Sources, Principles and Procedural Laws Governing Public Law Remedies in Malaysia

Public law is the part of the law which is dealing with the state or relationship with
individual. Public law is divided into constitutional law, criminal law and administrative law.
Administrative law is define as the body of legal principal which concerns the right and duties
from the impact upon the individual of the actual functioning of the executive instrument of the
government.
Remedies under public law apply when a person is aggrieved at the hands of the
administration because of an infringement of his or her rights, or deprivation of interests, that
person will want a remedy against that administration. 1 Court control over administrative action
is exercised in ways of supervisory judicial review and statutory judicial remedies. Under
supervisory judicial review, there are five chief remedies awarded in exercise of supervisory
review which are mandamus, certiorari, prohibition, declaration and injunction. The first three
remedies, mandamus, certiorari and prohibition were developed by the Court of Kings Bench
and were called prerogative writs. But since 1938 they are known as prerogative orders or simply
as orders. Declaration and injunction originated in the Court of Chancery but were adopted by
common law courts to supplement the other three remedies. There is also the writ of habeas
corpus which operates in the narrow field of unlawful detention.
In Administrative Law, there are two types of common law remedies, namely private law
remedies and public law remedies. Among the private law remedies are damages, injunctions,
and declarations. One can claim for damages as compensation. Injunctions, on the other hand,
are prohibitory in nature and forbid the commission of some unlawful act. Declarations, in
addition, aim to state or declare the legal position of the parties and to challenge the action of the
public authority. It is however noted that such remedy is not enforceable per se, but it can be
used with other remedies if successful.2
1 M.P. Jain. Administrative Law of Malaysia and Singapore Fourth Edition.
2 Legal Nutshell Judicial Review. The Malaysian Bar. Retrieved from
http://www.malaysianbar.org.my/legal/general_news/legal_nutshell_judicial_review.h
tml

Among the public law remedies are habeas corpus, certiorari, prohibition and mandamus.
In Malaysia, habeas corpus is a well- known prerogative writ commonly used in connection with
ISA detention to challenge the legality of the decision. Such writ can be appealed by anyone or
by someone acting on his or her behalf regardless of nationality. In general, a writ of habeas
corpus will be granted if the applicant is able to prove that the detention is ultra vires and there is
an excessive delay in bringing the prisoner up for trial. It is noted that one must be brought
before the Magistrate within 24 hours of the detention.
Certiorari, Latin for quashing order, is a retrospective order that brings a decision made
by the authority before the court and prays that such decision to be quashed. Prohibition, on the
other hand, is a prospective order to quash a decision which is going to be made. One must bear
in mind that failure to comply with such order amounts to contempt of court, which is criminal in
nature. Mandamus, meanwhile, is used to enforce public duties by the decision-making body
which it has failed to perform. It is enforced to ensure that the public duties are performed by the
public authorities. Both certiorari and mandamus can be claimed together
While the administration expands and gathers new powers and evolves new techniques to
regulate individual freedom, the tools at the disposal of the courts remain somewhat inadequate.
An individual aggrieved by administrative action may not always get relief through court action.
Therefore, other supplementary methods of redress and remedy are considered. The jurisdiction
of the courts in Malaysia to issue any of the prerogative orders stems from the prerogative
jurisdiction inherited from Britain3.
In Malaysia, paragraph 1 of the Schedule (read with Section 25(2)) of the Courts of
Judicature Act Act 1964 (Act 91) provides that the power of the High Court includes [p] ower 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 2 of the Constitution, or any of them, or for any
purpose. The powers conferred by the schedule upon a High Court are, according to its terms,
additional powers, that is to say, powers in addition to those already seised of by that court.
3 M.P. Jain. Administrative Law of Malaysia and Singapore Fourth Edition.

