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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.
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
There is no one definition of Admin law which accurately states its nature, scope and
contents. Various definitions have been given.
a) 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
b) 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
c) 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
d) 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
e) W. Wade control of government power primary purpose to keep government power
within legal bounds to protect citizens against their abuse.
- Both purpose are supplementary and, to disperse and control state powers.
Operation of the administration vis--vis Deals with the structure, organization, powers
relationship with public/individual and functions of 3 organs of gov and relationship
Deals only with executive branch Deals with the top 3 organs of state
Concerned with mechanism of such control >> Lays down power and limitation
1
Kenneth C Davis, Administrative Law Text, 2 (1959)
2
Jennings, The Law and the Constitution, 217
3
Dicey, The Law and the Constitution, 329, (VIII ed.)
4 th
M.P. Jain, Administrative Law of Malaysia and Singapore, 4 ed., p 16)
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
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
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
Development of modern Administrative Law in the common law world after 1963
Restrictive judicial thinking as regards the applicability of natural justice (due to war-time
legislation) came to an end with this celebrated case.
1
[1963] 2 All ER 66
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
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 error-
f 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.
2
[1969] 2 AC 147
3
[1995] 1 All ER 611
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
4
[1979] 2 MLJ 152
5
[1989] 1 MLJ 487
6
[1995] 2 MLJ 317
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
The right to continue to work and to be employed in the public service is to be included in the
definition of life and when A5 and A8 are read together, fairness is required. A fair procedure
must be adopted and the decision made must be fair and just.
Court was of the opinion that the punishment was too severe and misappropriate,
- declared that the decision by the court was too much
- ordered to hire him back into public service
7
[1996] 1 MLJ 261
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
Normally, more subsidiary legislation is passed every year when compared to the number of acts
passed by the Parliament.
4) Power to exempt a person/body from the enforcement of an Act/its certain provisions of the Act
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
1
[1968] 1 MLJ 18
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
*However, whether or not EDP applies to non-emergency law passed outside A150 was not
discussed.
**In this case, decision placed a lot of emphasis on the emergency clause
a) Laying simpliciter
States that a statutory instrument that is made has to be lain in P
Intends to provide information and it is directory in nature.
Hence, failure to do so will not affect its validity (directory in nature)
Takes effect as soon as made
EG: S36(2) Financial Procedure Act Regulatio s ade shall e laid efo e the de a
Rak at
In Malaysia, 3 practices:
Laying in simpliciter legal right after passing, only informing parliament.
Laying subject to negative resolution valid until revoked.
Laying subject to affirmative resolution
If it is directory in nature, then no laying out does not affect its legality.
Principles beginning in courts and used in courts to limit executive power in making subsidiary laws.
Cannot have provision that excludes court unless Parent Act allows it.
A) Exclusion of Courts
S.L cannot exclude courts from judging disputes between an individual and individual/between an
individual and the administration unless there is an express provision in the permitting statute.
General Principle: SL cannot exclude/limit powers of court unless expressly stated (similar to OC)
This is inadequate because Parent Act can allow an exclusion clause.
Chester v Bateson2
Held:
The SL was void as it prohibited the property owners during the wartime zone to get access to
court, without the consent of the Minister.
The court exclusion can only be valid if it is stated in the Parent Act.
2
[1920] 1 KB 829
3
[1937] AC 139
4
[1962] 1 QB 340
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
Palm Oil Research and Development Board Malaysia v Premium Vegetable Oils Sdn Bhd6
Facts:
There was a SL that required palm oil millers to pay certain fees based on the amount of palm oil
produced by him. The order was challenged.
Held:
FC: The order concerned was invalid as PA only empowers the Minister to impose research fee on
palm oil but not on palm oil millers.
S. 44 of Interpretation Act
If there is power to impose financial levy through SL, such power is extended by this section. An
e pa ded di e sio of po e is gi e to ake L p es i i g fees. Thus, it s a PA dut to o fe the
power to levy fees before this provision comes into operation.
Clear efficacy to control SL in term of financial levy, as its validity will depend on the authorization
from the PA. The concept of obtaining authorization from the Parent Act will directly give power
to judiciary to execute its function in controlling the evolvement of SL in term of financial levy.
5
[1992] KB 987
6
[2005] 3 MLJ 97 (FC)
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
C) Retrospectivity
SL cannot be enforced retrospectively unless there is power to do so which has been conferred by
the statute.
Art 7(1) FC prohibits any enactment of ex post facto laws of criminal nature.
However, civil laws are not subject to the said restriction.
S20 of Interpretation Acts 1948 and 1967 - allows SL to take effect retrospectively up to the date
of enforcement of the Act or any other written law under which it is made.
Wong Pot Heng & Anor v Kerajaan Malaysia7
Held:
- The power to make SL that has retrospective effect must be given expressly to the authority by PA,
conferring such power in clear and unambiguous words.
*However, A7 of FC does not allowed criminal laws that are retrospective. So, as long as not
criminal in nature, it is allowed.
D) Unreasonableness
SL shall not be unreasonable and the test available is laid down through the case of
Kruse v Johnson8:
If, fo i sta e the L e e fou d to e u e ual i thei ope atio as et ee diffe e t
classes; if there were manifestly unjust, if they disclosed bad faith; if there involved such
opp essi e ope atio to a ds the people that these people a t fou d a justifi atio i the
minds of reasonable men, the court held that Parliament never intended to do such rules, thus
making them to be unreasonable a d ult a i es.
In that case, the court had ruled; the reasonableness of the regulations will only be determined
o e the i es is esta lished, as the e e a it elu ta t to i ol e i the e its of L as he e
the e e uite ill e uipped i that sense.
McEldowney v Forde9
A by-law had been passed saying that anyone who involved with any unlawful association (including
Republican Club) shall be found guilty of an offence. A person who was a member of the referred
Club had been prosecuted for the above offence although he had never joined any unlawful activity
of the club.
Held:
The regulation was declared invalid on the ground of being too vague and so arbitrary as to be
wholly unreasonable as well as in bad faith.
