Can A Litigant Ask a Court to Determine A Hypothetical Question?

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What is an academic/ hypothetical question?

It is a question of law which does not affect the outcome of a dispute between the parties in court/ affect the legal rights of a party in dispute1 i.e. it bears no relevance to the parties dispute nor does it have any practical use in the current dispute, even though it might have solved a potential dispute in the future.

The general rule

Court will not entertain such questions. This includes that bears relevance to the parties in dispute but subsequently became an academic question2 due to a change of circumstances in the case3.

The why behind the what

Why not? The court has this to say:

  1. It is a waste of time – the court could have focused cases which require their attention but they are tied to hypothetical questions. Justice is hardly served in such instances4.
  2. Parties cannot relitigate a question of law that has been determined in its finality by the court. On the other end of the spectrum, an academic question decided in abstract can be reopened for litigation. Again, a waste of time and court’s resources5.
  3. The court is neither a debating club or an advisory bureau – the court did not come into existence to decide on hypothetical questions which do not impact the rights of the parties in a dispute6.
  4. The court also refuses to do so as it would “merely be expressing its view on a legal conundrum which a party hopes to get decided in its favour without any way affecting the position of the party in question7“.

Basically the court generally refuses to engage in a fruitless exercise which is wholly ineffectual so far as the parties are concerned, as not only it is unnecessary and pointless, it is also inexpedient to decide on such an issue8.

Exception to the general rule: Questions of public law

Public law are laws that govern the relationship between the state and the general public/society as a whole. A clear example of public law is criminal law – the government dictates what constitutes an illegal act, and if you commit those acts that are considered illegal, the government can haul you to court for committing those illegal acts.

As mentioned above, the court will not entertain any academic/ hypothetical question unless those questions fall under the exception mentioned above. However, this exception is only used in certain situations (as pointed out by the court in R v Secretary of State for the Home Department ex p Salem9). In ex p Salem, the court noted that in order to determine a question of public law:

  1. The question must involve a discrete point of statutory construction which does not involved a detailed consideration of facts;
  2. A large number of similar cases exist or are anticipated to exist so that the issue will most likely need to be resolved in the near future; and
  3. There must be a good reason (for example, public interest requires the question to be heard) to do so.

Academic questions are undoubtedly important. However, those questions must not disrupt the main reason why a case is brought to court i.e. to ensure the rights of the parties are upheld in a dispute.

hypothetical question

1. Metramac Corp Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v Fawziah Holdings Sdn Bhd [2006] 4 MLJ 113.
2. Bar Council of Malaysia v Tun Dato’ Seri Arifin bin Zakaria & Ors (Persatuan Peguam-Peguam Muslim Malaysia, Pencelah) and Another Case [2018] MLJU 1288.
3. Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2020] MLJU 119.
4. Leung T C William Roy v Secretary for Justice [2006] HKCU 1585.
5. Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2020] MLJU 119.
6. Macnaughton v Macnaughton Trustees [1953] SC 387.
7. Sun Life Assurance Co. of Canada v Jervis [1944] AC 111.
8. Loknath Padhan v Birendra Kumar AIR 1974 SC 505.
9. R v Secretary of State for the Home Department ex p Salem [1999] AC 450.

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