Remedy of mandamus does not simply work to compel a public officer to practise whatever power provided or available to him. This application can only be invoked to compel a public officer to perform a duty, in which such duty must be provided in the statute. For example, Section 135 of the Income Tax Act states that: “The Minister may give to the Director General directions…”. Now, the word ‘may’ here show that it is only a discretionary power for the Minister to give to the Director General directions. It is not a duty. Hence, order for mandamus is not applicable in this context.
Quoting the High Court’s decision in the case of Sime Darby Property (Selangor) Sdn Bhd v. Menteri Kewangan Malaysia [2023] MLRHU 190; “what can be enforced through mandamus is a duty of a public nature, the performance of which is imperative and not optional or discretionary with the concerned authority”. Thus, if an officer has a power, rather than a duty, and if he does not use that power, a remedy of mandamus cannot be issued to compel him to exercise his power.
Nur Farihah Syahriza, Pelatih Dalam Kamar.
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