7
[1992] 2 MLJ 885
8
[1898] 2 QB 91
9
[1969] 2 All ER 1039
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
Air India v Nergesh Meerza12 - [NOTE Art 14 is in pari materia to Art 8 FC).
Indian Supreme Court used Art 14 to break arbitrary S.L. Air India is a government company which
made a rule that every pregnant stewardess must retire. It was challenged in the court
Held:
That the law was unreasonable and against Art 14. The rule is unreasonable and arbitrary. It shocks
the conscience of the court and the rule is extremely detestable and abhorrent to the nation of a
civilised society.
10
[1909] 2 KB 127
11
[2005] 3 MLJ 681
12
AIR [1981] SC 1829
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
II. Unconstitutionality
A) A SL will not be valid if the Parent Act is unconstitutional.
Principle: if the PA is unconstitutional as per Art 4 FC, it is said to be non est as making the SL
made under it to be void. (=non-existing)
Osman v PP13
Certain emergency regulations were made under the Emergency (Essential Powers) Act 1964 were
challenged as unconstitutional on the ground that these were of a discriminatory nature and thus
infringed Art 8 of the FC. The argument was, however, rejected by the Privy Council as the
emergency regulation could not be held as unconstitutional because of Art 150(6).
13
[1968] 2 MLJ 137
14
[1977] 2 MLJ 66
15
[1979] 2 MLJ 238; [1979] 1 MLJ 50
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
The main problem addressed by court in declaring the subsidiary legislation to be void is when the
statute related is said to use very broad and general terms
S 23(1A):
Fo the pu pose of ss 1 , a L ade u de a A t is i o siste t with that Act or any other Act
merely by reason of the absence in the Act under which it is made of any provision relating to the
commencement, application, operation, interpretation or construction of the SL or to any other
matter in connection with such SL if provisions relating to the commencement, application,
operation, interpretation or construction of, or other matter in connection with, SL generally are
o tai ed i this A t
= SL inconsistent with Act merely by reason of absence in the PA.
16
[1978] 2 MLJ 137
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
Held:
PC: The L as UV to 9 g e ause the L did ot o l li it ut holl e luded the autho it s
liability for the loss of goods.
17
[1985] 2 MLJ 262
18
AIR 1970 Pat 377
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
Important:
1) Right to fair hearing only arises when a public authority exercises power which has potential
to affect right and interests of a person
2) Universal application
3) Silence of statute does not mean that the R2BH is denied because only in such cases right to
fair hearing impliedly arises.
Held:
When statute contains a specific & detailed procedure, and this statute is silent on R2BH,
ou t ill de ide that it s a i te tio of the pa lia e t to de the BH hi h is
equivalent to no natural justice.
5. It is Pre-Decisional
Maneka Gandhi v Union Of India3
Facts:
Petitioner wanted to leave India, passport was confiscated.
Held:
The application of pre-decisional hearing is the rule and post-decisional hearing is an exception
to the rule. It must only be used in exceptional circumstances and it cannot be used to dilute
the R2BH.
6. It is a Flexible Concept
Mak Sik Kwong v Minister Of Home Affairs, Malaysia (No.2)4
NJ is not rigid, absolute/unbending. It can vary in the context of its application.
Lloyd v Mcmahon5
So called NJ rules are not engraved on the tablet of stone (means that it should not be static, it
must be interpreted lively)
Merdeka University v Gov of Malaysia6 (referred to the case of Pahang South Union Omnibus)
The ules of atu al justi e a e ot i fle i le p i iples a d a a y in their content in the
i u sta es of the ase a d i thei a it i the o te t of thei appli atio
SK Kapoor V Jagmohan7
Although the situation arises where immediate action must be taken by the public authorities,
at the e least, i i al NJ a e possi le, ie the a est oti e of hea i g a d the littlest
oppo tu it of hea i g .
2
[1973] 1 All ER 400
3
AIR 1978 SC 597
4
[1975] 2 MLJ 175
5
[1987] AC 625
6
[1981] 2 MLJ 356 HC
7
1981 (1) SCR 746
8
AIR 1981 SC 818
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
Importance of NJ
Towards Administrative Bodies Towards Individuals
1. To determine relevant facts before a decision 1. An important right to the individual to
is made challenge and influence the decision
2. To achieve fair decisions 2. Prevent admin bodies from abusing power
3. To prevent admin from making mistakes 3. Protect individual rights from being exploited
4. To help make complete and proper records
B. Development of NJ
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
B1. Britain
In England, NJ must apply in such decisions but not purely-administrative decisions.
9
(1863) 143 ER 414
10
[1991] AC 179
11
[1951] AC 66
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
Facts:
Individual was a taxi-license holder. Due to disciplinary problem, the license was revoked. Statute
provided that revocation of taxi license can be done if the Commissioner of Police is satisfied that
he is not the fit person.
Held:
Commissioner was exercising a disciplinary authority and that in matters of discipline, no hearing
was necessary.
Ex parte Fry
Dismissal of a fireman without hearing was upheld as a matter of discipline.
12
[1995] 1 All ER 73
13
[1963] 2 All ER 66
14
[1971] 2 All ER 1278
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
15
[1967] 1 All ER 226
16
[1970] 2 QB 417; [1970] 2 WLR 1009
17
[1979] 1 All ER 701
18
[1971] 1 WLR 487
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
Facts:
A student had been dismissed as he had re-sat for his examination.
Held:
R2BH/NJ must be served.
A procedural concept in common law and has been used in courts to further widen the scope of
NJ.
Legitimate expectation or reasonable expectation may arise from a e p ess p o ise given on
behalf of a public authority or from the existence of a egula practice hi h the lai a t a
reasonable expect to continue.
19
[1969] 2 All ER 964
20
[1971] Ch 388
21
[1969] 2 WLR 337
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
22
[1972] 2 All ER 589
23
[1983] 2 All ER 346
24
[1985] 1 AC 374
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
Position in India
- Difference between quasi-judicial and administrative function existed.
