RULE OF LAW
1
ADMINISTRATIVE LAW
WHAT IS ADMINISTRATIVE LAW?
Law relating to the control over governmental powers
To protect people from abuse of power from ministry, minister WHY IS IT NEEDED?
Gov plays active roles in all socio economic activities. Negative decision may effect on the freedom, rights, interest and legitimate expectations.
Admin law determines certain standard and norms of administration (must be follow by administrative agencies)
Controlling admin powers, protecting rights and liberties, encourages good administration (an administration that acts in accordance law)
DEFINITION OF ADMINISTRATIVE LAW
Various definition has been given by scholars, no definition accurately given
Admin law is law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action.
Ie: proses membawa satu kes mahkamah utk menyemak keputusan
Admin law is law relating to the administration. It deals with the organisation, powers, and duties of administrative authorities. - jenning
Admin law determines the legal status and liabilities of all state officials, defines the right and liabilities of private individuals in their dealings with public officials and specific the procedures by which rights and liabilities are enforced. – dicey
* Admin law deals with structure, powers and function of the organ of administration, the limits of their powers, the method and procedure followed by them in exercising their powers are controlled including legal remedies available to a person against them when his right are infringed by their operation. –mp jaij
*a first approximation to a definition of admin law is to say that it is the law relating to the control of governmental power. Its primary purpose is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse. – w wade
RELATIONSHIP BETWEEN ADMIN LAW AND CONSTITUTIONAL LAW
Both deals with powers and function of govern. Both are part of public law and supplementary each other
The purpose of both is to disperse the powers of state and to control them
While constitutional law deals mainly with the structure, organization, powers, functions of the three apex organs of the gov and the relationship between them. Admin law refers mainly to the operations of the administration vis-à-vis the individuals
Case
TAN TEK SENG V SURUHANJAYA PERKHIDMATAN PENDIDIKAN 1996
Since Tan was deprived of gainful employment without a fair hearing, under this broad interpretation of Article 5, his dismissal was wrongful and unconstitutional. In 1997, the Federal Court cited the decision with approval as part of an obiter dictum in R. Rama Chandran v. The Industrial Court of Malaysia.[1] However, when ruling directly on the interpretation of Article 5 in 2002, the Federal Court held in Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan & Another that a generous reading of the term "personal liberty" in Article 5 was in error. The Federal Court later revisited the issue in 2009, and ruled in Lee Kwan Woh v. Public Prosecutor that constitutional rights, including those under Article 5, must be read in a generous and liberal fashion
HONG LEONG EQUIENT V LIEW FOOOK CHUN 1996
In this case the defendant had dismissed the plaintiff from his employment and the court has declared that the dismissal is null and void and since the law is that employment is a fundamental right within the expression of art. 5(1) of the Federal Constitution, it is imperative that the function of the court is to ensure that the plaintiff gets back his job and together with his arrears of salaries and all other emoluments
H : This case did discussed about PF, but had never discussed what can be claimed under it.
*Admin law is an 1) instrument of control over the exercise of bureaucratic powers. It is the tasks of admin law 2) to ensure that government acts according to law, on proper legal principles and according to rules of reason and justice and that an adequate control-mechanism exist 3) to check administrative abuses without at the same time unduly hampering the administration in the efficient discharge of its functions. The whole admin law can be summed up in the proposition that the administrator must act fairly, reasonably and in accordance with law. – sir robbin
RULE OF LAW: THE ADMINISTRATIVE LAW PERSPECTIVES DEFINITION OF ROL
The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary law as opposed to the influence of arbitrary power and excludes the existences or arbitrariness or prerogative or even wide discretionary authority on the part of the government. equality before the law or the equal subjection of all cases to the ordinary law of the land administered by the ordinary law courts. – dicey
BREAKDOWN OF THE DEFINITION OF ROL- DICEY
Absence of arbitrary powers- ketiadaan kuasa arbitrary. Semua kuasa eksekutif dtg dari undang-.
