Remedies for Infringement of Constitutional Rights

Note: This article was first published in Issue 01/2020 of Voix D’Advocat

In Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop [2018] 5 MLJ 141 (“Hassan bin Marsom”), the Federal Court affirmed the long-standing legal maxim ubi jus ibi remedium:

“The law wills that in every case where a man is wronged he must have a remedy. More so when his constitutional rights have been infringed. Ubi jus ibi remedium — there is no wrong without a remedy (see also Educational Co of Ireland Ltd v Fitzpatrick (No 2) [1961] IR 345 Budd J at p 368).”[1]

Zainun Ali FCJ, in delivering her dissenting judgement in Ketua Polis Negara & Ors v Nurasmira Maulat bt Jaafar & Ors (minors bringing the action through their legal mother and next friend Abra bt Sahul Hamid) and other appeals [2018] 3 MLJ 184 (“Nurasmira Maulat”), opined that “the doctrine of ubi jus, ibi remedium (that there is no wrong without a remedy) is still very much alive.”[2]

Her Ladyship went on to state that, “… a breach of a constitutional right should result in an appropriate constitutional remedy, which would, in my view, be separate and distinct from remedies under statute, common law and equity.”[3]

An examination of case law will reveal that the Courts have awarded differing remedies for infringement of constitutional rights.

Remedies
i) Prerogative Orders

Paragraph 1 of the Schedule of the Courts of Judicature Act 1964 states that the High Court has the additional powers to:

“… 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 II of the Constitution, or any of them, or for any purpose.”

In Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 4 MLJ 641, the Federal Court issued a mandamus in favour of the Respondent for a breach of the Respondent’s right to property:[4] 

“… Here, the respondent has obtained a judgment. There is a judgment debt owed to him. Payment has not been made. Upon obtaining the certificate, it becomes a statutory duty of the State Government of Sabah to make payment. By not paying, clearly the State Government of Sabah has deprived the respondent of its property contrary to law.”[5]

ii) Declarations

In Nurasmira Maulat, Zainun Ali FCJ (dissenting) remarked that:

“The remedy for the contravention of a constitutional right is usually a declaration.”[6]

Zainun Ali FCJ’s remarks are consistent with the position taken by the Federal Court in Hassan bin Marsom wherein the Federal Court had granted a declaration that the Respondent’s rights under Article 5 of the Federal Constitution had been breached.[7] Balia Yusof FCJ (majority) opined that:

“The power to grant a declaration has been stated by Raja Azlan Shah Ag LP (as His Lordship then was) ‘to be exercised with a proper sense of responsibility and after a full realization that judicial pronouncement ought not to be issued unless there are circumstances that properly call for their making’ (see: Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29). We hold this is one instance that properly calls for the making of such pronouncement and for a good reason.”[8]

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Division in the Federal Court on the Basic Structure Doctrine

The Basic Structure Doctrine, after years of development in Malaysian jurisprudence,[1] has been under siege recently.

The trend of  rejection of the Basic Structure Doctrine began in Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor,[2] and continued in Rovin Joty a/l Kodeeswaran v Lembaga Pencegahan Jenayah & 4 Ors[3] and other appeals and cropped up again in Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan & Ors[4] & other appeals.

What is evident is that the Federal Court is divided into two distinct camps, one which favours the acceptance and application of the Basic Structure Doctrine in Malaysia and another which rejects the same.

Yes

The following are the present Federal Court judges in the “Yes” camp who have either directly or indirectly indicated their support for the application of the Basic Structure Doctrine in Malaysia:

Judge (arranged alphabetically) Evidence of position
YAA Tan Sri Dato’ Sri Azahar bin Mohamed “It is also worth emphasising that our Federal Constitution is grounded on the Westminster system of parliamentary government under which the sovereign power of the State is distributed among three branches of government, viz, Legislature, the Executive and the Judiciary (see Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187). Legislature, the Executive and the Judiciary are all co-equal branches of government. This distribution of the governance of the State to the three branches reflects the doctrine of the separation of powers. At the core of the doctrine is the notion that each branch of the government must be separate and independent from each other. As decided by this court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561, this important doctrine is critical as it is sacrosanct in our constitutional framework and is part of the basic structure of our Federal Constitution.”[5]
YA Datuk Harmindar Singh Dhaliwal In Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750, YA Datuk Harmindar Singh Dhaliwal agreed with YAA Tun Tengku Maimun binti Tuan Mat’s dissenting judgment which was premised on the Basic Structure Doctrine.[6]
 YA Datuk Nallini Pathmanathan “To read Art 121 FC in any other manner would be to do violence to the basic and foundational structure of the FC. In order to retain its role under Art 4(1) FC, Art 121(1) FC cannot be given the literal reading adopted in the majority decision in Kok Wah Kuan and since overruled in the trilogy of cases of Semenyih Jaya, Indira Gandhi and Alma Nudo.”[7]

