2 U. Malaya L. Rev. 64 (1960)
Judicial Review of Adminstrative Action by the Prerogative Orders

handle is hein.journals/sjls2 and id is 70 raw text is: UNIVERSITY OF MALAYA LAW REVIEW

The complexity of modern life is marked by an increasing demand for
greater socialization. This has rendered it necessary to vest more and more
discretionary power in persons or bodies charged with the administration.
Alongside it, has developed a fear that in the process, the rights of the
individual might sink below water. This in turn provokes doubts as to
the efficacy of the existing machinery of judicial control of administrative
action. The general climate of opinion, both judicial and juristic (at
least that voiced) favours the continental as opposed to the common law
system of judicial control over the executiveI - loud in praises of one
and castigating in no uncertain terms the inadequacy of the other.
Bearing the brunt of the attack are the prerogative orders 2 of mandamus,
prohibition and certiorari which have been condemned as moribund or
archaic, cumbrous and inelastic and designed or planned for the evil
purpose of thwarting justice and maximising fruitless litigation.
From the bench comes this oft-quoted extra-judicial pronouncement
...Just as the pitch and shovel is no longer suitable for the winning of
coal, so also the procedure of mandamus, certiorari and action on the
case are not suitable for the winning of freedom in the new age... 4
Eight years later, the Frank's Committee (1957) took the opposite
stand : It is sometimes asserted that the procedure involved in seeking
these remedies is unduly complex, but we think that this criticism is
unfounded. I
The whole topic is highly controversial and this paper is an essay
on the part of the writer to come to grips with the efficacy of judicial
control of the actions of the executive through the prerogative orders.
In order to assess the position more accurately, it would be salutary to
bear in mind the precise role of the courts in the context of the world
1. In France, the general administrative remedy is by a petition filed with the
appropriate administrative court containing a summary statement of the facts,
the grounds on which relief is sought and the nature of the relief. In Germany,
the Generalklausal gives anyone whose rights are injured by public power a
right to legal redress. Cf. U.S. Federal Administrative Procedure Act, 1946,
s.10, which appears to give a general right of review of administrative action
comparable to the Generalklausal. However the limitations on the section render
its scope uncertain.
2. Previously, the prerogative writs. Change brought about in England by the
Administration of Justice (Miscellaneous Provisions) Acts, 1933, s.5, and 1938,
3. Davis, Administrative Law, p. 126.
4. Denning, Freedom Under the Law, p. 126 (1949).
5. Cmnd. 218 (1957), para. 117. It also recommended that remedies by certiorari,
prohibition and mandamus be not excluded by statute.

Vol. 2 No. 1,--

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