Injunctive order not available against government

 

From Hafiz Hassan

After an outpouring of criticisms against a recent court verdict of contempt, it is now hue and cry about a court’s order of stay.

But can a stay order restrain the government or its officers from performing their duties?

Based on reports, 1,086 Myanmar Nationals were deported by the Immigration Department even though a court order was issued a few hours before that which prohibited the government from deporting them at least until 10 am on February 24.

The High Court was hearing an application for leave for judicial review brought by rights group Amnesty International Malaysia and Asylum Access Malaysia when it granted the stay order against the Malaysian Immigration director-general, the home minister and the federal government who were named as respondents in the application.

An application for leave must be made ex parte to a judge in chambers. The grant of leave will not, unless the judge so directs, operate as a stay of the proceedings in question.

Therefore, a stay order is permissible. The word “stay” here would mean a stay of the process by which the decision that is sought to be challenged has been reached, including the decision itself.

But in a proceeding against the government, an injunctive order will not be available directly or indirectly against the government or against a private person if it would result in restraining the government or its officers from performing their duties.

The court has no jurisdiction to award an interim injunction against the government in view of section 29 of the Government Proceedings Act 1956 (GPA) and section 54 of the Specific Relief Act 1950 (SRA).

In the case of Haji Ismail bin Che Chik v State Commissioner, Penang [1975] 1 MLJ 271, the High Court in Penang held that by virtue of section 29 GPA, the court has no jurisdiction to entertain an application for an injunction against the government or an officer of the Government which would have the effect of an injunction against the government.

There is a line of cases with similar decisions.

It may be argued that an order of stay is not equivalent to an injunctive order or injunction and is not caught by section 29 GPA. But it may also be argued that an interim order of stay is in nature an injunction since its effect is to prevent government officers from enforcing their administrative decisions.

The nature and difference between a stay order and an injunctive order or injunction are explained by the authoritative text, Nelson’s Law of Injunction as follows:

“An order of stay … is in the nature of a prohibitory order and is addressed to the court that is carrying out execution. It is not of the same nature as an order allowing an appeal and quashing execution proceedings… All that it does is to prohibit the court from proceeding with the execution further…. In effect, therefore, a stay order is no more or less in the same position as an order of injunction with one difference.”

“An order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well settled that in such a case the party must have knowledge of the injunction order before it could be penalised for disobeying it.”

“In the case of a stay order, it is addressed to the court and prohibits it from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity. That is the only difference between an order of injunction to a party and an order to stay a court.”

Thus, if the stay order is to prevent the Immigration Department from deporting the Myanmar Nationals, then it is an order issued to the government that prohibits it to do a certain act.

Simply put, it is an injunction that should not be available against the government. Order 53 rule 2(3) of the Rules of Court 2012, under which the application for judicial review is made, provides that the power to grant an injunction must be exercised in accordance with section 29 GPA and section 54 SRA.

This is not to say that the government must not be held answerable for the deportation of the Myanmar Nationals. This is why there is Parliament to which the government is accountable.

But it is tenuous to rely on a stay order to restrain the government or its officers from performing their duties.

Hafiz Hassan is an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.