Discretionary Powers

Case
Lord Diplock Secretary of State for
Education and Science v Tameside
Metropolitan Borough Council:
The very concept of discretion involves
the right to choose between more than
one possible course of action upon
which there is room for reasonable people
to hold differing opinions as to which is to
be preferred in a given situation.

Difference
Discretionary Power
Admin body has
many choices
Ex: Minister may in
his discretion
grant/refuse a license
s20(3) Industrial
Relations Act 1967:
"Minister may, if he
thinks fit refer to
Industrial Court"

Ministerial Power
Minister shall/may
take the following
matter into
consideration

Examples of KBB in statutes

s3(3) Printing Presses and Publication Act
1984
"...may in his absolute discretion"
s26(2) Industrial Relations Act 1967
"... may, if... is satisfied... that it is
expedient"
s20(3) Industrial Relations Act 1967:
"Minister may, if he thinks fit refer to
Industrial Court" - Hong Leong case

 Dicey - Discretionary power leads to

arbitrary powers which is against ROL
The definition has been amended:
Absolute discretion against ROL but wide
discretionary power is allowed with
control.

Absolute Discretionary Power

Court's interpretation:
- Pengarah Tanah dan Galian WP v Sri Lempah
Enterprise pg 49 proforma
Unfettered discretion is a contradiction in terms.
Every legal power must have legal restraints.
Courts are the only defence of the liberty of the
subject against departmental aggression.
Though statute confers absolute discretionary
power, court can still review the power.

Judicial Control
Doctrine of Ultra vires

Procedural UV
- Express limitation
- Implied limitation (NJ)

Substantive UV
- Express limitation (Simple
UV)
- Implied limitation (extended
UV)

Judicial Control
1. Traditional grounds
2.Reclassification of Grounds - CCSU Case
- common practice
3.New Grounds

1. Traditional Grounds
Traditional Grounds

Abuse of discretion

Non-Exercise of Discretion

Abuse of discretion
General principle: Has many grounds

1st ground: Mala fide

"Dishonest intention, fraud on
power/personal animosity, corrupt motive"
on admin body
Burden of proof - individual - have to proof
intention / motive
PP v Dato Yap Peng
MPSP v Tropiland Sdn Bhd
Dato Seri Anwar Ibrahim (2000) (COA)

MPSP v Tropiland Sdn Bhd

Pf want to build a building and got the approval from
local authority.
Approval given with the condition which is Pf must build
big drains and fences on government land neighbouring
to Pf's land. Pf agreed.
Not long afterwards, Pf completed 80% of the work and
failed to finish the 20% because there were squatters on
the land.
Local authority was angered.
When Pf's building was completed, local authority did not
grant CF.
Pf challenged the decision of local authority not to give
CF. One of the grounds is mala fide.

 HC held that there was mala fide.

But COA held that mala fide cannot be proven.
1. Contrary to what High Court held, condition relating to
construction of monsoon drain was there from the very
beginning, and not subsequently imposed upon the
respondent.
2. When the respondent's amended plan was approved, the
perimeter drain, which was very much a part of the earthworks,
was never constructed.
3. Original plan for 11-storey and amended plan for 5-storey read
together - R cannot say that it had met with all the conditions
appearing on the approved amended layout plan, must also
comply with the conditions that appear on the earthworks plan.
4. Absurdity alleged (perimeter drain, if constructed, would run
along the centre of a road to be constructed by the respondent
and JKR) does not exist
5. R's case alleged 'Wednesbury unreasonableness', not malice.
Yet, the judge held that the appellant had acted in bad faith and
out of malice.

Dato Seri Anwar Ibrahim v PP

(2000) (COA)
PP brought 4 corruption charges against
Df.
Df challenged the decision on mala fide.
COA held that mala fide cannot be proven.