- Cases give a wide interpretation to quasi-judicial.
- Until 1970, the concept of NJ was largely linked to the concept of quasi-judicial
- Supreme Court broke away from conceptual approach, took recourse to a functional approach,
and held that NJ must be applied irrespective of the labelling of the function.
- 2 important cases:
AK Kraipak v Union of India25
Held:
Even though the function of selecting a person for a government job by a selection committee
could be regarded as administrative, and not quasi-judicial, yet the committee must act without
bias.
The co cept of rule of la ould lose its itality if the i stru e talities of the tate are ot
charged with the duty of discharging their functions in a fair and just manner .
> Had de olished the a tifi ial disti tio et ee QJ a d Ad i a d sepa ates NJ f o QJ,
widening the scope of R2BH
So, after looking at England and India, time for our beautiful country :D
25
[1969] INSC 129
26
Ibid at 3
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
27
[1970] 2 MLJ 164
28
[1969] 2 MLJ 118
29
[1977] 2 MLJ 152
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
Minister Of Labour And Manpower V Wix Corporation South East Asia Sdn Bhd 32 (not that imp)
Facts:
APP challenged an order of the Minister referring a matter to the Industrial Court for decision.
The corporation had dismissed an employee, and an industrial dispute had arisen. The dispute was
referred to the Regional Director of Industrial Relations for conciliation. When he failed, he
reported to the Director-General of IR who then made a report to Minister of Labour.
Issue:
30
[1975] 2 MLJ 168
31
[1981] 2 MLJ 196
32
[1980] 2 MLJ 248
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
Whether principles of NJ applied to the process leading to the notification of there being no
settlement by the DG to Minister.
Held: (FC)
The ule of hea i g oth sides applies o l he the offi e is i posed ith a dut to de ide o
determine questions. The rule has no application when the officer only has to report or notify a
factual situation which he does not sit as adjudicato .
A dut to a t judi iall i a o da e ith atu al justi e a ises o l i the e e ise of fu tio s
that a e a al ti all judi ial represent old conceptual thinking which sought to link quasi-
judicial with natural justice.
Discretion to refuse a remedy may be exercised when the court judges that NJ would make no
difference or that there was no prejudice.
S. Kulasingam V Commisioner Of Lands, Federal Territory34
Facts:
Land was acquired for public purpose building of a hockey stadium. APP applied to the HC for
declarations to impugn the validity of the acquisition but the application was dismissed. They then
appealed to the FC.
Held:
1) Legislation imposes no obligation for any inquiry in hearing in respect of acquisition.
2) The legislature can by clear words exclude the principles of natural justice in the absence of
specific constitutional guarantees.
3) Provisions In the Act specifically provide for an injury and hearing in respect of assessment of
compensation but no such hearing is provided for at the stage of acquisition. Thus, the maxim
e p essio u ius est e lusio alte ius applies to e lude NJ.
4) There was an implied exclusion of natural justice because a pre-acquisition hearing would
stultify acquisition proceedings.
= NO RTBH, only adequate compensation according to FC Art 13(2)
33
[1981] 2 MLJ 356
34
[1982] 1 MLJ 204
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
Lam Eng Rubber Factory (M) Sdn Bhd v Pengarah Alam Sekitar, Negeri Kedah Dan Perlis &
Anor38
I judg e t, ea h a d e e e e of the pu li has a legiti ate e pe tatio to ha e his o
her written communication to a government department looked into and dealt with in a timeous,
ou teous a d effi ie t a e .
35
[1987] 1 MLJ 134
36
[1985] 3 MLJ 298
37
[2002] 2 CLJ 448
38
[2005] 2 MLJ 493
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
39
[1967] 2 MLJ 186
40
[1995] 1 MLJ 311
41
[1962] MLJ 169
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
(3) HEARING
Ridge v Baldwin The esse tial e ui e e ts of NJ at least i lude that efo e so eo e is
o de ed, he is to ha e a oppo tu it of defe di g hi self
42
[1989] 1 MLJ 487
43
[1966] 2 MLJ 80
44
[1971] 2 MLJ 181
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
Adjudicatory body should not make a decision adverse to a party without affording him an
effective opportunity of adequately meeting the allegations against him and of presenting
his own case.
Both sides must be heard and cannot hear one side in the absence of the other.
Types:
I. Written representation
II. Oral hearing - Interview, Consultation, Dialogue
I. Written representation
Ho Kwan Seng
written representation is a compulsory ingredient in trial before the court.
Pett II
Overruled Pett I and held that it was not a general right but it is at the discretion of the
adjudicator.
b) INDIA
Travancore Rayons v Union of India46
Whether a product of the company was subject to an excise duty company argued that the
product was dutiable. The matter reached the Govt of India by way of appeal where their
contention was rejected without giving an oral hearing.
Held: SC
if i app op iate ases he e o ple a d diffi ult uestio s a e aised, pe so al hea i g is
given, it would conduce to better administration and more satisfactory disposal of the
g ie a es of itize .
Hence, right to oral hearing is not compulsory, but must be given in these situations:
(1) Case involves complex issues
(2) Case involves technical legal issues
(3) The facts of the case are complicated
45
[1968] 2 All ER 545
46
AIR 1971 SC 862
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
c) MALAYSIA
Ketua Pengarah Kastam v Ho Kwan Seng47
i siste e on oral hearing in each and every case would result in the breakdown of the
ad i ist atio e ause su h a hea i g is too slo , too te h i al a d too ostl .
The g eat eed is to deal effi ie tl a d fai l , athe tha to p ese e all the a out e e ts
of the ou t oo , the o side atio s of asi fai ess a e pa a ou t .
- Not mandatory
Issue: Whether oral hearing can be requested by public servants under Article 135(2)?
Najar Singh v Govt of Malaysia48
Police officer while in preventive detention received a notice as to why he should not be
dismissed from the police force and was given a chance to exculpate himself in writing but
was not allowed for oral hearing.
Held:
A hea i g does ot e essa il ea a o al hea i g as lo g as fai oppo tu it is gi e to
the PF to correct or contradict any relevant statement prejudicial to his view.