Resort may therefore be had to paragraphs in the Schedule to found jurisdiction to grant relief
not expressly prohibited by written law.4 This interpretation accords with the development in
administrative Law in the common law world generally. The remedial powers of the Malaysian
courts expanded a great deal as they could now fashion a suitable remedy in the context of the
circumstances of each case.
The procedure to move an application for an order of mandamus, prohibition or certiorari
in the Malaysian High Court is contained in Order 53 of the Rules of High Court 1980. The
stringent condition in Order 53 is to protect those entrusted with the performance of public
duties against groundless, unmeritorious or tardy harassment. 5 Order 53 of Rules of the High
Court 1980. This is a separate and independent procedure for Judicial Review. Order 53 must be
invoked when the defendant or one of the defendants in the representative action is the
government or a public authority. Order 53 was introduced in 2000. It has been said that the
purpose of Order 53 is to provide certain protections to the public body or authority when their
public act or decision is being challenged6. Order 53 governs all applications seeking relief
specified in the Courts of Judicature Act 1964. Order 53 rule 2 specifies the requirements of
applications.
An order in the nature of mandamus can be granted under Section 44(1) of the Specific
Relief Act 1950 (Act 137). Such an order directed to a public officer may require that person to
do or forbear from doing any specific act. An judge may make an order requiring any specific act
to be done or forborne to be done, by any person holding a public office(whether permanent or
temporary) or by any corporation. The procedure for making an application under Section 44 is
laid down in Section 45.

4 Hong Leong Equipmenment Sdn Bhd v liew Fook Chuan

5 Ahmad Jefri bin Mohd Jahri v Pengarah Kebudayaan dan Keseniaan Johor
6 TR Lampoh AK Dana & Ors v Government of Sarawak [2005] 6 Malayan Law
Journal 371, 390.

Habeas Corpus
Habeas corpus came from the latin term hay- bee- us- kor- pus for you have the body. A
prisoner files a petition for writ of habeas corpus in order to challenge the authority of the prison
or jail warden to continue to hold him or her. If the judge orders a hearing after reading the writ,
that becomes the prisoners opportunity to argue that the confinement is illegal. Habeas corpus is
an important protection against illegal confinement, once called the great writ. 7
The liberty of the subject has from the earliest time been protected by the common law,
as evidenced by the celebrated 29th chapter of Magna Charta, which declares "No freeman shall
be taken or imprisoned, or disseised of his freehold or liberties, or be any otherwise destroyed, "
nisi per legale judicium parium suorum vel per legem terre." No man," says Lord Coke in his
commentary upon the above chapter of Magna Charta, "shall be taken, i. e., restrained of liberty,
by petition or suggestion to the King or his Council, unless it be by indictment, or by
presentment of good and lawful men"8
In Malaysia, the High Court will quash an illegal arrest of a person by issuing habeas
corpus. The order is issued to the person who has custody of the aggrieved person to deliver up
that person. 9 In Theresa Lim Chin Chin v Inspector General of Police [1988], a prayer of order
may be made by the prisoner, or if unable to do so, by someone acting on behalf of the prisoner.
Justice Abdoolcader states that habeas corpus is a high prerogative writ of summary character for
the enforcement of this cherished civil right of personal liberty and entitles the subject of
detention to a judicial determination that the administrative order adduced as warrant for the
detention is legally valid.10

7 Nolos Plain English Law Dictionary.

8 1856. Marks on the writ of Habeas Corpus ad Subjiciendum and the practice
connected therewith. The American Law register. Web.
9 Re Datuk James Wong Kim Min [1976] 2 MLJ 245

