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SITI NURLAILA ABDUL GHANI LEB140108 TASHA LIM YI CHIEN LEB140116 CHAPTER 1: INTRODUCTION TO ADMIN LAW (AL)    AL deals with the structure, poewrs and functions of the organs of administration; the limits of their powers; the methods and procedures followed by them in exercising their powers and f...

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SITI NURLAILA ABDUL GHANI LEB140108 TASHA LIM YI CHIEN LEB140116

CHAPTER 1: INTRODUCTION TO ADMIN LAW (AL) 

 

AL deals with the structure, poewrs and functions of the organs of administration; the limits of their powers; the methods and procedures followed by them in exercising their powers and functions; the methods by which their powers are controlled including the legal remedies available to a person against them when his rights are infringed by their operation. (MP Jain, Administrative Law of MY and SG, 3rd ed., 14) AL = control over governmental powers AL main purpose: to ensure that the gov acts within the limits of its powers so that the people are protected from abuse of power by it.

Development of AL/Why is it needed? 

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19th century: ruling political dogma was laissez faire denoting individualism, individual enterprise and self-help. Its philosophy envisaged minimal governmental control over private enterprise and maximum free enterprise and contractual freedom. “tate ated like a polie or la ad order state ad its role as liited to defedig the country from external aggression, maintaining law an order within the country, dispensing justice to individuals and collecting taxes for funding there activities. Government did not care much about regulating the social and economic life of the country. Laissez faire had its shortcomings – it did not contribute to the happiness of the people. Uncontrolled contractual freedom gave freedom to only a few, for the economically weaker – they did not have bargaining power. Exploitation of the weaker and wealth being concentrated in a few hands. Laissez faire lost its sway and it came to be pleaded that the state should ameliorate the conditions of the poor. Gives rise to political philosophy of collectivism which favoured state intervention and in time, out of the concept, emerged the concept of social welfare state. Laid stress on the state acting as a vehicle for the socio-economic well-being of the people. Friedas lassifiatio of the futios of a oder state: a) Protector: acts to defend the country against external or internal aggression. b) Provider: seeks to provide social services and minimum welfare to the people to ensure a minimum standard of living for all. (Achieved through pensions etc.). c) Regulator: acts to control various activities of the community (town, urban planning etc.) d) Entrepreneur: undertakes public undertakings and enterprises. e) Umpire: acts and discharges arbitral functions between competing interests in society. “tate atiis ad the irease i the rage of the states futios lead ieitaly to the assumption of more and more powers by the state. The awareness for a need of control mechanism peaked, especially from the case of Ridge v Baldwin. Admin law is a mechanism used to find a fine balance between admin and individual claims which always contradict. It eourages good adiistratio ad a adiistratio that ats i aordae ith the la. Therefore, it is ufair to thik that Adi La as a foe of oder adiistratio.

SITI NURLAILA ABDUL GHANI LEB140108 TASHA LIM YI CHIEN LEB140116

Definition of administrative law  a) b) c)

d)

e)

There is no one definition of Admin law which accurately states its nature, scope and contents. Various definitions have been given. Adi la is the la oerig the poers ad proedures of adiistratie ageies, including especially the law governing judicial review of administration actio. Dais1 Adi la is the la relatig to adiistratio. It deals ith the orgaisatio, poers ad duties of adiistratie authorities. Jeigs2 Adi la deteries the legal status of all state offiials, defies the rights ad liailities of private individuals in their dealings with public officials and specifies the procedure by hih rights ad liailities are efored. Diey3 Admin law deals with the structure, powers and functions of the organs of administration; the limits of their powers; the methods and procedures followed by them in exercising their powers and functions; the methods by which their powers are controlled includingthe legal remedies available to a person against them when his rights are infringed by their operation. M.P. Jai4 W. Wade – control of government power – primary purpose to keep government power within legal bounds to protect citizens against their abuse.

Relationship between admin law and consti law Administrative Law

Constitutional Law

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Both deal with powers and functions of gov

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Both purpose are supplementary and, to disperse and control state powers.

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Both are part of public law.

Operation of the administration relationship with public/individual

Deals with the top 3 organs of state

Concerned with mechanism of such control >>

Lays down power and limitation

over

exercise

Focuses on specific aspects of mechanism: remedies, safeguards etc.