> Oral heaering is not required as part of NJ and public officer cannot request it as a right
Utrabadi v Lembaga Tatatertib Perkhidmatam Awam Hospital Besar Pulau Pinang & Anor
Facts:
RESP was employed as a hospital attendant at the Penang General Hospital. The RESP
underwent a spot urine test and was tested positive for morphine. 8 months later the first
47
[1977] 2 MLJ 152
48
[1974] 1 MLJ 138
49
[1979] 2 MLJ 276
50
[1994] 2 MLJ 115
51
[1995] 1 MLJ 311
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
APP instituted disciplinary proceedings against the RESP based on the findings that he is a
drug addict. The plaintiff gave his written representation but was not given an oral hearing.
Held:
COA: By referring to Raja Abdul Malek Muzaffar Shah, GSR extended the notion that in
certain situations, oral hearing must be given subject to:
1) Subject matter of the case
2) Facts that arise in the case
3) Nature of the decision taken against the individual
4) Important factual question that cannot be satisfactorily resolved based on written
representation.
5) Evidence from admin and written representation of individual contradict each other.
52
[2008] 1 MLJ 725
53
[2008] 6 MLJ 1
54
[2002] 2 MLJ 131
55
[2008] 2 MLJ 1
56
[2011] 5 MLJ 465
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B. MALAYSIA
Doreswamy v PSC
The considerations requiring assistance of counsel in the ordinary courts are just as
pe suasi e i p o eedi gs efo e dis ipli a t i u als. This is espe iall so he a pe so s
regulation and livelihood are in jeopardy.
However, may be restricted either expressly in statues or by legal necessary implication.
Federal Hotel Sdn Bhd v National Union of Hotel, Bar & Restaurant Workers61
While the respondent was represented by a lawyer, the Industrial Court refused permission
to the APP s ou sel to a t o his ehalf a d appea a d address the court on substantive
legal issues involved in the matter. Thus, the APP was without legal representation. FC:
g oss iolatio of the fu da e tal p i iples of NJ
If adjudicator allows one party to counsel, the other side deserves a counsel too.
57
[1968] 2 All ER 545
58
[1969] 2 All ER 221
59
[1971] 1 All ER 215
60
[1984] 1 All ER 799
61
[1983] 1 MLJ 175
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A. England
Ceylon University v Fernando
PC: Objection would have been more formidable of he had asked to be allowed to question
the essential witnesses and his request and had been refused.
Errignton v Wilson
-Failure to allow corss-examination was necessarily unfair having regard to the
circumstances of the case and the extent to which prejudice might have resulted.
B. MALAYSIA
Pemungut Hasil Tanah v Kam Gim Paik
-While holding inquiry into the value of lands acquired, the collector refused the request of
the owner to call the government value for cross examine.
-FC: It as ot a iolatio of the o e s asi ight a d the efo e ot a i f i ge e t of NJ.
A. INDIA
Travancore Rayons
Compulsory to give reasoned decisions.
B. US
S 557(C) Administrative Procedure Act 1946 act forces to give reasons.
C. ENGLAND
Padfield v Minister of Agriculture62 - PADFIELD INDFERENCE
HoL:
There is no duty for admin body to give reasoned decisions. But if admin body does not give
reason, court may make an adverse inference that they do not have good reason in the
decision and therefore, the court will quash the decision.
D. MALAYSIA
Phase 1: No right to reasoned decisions similar to common law
Phase 2: Change occurs:
Rohana binti Ariffin v USM
Issue: if USM should give decisions?
Edgar Joseph Jr:
Though general principle is that admin body need not give reasoned decisions, but there
are circumstances where the concept of fairness calls for reasoned decisions (court did not
explain further).
Cou t efe ed to I dia s T a a o e a o s a d said it as ot appli a le i Mala sia
UM s de isio as ullified as li elihood affe ted, f ee spee h as e ou aged i u i esit
and lecturers had a right to appeal.
Utra Badi
-Plaintiff, a hospital attendant, was tested positive for morphine.
-The charge was made under GO26 of Public Officers (Conduct and Discipline)which
contained two alternative punishments against him, either to dismiss him or to reduce in
rank.
-Appeal rejected, Plaintiff was not given a right to mitigate.
HC:
-It would be unjust to deny him a right to mitigate, as the punishment itself involves a
separate decision making process.
-R2BH in mitigation is implicitly encompassed in GO23 of the regulation and Art135(2) of FC.
COA:
-Disciplinary action involves 2 stages:
1) PSC makes a decision as to whether the officer had committed a misconduct.
2) PSC decides on an appropriate punishment to be imposed.
-R2BH must be given as both stages are different proceedings and 2 separate rights to be
heard must be given
-IGP v Alan Noor is only obiter, procedural fairness under Art 5 and 8 were not raised.
FC:
-A public officer does not have a right in mitigation so long as the officer knows the
punishment about to be imposed.
-Followed Shamsuddin, Alan Noor, that the disciplinary proceeding does not involve 2
stages.
-Plea in mitigation concept only exists in court proceedings and not in decision made by PSC.
-Referred to GO and stated that it is silent on right to plea in mitigation, cannot be implied.
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I. PECUNIARY/FINANCIAL BIAS
Losing ability to be an adjudicator if there is monetary interest, regardless of amount.
Cannot deter the assumption that an adjudicator will not be biased irrefutable presumption)
No test to be sued by the court (automatic)
Dimes v Grand Junction Canal64
A company brought a case towards a land owner concerning interests of the company. Lord
Chancellor that heard the case had invested in the company. He decided to side with the
o pa . HoL ullified the Lo d Cha ello s de isio . * ou t ase ut appli a le for
administrative
A. ENGLAND
PHAE : Reaso a le suspi io test
- Vague and will disrupt administrative process
- Not practical - too flexible
64
(1852) 3 HLC 759
65
[1968] 3 All ER 304
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B. MALAYSIA
Same development as England
PHAE : easo a le suspi io test
PHAE : eal likelihood of ias test
Rohana binti Ariffin v USM
The Registrar who made a complaint for disciplinary action against a lecturer sat in the tribunal
during the proceeding.
