available under : 1) Order 53 of the RHC 2) Sec. 44 of the Specific Relief Act prepared by: azrin hafiz / Oct 2012 7 Under sec. 44 of SRA: - requiring any act to be done or forborne * nature under sec.44 is similar to prerogative writ of mandamus, but both are not the same case: Hong Leong Equipment - mandamus under sec. 44 subject to restriction under sec.44 and 45 - mandamus under sec.44 is wider than prerogative writ because it have the converse effect in the nature of a prohibitory order - court regarded order under sec.44 as mandamus and applied same principles under common law for the grant of mandamus to application under sec.44 case: Koon Hoi Chow v Pretam Singh [1972] prepared by: azrin hafiz / Oct 2012 8
  5. 5. October 2012 06/04/2014 prepared by: Azrin Hafiz 5 Under O53: - mandamus not subject to sec. 44 and 45 - mandamus under O53 is not a writ of mandamus but is an order of mandamus Mandamus under Rules of High Court • Nature of mandamus: 1. an order requiring public authority to perform a public duty which it is legally obliged to do. - The order can direct an authority to perform its duty exercise a discretion or make a decision where it is legally bound to do so Khoo Siew v Ketua Polis, Kuala Lumpur [1979] 2. The duty is of public nature Re Bukit Sembawang Rubber Co. Ltd & Sembawang Estates Ltd [1961] 3. Mandamus does not lie against the government but against its servants who have a legal duty to perform some ministerial act Inchape Malaysia Holdings Bhd v RB Gray [1985] prepared by: azrin hafiz / Oct 2012 9 Situations where mandamus may be obtained: 1. to compel the grant of access to and the supply of the first information report made by an applicant Anthony Gomes v Ketua Polis Daerah Kuantan 2. to compel the grant of access to and the supply of certified copy of the 3. continued statement made by an applicant Khoo Siew Bee v Ketua Polis Kuala Lumpur [1979] 4. to compel the exercise of stautory powers Re Bukit Sembawang But mandamus does not lie to enforce rights arising from contractual obligations: Koon Hoi Chow v Pretam Singh [1972] Chan Mun Poy v Director General of Telecommunication [1981] prepared by: azrin hafiz / Oct 2012 10
  6. 6. October 2012 06/04/2014 prepared by: Azrin Hafiz 6 Mandamus under Specific Relief Act: - Though Sec 49 bars the issue of mandamus but Sec 44 provides application of an order requiring any specific act to be done or forborne. Such an order is similar to mandamus but its narrower Lee Kean Lum v Penolong Pendaftar Perniagaan Wilayah Utara Alor Setar [1994] - The order is independent of O53 and para 1 Schedule CJA - Order is only subject to procedure under sec. 45 SRA – no leave of court Scope of sec.44: The order may be directed to 3 categories of persons/bodies: 1) Any person holding a public office under Article 132(1) Federal Constitution Loh Wai Kong v Government of Malaysia [1978] 2) Any corporation 3) Any court subordinate to High Court prepared by: azrin hafiz / Oct 2012 11 Conditions precedent to granting order: 1) The applicant is a person whose property, franchise, or personal right would be injured by the doing or bearing of the said act – sec. 44 (1) proviso (a) - Koon Hoi Chow v Pretam Singh [1972] 2) Such doing or bearing prayed for is incumberent on the person or court in its public character or corporate character – sec.44(1) proviso (b) - Ng Bee v Chairman Town Council Kuala Pilah [1975] 3) Such doing or bearing prayed for is consonant to right and justice – sec 44(1) proviso (c) - Anthony Gomez, Khoo Siew Bee 4) The applicant has no other specific and adequate legal remedy- sec.44(1) proviso (d) - Ng Bee v Chairman Town Council Kuala Pilah [1975] - Re Applicatio by Hamid bin Hassan [1979] - Lee Mok Lan v Registrar of Titles Selangor [1955] 5) The order applied for provides a complete remedy – sec.44 (1) proviso (e) - Ng Bee v Chairman Town Council Kuala Pilah [1975] prepared by: azrin hafiz / Oct 2012 12
  7. 7. October 2012 06/04/2014 prepared by: Azrin Hafiz 7 • Concluding remarks on the effectiveness of mandamus as a remedy in controlling actions or decisions of public authorities in administration of a state. • Overall conclusion prepared by: azrin hafiz / Oct 2012 13 Thank you for your attention prepared by: azrin hafiz / Oct 2012 14

×