Procedure and Remedies in Judicial Review: A Malaysian Perspective

• Jurisdiction: South Africa
• Citation: 2006 Acta Juridica 352
• Published date: 15 August 2019
• Date: 15 August 2019
• Pages: 352-369

Procedure and Remedies in Judicial Review:

A Malaysian Perspective

GOPAL SRI RAM*

Court of Appeal, Malaysia

I HISTORICAL PERSPECTIVE

The power of Malaysian Courts to issue prerogative orders has always

been governed by statute. It is not necessary to look at the position before

1947. In that year the Courts Ordinance was enacted which contained

the following provision in paragraph 1 of its Second Schedule:

‘Jurisdiction and authority of a like nature and extent as are exercised by

the Chancery and King’s Bench Divisions of the High Court of Justice in

England.’

The courts acted under this provision and assumed jurisdiction to issue

prerogative orders. At the time the Courts Ordinance came into force, it

was the Civil Procedure Code that governed procedural matters.

However the Code did not contain any provision regulating applications

for prerogative orders. This continued until 1957 when the Rules of the

Supreme Court replaced the Code. However, the 1957 rules did not

include a rule regulating the procedure by which an application for any of

the prerogative orders was to be made. Our courts therefore resorted to

the procedure laid down by the Rules of the Supreme Court 1883 of

England. In Gnanasundram v Public Services Commission,

1

for example, the

court applied the six month time limit prescribed by O. 59 r 3(2) of the

English Rules to an application for leave to issue certiorari. This reliance

on the English rules of court continued until 1980 when the Rules of the

High Court were introduced and replaced the Rules of the Supreme

Court 1957. The Rules of the High Court 1980 drew heavily from the

English RSC 1976 and contained an Order 53 which was almost

identical to the corresponding rule of court in the English RSC 1976. All

that rule did was to re-produce the two-stage process prescribed by the

1883 Rules with all its attendant paper requirements. It did not, for

example, enable an applicant to seek damages or the specif‌ic relief of

declaration or injunction. It also did not enable an applicant to apply to

cross-examine his opponent on the latter’s aff‌idavit. Nor did it provide

for the administration of interrogatories. So, it was quite ineffective as a

procedural remedy. Indeed, as will be demonstrated, it caused more

problems than it solved, particularly in the area of standing.

* Justice Gopal Sri Ram is the most senior judge of the Court of Appeal of Malaysia. He is a

Barrister at Law of the Honourable Society of Lincoln’s Inn.

1

[1966] 1 MLJ 157.

352

2006 Acta Juridica 352

© Juta and Company (Pty) Ltd

II PROBLEMS OF CLASSIFICATION

(1) General

The failure of the Rules Committee that produced the 1980 Rules to

confer upon an applicant the right to apply for remedies other than the

usual prerogative orders provides the classic example of a procedural

lacuna resulting in substantive injustice. A litigant who merely wanted a

particular legal position declared had to commence his action by writ or

originating summons and resort to Order 15 rule 16 which reads:

No action or other proceeding shall be open to objection on the ground that a

merely declaratory judgment or order is sought thereby, and the Court may

make binding declarations of right whether or not consequential relief is or

could be claimed.

There were advantages and disadvantages in resorting to declaratory

relief to challenge a public law decision. The principal advantage was that

it enabled a plaintiff to seek discovery and to cross-examine his opponent.

At common law, the f‌irst was not available and the second was rarely, if

ever, granted in proceedings for prerogative remedies.As Denning LJ said

in Barnard v. National Dock Labour Board:

2

‘In certiorari there is no

discovery, whereas in an action for a declaration there is.’ And as Lord

Diplock said in O’Reilly v Mackman

3

about the English Order 53 before

its reform in 1977:

4

Again under Ord 53 evidence was required to be on aff‌idavit. This in itself is

not an unjust disadvantage; it is a common feature of many forms of

procedure in the High Court, including originating summonses; but in the

absence of any express provision for cross-examination of deponents, as your

Lordships who are familiar with the pre-1977 procedure will be aware, even

applications for leave to cross-examine were virtually unknown, let alone the

grant of leave itself, save in very exceptional cases of which I believe none of

your Lordships has ever had actual experience. Lord Goddard CJ, whose

experience was at that time unrivalled, had so stated in R v Stokesley (Yorkshire)

Justices, ex p Bartram.

5

(2) A question of standing

The serious disadvantage – one which often proved fatal in public

interest litigation – was the tendency of the courts to classify actions for

declaration and injunctions as private law proceedings and to apply to

2

[1953] 2 QB 18.

3

[1983] 2 AC 237.

4

See Rules of the Supreme Court 1977. These were put on a statutory footing by the

Supreme Court Act 1981.

5

[1956] 1 All ER 563 at 564, [1956] 1 WLR 254 at 257.

353PROCEDURE AND REMEDIES IN JUDICIAL REVIEW

© Juta and Company (Pty) Ltd