Held:
THe registrar did not discuss the case with the members of the disciplinary authority, nor did he
partake in the deliberations, but the fact that he was present, there was a real likelihood of
bias.
66
[1993] 2 All ER 727
67
[1984] 1 MLJ 190
68
[1999] 3 MLJ 1
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If he comes from the department, he is not barred, he must be the one who makes the
decision.
2 tests to determine whether there is policy bias:
1) If the officer/adjudicator is only involved with the department no bias
2) If the officer/adjudicator is involved with the policy-making there is bias.
Franklin v Minister of Town and Country Planning
Facts:
Under the New Towns Act 1946, the Minister may confirm the order designating the new town
after a local public inquiry.
He as jee ed at a d he eplied it s o good jee i git is goi g to e do e .
Held:
HC: As he was the one who upheld the policy, there was bias in the inquiry.
CoA: The Minister followed the statute, so no bias.
HoL: The Mi iste s fu tio as ad i ist ati e i atu e & p es i ed the A t, thus, o ias
+ EXCLUSION OF BIAS
If there is a need for an adjudicator, and no one else is competent to decide the matter, or if
a quorum cannot be formed without him or her.
Statutory exclusion
Waiver: 2 conditions
i) Individual knows that the adjudicator was not qualified
ii) Individual knows he had the right to argue/counter-argue, but he chose to kept
quite
Fairness
ENGLAND - Fairness MALAYSIA - Fairness Concept
Re K(H) An Infant Ketua Pengarah Kastam v Ho Kwan Seng
- It was not a question whether he should act - Followed Ridge v Baldwin. Emphasised that the
judicially or not, but being required to act fairly rule requiring a fair hearing is of central
- Good administration and an honest/bona fide importance because it can be used to construe a
decision must require not merely impartiality but whole code of administrative procedural rights
to act fairly. Immigration officer must give the - Abolished the distinction between QJ and
man an opportunity to prove that his son is 16. admin. NJ is a rule of universal application and
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Procedural Fairness
Rohana binti Ariffin (1989)
First case to use PF. But was not related to FC. Instead it was merely a common law concept.
PROCEDURAL FAIRNESS
A 5(1) A 8(1)
Equality
Life/personal liberty
save in accordance
with the law
A. Fairness
A + B = Procedural fairness
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A. INTEPETATION OF LAW
GSR refused to follow the view in case of Karam Singh (1969) which only includes
substantive law and instead i terpreted la i Art 5 as su sta ti e la a d ot
procedural law.
GSR : the restrictive view in Karam Singh was decided during the time whe the lea i g of
the Co stitutio as still at its i fa . The o stitutio should e i te p eted i a oad
a d li e al a
Ong Ah Chuan and S. Kulasingam as efe ed to he e la = su sta ti e + p o edu al la
GSR: if Parliament wants to deny the fundamental rights protected by the Constitution , it
must approve legislation requiring fair procedure
FC:
Does ot ag ee ith COA i follo i g TT s ide i te p etatio of pe so al li e t . The ou t
referred to the case of Loh Wai Kong to i te p et pe so al li e t hi h i ludes the ight to
od /life et ho e e , TT, the ou t i te p eted life a d ot pe so al li e t
What had been guaranteed under Art 5(1) is not absolute and can always be taken by laws
passed by the Parliament.
Disag eed ith the do t i e of su sta ti e fai ess as a e g ou d. Co o la does t use
it. (However criticism - we have FC, why is there the need to refer to common law?)
Exception he PF a t e used
Hong Leong Equipment v Liew Fook Chuan:
1. Security of the state
2. Public security
3. Public interest
4. Acquisition of land Art 13 FC
Sugumar Balakrishnan
COA:
Natural justice and PF are different concepts.
PF is wider than natural justice and is not included in natural justice.
PF is not restricted it emerges from the FC and statute cannot take it away (Art 4)
FC:
Art 5(1) is not absolute, can be denied by statutes passed the Pa lia e t. a e i a o da e
to the la .
COA did not follow Chan Meng Yuen & Sanjiv Oberoi as both of the cases follow common law
position:
However both of the cases did not take into consideration the development in common law (e.g
ex p Cunningham & ex p Doody which puts an exception where reasoned decision is made
compulsory)
Both cases did not refer to Roha as case
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Sugumar Balakrishnan
Issue:
No right to be heard and Reasoned decisions were not given. Hence, Unfair decision
COA:
NJ and PF are different concepts.
PF is wider than NJ and is inclusive of NJ.
Category of PF is not restricted.
Referred to Art 8 covers procedural fairness and substantive fairness.
Decision:
Ground on AAP rejected
Ground on reasoned decision rejected Immigration Officer & State Authority had already given
reasons in affidavits filed in court.
GSR:
The failu e to gi e easo ed de isio s du i g he a de isio is ade a e o e ted he the
decision is challenged in court.
Which means reasoned decisions may be given before a decision is made or after the decision is
challenged in a court. (Criticis : ut does t that defeat the pu pose of easo ed de isio s?
+ 1 more development
PF s o ept as ide as to i lude plea i itigatio to the i il se a t Art 135(2)
PF expanded to include RTBH to mitigate punishment (plea in mitigation)
Regarding the punishment by PSC in cases involving civil servants: Art 135(2)
69
[1988] 1 MLJ 260
70
[1998] 3 MLJ 676
71
[1998] 7 MLJ 785
72
[2000] 3 MLJ 281
73
[2000] 7 MLJ 189
74
[2001] 2 MLJ 417
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Plea in mitigation concept only exists in court proceedings and not in decision made by PSC.
Referred to GO and stated that it is silent on right to plea in mitigation, cannot be implied.
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5.0 Introduction
5.0.1 Definition
Secretary Of State For Education And Science v Tameside Metropolitan Borough Council
Lord Diplock
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.