Read pg52 proforma

Sulnayah Hj M Isa
Abdul Ghani Haroon (No.3)

2nd ground: improper purpose

Court will look at

a) the purpose P passed statute
b) purpose behind action of admin body
Padfield: HOL - when P conferred the
discretionary power to the admin body, it was
made on the condition that the power will be
carried out to uphold the policy and objective of
the statute. (court has to do this, look at Preamble
if exist). The policy and objective of the statute
can be determined by interpreting the overall
provisions of the statute.
Pengarah Tanah dan Galian v Sri Lempah (FC)

Padfield

Case concerning milk-marketing scheme under Akta Pemasaran

Pertanian
Under this act, Milk Marketing Board (MMB) was formed
MMB given power to set milk price
One milk distributor disagree with the price set because MMB did
not take into account the difference expenditure involved to
transport the milk from different parts of the country.
He asked the Minister to refer his complaint to the Jawatankuasa
Penyiasatan but was refused on the excuse "it will embarass me"
HOL held: this is not the purpose of the Act
"Minister's decision was shadowed by an improper purpose"
Minister used his discretionary power in a way not intended by
statute

Sri Lempah case

Under s124(5)(c) NLC, State Authority given power to
impose condition it thinks fit on the application for land
ownership.
In this case, application submitted to change part of land
from residential to commercial use
SA stated that freehold => leasehold
Court quashed this decision. Rejected the argument that
SA has absolute DP to impose any condition they want.
Court stated that condition imposed must be relevant,
reasonable and related to purpose of the Act.
Decision was cancelled.

3rd ground: Admin body took into

account irrelevant considerations / left
out relevant considerations

Statute does not say what is

relevant/irrelevant. Interpreted by court.
Padfield, Sri Lempah
Associated Provincial Picture House v
Wednesbury Corporation
Minister of Labour v National Union of
Journalists

Wednesbury Corp
Court gave example of dismissal of
teacher because of her hair colour

Minister of Labour v National Union

of Journalists
A reporter Y attended a conference in Tokyo
Accused of improper conduct with another female report
in Tokyo
When return, dismissed
HR Minister did not want to refer to Industrial Court
Minister give reason: "Already there is so much publicity.
If I refer the case, a big fuss will be kicked up."
Court held that Minister had given an irrelevant reason.
Secondly, he left out relevant considerations, such as (i)
Y denied all the accusations in the newspaper, and (ii)
the representations made by UJ on behalf of Y.

4th ground: Unreasonableness

Principle: Court has
the right to cancel the
decision if it is
deemed to be
unreasonable.
What is the test of
unreasonableness?

Wednesbury
Corp
(Greene L)

Wide
interpretation
- the above
grounds

Narrow
interpretation
(Wednesbur
y
unreasonabl
eness)

Narrow Interpretation
L. Greene: Unreasonableness test
"Something so absurd that no reasonable
or sensible person could have come to
that decision."
Burden of proof L. Greene "You need
overwhelming [difficult test to be proven]
proof to prove unreasonableness." "Courts
must be slow to interfere." "This ground is
to be used as a last resort."
[Good news for admin body]

 Wednesbury
unreasonableness
"Something so absurd
that no reasonable or
sensible person could
have come to that
decision."

CCSU Irrationality test

"A decision which is so
outrageous in its defiance
of logic or of accepted
moral stds that no
sensible person who had
applied his mind to the
question to be decided
could have arrived at."

As a result of the criticisms on Wednesbury test, two new concepts

arise:

Sub-Wednesbury

Super-Wednesbury

Lower threshold of
unreasonableness

Higher threshold of
unreasonableness

Used in basic rights

case

Used in cases
involving economic
policies

Position in Malaysia
Referred to narrow interpretation L.
Greene, but M'sian courts used it in the
more flexible manner
- Sri Lempah (change of use of land,
condition freehold => leasehold
unreasonable)
- MPSP v Tropiland (lost, court say
reasonable condition)
- Chai Choon Hon v Ketua Polis Daerah
Kampar

Chai Choon Hon v Ketua Polis Daerah

Kampar
License to hold a meeting
2 conditions: (i) meeting is allowed from
5pm - 11.30pm, (ii) only 7 speakers
allowed for the meeting
decision challenged
court refer to Wednesbury test (should be
"not so absurd") but court held
unreasonable - flexible interpretation

 Concept of sub-Wed and super-Wed not yet used (but

refer to Sugumar Balakrishnan)
SB - fairness equated to Art 8 - 2 categories - S&P
1st ground: S59 clearly states that no right to be heard
(lost)
2nd ground: reasoned decision? court said if ppn x give
reason, why should immigration body gv? ppn only
middleman (lost)
3rd ground: substantive fairness - issue: can bring
reasonableness under SF (Art 8)? FC chided COA cos x
like SF, saying if CL courts don't apply, why we apply?

