MAY 16 — There are many aspects to our political system citizens ought to understand. Quite apart from it being a democracy, our country practises constitutional monarchy which simply means while we have a monarch, our constitution, however is supreme.

The Federal Constitution therefore is the “highest law” in the land subject to which other laws may be enacted.  Another way of looking at the constitution is that it is an agreed document by the citizens as to how the country may be managed by the executive (government), how the legislature (Parliament) may pass laws, how the judiciary, the civil service and police may perform their functions, and what the fundamental rights of the citizens are and how they relate with each other. 

Malaysians are increasingly becoming more aware of their constitutional rights in the past two decades due to various political developments and possibly, due to rise of the educated class. 

The basic idea behind the existence of public authorities is to best serve the interests of the general public. For example, it may be felt a certain area requires highways to be built to provide public transportation which best serves the general public.

Efficient road systems are important infrastructure not only because they provide mobility and therefore better connectivity between regions but they also have tremendous economic benefits. With better infrastructure, investments in business will increase leading to higher employment and income. 

However, a situation may arise whereby the construction of the highway may result in various other social costs and even private costs to particular individuals. One common situation which arises is where the land or part of the land owned by a person may be required by the authority which builds the highway. 

The Land Acquisition Act, however, allows the government to compulsorily acquire the land owned by a citizen “for any purpose which in the opinion of the State Authority is beneficial to the economic development of Malaysia”. 

So, if the authority had decided to acquire your land, can you challenge the decision since an Act of Parliament allows it to do so? 

This question arises because under Article 13(1) the Federal Constitution, the citizen has a right not to be deprived of property “save in accordance with the law” and Article 13(2) prohibits the passing of any law which allows for compulsory acquisition of land without “adequate compensation”. 

It is clear therefore these laws provide the authority can only make decisions within the confines of the specific law and the Constitution.

If it acts ultra vires the Constitution or did not follow procedures, that are set by legal principles, for example conducting an inquiry with the person whose land is to be acquired, then the decision may be challenged in the courts.

There may be various situations where the decision of a public authority may be felt to be “unfair” or that there has been an abuse of administrative powers by a government body, for example an “unfair” decision by a minister on some matters that adversely directly affects you.  

Order 53(4) of the Rules of Court 2012 provides “any person who is adversely affected by the decision, action or omission in relation to the exercise of the public duty or function shall be entitled” to make the application for judicial review.

Hence, administrative decisions may be challenged by way of judicial reviews.

This is a procedure where the aggrieved party applies to the courts seeking the courts to review the decision made and to seek some sort of remedy or relief.

The relief often sought for under judicial review is habeas corpus, certiorari, prohibition and mandamus.

The relief that a court may grant the applicant is not limited and may include an order of injunction and even monetary compensation.  

Certiorari is an order which quashes a decision which has already been made by an authority. Mandamus is an order which compels the decision-making body to perform its public duties that it has failed to perform.

Prohibition is in the nature of a pre-emptory order which seeks to quash a decision which is going to be made. 

A writ of habeas corpus is used to release a person who has been detained not in accordance with the law, for example, for more than 24 hours without a remand order.

The application for judicial review however must be made promptly and in any event within three months from the date when grounds of application first arose or when the decision is first communicated to the applicant. 

One of the interesting features of judicial review is that any of the party to the application may apply to the judge for discovery and inspection of documents.  This may in certain cases throw light on the complaint being made because of the transparency effect. 

* Jahaberdeen is is a senior lawyer and founder of Rapera, a movement that encourages thinking and compassionate citizens. He can be reached at rapera.jay@gmail.com

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.