Equality before the law. – everyone is equal before the law. Subject to law, no one greater than law
Individual freedom according to the British constitution. – not suits malaysia DICEY ARGUMENTS/ DISTINGUISH BETWEEN ARBITRARY POWER AND DISCRETIONARY POWER
The French droit administrative system is contradicting with rule of law – accused French system for giving special
Admin law is against ROL – proved wrong cases in court uphold ROL
Transfer quasi-judicial powers to public officers affects the ROL – proved inaccurate cause court can’t be really all, tribunal can do so
Arbitrary and discretionary powers are against the rule of law – separa betul, separa salah, arbitarty power against ROL since 20th century govt has discretionary power
RELEVANCE OF THE ROL T ADMINISTRATIVE LAW
Absence of arbitrary powers
Equality before the law
Protection given by law
Fundamental human rights TAN TEK SENG
ADONG
Administrative authority does not have inherent powers, has to act according to law and within the limits laid down by law
Application of the doctrine of ultra vires- bertindak tak ikut undang undang
Judicial review of administrative actions/ decisions
Administrative law ensures administrative authority acts according to law
Administrative law promotes and uphold the ROL
Tribunals/ quasi-judicial powers are still subjects to judicial review
DEVELOPMENT OF MODERN ADMINISTRATIVE LAW
Diceys prolonged negative and deep effect on the development of admin law in Britain piecemeal development, unsystematic, lacks a coherent corpus
Developed rapidly through judicial activism after 1960s ridge v baldwin and through legislation since mid-20th century statutory instrument acts 1964 to improve control on delegated legislation.: crown proceeding acts 1947 (can’t sue gov before this act) to allow individuals to sue gov for damages in contractual and tortious liabilities
RIDGE V BALDWIN
A police officer was dismissed following his acquittal from serious offences. Restrictive judicial thinking as regards the applicability of natural justice (partly due to war-time legislation) came to an end with this celebrated case. HL: The power of dismissal could not be exercised without giving a proper opportunity to the person concerned to present his case in defence. Court use NJ to protect the chief constable)
ANISMINIC V FOREIGN COMPENSATION COMMISSION
Following the abandonment of military equipment in Egypt in 1965, the Foreign Compensation Act 1950 allowed recovery of compensation for items left abandoned Anisminic’s statutory claim for compensation failed. Held: yes. Ouster clauses (like those in the Foreign Compensation Act 1950) are to be construed as narrowly as possible such that the claim was not barred
An error of law had been made.
Ouster clause: make decision on if will not be effective bad faith, power to make, NJ, misconducted to provision.
R V SECRETARY OF STATE FOR FOREIGN AFFAIRS, EX PARTE WORLD DEVELOPMENT MOVEMENT LTD.
The UK agreed to build a £200,000 hydro-electric power plant in Malaysia It is only lawful to give foreign aid where it is economically viable. The costs rose to £400 million. The Movement sought to challenge decisions of the Secretary of state to give economic aid to the Pergau Dam, saying that it was not required ‘for the purpose of promoting the development’ of Malaysia. It was said to be uneconomic and damaging. It was said by the defendant’s advisers to be an abuse of the aid system. The defendant said the plaintiff had no sufficient interest to mount a challenge. The plaintiff said that as a charity itself distributing aid, the diversion of such huge sums affected its own actions, and this amounted to a proper interest.
Held: The declaration was granted. The issue of standing went as to jurisdiction, but there was nothing in the case law to deny the applicants such standing. Standing should be treated as a preliminary issue, taken in the legal and factual context of the whole case. As to that: ‘where, as here, the contemplated development is, on the evidence, so economically unsound that there is no economic argument in favour of the case, it is not, in my judgment, possible to draw any material distinction between questions of propriety and regularity on the one hand and questions of economy and efficiency of public expenditure on the other.’ Yes, claim successful. Don’t abuse power. The government found the money from a different budget There was no other possible claimant; the claimant had significant legal expertise in the area and the rule of law must be vindicated given the importance of the issue
KETUA PENGARAH KASTAM V HO KWAN SENG (Landmark case in Malaysian Administrative Law- right of hearing)
Issue: whether the cancellation of the forwarding agency’s registration is a quasi-judicial act that natural justice will become applicable?
HC: NJ did not apply, only given RTBH if expressly stated in statute.
FC: overruled HC decision and upheld that natural justice was applicable for the matter of cancellation of the agency despite the fact that there is no provision governed in the statute. The court emphasized that the rule requiring a fair hearing is very crucial because it can be used to display the whole idea of an administrative procedural rights in accordance with the famous landmark case of Ridge v Baldwin
Relevant principle of NJ - no man shall be condemned unheard.
Apply where an individual is adversely affected by an administrative action be it ‘judicial’, ‘quasi-judicial’ or ‘administrative’
or whether or not the existing statute provide provision for hearing.
This case marks the shift in approach to concept of Natural Justice in Malaysia, from wide interpretation to the doctrine of fairness.
