ADMINISTRATIVE LAW

(LAW506)

ASSIGNMENT 2

PREPARED BY:
AMIR ZAHIN BIN AZHAM
2016769285

FOR:
PROFESSOR ROHANI BT SAHAK
Law 506

Assignment 2

Question 1

“ The general modern trend is to extend the scope of certiorari and impose it as a
general remedy for the control of decisions by the Administration affecting the rights
of the subject”.

Discuss on the above.

(15 marks)
 The word certiorari means to be informed. It is an order to
remove/quash/cancel/revoke the administrative decision. Wherever there is power to
determine questions affecting the rights of persons, there is a duty to act judicially,
and such a determination is subject to certiorari. Thus certiorari has become a
general remedy for the control of decisions by the administration affecting rights of
people. It is therefore the principal means of invoking judicial review over public
bodies. In addition, it can also be used to quash decisions of lower courts.

The order of certiorari is given at the discretion of the court such as the High
Court. If the petitioner acts inappropriately, that may contribute to his failure of not
being deserved this discretionary remedy. In the case of V. Sinnathamboo v
Minister of Manpower, the court refused to grant certiorari because the applicant’s
conduct in failing to comply with the requirement to make representations within one
month of his dismissal as provided by s.17(1) of the Industrial Relations Act could
not be accepted, as the time limit was mandatory. In Kelana Megah Development
Sdn Bhd v Kerajaan Negeri Johor, it was decided that the appellant’s failure to
bring action within 3 months according to O.53 of the Rules of Court since it was a
case under public law, the court could not grant certiorari.

Locus standi is the person’s right to bring the case before the court. A person
will have such a right if she has interest in the matter being challenged ie he has the
ability to show to the court that he is so linked to the right in question and that it has
been violated. In Lembaga Wakaf Hindu Negeri Pulau Pinang v G. Manogaran
Govindarajoo & Anor, the plaintiffs attempted to stop the defendants from carrying
out an activity in a temple which the plaintiffs contended was under their
management based on an appointment letter received from the Penang
Development Corporation (PDC). The defendants argued since they still had the
authority to manage the temple like previous years, the plaintiffs did not have the
locus standi to stop them from carrying out the activity. It was decided that the party
that had the right to stop the activity was the PDC being the owner of the land and
not the plaintiffs.

Relator action is where and individual applies from the Attorney General (AG)
to bring his/her case to the court against the public authority because of lack of locus
standi. The AG, either at his motion or if a member of the public applies, may change
the public bodies if they overstep their lawful powers. The advantage is that an
individual can overcome the requirement of a locus standi. However, the
disadvantages is that the AG has absolute discretion on whether to institute the
action and the court will not interfere with his exercise or non-exercise of the
discretion. Another thing is that the AG is a government officer and is most unlikely
that he will bring action against the government.

In the case of McWirther v Independent Broadcasting Authority, the

applicant tried to seek for injunction to prevent the defendant from showing an
indecent film on TV. When the AG refused to undertake a relator action, McWirther
himself brought the case to court. The Court of Appeal granted him the injunction
because the judge was satisfied that he ad sufficient interest to bring the case to
court. Lord Denning MR stated that where the government departments and public
bodies have many powers and influence, his would be the most important to
safeguard for the ordinary citizen, so that they could see that those powers was in
accordance with law.

There are a few situations where certiorari can be applied. The first situation
is excess of jurisdiction. Public bodies are conferred with power and authority to act
according to the legal provisions. Thus, they are said to have jurisdiction to act
accordingly. But in the event of the action or decision made not according to the law,
then the administrator is said to have acted in excess of his jurisdiction. In the case
of Wong Kwai v President Town Council, Johor Bharu, the magistrate passed the
order of demolition of a house on the application of the health inspector. The Hight
Court quashed said order as he did not make it on the application of the President or
Deputy President.

The second situation where certiorari can be applied is when there is an error
of aw apparent on the face of the record. Record is something that “must contain at
least the document which initiates the proceedings; the pleadings if any, and the
adjudication; but not the evidence nor the reasons. An error of law is when a tribunal
comes to a conclusion which cannot reasonably be entertained by it if it properly
understood the relevant enactment. In the case of Ta Wu Realty Sdn Bhd v Ketua
Pengarah Hasil Dalam Negeri & Anor, the applicant contended there was an error
of law in his tax evaluation made by the defendant. But the court held that the claim
could not succeed because the applicant should have first appealed to the Income
Tax Commissioner instead of directly appealing to the High Court for judicial review.

The third situation where certiorari can be applied is when the decision is
made based on facts not supported by any evidence. The court will only interfere if
the finding of facts is not supported by any evidence at all, but not if there is any
inadequacy or insufficiencies of evidence. In V.C Jacob v Attorney General, the
plaintiff claimed certiorari to quash the decision to dismiss him from work on the
ground that there was insufficient evidence. Rejecting the contention, the High Court
said that it could not accept such a contention because in its supervisory jurisdiction
over inferior tribunals, the court will not interfere merely on the grounds of insufficient
evidence. Only when the decision was made based on no evidence would the court
interfere.

The fourth situation where certiorari can be applied is when there is a

procedural defect. In a directory procedure, certiorari will not be granted while
certiorari will be granted in a mandatory procedure. In Wong Yet Eng v Chin Cheng
Foo, The Appeal Board failed to decide within the time limit and this was challenged.
The Federal Court ruled that 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.