Monday, June 21, 2021

Injunctive orders and the deportation of Myanmar nationals

It would have been tenuous to rely on a stay order to prevent the government from deporting the 1,200 Myanmar nationals.

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There has been a great hue and cry about the immigration department deporting 1,086 Myanmar nationals, even though a court order was issued a few hours before that which prohibited the government from deporting them at least until 10am on Feb 24.

Based on reports, the High Court was hearing an application for leave for judicial review brought by rights groups Amnesty International Malaysia and Asylum Access Malaysia. In the judicial review, the immigration director-general, the home minister and the federal government were named as the three respondents.

An application for leave is 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 s 29 of the Government Proceedings Act 1956 (GPA) and s 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 s 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 s 29 GPA. But it may also be argued that an interim order of stay is in the 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 injunctive order is explained by the authoritative text, Nelson’s Law of Injunction, as follow:

“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, and the court unless it knows of the order cannot be expected to carry it out…. 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 penalized 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 from committing a certain act.

Simply put, it is an injunction which should not be available against the government.

Although the Rules of Court 2012, under which the application for judicial review is made, does not contain anything that bars the granting of an interim injunction against the government, it is a general procedural law applicable to all proceedings before the court.

The GPA is a specific law governing all proceedings by and against the government. In case of conflict, the GPA prevails.

This is not to say that the government must not answer for the deportation of the Myanmar nationals. But it is tenuous to rely on a stay order to prevent the government from deporting them.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.

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