*ROHANA BINTE ARIFFIN V UNIVERSITI SAINS MALAYSIA – explained judicial review [1989] 1 MLJ P487 HIGH COURT PENANG - ORIGINATING MOTION 32-17-86 EDGAR JOSEPH Issue: Appeal against decision of disciplinary authority dismissed- Application for certiorari
Held: Allowing the Appeal The proceedings before the Disciplinary Authority were contrary to natural justice owing to the presence of the Registrar of the Respondent University, the complainant in the case of both the applicants, during the disciplinary authority's deliberations.
- A case stemming from disciplinary actions taken against lecturers of a public university - HC laid down the principles governing judicial review in Malaysia
- Judicial review applies to anybody of persons having legal authority derived from public law to determine questions affecting the rights of subjects whether that right is derived from statute or from common law
- The high court is not a court of appeal from body under review:
- The HC limits itself to determining whether the public authority or inferior tribunal has acted lawfully, rationally, and with due regard to proper procedures.
- The court will not substitute its judgment or discretion of the body under review.
- Fact determined by the body under review are rarely open to review in the HC will intervene unless there is express statutory authority discretion of the contrary If there is an established appeal procedure from the decision of the body under review the court prefers this course to be followed. Only activities of a public nature can be the subject of judicial review
SYARIKAT KENDERAAN MELAYU KELANTAN BHD V TRANSPORT WORKERS UNION
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 of 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 result is hard to an unfair procedure or where the decision reached is unreachable, in the sense that no reasonable tribunal similarly circumstanced would have arrived at the impugned decision. Since an inferior tribunal has no jurisdiction to make an error of law its decision will not be immunized from judicial review by an ouster clause however widely drafted.
*mahkamah can interfere because admin body made error of law, unfair procedure, unreasonable
TAN TEK SENG V SURUHANJAYA PERKHIDMATAN PENDIDIKKAN
Court of appeal held that the expression ‘law’ in articles 5(1) and 8(1) of fc includes procedural law and if a particular procedure prescribed by written law is found to be arbitrary or unfair or the procedure adopted in a given case is held to be unfair, then it must be struck down as offending article 5(1) read with article 8(1). Article 5(1) was given a broad and liberal meaning and the word ‘life’ was held to not only refer to mere existence but also incorporates all those facets that are an integral part of life itself and those matters which go to form the quality of life.
The court held: that the requirement of fairness which the essence of article 8(1) ensure not only that a fair and just punishment is imposed according to the facts of a particular case
Doctrine of proportionally (dismissal is too severe and thus disproportionate; reduction in rank) and constitutional dimension in judicial review application.
HONG LEONG EQUIPMENT SDN BHD V LIEW FOOK CHUAN
Held: that in the field of public law remedies, the HC is not confirmed to the grant of usual prerogative orders known to the English law, but is at liberty to fashion the appropriate remedy to suit the factual matrix of the case, and also to grant such reliefs as meets the end of justice. Certiorari to quash the minister’s decision and an order of representation to the industrial court.
ABDUL GHANI HAROON NO 3 AND NO 4
Detention under the internal security act
Access to counsel and family members denied
Pre mature decision to extend period of detention
Mala fide
Additional order to not re arrest the applicants within 24 hours of release (habeas corpus)
ADONG BIN KUWAU & ORS [1998] 2 MLJ 158 in that the common law as applied in Malaysia recognises Peninsular Malaysia Orang Asli customary land rights and such rights 'co-exist' with the Aboriginal People Act 1954. In other words, the Orang Asli continue to be at liberty to enforce their customary rights in the courts subject to them establishing those rights and that such rights co-exist with statutory law. Prasad JCA also observed that these rights are established through the prior and continuous occupation of the land by the Orang Asli and their maintenance of a traditional connection with the customary lands claimed. The parties had earlier agreed that there would be no order for the costs of the appeal. Despite not addressing the law on the fiduciary duty owed to Orang Asli and the issue of overlapping interests in land, the Court of Appeal decision is nevertheless a victory for Orang Asli land rights. This is the first superior court decision reaffirming Peninsular Orang Asli customary land rights at common law since the landmark Court of Appeal case of Kerajaan Negeri Selangor & Ors v. Sagong bin Tasi & Ors [2005] 6 MLJ 289. This has prompted constant attempts by the Federal and State governments since 2005 to invite the Court to overturn the common law recognition of Orang Asli rights in Peninsular Malaysia as recognized in Adong bin Kuwau and Sagong bin Tasi. The Court of Appeal in this case, heard submissions from all parties on the hearing dates of 4.9.2014 and 9.10.2014 and fixed today (28.11.2014) to deliver its decision to all parties.
The Court of Appeal panel consisted of YA Dato Abdul Aziz JCA, YA Dato Mah Weng Kwai JCA and YA Dr. Prasad Abraham JCA.
