DECEMBER 22 — The nature of judicial review is such that the remedies available are discretionary in nature.

The remedies of certiorari, mandamus and prohibition under Order 53 of the Rules of the Court 2012 (ROC), the remedies of mandamus, declaratory decree and injunction under the Specific Relief Act 1950 (SRA), and declaratory relief provided for under Order 15 rule 16 of the ROC are all discretionary in nature.

The Courts have wide powers to grant relief and remedies according to the facts and circumstances of the case. This was so held in a number of cases.

In the Federal Court case of R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] Chief Justice Eusoff Chin said that where the particular facts of the case warrant it, the High Court should endeavour to remedy an injustice when it is brought to its notice rather than deny relief to an aggrieved party on purely technical and narrow grounds. The High Court should mould the relief in accordance with the demands of justice

In a Court of Appeal case of Hong Leong Equipment Sdn. Bhd. v Liew Fook Chuan & Anor [1996], the appellate court held that under the Courts of Judicature Act 1964, the High Court has wide powers in the field of public law remedies.

Thus, the High Court has jurisdiction to grant relief not expressly prohibited by written law and in the field of public law remedies, the High Court is not confined to the grant of usual prerogative orders known to English law.

The High Court is also 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, based on the law.

Delivering the judgment of the appellate court, Court of Appeal Juidge Gopal Sri Ram said:

“In my judgment, the wide power conferred by the [CJA] 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.”

Accordingly, the High Court has wide powers to “fashion the appropriate remedy” as “meets the ends of justice”.

Notwithstanding the wide powers, there have been many refusals by the High Court to exercise its discretion to grant the remedies sought in a judicial review.

The latest of such refusal is the decision of High Court judge Alice Loke Yee Ching ruling that the former Yang di-Pertuan Agong’s add-on order for former prime minister Datuk Seri Najib Razak’s house arrest is invalid and cannot be carried out.

This is because the then Yang di-Pertuan Agong did not follow the requirements under Article 42 of the Federal Constitution Article 42 when His Majesty made the add-on or addendum order for Najib to be placed under house arrest.

The High Court has so decided. 

The decision is nonetheless appealable. Section 44 of the SRA provides that the decision “may be appealed from, as if it were a decree made in the exercise of the ordinary jurisdiction of the High Court”.

Najib will appeal against the High Court’s decision.

Let’s respect both the High Court’s decision and Najib’s decision to appeal.

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