Examples of DP in statutes:
- S 3(3) Printing Presses and Pu li atio A t a i his a solute dis etio
- I dust ial elatio s A t a , if is satisfied that is e pedie t
- I dust ial elatio s A t .. a , if he thi ks fit .
5.0.4 Importance of Judicial Control (JC) and the Nature of its Function
1. As P does not play its role in controlling DP conferred by it, the burden thus has to be borne by
the judiciary.
2. Generally, appeal is not provided for in the statute that confers powers to the admin authority.
3. In this situation, execution of the said power can be controlled through Judicial Review (JR)
4. In common law, JR is an inherent power of High Court - need not be given by statutes.
5. JC is implemented through doctrine of UV
6. In executing JC, the court confines itself to the issue of UV or the validity of an admin
action/decision.
7. This control is very important in upholding the ROL
8. In the context of JC, reference can be made to para 1, 6th schedule of the FC: judges have taken
a oath to p ese e, p ote t a d defe d its Co stitutio he the a e appoi ted.
Pengarah Tanah dan Galian Wilayah Persekutuan v Sri Lempah Enterprise S/B
Raja Azlan Shah:
Unfettered discretion is a contradiction in terms... Every legal power must have legal
limits, otherwise there is dictatorship... In other words, every discretion cannot be free
from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to
intervene. The courts are the only defence of the liberty of the subject against
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ULTRA VIRES
PROCEDURAL SUBSTANTIVE
Does not comply Does not comply Infringes substantive Infringes substantive
with procedures with the rules of restrictions which restrictions imposed
which are expressly NJ in executing are expressly by the court on DP
stated by law its powers provided by law
JUDICIAL CONTROL
Implied Substantive Limitations/Extended Ultra Vires
- If courts confined the doctrine of ultra vires merely to the express words of the parent
statute, then the scope of judicial review of discretionary powers would have been very
limited. Therefore, they have given an expansive and extended interpretation to the
doctrine to control abuse or wrongful exercise.
- Limitations impliedly imposed by the court on discretionary powers though the statute that
confers the powers is silent on it.
- Used in sophisticated and extended manner by the court through judicial creativity and
ingenuity.
- Can be divided into:
a) Abuse of discretion
b) Non-exercise of discretion
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1
[1987] 2 MLJ 311
2
[1996] 4 MLJ 1
3
[2000] 2 MLJ 486
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2. Improper purpose
- Improper purpose purpose which lies outside the scope and purpose of the enabling
statute.
- If the exercise of a DP is influenced by an improper purpose (purpose not permitted by the
law which confers the said power), it would amount to an abuse of DP and thus void & illegal
- The court will review:
a) The true statutory purpose
b) The purpose behind the action of the administrative body
- If the admin body had actedon par with the purpose of Parliament, then it is intra vires
- Ho does ou t fi d out pu pose ehi d ad i s de isio ?
o Through reasoned decisions
o If do t ha e? >> Padfield s i fe e e = that the e as t a good easo
- How does court find out the purpose of Parliament enacting the Act?
o Preamble
o Imply from act as a whole
4
[1968] 1 ALL ER 694, HL
5
1979] 1 MLJ 135
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4. Unreasonableness
ASSOCIATED PROVINCIAL PICTURE HOUSE LTD V WEDNESBURY CORPORATION (L.GREENE)
2 TYPES
6
[1984] 1 MLJ 67
7
[1991] 1 MLJ 24
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- The test of unreasonableness is not what the courts think is u easo a le , ut hethe
so ethi g so a su d that o easo a le o se si le pe so ould ha e o e to that
de isio L.G ee e i Wed es u
- Lord Greene (Wednesbury) it is t ue to sa that, if a de isio o a o pete t atte is so
unreasonable that no reasonable authority could ever have come to it, then the courts can
i te fe e ut to p o e a ase of that ki d ould e ui e so ethi g o e hel i g
- Burden of proof Lo d G ee e You eed o e hel i g p oof to p o e u easo a le ess .
Cou ts ust e slo to i te fe e . This g ou d is to e used as a last eso t.
CCSU
Council Of Civil Services Unions V Ministers For The Civil Service (CCSU)8
1. Lo d Diplo k used the te i atio alit as ei g the su i t ea i g of Wednesbury s
u easo a le ess .
2. Irrationality was defi ed hi as a de isio hi h is so out ageous i its defia e of logi o
of accepted moral standards that no sensible person who had applied his mind to the question
to e de ided ould ha e a i ed at.
3. A e a e fo the sa e o ept, ut it s possible that with new label the concept might
expand in time.
4. Due to the criticism on the Wednesbury test, 2 new concepts emerged
a) Sub-Wednesbury lower threshold of unreasonableness and used in cases involving rights.
b) Super-Wednesbury higher threshold of unreasonableness and used in cases involving the
go e e tse o o .
Position in Malaysia judges often refer to the narrow interpretation of Lord Greene
(Wednesbury principle is well accepted)
a) Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprises Sdn Bhd9
the condition of surrendering freehold for a 99-year lease in lieu of gaining permission
to develop land was characterised as unreasonable.
**Sub&Super Wednesbury tests are not used in Malaysia yet. But can look into Sugumar.
**Equality clause (A8) may be used to nullify any admin action which is arbitrary or unreasonable -
a wider and more flexible concept
8
[1985] AC 374
9
[1979] 1 MLJ 135
10
[1986] 2 MLJ 203
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B. NON-EXERCISE OF DISCRETION
- May occur when the authority who has the discretion does not exercise it.
- An authority may be said to have exercised his discretion, but actually he may not have done
so as he might not have applied his mind, or abdicated his responsibility to make a decision
to a othe pe so , o a ted a o di gl to a supe io s i st u tio s, or strictly followed a
policy.
General Explanation Lam Eng Rubber Factory v Pengarah Alam Sekitar Kedah
The appellant operated a rubber factory for 54 years until the moment the issue arose. The
Environmental Quality Act (EQA) came into force and the respondent refused to grant the annual
renewal of license because the status of the land was agricultural and not industrial. In an originating
summons at the High Court KC Vohrah J had ordered that the change in land status was not
necessary and the license should be granted. After that the respondent reminded the authorities to
renew his license.
