OCTOBER 29 — In the case of Dato’ Seri Anwar Bin Ibrahim v Perdana Menteri Malaysia [2007], the former Deputy Prime Minister (the Plaintiff) sued the Prime Minister and another (the Defendants) by way of an originating summons (OS) for a declaration that they had acted in contravention of the Federal Constitution in dismissing him as Deputy Prime Minister and that he was still a Minister in the Malaysian Cabinet.
The Defendants applied to strike out the Plaintiff’s claim under Order 18 rule 19(1) of the then Rules of High Court 1980 (now Rules of Court 2012).
One of the grounds advanced by the Defendants was the use of an incorrect procedure. It was argued that the Plaintiff’s action should be by way of an application for judicial review under Order 53 rather than by OS.
The High Court allowed the application of the Defendants, striking out the Plaintiff’s action.
Dissatisfied, the Plaintiff appealed to the Court of Appeal. After hearing the parties, the Court dismissed the appeal. Court of Appeal Judge Helilah (as she then was) said:
“This suit raises public law issues as it is a decision and action taken by the Prime Minister in pursuance of the provisions of the Federal Constitution that is being impugned. As such, a decision taken by the Prime Minister with regard to a Minister as a member of the administration in his public duties is one that has implications for the public as a whole, and it is in consequence of this that the public law is concerned with the decision-making process.
“The legal sources of the powers that are being impugned are in the public domain. As such, to institute the proceedings by [OS], though seemingly appearing to be simple in procedure, will deprive the public authority, in this case, the Federal Government and in the circumstances of the present case, of the protection of the law that is entitled to by the process available under Order 53.”
The Court of Appeal’s decision was cited with approval by the Federal Court in the case of Ahmad Jefri Mohd Jahri v. Pengarah Kebudayaan & Kesenian Johor & Ors [2010] where the apex court made it clear that the procedure to challenge the exercise of statutory powers by public authority has been explicitly provided under Order 53.
The Federal Court said:
“As a general rule, an application for reliefs against public authority … which involves the question of the proper exercise of the statutory powers of the defendants as a public authority, should have proceeded under that rule [that is, Order 53]. The failure of which should stand the suit liable to be struck out.”
The apex court added as follows:
“Aside from mandamus, prohibition, quo warranto, and certiorari, or any others described under [Order 53], an alternative remedy for an aggrieved party seeking relief against a public authority on his infringed right to which he was entitled to protection under public law is for a declaration.
“However, [Order 53] sets out a specific procedure for an aggrieved party seeking relief, including a declaration, against a public authority on his infringed right to which he was entitled to protection under public law to follow.
“It is our view that when such an explicit procedure is created to cater to this purpose, then, as a general rule, all such applications for such relief must commence according to what is set down in [Order 53]; otherwise, it would be liable to be struck off for abusing the process of the court.”
When an explicit procedure is created, follow it or your action can be struck off.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
