Citation: [2003]2 MLRH 170 Court: High Court Malaya, Kuala Lumpur Judge: Abdul Malik Ishak J Date of Judgment: 17 February 2003
1. Brief Background Facts
In March 2001, significant violence broke out in Kampung Medan, a predominantly Indian area, resulting in deaths and injuries. On 30 March 2001, a non-governmental organisation (PRIM) handed a memorandum to the Human Rights Commission of Malaysia (SUHAKAM) alleging that the police had failed to protect the Indian community.
The plaintiff filed an originating summons against SUHAKAM and its members (including Tan Sri Musa Hitam and Tan Sri Anuar Zainal Abidin), claiming that the commission had failed to hold an inquiry into the incident. The plaintiff sought a declaration that the defendants breached the Human Rights Commission of Malaysia Act 1999, an order compelling them to conduct an inquiry, and RM50,000,000.00 in damages. The defendants applied to strike out the summons on multiple grounds, including lack of locus standi and wrong mode of commencement.
2. Legal Issues
- Mode of Commencement: Whether a claim seeking to compel a public authority to perform a statutory duty (mandamus) should be filed via originating summons or through judicial review under Order 53.
- Locus Standi: Whether the plaintiff had the standing to sue in the absence of evidence showing he suffered personal injury or special damage.
- Discretion of SUHAKAM: Whether the court could compel SUHAKAM to hold an inquiry when the governing Act grants the commission discretionary powers.
- Statutory Protection: Whether the defendants were protected from the suit for acts done in good faith under Section 18(1) of the Act.
3. Court’s Holding and Reasoning
The High Court allowed the defendants’ application and struck out the originating summons with costs.
A. Wrong Mode of Commencement The Court held that the plaintiff’s claim was effectively an application for mandamus to compel a public authority to perform a public duty. Such public law remedies must be pursued via judicial review under Order 53, which includes mandatory safeguards like the requirement for “leave of the court” and strict time limits. By filing an originating summons, the plaintiff was found to be deliberately attempting to circumvent these requirements, which constituted an abuse of the court’s process.
B. Lack of Locus Standi The Court found that the plaintiff had no locus standi. He failed to aver that he was a victim of the incident or that he had suffered any injury peculiar to himself. The plaintiff admitted to suing in the “public interest,”which the Court ruled does not confer a right to a private civil action unless a private right is infringed or special damage is proven.
C. Exercise of Discretion and Good Faith Under the Act, SUHAKAM has the discretion to decide whether to hold an inquiry. Evidence showed SUHAKAM had inquired into the memorandum, contacted relevant government agencies, and reasonably determined that a public inquiry was not necessary at that time. The Court found the defendants had acted in good faith, granting them immunity from being sued under Section 18(1) of the Act.
D. Inadmissible Evidence The plaintiff’s affidavit in support of his claim was ruled inadmissible because it was based almost entirely on hearsay, such as newspaper reports and speculations, rather than facts within his personal knowledge.
4. Conclusion
The Court concluded that the action was a “non-starter” and an abuse of process. The case highlights that challenges to the decisions or omissions of public authorities in Malaysia must typically follow the judicial review procedure, and plaintiffs must establish a specific legal nexus to the harm suffered to maintain standing.
Disclaimer: This post is for informational purposes only and does not constitute legal advice. Please consult a qualified Advocate & Solicitor for your specific legal needs.