Read
Sudha Pillai
Towards a re-formulation of Wednesbury
Unreasonableness in Malaysia [2000] 4
MLJ cxxi

PART 2

Non-exercise of discretionary
powers
1. Non-application of mind
# Sukumaran v Timbalan Menteri Hal Ehwal Dalam Negeri
s.4 Ordinan Darurat (Ketenteraman Awam &
Pencegahan Jenayah) - minister have DP.
Minister has to be satisfied before issuing detention
order. But in this case, deputy was the one who signed
and the order stated that the Minister is the one who was
satisfied.
Court held: Order cancelled as there was NAOM of the
Minister.

 2. Acting under dictation

Chong Cheng Wah v Sivasubramaniam
Patto v CPO Perak
Awang Tengah v Sabah PSC

Chong Cheong Wah

Statute conferred power to authority to confiscate
any kind of publication material if it contains
prohibited publication or bad publication.
There is a circular which was issued by the pihak
atasan jabatan which stated that certain books
are not good
As a result of this circular, authority confiscated
the books in question.
Court held that seizure wrongful as the authority
should have reviewed the book before
confiscation.

Patto v Chief Police Officer

Power to grant license on OCPD
App applied to OCPD to host a dinner and
dragon dance in a public place but OCPD
forwarded the application to CPO
Court cancelled the CPO's decision
because the power was on OCPD

3. Acting Mechanically
Morgan Perumal v Hussein Abdul Majid
A arrested by the 1st R under the
Emergency (Public Order and Prevention of
Crime) Ordinance 1969 ('the Ordinance').
By a subsequent order, the Deputy Minister
for Home Affairs acted under s 4(1) of the
Ordinance, ordered A to be detained for 2
years.

 A then applied to the HC for a writ of

habeas corpus for his release which
application was dismissed.
The appellant appealed.
The main ground of the appeal was that
the detention is invalid, in that on the face
of it, the order is vague as to whether the
Deputy Minister had actually applied his
mind to the particular circumstances of the
case or whether he had exercised his
powers of detention mechanically.

 A also contended that - long delay/large gap

btwn the dates of the alleged criminal
activities & date of the detention order.
The alleged criminal activities occurred from
August 1993 - about April 1994 but the
detention order was only issued in March
1996.
A gap of some two years.
No explanation given for the delay and A
argued that this does not justify the making of
the detention order.

 Held, allowing the appeal and issuing

habeas corpus:
The Deputy Minister must have only
applied his mind to the first limb of s 4(1)
of the Ordinance when he issued the order
which stated that the appellant was being
detained 'to prevent him from acting in any
manner prejudicial to public order'.

 However, the allegations upon which the Deputy

Minister based his order all unequivocally point
to acts of violence and the use of dangerous
weapons which clearly fall within the second limb
of s 4(1) of the Ordinance. The deletion of the
second limb in the detention order suggests that
the Deputy Minister in this case had not applied
his mind properly when he issued the detention
order, in that he applied his mind to the first limb
of s 4(1) of the Ordinance, while all the facts
contained in the allegations were focused on the
second limb.

 Generally, detention orders are issued

based on past criminal activities but those
activities must be proximate to the date of
the detention order to justify its validity. In
the present case, the criminal activities of
the appellant were some two over years
from the date of the detention order. In the
absence of any explanation, they are far
too remote to justify the detention

 4. Fettering of Discretion
H. Lavender v Minister of Housing
MUI Finance v Finance Minister Malaysia

H. Lavender

Minister of Housing was given DP under Act to approve extraction of

minerals from tanah pertanian.
Menteri Pertanian had issued a policy that high quality tanah
pertanian must be reserved for planting purposes only and cannot
be used for extraction of minerals.
Petitioner made an application to the MInister of Housing to get
approval to extract minerals from a tanah pertanian.
Minister rejected application because followed Menteri Pertanian's
policy.
Court cancelled the decision on two reasons:
(i) Minister had followed a rigid policy and because of that
membelenggui DP
(ii) By acting as such, Minister of Housing has given power to make
decision to the Menteri Pertanian.

