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.

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]