The position of habeas corpus in Malaysia is entrenched by article 5 (1) of the Federal
Constitution that states No person shall be deprived of his life or personal liberty save in
accordance with law. Article 5(2) guarantees the right to habeas corpus which runs where
complaint is made to a High Court 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 High Court ruled that the proper procedure to secure habeas corpus is for the
applicant to apply under Section 365 of the Criminal Procedure Code and not by the ex parte
originating summons.11 Unlike other orders such as certiorari, mandamus or prohibition which lie
within courts discretion, the grant of habeas corpus is 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. 12 It is a
writ of right against which no privilege or person or position can be of any avail. 13
Habeas corpus is not issued if the complainant is under lawful, and not unlawful, arrest
eg when undergoing a sentence of imprisonment on a criminal charge pronounced by court of
competent jurisdiction or is arrested on reasonable suspicion of having committed a crime. 14
10 Yeap Hock Seng @ Ah Seng v Minister for Home Affairs Malaysia [1975] 2 MLJ
279
11 Munusamy v Subramaniam [1969] 2 MLJ 108
12 Andrew s/o Thamboosamy v Superintendent of Pudu Prisons, Kuala Lumpur
[1976] 2 MLJ 156
13 Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia [1993] 3 MLJ
265
14 Re Datuk Harun bin Haji Idris [1981] 1 MLJ 47

When a person has been sentenced to imprisonment by court on a criminal charge, habeas corpus
cannot be issued to release that person because he or she is not illegally detained. 15 Habeas
corpus cannot be issued to challenge the legality or validity of trial of the accused or admission
or non-admission of evidence by the trial court. For such a purpose, appeal is the proper
remedy.16
Article 5(1) refers to only substantive, and not to procedural, provisions of law, and that a
detention order conforming with the former will, therefore, be valid even if it does not comply
with the latter.17 However, in Re Tan Boon Liat, Tun Suffian LP thought that it was a condition
precedent, or a fundamental condition, for further detention that the advisory board make its
report within three months and that this condition should be satisfied before a person could
remain in detention beyond three months. However, Ong Hock Sim FJ was of view that the
procedural rule was mandatory, that the advisory board report within three months, and
infringement of this rule made detention invalid after three months. The Court of Appeal in Tan
Tek Seng ruled that Article 5(1) includes procedural law, and in particular, any procedure
prescribed by written law. It therefore follows that if a person is detained without the procedure
prescribed by the relevant law being followed, or if the procedure prescribed is unfair, then that
person should be entitled to be released. The court should quash his or her detention in such a
case by issuing habeas corpus.

Article 5(3) of the Constitution has two limbs. According to the first limb, where a person
is arrested he shall be informed as soon as maybe of the grounds of his arrest and the second
15 Ooi Ah Phua v Officer in Charge, Criminal Investigation, Kedah- Perlis [1975] 2
MLJ 198
16 Re Gurbachan Singhs Application [1967] 1 MLJ 74
17 Karam Singh v Menteri Hal Ehwal Dalam Negeri Malaysia [1969] 2 MLJ 129

limb he shall be allowed to consult and be defended by a legal practitioner of his choice. In Ooi
Ah Phua, an order of habeas corpus was sought on the ground that the accused was denied the
right to consult his lawyer while in detention as in Article 5(3) and the therefore, his detention
was unlawful. The Federal Court rejected this contention saying that habeas corpus would not be
an available remedy for any person who was detain lawfully but was denied his constitutional
right under Article 5(3) to consult a legal practitioner of his choice. In Theresa Lim Chin Chin,
The Supreme Court said the matter should best be left to the good judgement of the authority as
an when such right might not interfere with police investigation. To show breach of Article 5(3),
an appellant has to show that the police has deliberately and with bad faith obstructed a detainee
from exercising the right u der the article. This was also the view in Palautah a/p Sinnappayan v
Timbalan Menteri Dalam Negeri Malaysia. On the other hand, if the first limb is not complied
with, courts do issue habeas corpus. The High Court ruled in Sukumaran that it is not necessary
for an applicant for habeas corpus to be produced in front of the court before being released.18
The Federal Court affirmed that on an application for habeas corpus the burden of
satisfying the court that a detention is lawful lies throughout on the detaining party.19 It is then
for an applicant to show that the power of detention has been exercised mala fide or improperly
or undertaken for a collateral or improper purpose. 20
Referring to Australian case of Minister for Immigration and Multicultural Affairs v
Vadarlis, the judge said that habeas corpus is concerned with restraints of liberty imposed by a
public officer or authority. A public authority may do something in respect of a person which, in
combination with other factors, results in that persons freedom of movement being curtailed. In
Hicks v Ruddock, the court indicated that control rather than custody may suffice for the
remedy to be granted and that an oral arrangement may be sufficient to constitute control. It is as
18 Sukumaran s/o Sundram v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia
[1995] 2 MLJ 247. Mohd Amin bin Mohd Yusoh v Timbalan Menteri Hal Ehwal Dalam
Negeri, Malaysia & Anor [1994] MLJU 475
19 SK Tangakaliswaran a/l Krishanan v Menteri Dalam Negeri Malaysia [2010] 1 MLJ
149
20 Tee Yam @ Koo Tee Yam v Timbalan Menteri, Menteri Keselamatan Dalam Negeri,
Malaysia [2005} 5 MLJ 645

