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]
iii) Monetary compensation
In Ng Kim Moi (P) & Ors v Pentadbir Tanah Daerah, Seremban, Negeri Sembilan Darul Khusus (Negeri Sembilan Township Sdn Bhd & Anor, Proposed Intervenors) [2004] 3 MLJ 301 (“Ng Kim Moi”), Gopal Sri Ram JCA (as His Lordship then was) in his dissenting judgement asserted that:
“One of the appropriate remedies for the breach of a fundamental right guaranteed by the Constitution is an award of monetary compensation.”[9]
In R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145, the Federal Court found for the Appellant and awarded monetary compensation[10] for the breach of the Appellant’s right to livelihood.[11]
Zainun Ali FCJ (dissenting) in Nurasmira Maulat observed that:
“… where a wrong is committed by the state or an instrument of the state which has the effect of depriving the victim of his life (in the widest sense as held by this court in Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301, in a manner not in accordance with law, the victim is entitled to an award of exemplary or aggravated damages). Thus as in this appeal, the Respondent is entitled as a matter of right guaranteed to them by the Constitution, to exemplary or aggravated damages for the deprivation of the deceased’s (Kugan’s) life. (Emphasis added.)”[12]
Zainun Ali FCJ’s dissenting judgement in Nurasmira Maulat, with regards to an award of exemplary or aggravated damages, was cited approvingly by Balia Yusof FCJ in Hassan bin Marsom.[13] In Hassan bin Marsom, the Federal Court increased the award of exemplary damages to RM100,000 as to reflect the court’s indignation towards the actions of the police.[14]
The award of exemplary and aggravated damages, however, appears to be limited to cases of violations of Article 5(1) of the Federal Constitution.
iv) Consequential orders, etc
In Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and another appeal [1996] 1 MLJ 481 (“Hong Leong Equipment”), Gopal Sri Ram JCA (as his Lordship then was) opined that:
“… the wide power conferred by the language of para 1 of the Schedule enables our courts to adopt a fairly flexible approach when they come to decide upon the appropriate remedy that is to be granted in a particular case. The relief they are empowered to grant is by no means to be confined within any legal straightjacket. They are at liberty to fashion the appropriate remedy to fit the factual matrix of a particular case, and to grant such relief as meets the ends of justice.” (emphasis added)
The above extract from Hong Leong Equipment was cited approvingly by the Federal Court in Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v Muziadi bin Mukhtar [2020] 1 MLJ 141 (“Muziadi bin Mukhtar”).[15]
In Muziadi bin Mukhtar, the Federal Court made a consequential order “for the purpose of assessing fair compensation/damages to the dismissed employee”[16] as the dismissed employee “had been denied procedural fairness as mandated by [Articles] 5(1) and 8(1) of the Federal Constitution.”[17]
Conclusion
What can be gleaned from the above is that there are various remedies for the infringement of constitutional rights. While some are more common than others, the courts are willing to and are in fact empowered to mould the remedy to suit the justice of the case.
[1] Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop [2018] 5 MLJ 141, at paragraph 115
[2] 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, at paragraph 22
[3] Ibid.
[4] The right to property is protected under Article 13 of the Federal Constitution
[5] Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 4 MLJ 641, at paragraph 35
[6] 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, at paragraph 30
[7] Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop [2018] 5 MLJ 141, paragraph 8 read together with paragraph 118
[8] Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop [2018] 5 MLJ 141, at paragraph 115
[9] Ng Kim Moi (P) & Ors v Pentadbir Tanah Daerah, Seremban, Negeri Sembilan Darul Khusus (Negeri Sembilan Township Sdn Bhd & Anor, Proposed Intervenors) [2004] 3 MLJ 301, at paragraph 51
[10] R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145, at page 185
[11] R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145, at page 225
[12] 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, at paragraph 71
[13] see Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop [2018] 5 MLJ 141, at paragraphs 125-126
[14] Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop [2018] 5 MLJ 141, at paragraph 127
[15] Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v Muziadi bin Mukhtar [2020] 1 MLJ 141, at paragraph 108
[16] Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v Muziadi bin Mukhtar [2020] 1 MLJ 141, at paragraph 109
[17] Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v Muziadi bin Mukhtar [2020] 1 MLJ 141, at paragraph 89
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