However, the respondent did not do so and on the following year again refused to grant a renewal
o the g ou ds that the appella t s a ea had o e o e a eside tial area. The appellant appealed
to the Appeal Board set up by the EQA but was refused by the first respondent. Hence the appeal to
CoA.
Held: In this case Gopal Sri Ram JCA stated:
Whe Pa lia e t has o fe ed the po e o dis etio to de ide hethe a li e se o ot the
la e ui es hi to e e ise this po e a d allo ed the appella t s appeal agai st the autho ities.
*** Hence, from this case, generally, when there is a duty to exercise discretion and the authorities
do not do so, it becomes (in the words of GSR) the duty of the judicial arm to ensure good
administration is observed. (He cited the Bersih, Cekap, Amanah crap hahaha!)
However, there are four specifics limb this non-exercise of DP can be brought under:
1. Non-application of mind
- An authority must personally exercise it; it must apply its own mind to the facts and
circumstances of each case and come to its own decision.
11
[1995] 2 MLJ 247
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3. Acting mechanically
- Authority vested with discretion must apply its mind to the facts & circumstances of the
case.
- If it passes an order mechanically without applying its mind, its act may well be ultra vires.
4. Fettering of discretion
12
AIR 1954 PC 156
13
[1998] 3 MLJ 335 / [1998] 3 CLJ 629
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14
[1993] MLJU 434; [1994] 2 CLJ 630
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RECLASSIFICATION OF GROUNDS
CCSU (LORD DIPLOCK)
GROUNDS
- If a go e e t s a tio is halle ged i ourts for proportionality and the courts find that
the administrative bodies did not consider it, the courts themselves will make their own
sound judgments. And might quash the decision of administrative bodies.
- Courts are allowed to review the decision made (can enter into the merits of the case) and
not just the decision-making process.
DOCTRINE OF PROPORTIONALITY IN ENGLAND
- Slow to be accepted
- A lot of judges sta d ith Di e s opi io o h this p i iple should ot e a epted he
says it is against the Rule of Law)
- But Lo d Diplo k s o ite i CCU fo esa p opo tio alit ,
Ekambaram a/l Savarimuthu v Ketua Polis Daerah Melaka Tengah & Ors19
15
[1976] 1 WLR 1052
16
[1991] 1 AC 696
17
AIR1987 SC 2387
18
[1996] 1 MLJ 261
19
[1997] 2 MLJ 454
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Ekambaran bought a new car. He applied to buy a new car and his application was approved.
After that, he changed his mind to buy another car with the same price. He did not make a new
application. He drove his new car to his workplace. He received disciplinary action. He pleaded
guilt as he did t k o he eeded to ake a e appli atio . He as the dis issed. HC
referred to the case of Tan Tek Seng and quashed the Public Services Commision on the ground
that it s ot p opo tio ate. This ase ought p opo tio alit u de i atio alit still ot o its
own ground).
Criticism:
1) the power given to PSC was absolute discretion because courts cannot review.
2) 2) no reasonable reason to uphold the action taken by PSC. 3) unfair decision.
20
[1998] 1 MLJ 153
21
[2002] 3 MLJ 72
22
[1999] 3 MLJ 1
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- Not lea hethe p opo tio alit is ought i u de Wed es u s u easo a le ess
- Requirements:
a) representation
b) Dependence on representation
c) Experience losses in reliance to the representation
- The usage of estoppel in public law is complicated.
POSITION IN ENGLAND
Generally, this doctrine is not available against the gov in which the gov is not bound by any
representation or assurance
POSITION IN INDIA
estoppel easier to raise
Motilal Padampat Sugar Mills v State of Uttar Pradesh26
Where the gov makes a promise, even in sovereign, admin or governemtnal capacity, knowing
or intending that it would be acted on by the promisee and, in fact, promisee acting in reliance
on it, alters his position, the gov will be abstained to go back on its promise if it will be
23
[1937] A.C. 610
24
[1962] 1 QB 416
25
[1977] QB 643
26
1979 AIR 621,
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inequitable to do so, notwithstanding that there is no consideration for the promise and
promise is in fact , not recorded in a formal contract as required by A299 of the Constitution.
Gov cannot fetter its future executive action to be determined by needs of community at
relevant time, does not release gov from being bound by such promises for it will be UV to ROL
and justice.
Court held that individuals can raise estoppel. Cou t e phasised o e o the edi ilit of the
go e e t s p o ises . atio ale is e ause to e su e a fai a d good ad i ist atio , the
government must keep their promises.
POSITION IN MALAYSIA
Public Textiles Bhd v Lembaga Letrik Negara27 -
LLN has a statutory duty to supply electricity at reasonable prices and to fix the prices to be
charged in accordance with such tariffs as may from time to time be fixed by regulations. The
Board has power to amend the schedules and to make changes for energy supplied in different
places, or districts on different systems, or while maintaining the same system, at different
rates, but that power cannot override the statutory duty of the Board not to show undue
preference or undue discrimination as between consumers similarly situated. Due to an error by
the Board, APPs did not receive proper bills for the consumption of electricity for a period and
were under-billed. The Board then issued a supplementary bill to recover the difference
between the charged amount and the amount that ought to have been charged and filed a suit
to recover the same. APPs pleaded estoppel against the Board because they had utilised the
accounts rendered by the Board for the purpose of costing their products, and thus, they had
acted to their detriment.
APP s o te tio as eje ted to admit estoppel would have the effect of nullifying the
provisions of Electricity Act 1949.