clear as decided in Uthaya Kumar a/l Ponnusamy v Menteri Keselamatan Dalam Negeri,
Malaysia, that habeas corpus is confined only to challenging the legal status of detention and is
not available to someone complaining of the conditions of the detention.
In terms of extradition, the court issued habeas corpus in the following circumstances; the
applicant was detained under the Extradition Enactment 1914. He was discharged by the
Supreme Court because evidence against him was not sufficient. He was again arrested on the
same charge. The court held that it was wrong to reopen the same issue. 21 The position in
Malaysia is that if a detention of a person is a result of an earlier unlawful detention, then the
second detention is unlawful.22
With regards to banishment, in Minister of Home Affairs v Chu Choon Yong, the High
Court accepted his application for habeas corpus ruling that his detention became unlawful
because of unlawful delay in banishing him. But, on appeal the Federal Court reversed the
decision. It was held that the applicants detention at the time of his application was not
unlawful. The court did not consider the question whether or not an order initially valid may
become invalid by supervening circumstances or frustration of its purpose. The Federal Court
took a purely literal view of the law.
In terms of juveniles, in an interesting case it was ruled that an application for habeas
corpus should be dismissed: habeas corpus could only be granted to order that the child in the
case be set at liberty is she was illegally or improperly detained but it was for the Syariah Court
to determine whether it was in the best interest of the child that she be return to the applicants.23
In order of restricted residents, the case of Timbalan Menteri Hal Ehwal Dalam Negeri
Malaysia v Liau Nyun Fui, and order of restricted residence was quashed on the ground that the
minister had not acted with all convenience speak in the circumstances of the case in making the
order. In Ng Chai Yang v Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia, a restricted
21 Abdul Hamid bin Jamal v Public Prosecutor [1934] 1 MLJ 46
22 Koh Yoke Koon v Minister for Home Affairs Malaysia [1994] 1 MLJ 60
23 Azizah bte Shaik Ismail v Fatimah binti Shaik Ismail [2002] 6 MLJ 589.

residence order was quashed on the ground of delay in making it and the court emphasis where
the liberty on an individual at stake, there must be meticulous compliance with the law.
In modern times, persons are in imprisoned not always as a matter of punishment after
trial through a court proceeding, but even in preventive detention under administrative orders
made without court orders. In Malaysia and Singapore, several statues confer discretionary
powers on the administration to make orders of preventive detention in certain cases and for
various purposes24. As regards section 6 (1) of the emergency (Public Order And Prevention Of
Crime) ordinance 1969 of Malaysia it was held in Murugan a/l Supparamaniam v Timbalan
Menteri Dalam Negeri Malaysia that the burden of satisfying the court that a detention is in
accordance with law lies on the detaining authority and that the respondents in the case had
failed to discharged his burden.

24 This statues are Internal Security Act 1960 & Dangerous Act 1985