2 3 4

Deals with the structure, organization, powers and functions of 3 organs of gov and relationship

Deals only with executive branch

(instrument of control bureaucratic powers)

1

vis-à-vis

of

control

Focuses on broader aspects of control mechanism: provisions in Constitution etc.

Kenneth C Davis, Administrative Law Text, 2 (1959) Jennings, The Law and the Constitution, 217 Dicey, The Law and the Constitution, 329, (VIII ed.) th M.P. Jain, Administrative Law of Malaysia and Singapore, 4 ed., p 16)

SITI NURLAILA ABDUL GHANI LEB140108 TASHA LIM YI CHIEN LEB140116 ** Development of modern administration process has a negative effect on freedom, rights, interests and LE of person - threateed ad eroded so they ust e proteted. Hee, hy Adis powers need to be controlled - so that its ot aused = true alae.

SITI NURLAILA ABDUL GHANI LEB140108 TASHA LIM YI CHIEN LEB140116

CHAPTER 2: RULE OF LAW (R.O.L) Dies ‘OL 3 Elements: (a) Absence of Arbitrary Powers The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authoit o the pat of the goeet… eualit efoe the la o the equal subjection of all cases to the ordinary law of the land. - claimed that Englishmen were ruled by law and law alone - denied that the gov was based on exercise by persons in authority - whenever there was discretion, there was room for arbitrariness, which led to insecurity of legal freedom (b) Equality Before the Law Equality before the law/the equal subjection of all classes to the ordinary law of the land as administered by the ordinary law courts. - maintained that in England, all was subject to one and same body of law administered by ordinary courts (c) Individual freedom (according to the British constitution) Droit Administratif (DA) - Droit Administratif system (France) emerged from the doctrine of the separation of powers. o An individual cannot complain to normal courts if x satisfied w/ governmental authorities o Judicial review does not happen to actions by gov authorities o If one was abused by governing officers, could approach special tribunals which were governed by governing officers themselves! -  Tiuals Des Coflits: Cou de Cassatio, Cou dAppel, Coseil detat, Cou ad istatie dappel - Conseil d’Etat – the highest tribunal and is independent. Highest appealing platform for disputes. Decisions made were open to the court to review for points of law (only. Not facts). Matter of mis-looking certain facts etc. is a matter of law. - The practice of DA administration created 2 main principles in the French legal system: 1) Administrative tribunals cannot break the law = cannot act against the law. Decisions are eieale  osil detat 2) If one suffers loss/injuries due to a decision by public officers, damages must be given. If a decision is not in accordance with the law, it is cancelled by the tribunal. Dies aguments (which some are accepted and some are criticised) 1) The French DA system contradicts the ROL concept A.V. Dicey opposed it. He mistrusted the tribunal as they would be bias to the government. That the system allowed the accumulation of powers to public authorities. However, reality has shown that such tribunals remain independent.

SITI NURLAILA ABDUL GHANI LEB140108 TASHA LIM YI CHIEN LEB140116 2) AL is against ROL England does not have AL because it is against ROL 3) Transfer of quasi-judicial powers to the public officers affects the basis of Rule of Law. The setting up of tribunals affects the power of the courts - takes them away. 4) Arbitrary and Discretionary powers are against the ROL AP = exercise of power without limits/guidelines - said this because of his own definition of ROL DP = power to make decision based on a certain principle/guideline - the exercise of it is guided - necessary in a social welfare state Relevance and significance of R.O.L to Administrative Law 1) 2) 3) 4)

Both champion the absence of arbitrary powers. Equality before the law. Protection given by the law. Fundamental human rights.