RECLASSIFICATION OF GROUNDS
REVIEW OF DISCRETIONARY POWER
CCSU( L.Diplock)
Grounds
Procedural
Illegality
Irregularity
P.F.
Wednesbury
Unreasonableness

Irrationality

Others

- 4th possible ground in the future: Proportionality

Doctrine of Proportionality

New ground accepted by courts in Malaysia.

Originated from Continental countries.
2 important concepts: Govt Action +
Purpose/Objective of Govt
Conditions:
a) Govt action must be suitable with govt
aim/objective (suitability test)
b) Govt action is necessary to achieve govt
objective (necessity test)
c) Govt action must be fair / have reasonable
relationship with govt aim (proportionality
test)

Usage of DoP in Continental

Countries
Not ltd to punishment only but
general principle used in all govt
actions.
Court can review merits of the case
and not just process of decisionmaking
- Contrary with admin law in England

Acceptability of DoP in
England
Hard to be accepted:
- In England, court cannot review merits of the
case ;
- Many English judges influenced by Dicey's view
are reluctant to accept.
CCSU L.Diplock Obiter may import in the
future
However, cases brought in DoP under guise of
Wednesbury unreasonableness
Ex parte Hook
Ex parte Brind

Ex parte Hook
Hook is a businessman, has a stall in
market for 6 years.
At night after store closed, peed in a
street near his stall.
License was revoked forever.
CoA: Punishment excessive and not .
Govt action unreasonable. Used
Wednesbury unreasonableness to
import the DoP.

Ex Parte Brind
4 judges had divided opinion, 2:2
Bridge & Roskill: DoP may be
imported in future, but not in this
case
Lowry & Ackner: cannot accept DoP
at any time

India
Ranjit Thakur
Held: DoP used in disciplinary action
agst civil servants
SC reduce punishment on reason of it
being excessive and x but brought
in under WU
Read proforma pg 55

DOCTRINE OF
PROPORTIONALITY IN
MALAYSIA

Tan Tek Seng

- First brought in DoP through Art 5 & 8
- Only used for punishment by PSC;
- Referred to Ranjit Thakur (India)
brought in under WU;
- Do not accept DoP as a separate
ground

Ekambaram v Ketua Polis

Daerah Melaka
- Bought car, made application
- Changed his mind on model of car,
bought another model than was
submitted in application, did not make
new application
- He was dismissed!
- Court cancelled PSC's decision punishment not
- However, followed Tan Tek Seng
- Brought in under irrationality

Ng Hock Cheng v Ketua Polis

Daerah Melaka Tengah ( FC )
Head storekeeper for 28 years.
Debt $300k (6 times his wages)
By General Order, disciplinary
misconduct
During proceedings, NHC said that he
had to help father who was in debt
PSC dismissed him
NHC sought declaration that his dismissal
was null and void

 FC, issue was whr HC has pwr to review

PSC decision
FC overruled TTS on aspect of
punishment (doctrine of proportionality
under guise of Wednesbury
unreasonableness)
Reasons
i. Can only review nature and manner of
dismissal (process of reaching decision)
ii.Court cannot review PSC decision

Critique: Court confer absolute power to

PSC. Unfair.

Hope?
Restrict to cases concerning PSC
punishments only
Say cannot bring under Wednesbury
unreasonableness but does not bar
coming in under other grounds or
even stand on its own

 Sugumar Balakrishnan- Did not refer to Ng

Hock Cheng. Referred to Rama Chandran
Rama Chandran - can refer to merits to
case
CoA:
P.8 PP

P.F
S.F
s59 no right to be heard
Reasonable
Proportionate
decision
punishment
FC: Did not agree with doctrine of S.F.

