Kudos for the triumph of rule of law


Administrative law relating to remedies is now richer because the Federal Court and the Appeal Court broke new ground in a heartening and innovative decision.

ONE of the hallmarks of a rule of law society is that the Government is not above the law. There is equal subjection of all persons and classes, including the officials of the state, to the ordinary law of the land administered by the ordinary courts.

The functionaries of the state, from the Yang di-Pertuan Agong down to the ordinary public servant, are liable to the process of the courts both in their personal and official capacities. The Government is liable for the wrongs of its servants in much the same way as a principal is liable for the wrongs of his agent.

Incorporation of these principles: There is much in the Malaysian legal system to honour these ideals. The Government Proceedings Act permits actions in tort against the Government. The Government Contracts Act allows contractual claims to be made against the Government.

In addition to ordinary civil claims for monetary compensation, the Government is also subject to “judicial review” by the courts if its actions are unconstitutional, beyond its powers or lacking in the principles of “natural justice”.

Under the Constitution and a wealth of other laws like the Specific Relief Act, Government Proceedings Act, Rules of the High Court and thousands of judicial decisions, the superior courts have the power to issue remedies like habeas corpus, certiorari, prohibition, mandamus, injunction, declaration and quo warranto.

Habeas corpus can order the release of a person unlawfully detained. Certiorari can quash an illegal decision. Prohibition can prevent a body from conducting an inquiry or proceeding it has no power to conduct.

Mandamus is a command to a public authority to perform its public duty. Injunction seeks to prohibit any action that would illegally disturb the rights, interests or legitimate expectations of others.

A declaration is a judicial decision on the state of the law or on the rights and duties of the parties. Quo warranto examines the legality of a public appointment.

Shielding government from liability: Unfortunately, the ideal that the Government is subject to the law and amenable to the jurisdiction of the ordinary courts is subject to a number of departures that give to the Government a massive advantage over private litigants.

In a large number of situations, laws like the Government Proceedings Act, Emergency (Essential Powers) Ordinance and Control of Imported Publications Act grant to public authorities total immunity from civil liability.

In other cases, liability is limited to the maximum amount fixed by the law, no matter what the extent of the damage may be.

Under laws like the Public Authorities Protection Act, special and shorter time limits are also fixed for suits against the Government.

Under some laws, the remedies that citizens have against each other are not available against the Government. For example, for breach of contract the remedy of specific performance does not lie against the Government.

Execution procedures available against private parties are also not available against public authorities. For example, government property cannot be attached or sold to satisfy a debt.

Landmark case: In a recent case, Finance Minister and Sabah Government vs Petrojasa Sdn Bhd (2008), judges Tun Abdul Hamid Mohamad, Datuk Ariffin Zakaria, and Datuk Hashim Yusoff of the Federal Court faced a situation in which the age-old dictum that “wherever there is a right, there must be a remedy” was being trumped by procedural rules hindering the obtaining of a remedy.

The litigant had obtained a court judgment of RM6.56mil against the Sabah Government in 2002. The “judgment remained barren” because the state government claimed to have no funds to meet this debt.

Despite the default, execution of judgment was not possible because section 33(4) of the Government Proceedings Act declares that “no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Government of any such money or costs as aforesaid”.

Other laws like section 44(2)(b) of the Specific relief Act and Order 73 r 12(1) of the Rules of the High Court also laid down impediments or restrictions in the way of enforcement of the judgment. The High Court wrung its hands in despair and dismissed the proceedings by Petrojasa.

However, the Court of Appeal and the Federal Court heard the call of justice. In a heartening and innovative decision that broke new ground, the judges held that though execution or attachment cannot lie against the Sabah Government, judicial review is available.

The Court of Appeal and the Federal Court unanimously held that an order of mandamus be issued to require the state government to meet its legal obligation.

In making their decision to issue an order of mandamus the courts were faced with many hurdles. One was the legal issue that under section 44(1) of the Specific Relief Act, the order of mandamus can lie only to “a person holding a public office”. A unanimous Court of Appeal held that governments and ministers are fully subject to prerogative orders and to injunctions and interim injunctions.

At the Federal Court, Abdul Hamid felt that under section 44(1) of the Specific Relief Act, the Sabah Government did not qualify as “a person holding a public office”. But, intent on doing justice, he overcame this hurdle by relying on the additional powers of the court under section 25(2) of the Court of Judicature Act to grant the remedy.

Constitutional dimension: An admirable aspect of this decision is that the Chief Justice saw a seemingly purely civil dispute in a constitutional light.

Petrojasa was entitled to the sum granted to it by the court. This sum was a property. Property is protected by Article 13(1) of the Constitution which states that “no person shall be deprived of property save in accordance with law”.

According to the Chief Justice, mandamus must issue for the purpose of enforcing the right of a person who has been deprived of his property not in accordance with law.

This is very heartening. The Court of Appeal and the Federal Court deserve congratulations for extending the horizons of constitutional and administrative law.

Dr Shad Saleem Faruqi is Professor of Law at UiTM.

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