“… The enforcement of rights by way of judicial review does comprise a part of the basic structure of the FC under Art 4(1) FC”[8]

“… This is consonant with the unanimous decisions of this court in Semenyih Jaya and Indira Gandhi which both held that the superior courts enjoy such a power of review as a basic feature of the FC.”[9]

YA Datuk Ong Lam Kiat Vernon “… In this connection, I am inclined to agree with the following views of the learned Chief Justice expressed in her written judgment:

i. That the power of constitutional review is inherent in the Courts by constitutional design. The drafters of the FC had in mind certain basic principles which ought to form the bedrock of this country and that under art 159(1), Parliament may amend certain provisions of it without amending the central tenets of the FC. This is a safeguard as couched in the wide language of the first limb of art 4(1) to cast away any attempt to cause to FC to implode on itself by abuse of the legislative process.”[10]

Note: In Rovin Joty a/l Kodeeswaran v Lembaga Pencegahan Jenayah & 4 Ors [Federal Court Criminal Appeal No. 05(HC)-304-12/2019(B)] and other appeals, YA Datuk Ong Lam Kiat Vernon agreed with the majority judgment which inter alia held that the Basic Structure Doctrine was inapplicable in Malaysia.[11]

 YA Dato’ Rhodzariah binti Bujang “I respectfully concur with and adopt wholeheartedly the reasons given by the learned Chief Justice and the conclusion which Her Ladyship has arrived at”[12]
YAA Tun Tengku Maimun binti Tuan Mat “In other words, we need not look elsewhere to know that basic structure or basic concept, whatever term one may want to use, is engraved within the very fabric of our Article 4(1).”[13]

“Although judicial precedent plays a lesser role in construing the provisions of the FC, I see no reason to depart from the doctrine of stare decisis, particularly given the parties’ common ground that Semenyih Jaya and Indira Gandhi correctly held that judicial power is a basic structure of the FC.”[14]

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Minimum Remuneration for Pupils

Disclaimer: The following was written before the Malaysian Bar passed a resolution that “it accepts in principle that pupils ought to be protected with minimum remuneration.”

The Current Position

As it stands, pupils in Malaysia are only allowed to receive a remuneration from their pupil master. This is provided for in Section 12(3) of the Legal Profession Act 1976 (“LPA 1976”) which states:

“(3) No qualified person shall, without the special leave in writing of the Bar Council, hold any office or engage in any employment of any kind, whether full-time or otherwise, during his period of pupillage, but nothing in this subsection shall preclude a pupil from receiving remuneration from his master.” (emphasis mine)

Two things need to be noted at this point:

(i) The LPA 1976 is silent on the definition of “remuneration” thereby leaving it to the discretion of a master to determine how much (if any at all) a pupil should receive.

(ii) From a plain reading of the provision, it would appear that masters are not

statutorily obligated to remunerate their pupils. Though by convention pupils are remunerated, masters appear to not be required to remunerate their pupils.

Chapter 10 of the Rules and Rulings of the Bar Council, which touches on pupillage, is silent on this matter.

Item (i) has, unsurprisingly, resulted in “wage” inequality. In 2014, a survey by eLawyer revealed that some pupils in certain cities in Malaysia received as low as RM500 a month.[1] Meanwhile, in the Klang Valley, pupils were reportedly receiving around RM2,000 to RM2,800 a month.

More recent data reveals that this wide spectrum still persists – with some pupils in the Klang Valley receiving up to RM5,000 a month[2] while some, also in the Klang Valley, only receive RM400-900 a month.[3]

As at the time of writing, the minimum wage for selected locations in Malaysia is RM1,200.[4] However, this figure only applies to employees who fall under the scope of the Employment Act 1955, the Sabah Labour Ordinance, or the Sarawak Labour Ordinance.[5]

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Asylum Access Malaysia & Amnesty International Malaysia’s Judicial Review Application

Asylum Access Berhad (Asylum Access Malaysia) and Aimal Sdn Bhd (Amnesty International Malaysia) [collectively referred to as “the Applicants“] recently filed a judicial review application against the Director General of Immigration, the Home Minister, and the Government of Malaysia[1] over the planned repatriation of 1,200 Myanmar nationals (“Impugned Decision“).[2]

The Applicants successfully obtained an interim stay of the repatriation on 23rd February 2021[3] but the success was shortlived as, on the same day, 1,086 Myanmar nationals (out of the 1,200) were nevertheless repatriated by the Immigration Department in collaboration with the Royal Malaysian Navy, National Task Force, and the Myanmar Embassy.[4]

The Immigration Department’s actions received widespread criticism in light of the interim stay granted by the High Court.[5] The Immigration Department was legally represented by the Attorney General’s Chambers when the interim stay was granted and had full knowledge of the same.[6]

The interim stay has since been extended until 9th March 2021, the date on which Yang Arif Dato’ Sri Mariana binti Haji Yahya will deliver her decision on whether the Applicants should be granted leave to proceed with their judicial review application.[7]

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