FC
1. Why bring in to Malaysia when not
used in CL?
2. GSR in COA created the concept of
substantive fairness (which is
categorized under Art 8) based on
interpretation of Rama Chandran, but
overruled by FC.

 MPPP v Sg Gelugor
- Want to renew permit, LA impose new
condition: cannot sell > RM25K
- Some flats ald sold > RM25K, LA refuse to
renew permit
Edgar Joseph Jr:
- Did not refer to TTS/Sugumar/Ng Hock
Cheng
- Referred to English cases and accepted DoP
- One of the grounds = proportionality.
- Ex Parte Hook (but this case brought in DoP
as Wednesbury Unreasonableness)

Confusions
1.Do you bring it Consti or CL?
2.Do you bring it under DoP or WU?

Estoppel
Conditions:
a) Representation
b) Reliance on the representation
c) Acting to one's detriment
(Private law)

Usage of estoppel in public law: very difficult

General: Cannot raise estoppel agst
govt/mnstr

Estoppel
England: Estoppel cannot be raised
- Minister of Agriculture & Fisheries v
Hulken
- Maritime Electric Cp. V General Dairies
Ltd
- Southend-on-Sea v Hodgson
- Laker Airways v Dept of Trade

India: Can raise estoppel

- Motilal Padampat Sugar Mills v State of
Uttar Pradesh

England

England
Govt makes rep
towards indv

Govt makes rep

towards public

Two types in England

UV admin power
(agst pwr
conferred by
statute - under
law no pwr to
make such
promises)
Court cannot
approve
If allow, then it is
letting admin ultra
vires power given
by statute
Minister of
Agriculture &
Fisheries v Hulken

Intra Vires admin power

Looks as if can raise estoppel, but cannot
1. Maritime Electric Corp v General Dairies
Ltd
Court: If there is a statutory duty on
admin body, indv x raise estoppel
preventing govt from performing their duty.
2. Southend-on-Sea v Hodgson
Admin tell the company: You don't need
planning permission to use the place.
Company applied, rejected.
Court: If statute confer DP on admin body,
x raise estoppel by indv to prevent admin
body from enforcing its DP.
3. Laker Airways v Dept of Trade
Govt has freedom to make & change policy
even though indv may suffer loss by reason
of the change in policy

India
Motilal Padampat Sugar Mills v State
of Uttar Pradesh
Can raise estoppel agst govt as court
put more emphasis on credibility of
govt promises
Rationale: To enforce a good and fair
administrative, govt must fulfill its
promise

Estoppel
Malaysia:
- Public Textiles Bhd v LLN
- Govt of NS v Yap Chong Lan
- MPPP v Sg Gelugor (statutory
body)

Public Textile Bhd v Lembaga

Letrik Negara
LLN undercharged Public Textile Bhd for 16
months
17th month, LLN realize the mistake in the
electric bill
Now LLN ask PTB to pay the difference in sum
for 16 months owing to them
PTB raised estoppel
Court refer to Electricity Bill, where amount is
stated in the statute
If court allowed PTB's estoppel, then it would
cause LLN to act ultra vires statute

MPPP v Sungai Gelugor (FC)

When send in application, ald asked MPPP (statutory
body) that is there any restriction in price to be
charged
MPPP issue a letter, say up to you
When applied for renewal, MPPP say cannot charge
more than RM25K
Sungai Gelugor - sucessfully raised estoppel
Edgar Joseph Jr: Condition imposed by MPPP is
contrary to the previous representation (it's your
personal issue, we will not interefere)
Bear in mind this decision is limited to its facts!
Principle: Estoppel can be raised agst statutory
body in planning permission cases.

