QUESTION 3 Declaration It declares the legal right of a person. It is becoming more important and widely sought against the administrators. Section 41 SRA 1950: "Any person entitled to a legal character or to any rights as to property, may institute a suit against any person denying, or interested to deny, his title to the character or right." This remedy does not have any coercive force and hence it does not make an administrator being forced into doing the declaratory rights. Also, it will not quash or cancel any action taken by the administrator.Why seek this remedy if it cannot be forced upon? i) A declaration is granted at the court's discretion if that person has a locus standi, i.e. when that person has some legal right or legal position (s41 SRA) and no other alternative remedy available. ii) A declaration could not be sought in the absence of a person who has a real interest in the matter because his right will be in jeopardy if the declaration were made. This may also lead to a breach of natural justice. iii) The idea of seeking the order of declaration is based on the reasoning that a public authority will not disobey the law once it is discovered what the law is. For example, if his employer dismissed Belalang without first being heard; Belalang can seek a declaratory order from the court regarding his right to be heard according to the rules of natural justice as his employer did not observe it. iv) A declaration may effectively weaken the enforceability of administrative action, i.e. an order declared invalid does not have to be complied with. This has the same effect if such an order is declared illegal; an illegal order does not have to be complied with. Example: If a local authority issued an order to Senah to pay certain taxes and if Senah succeeded in seeking a declaration saying the authority has no power to do so; then, Senah does not have to pay for the taxes. Some cases to ponder: * Eshah binti Saat v Meriam binti Saat [1975] The plaintiff sought an order of declaration when the Collector of Land Revenue ordered the defendant to be registered as the proprietor of certain lands, saying that she was entitled to the land in question. The High Court refused to grant it based on several reasons: - i) There was an alternative remedy available for her - she could have appealed to the Collector of Land Revenue. ii) She did not apply for certiorari to quash the Collector's decision. iii) The Collector was not made a party to the action. iv) There had been considerable delay in asking for declaration.Tan Pool Yee v Ketua Pengarah Jabatan Pendaftaran Negara [2016] The court, in this case, had to decide on an application by the plaintiff, who was born as a female, to seek a declaratory order that he was a male after going through a gender reassignment surgery. The plaintiff sought such a declaration on the ground that he has such right according to article 5(1) of the Federal Constitution. The court granted the declaration that medical evidence presented in this case individually, collectively, and unambiguously concluded that the plaintiff was a male. Following that, the defendant was directed to change the plaintiff's identity card to "Tan Yien How". In addition, the defendant was directed to change the last digit of the plaintiff's identity card to a digit that reflects the male gender. Vijayalakshmi Devi Nadchatiram v Mahadevi Nadchatiram & Anor [2002] The plaintiff, in this case, sought a declaration to stop the defendant from representing the second defendant. The court refused the remedy because the plaintiff should have sought the remedy of injunction instead of a declaration. Moreover, the conduct of the plaintiff herself had prevented the court from granting the remedy. Thus, the plaintiff had breached s.99 of the Legal Profession Act 1976 (LPA), which concerns the procedure for complaints against advocates and solicitors. Further, there was no investigating tribunal constituted as required by s.100 of the LPA. 3.3.2 Constitutional Remedies In Malaysia, in addition to the common law remedies, the provision of remedies for preserving and defending the fundamental rights in the Federal Constitution are provided for under Paragraph 1, Schedule in the Courts of Judicature Act 1964. The right to seek remedies for enforcement of fundamental rights are provided for under Paragraph 1 of the Schedule to the Courts of Judicature Act 1964, which is read together with Section 25(2) of the same Act. Section 25(2) provides that the High Court shall have the additional powers set out in the Schedule of the Act. Paragraph 1 of the Schedule empowers the High Court 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 fundamental liberties rights conferred by Part II of the Federal Constitution of Malaysia. This means that the High Courts are free to devise the writ and assign the appropriate relief, according to the circumstances of each specific case. The High Courts' thus, enjoy considerable remedial powers. Declaration is a widely sought remedy against public authorities in Administrative Law. With reference above, discuss the nature of this remedy and decided cases if related