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

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)
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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]
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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.
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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]
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• Concluding remarks on the effectiveness of
certiorari as a remedy in controlling actions or
decisions of public authorities in
administration of a state
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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
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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]
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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]
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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]
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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
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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]
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• 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
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Thank you for your attention
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