Substantive Legitimate
Expectation (SLE)
New principle
Similarity of SLE and Estoppel
Diff from Procedural Legitimate Expectation - RTBH
England:
- At first courts in England did not want to accept
the concept of SLE
- Slowly they started to accept, but Procedural
Legitimate Expectation:
CCSU, AG of HK v Ng Yuen Shiu & Schmidt
- Difference between PLE & SLE: individual
intention

Legitimate Expectation
Procedural
Substantive
Asking a RTBH
Please stick to
policy A, cos we
To consider
will suffer under
before changing
policy B
policy A to policy
Tying govt to
B
their
representation

- Ex p. Khan
- Ex p. Ruddock
- MFK Underwriting Agents : SLE can arise
if representasion made to individual/public.
- Ex p Baker
- Ex p Hamble Fisheries Ltd :
Conditions:
Reasonable ground
Expectation must be worthy of
protection
Court will see if there is
overriding public interest

Diff from Procedural Legitimate

Expectation
Legitimate
expectation

Reasonable
ground
Representation TO INDV OR
PUBLIC

Regular Practice
- CCSU

Ex P Khan
If a couple want to bring a child from Pakistan
to England for adoption, few conditions
Husband and wife ald fulfill all the conditions
Suddenly govt change policy, introduce new
conditions, which made the couple unfit
They challenged govt decision
CA in England cancelled the Minister's
decision but it did not use SLE
Court made decision based on the reason
that govt action is unfair.
Original conditions applied.

Ex p Ruddock
Court admit that at first LE only applied
in England in the aspect of procedure.
BUT LE is not ltd to procedural aspect
only.
LE also has substantive aspect cos
principle LE is a wide principle and
requires the government to act fairly.
This must incl both S&P.
"LE imposes a duty to act fairly."

 Cases that do not accept SLE:

- Ex p. Richmond
- Ex p. Hargreaves- struck out the
case of Hamble Fisheries.
- SLE can only be used under guise of
WU

Ex p Richmond
Legitimate expectation must be
limited to procedural only.

Ex p Hargreaves
SLE can only be applied through
Wednesbury unreasonableness
Cannot bring it under separate
ground but wed unreasonableness is
very hard to prove

 Malaysia:
- MPPP v Sg Gelugor referred to
Hamble Fisheries. Applied SLE.
- Dato Seri Anwar Ibrahim
- Yee Seng Plantations v Kerajaan
Negeri Terengganu
- Law Pang Chin & Ors v Tawau
Municipal Council [2010] 2 CLJ 821

Dato Seri Anwar Ibrahim

Df is convicted with 4 counts of corruption under the
Emergency Ordinance (Essential Powers)
Counsel for Df raised SLE cos on 22 September 1998
govt announced intention to perhaps repeal this
ordinance
Df said that this announcement has invoked LE that
he will not be charged under this Ordinance.
Court rejected Df's argument. This ordinance is
essential to get rid of corruption in this country.
Hence, govt is not bound by the announcement.
Unfair for a person who commits an offence if can
invoke SLE.
Against public interest.

Yee Seng Plantations v

Kerajaan Negeri Terengganu
Appellant owned a few pieces of land in Terengganu.
State Govt took over few acres.
App lodge a complaint under Land Acquisition Act
1960.
Nego btwn SA and App.
A consent order was recorded in court.
According to this order, a few pieces of land must be
given to the App.
After that State Govt broke its promise on the
excuse that it was not bound by the consent order.
Court rejected SA's argument AND held that SA is
bound by said consent order.

Law Pang Ching v Tawau

Municipal Council
There's a piece of land owned by a company.
Company got its license from Resp.
Company leased the place to App as Fuji Market
stores.
One day all had lunch, invited Resp. for lunch.
Resp. told them that they can conduct business as
they liked, will not interfere.
Later Resp was ordered to cease all the operations.
Resp raised SLE.
Majority of bench said that btwn App and Resp no
contract. The contract is btwn company and Resp.
IN EXAM, state dissenting judgment by GSR,
critically analyze and state which you prefer.

SUBSTANTIVE UNFAIRNESS

 Maneka Gandhi: Equality = fairness

= reasonableness
Question: can SLE (fairness) come
under Art 8?

Diff btwn PF and SF

PROCEDURAL
FAIRNESS
Procedures
adopted by admin
body before
making decision
must be fair (incl
NJ)
Individual can
challenge decisionmaking process

SUBSTANTIVE
FAIRNESS
Decision made by
admin body must be
fair
Not related to admin
procedure
Individual can
challenge decision
Controversial concept

SUBSTANTIVE UNFAIRNESS

England
Does not use
SF as separate
ground
Always bring in
under
wednesbury
unreasonablen
ess

Malaysia

TTS 1st case that states decision must be

fair.

Rama Chandran Agree with TTS (obiter)

Ng Hock Cheng (FC):

1. Punishment by PSC cannot be reviewed by
courts;
Any punishment imposed by PSC on public
servants is not to be interfered by courts.
2. No SF in Malaysia.

Sugumar (COA) SF (Art 8) (i) decision must

be reasonable; (ii) punishment must be
proportionate
(FC) Struck out COA, cannot
use as separate ground of review because Eng
does not use.

Absolute discretionary
power

Created by court

A. Prerogative power of mercy (Royal pardon):

- Art 42(1) FC - granted YDPA and YDPN power to
pardon but not stated anywhere that court cannot
review.
- England: olden days cannot question pardon, but now
can.
- India: Art 72 Indian Consti power to pardon - president.
SC - power can be reviewed if used arbitrarily.
- Malaysia:
Chiow Thiam Guan v Suptd of Pudu Prison (FC)
Sim Kie Chon v Suptd of Pudu Prison (SC)

Malaysia
Chiow Thiam Guan v Sptd of Pudu
Prison (FC)
Sim Kie Chon v Sptd Pudu Prison (SC)
The power of pardon cannot be
reviewed by court because it is a
prerogative power.

B.Discretionary power of Attorney General

- Art 145(3) FC power to institute,
conduct or discontinue any proceedings
for an offence
- Court this power cannot be reviewed
by judiciary.
- Art 8 FC not applicable here.
- Johnson Tan Han Seng v PP
- Dato Haji Harun b Idris v PP
- Mohd Nordin Johan v AG of Malaysia
- PP v Lau Kee Hoo

C. DOCTRINE OF PLEASURE
Regarding matters of service of public servants
Art 132(2A) FC
Pengarah Pelajaran WP v Loot Ting Yee
- He was transferred to somewhere else but he cannot
challenge the decision as he is now holding the office
at the pleasure of the YDPA
* Criticized by MP Jain, as we have written constitution,
why must we follow what is happening in England?
Court shouldn't be tying their own hands by saying
that they shouldn't thouch cases concerning this
matter as this is not stated in constitution
Dato Seri Anwar Ibrahim v Perdana Menteri, Malaysia

D. PREVENTIVE DETENTION
Ouster Clause inserted in preventive
detention statutes.
Lee Gee Lam v Timbalan Menteri HalEhwal Dalam Negeri
Shaharudin b.Idris v Menteri HalEhwal Dalam Negeri

E. PUNISHMENT AWARDED BY PSC

Ng Hock Cheng

Statute
S 18C Societies Act 1966
The decision of a political party / any person
authorized by it or its constitution or rules or
regulations made thereunder
on the interpretation of its constitution, rules or
regulations or on any matter relating to the affairs of
the party
shall be final & conclusive and
such decision shall not be challenged, appealed
against, reviewed, quashed or called in question in
any court on any ground,
and no court shall have jurisdiction to entertain
or determine any suit, application, question or
proceeding on any ground regarding the validity of
such decision

Art 150(8)
(8) Notwithstanding anything in this Constitution
(a) the satisfaction of the Yang di-Pertuan Agong
mentioned in Clause (1) and Clause (2b) shall be final
and conclusive and shall not be challenged or called in
question in any court on any ground; and
(b) no court shall have jurisdiction to entertain or
determine any application, question or proceeding, in
whatever form, on any ground, regarding the validity of

(i) a Proclamation under Clause (1) or of a declaration

made in such Proclamation to the effect stated in
Clause (1);
(ii) the continued operation of such Proclamation;
(iii) any ordinance promulgated under Clause (2b); or
(iv) the continuation in force of any such ordinance

Pendekatan Baru
MUST READ AND MAKE CASE NOTES
R Rama Chandran v Industrial Court
Malaysia

Courts of Judicature Act

s25
Schedule s25(2)
para 1