Despite Dies defiitio of ‘OL, DP ae a fat of ode life; it is ot ol ipossile to do aa with such powers, but such powers are indispensable in a modern industrialised welfare state. Hence, there is still ROL where emphasis is placed on the basic values inherent rather than merely on forms and structures. 1) Absence of Arbitrary Powers  The administration does not enjoy any power outside law  ROL = Absence of AP  Admin x inherent powers and cannot exercise power without legal sanction  Power orginates from law, and thus, has to act according to law, and the limits of it  If acting beyond jurisdiction, doctrine of ultra vires will apply 2) Distinction should be drawn between AP and DP  Officials can have DP, but not AP; and, DP should not be too wide.  AP = against ROL; DP = necessity  Efforts should be made to restrain expansion of powers  Hence, focus is not denying DP but on controlling its scope and application 3) AL is not against ROL  In actuality, promotes and upholds ROL  Provides for a control mechanism over the admin as well as a redress mechanism when an individual is harmed  Ensures admin acts acc to ROL 4) Creation of tribunals is not inconsistent with ROL  Intends to control admin powers and dispense justice quickly  Geeall, these tiuals ae still sujet to judiial eie though oept of eo of juisditio ad eo of la , ad the o eidee ule  Hence, courts still have main control - referred to when error on points of law

SITI NURLAILA ABDUL GHANI LEB140108 TASHA LIM YI CHIEN LEB140116 Development of modern Administrative Law in the common law world after 1963 a) Dies ifluee o the deelopet of Adi La i Eglad Dies dotie of ROL had left a prolonged a negative and deep effect on the development of AL. Mid 20th century – its development was interrupted by objections raised by Dicey against the DA system. Up to now, its development can be said to have been piecemeal, unsystematic and not according to proper planning and it lacks a coherent corpus. This only changed in 1963. b) 1963 This changed in 1963 through a prominent House of Lords argument on the introduction of Statutory instruments Act 1946 which improves control on delegated legislation. The Crown Proceedings Act 1947 allows individuals to sue the government for damages in contracts and torts. Ridge v Baldwin1 [1963] Facts: A relevant provision in statute states that authorities can dismiss whichever police constable that is negligent while on duty/a constable deemed unfit. In this case, a chief constable was tried in court for a number of accusations. At the end of trial, the chief constable was freed, found not gujilty and acquitted by court. Nevertheless, the authorities decided to fire him although he has worked for them for 33 years. Issue: Before dismissing, should have listened to his arguments - R2BH - NJ House of Lords: Poe of disissal ould ot e gie ithout giig a pope oppotuit to the peso oeed to peset his ase i defee Decided to void the decision of firing the chief constable because the DP to sack, should not be used without first giving the chief constable a R2BH. Principle: Established that one must be given R2BH. 

Restrictive judicial thinking as regards the applicability of natural justice (due to war-time legislation) came to an end with this celebrated case.

[Natural justice: right to be heard, no hearing of case if conflict interest. Ouster clause: any act cannot be challenged on any ground in any court. Locus standi: who has the capacity to bring a case to court. Grounds for judicial review: when one wants to challenge a governmental act, they must have grounds.]

1

[1963] 2 All ER 66

SITI NURLAILA ABDUL GHANI LEB140108 TASHA LIM YI CHIEN LEB140116 Anisminic v Foreign Compensation Commission2 Facts: There was a war in Egypt and British property was taken away. Foreign compensation act was enforced to compensate those involved. There was an ouster clause that makes the Foreign Compensation Commission (FCC) unchallengeable, which then makes the court unable to review a decision by them and makes the authority invincible. The full effect of ouster clause is bad. Held:  The eo of la  FCC as that thee as o deteiatio at all ad the deisio as beyond its powers.  The judgement set the notion of ouster clauses as ultra vires unless expressly stated [groundbreaking] Wh? Beause it shos the elutae of outs to aept a legislatio eludig a outs power to judicial review The court can dilute the function of the ouster clause through restrictive interpretation in order to give room for some challenge. Even with ouster clauses, the court may still look at the way in which the decision was made. The authority must take into account certain facts of law (such as the acknowledgement of the importance of facts, the process made by the authority must also be errorfee. If thee is a fault, the ouste lause is ot effetie ad the authoits deisios ill e reviewed. R v Secretary for Foreign Affairs, ex parte World Development Movement3 Facts: The relevant statute: Overseas Development and Cooperation Act 1988 – UK as a colonizer had promised commonwealth nations development aid. They did so under this Act. A company applied under the Act to provide development for hydroelectric dam for a Bengal river in Malaysia. According to this Act, before approval is given, researchers and experts must be sent to examine the suitability and feasibility of the project. At the same time, The Secretary of State had made an announcement that British would help MY but the project was not feasible. The NGO, World Development Movement (an NGO) wanted to promote a more effective development and argued if the project is not feasible, other countries will be limited of 60 million that will be wasted anyway. (because can use that amount for some other country) Issue: Whether WDO had locus standi to challenge the decision Held: Took account: 1) Who else has locus standi? 2) Importance of issues raised 3) Likelihood of possible challenges 4) Nature of breach of duty 5) Prominence of its role in giving guidance and assistance regarding aid. Hence, court allowed. 2 3

