Lamin Mohd Yunus PCA:

On 20 January 1998 we sat to hear the instant appeal to decide the following question: "What is the correct procedure for a police officer dismissed by a disciplinary body to challenge the decision ie, whether by way of declaration or certiorari or either."

The short answer is in the opinion of the Privy Council in Surinder Singh Kanda's case [1962] 28 MLJ 169 (at p. 173) expressed by Lord Denning thus:

Their Lordships notice that before Rigby J, it was suggested that the only remedy was by certiorari. But their Lordships agree with him that the remedy by declaration is available also.

In this case the Privy Council had to decide the question of dismissal of a Police Inspector which had to call in for interpretation of art. 135(1) of the Federal Constitution. In the case of Mahan Singh V. Government Of Malaysia [1973] again the Privy Council had to decide the fate of another employee in the service of the Federal Government holding the post of Senior Registrar of the Sessions Court. He was "pensioned off in the Public Interest" and he had not reached the compulsory retirement age of 55. On the facts of the case, the relevant question was whether it was a dismissal and if so whether he had been given "a reasonable opportunity of being heard" within the meaning of art. 135(2) of the Federal Constitution. To examine whether this rule of natural justice has been complied with, a declaration was applied for. The High Court granted the declaration for the reason that the termination of the services of Mahan Singh had breached art. 135(2) and therefore void. The Federal Court disagreed and on appeal to the Privy Council the Council favoured the decision of the High Court. In Sungai Wangi Estate V. Uni [1975] an employee of the estate was dismissed by giving him one month's salary in lieu of notice. The matter was referred to the Industrial Court which decided that there was condonation by the applicant/employer. The applicant applied by originating summons for a declaration that there was an error on the face of the record of the Industrial Court. The court refused to grant the declaration as there was only "mere error of law on the face of the record" which did not result in any jurisdictional defect. The learned judge was of the view that the correct and appropriate procedure in such a case was to apply for an order of certiorari to quash the award. Eusoffe Abdoolcader J (as he then was) said (at p. 137):

Certiorari will lie to quash a decision for want or excess of jurisdiction, breach of the rules of natural justice, error of law on the face of the record and fraud or collusion. There is now ample authority demonstrating that a declaration of invalidity is obtainable for jurisdictional defects and breaches of natural justice, in such cases as, for example, where an interested party has not been joined or heard, resulting in a decision or determination being a nullity (Ridge v. Baldwin). The position however seems to be somewhat different where the only defect is an error of law on the face of the record not going to jurisdiction.

Such a decision is voidable and not void and logically a voidable decision cannot be declared invalid, as such a declaration will not state that the decision never had any effect but rather that it is ineffective as from the date of the declaration.

The opinion of the Privy Council in Surinder Singh Kanda was not cited before his Lordship. It was not done perhaps for the reason that in Surinder, it involves a person in the service of the Government which to my mind should not be viewed with a difference since observations on certiorari and declaration being concurrent remedies were made. The learned judge made a further distinction thus (at p. 139):

In other words, the court can grant a declaration only where a decision which has been impugned is without jurisdiction and void, but not where it is within jurisdiction and merely voidable.

The learned judge continued: