1. A command issued by the court to an authority to perform a public duty placed upon it by law
This proposition was put forth by the Federal Court in Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 4 MLJ 641 (“Petrojasa”):
“… by definition an order of mandamus is a command issued by the court to an authority to perform a public duty placed upon it by law.”[1]
In MP Jain’s ‘Administrative Law of Malaysia and Singapore’ 3rd edn at pp. 652, 653, the learned author described a mandamus as “… a command issued by the High Court asking an authority to perform a public duty imposed upon it by law.”[2]
2. Provided for under paragraph 1 of the Schedule of the Courts of Judicature Act 1964
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.” (Emphasis mine)
3. Provided for under Section 44 of the Specific Relief Act 1950
Section 44 of the Specific Relief Act 1950 provides the following:
“(1) A Judge may make an order requiring any specific act to be done or forborne, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or any court subordinate to the High Court:
Provided that—
(a) an application for such an order be made by some person whose property, franchise, or personal right would be injured by the forbearing or doing, as the case may be, of the said specific act;
(b) such doing or forbearing is, under any law for the time being in force, clearly incumbent on the person or court in his or its public character, or on the corporation in its corporate character;
(c) in the opinion of the Judge the doing or forbearing is consonant to right and justice;
(d) the applicant has no other specific and adequate legal remedy; and
(e) the remedy given by the order applied for will be complete.
(2) Nothing in this section shall be deemed to authorize a Judge—
(a) to make any order binding on the Yang di-Pertuan Agong;
(b) to make any order on any servant of any Government in Malaysia, as such, merely to enforce the satisfaction of a claim upon that Government; or
(c) to make any order which is otherwise expressly excluded by any law for the time being in force.”
4. Must satisfy the 4 requirements in Koon Hoi Chow
Sharma J in Koon Hoi Chow v Pretam Singh [1972] 1 MLJ 180b (“Koon Hoi Chow”) laid down the 4 requirements for an order for mandamus:
“There are four prerequisites essential to the issue of an order under section 44 or of a mandamus:-
(1) Whether the applicant has a clear and specific legal right to the relief sought;
(2) Whether there is a duty imposed by law on the respondent;
(3) Whether such duty is of an imperative ministerial character involving no judgment or discretion on the part of the respondent; and
(4) Whether the applicant has any remedy, other than by way of mandamus, for the enforcement of the right which has been denied to him.”[3]
The test in Koon Hoi Chow has been subsequently adopted by appellate courts, including the Court of Appeal in Peguam Negara Malaysia v Dr Micheal Jeyakumar Devaraj [2012] 1 MLJ 179[4] and Mohamad Hassan bin Zakaria v Universiti Teknologi Malaysia [2017] 6 MLJ 586.[5]
5. Can be granted against a Minister
In Petrojasa, the Federal Court speaking through Abdul Hamid Mohamad CJ held the following:
“[31] We shall now look at the provision of para 1 of the Schedule in detail. Mandamus is mentioned as one of the additional powers. It may be issued to ‘any person or authority’ which, in my view, includes a Minister of a government.
[32] My brother Arifin Zakaria FCJ has dealt at length, citing authorities to the effect that judicial review lies against a Minister. I shall not repeat. Indeed, the writ of habeas corpus, one of the writs mentioned in para 1 of the Schedule are mostly issued against a Minister. That being the case, I am of the opinion that mandamus may be issued against the appellant.”[6] (Emphasis mine)
[1] Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 4 MLJ 641 (FC), at para 63
[2] See Dato’ Sri Mohd Najib bin Tun Hj Abd Razak v Menteri Dalam Negeri & Ors [2024] MLJU 1695 (HC), at para 52
[3] Koon Hoi Chow v Pretam Singh [1972] 1 MLJ 180b (OCJ), at p. 182
[4] Peguam Negara Malaysia v Dr Micheal Jeyakumar Devaraj [2012] 1 MLJ 179 (CA), at pp. 188-189
[5] Mohamad Hassan bin Zakaria v Universiti Teknologi Malaysia [2017] 6 MLJ 586 (CA), at para 75
[6] Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 4 MLJ 641 (FC), at paras 31-32