[1969] 2 AC 147 [1995] 1 All ER 611

SITI NURLAILA ABDUL GHANI LEB140108 TASHA LIM YI CHIEN LEB140116 Ketua Pengarah Kastam v Ho Kwan Seng4 Facts: Respondent was given a permit under Customs Act 2967 and approval for import and export of goods. R was found guilty in 2 offences under the Act and was fined. Afterwards, custom officers ifoed that the authoities ould eoke the ‘s liese. Afte seeal oespodees, it was revoked and the R brought the case to court, under the grounds that the App did not hear ‘s side of story. Held: HC - Since there is no provision for RTBH in Customs Act, custom officers need not give. FC - Overruled HC. RTBH must be awarded in the matter of cancellation of permit although not expressly provided. The silence of the statue provides no room for the exclusion of natural justice or to supply omission of the legislation. Rohana Ariffin v USM5  HC looked at the legal development in England in respect to English law and made an important summary of principles applicable in Malaysia for judicial review.  JR applies to any body of persons having legal authority derived from public law to determine questions affecting the rights of subjects whether that right is derived from statute/common law.  HC is not a court of appeal from the body under appeal  HC limits itself to determining whether the public authority/inferior tribunal has acted lawfully, rationally and with due regard to procedures.  Diplock in CCSU.  The court will not substitute its judgment or discretion of the body under review (court has moved on – Ang Teck Seng and Hong Leon)  Facts determined by the body under review are rarely open to review in the HC (except special case – administrative body has more expertise)  HC will intervene unless there is an express statutory discretion to the contrary (ouster clauses)  If there is an established appeal procedure (from the decision of the body under review) the court prefers the procedure to be followed (special exceptions can exist)  Only activities of public nature can be the subject of judicial review.

Syarikat Kenderaan Melayu Kelantan v Transport Workers’ Union6 COA (1995) refused to follow privy council decision of South East Asia Fire Bricks Sdn Bhd GSR: An inferior or other decision-making authority, whether exercising a quasi-judicial function or purely an administrative function has no jurisdiction to commit an error of law. Henceforth, it is no longer a concern whether the error of law is jurisdictional or not. If an inferior tribunal or other public decision taker makes such an error, then he exceeds his jurisdiction, So too is jurisdiction exceeded where resort is to an unfair procedure.

4 5 6

[1979] 2 MLJ 152 [1989] 1 MLJ 487 [1995] 2 MLJ 317

SITI NURLAILA ABDUL GHANI LEB140108 TASHA LIM YI CHIEN LEB140116

Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan7 Facts: ↓ The A was a headmaster in the school and A was entrusted with some money belonging to the Johor Education Department. The money was meant to be given to the school gardener but was not given. When the department asked for the return of the money, the A told them that it had been sent to them. He had in fact, kept it with him. However, he did send the money to the department eventually. ↓ The A was charged with 2 counts of CBT under s409 of PC ↓ HC: Affirmed the finding of guilt by the Sessions Court and bound the A over to be on good behaviour in lieu of being sent to prison. ↓ Johor Education Department then wrote to R1 (SPP) and suggested that A should be punished a reduction in rank (to a normal teacher, and not sack him) ↓ However, R1 did not accept the recommendation. Without giving A the proper opportunity to be heard, A was fired/sacked from the job. ↓ A then applied to court for declarations (a remedy) so that his dismissal was null and void. Held: COA:  The epessio la i At 1 ad 81 of the FC iludes poedual la and if a procedure prescribed is found arbitrary or unfair or the procedure adopted in a certain case is found unfair, it must be struck down as being inconsistent with Art 5(1) and A8(1). 

The od life i A as gie a oad eaig  G“‘ [not just mere existence, but to include livelihood (hence, jobs)]



The right to continue to work and to be em...