>> Estoppel cannot be allowed against a body if to allow it is to make it do an UV act, which the
statute creating it, enacted that it could not lawfully do
MPPP v Sg Gelugor
Taki g this o ept i the fi st se se the said pla i g pe issio g a ted the Appella t a
substantive right. The Respondent's Council's decision of 14 February 1992 was a clear
unambiguous representation that the Appellant was not pegged to selling its units at prices not
exceeding pegged RM25,000. The Appellant relied on the representation and in accordance with
its internal procedures fixed the new prices at which the units would be sold and proceeded to
sell them. Since the Respondent was fully aware of these prices and had stated a Council's
decision that the prices were an internal matter for the Appellant we are of the view that the
Respondent was not entitled to change its decision so as to adversely affect the claimant. There
is a estoppel he e
>> Although estoppel cannot be raised to prevent the exercise of a statutory discretion or to prevent
or excuse the performance of a statutory duty, however admin power may be unreasonably
exercised or abused where the impact of the official decision is oppressive or an unnecessarily
o e ous i f i ge e t of a pe so s ights o i te ests
>> The public authority was not entitled to change its decision so as to adversely affect the claimant.
There is an estoppel here
27
[1976] 2 MLJ 58
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Procedural: Substantive:
If admin undertakes to abide by the Arise from what a person has been permitted to enjoy (or
rules of NJ, or if there is a long benefit from) and where that person can legitimately
established practice of doing so in expect to continue enjoy where when revoked there must
particular situations, then the admin is be rational grounds and that person is communicated to
bound to follow NJ. and given a right to comment to such revocation, where it
may extend to a benefit in the future not yet enjoyed but
promised.
(Pn Sri: you ask for the right to be heard (Pn Sri: you ask for the old policy after policy is changed
for something that has happened (substantive aspect))
before policies are changed (procedural
aspect))
R v Secretary of State for the Home Department, ex parte Ruddock and others29 -
The judge said: Earlier on, legitimate expectation was only used in the procedural context.
But legitimate expectation is not limited to the procedural aspect only.
Legitimate expectation also has a substantive aspect because the principle of legitimate
expectation is also broad and require the government to act fairly. It has to include both
aspects, substantive and procedural.
This case accepts that legitimate expectation has a substantive aspect.
Taylor J traced legitimate expectation based on the concept of fairness.
28
[1985] 1 All ER 40
29
[1987] 2 All ER 518
30
[1990] 1 WLR 1545; [1990] 1 All ER 91
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MALAYSIA:
MPPP v Sg Gelugor
referred to Hamble Fisheries and accepted SLE.
31
[1995] 1 All ER 73
32
[1995] 2 All ER 714
33
[1994] 1 All ER 577
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DF charged for 4 counts of corruption under EO (Essential Powers). DF raised SLE because on EP
1988, cabine declared its intention to invalidate this ordinance. DF said this declaration created SLE
that he o t e a used u de this o di a e.
Court:
There is reasonable basis, but public interest was overriding his worthiness of protection. The
ordinance was needed to end corruption. Therefore, government is not bound to its representation.
It is unfair for someone who commits crime if he is allowed to raise SLE.
5.4? Other Issues
5.4.1 SUBSTANTIVE UNFAIRNESS
Difference between procedural and substantive fairness
- Procedural fairness
Procedure followed by administrative body before achieving decision must be fair
(inclusive of NJ)
Individual challenges the decision-making process.
- Substantive fairness
The decision made by administrative body must be fair.
Is not related to administrative procedures.
Individuals challenge the decision.
Controversial concept.
England: does not use SF as a separate ground of judicial review.
Malaysia:
- TTS first case to say that the decision/punishment must be fair.
The o ept of fai ess is introduced. The court held that if the punishment is harsh, unfair
and unjust in circumstances of the case, the court may strike it down.
Requirement of fairness is the essence of A8(1) read together with A5(1), ensuring that not
only fair procedure is adopted but also, a fair and just punishment is imposed.
- Rama Chandran agreed through obiter with TTS
- Ng Hock Cheng
1) PC s pu ish e ts a ot e e ie ed.
2) There is no SF in Malaysia
- Sugumar
A8(1) of FC strikes at the heart of arbitrariness in public decision making and imposes a duty
upon a public decision-maker to adopt a fair procedure
The duty to act fairly is recognised to comprise 2 limbs: procedural and substantive. The doc
of substantive fairness requires a public decision to arrive at a reasonable decision and to
ensure that any punishment he imposes is not disproportionate to the wrongdoing
complained of.
FC however did not agree and overruled as England did not have it.
5.4.2 UNFETTERRED DP
- Courts do not favour the idea of an absolute or an unreviewable discretion and they have
declared that an unfettered discretion is a contradiction in terms (Raja Azlan Shah)
- Ouster clauses are harmful only the courts are a safeguard against government abuse.
- Judicial attitude follows from the basic premise that no power conferred by Parliament is
meant to be abused or misused; Parliament confers power for proper, and not improper,
purposes. Therefore, a discretionary decision is valid only so long as it falls within the
parameters laid down by the courts by the doctrine of ultra vires.
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MALAYSIA:
Chiow Thiam Guan v Superintendent of Pudu Prison34
APP was convicted by the HC of an offence under ISA and was sentenced to death. His appeal to
the FC was dismissed and Pardons Board also refused to interfere. APP then applied for a
declaration that the mandatory sentence passed under the Act was unconstitutional and also for
stay of execution pending finalisation of proceedings. FC ruled that prerogative of mercy, vested
i YDPA, is ot the su je t of legal ights . It egi s he e legal ight e ds . A sta pf
execution would only be an extension of the prerogative powers of the YDPA in accordance with
Art 42 of the FC.
B. AG DICETIONAY POWE
- At gi es the AG the po e , e e isa le at his discretion, to institute, conduct or
discontinue any proceedings for an offence other than in a syariah court, a native court or a
court- a tial .
- Courts: it is not subjected to judicial review.
- Art 8 FC is not used here.
34
[1983] 2 MLJ 116
35
[1985] 2 MLJ 385
36
[1977] 2 MLJ 66
37
[1983] 1 MLJ 68
38
[1983] 1 MLJ 157
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C. DOCTRINE OF PLEASURE
- Relates to matters of civil servants.
- Art 132(2A) E ept as e p essl p o ided this Co stitutio , every person who is a
e e of a of the [spe ified] se i es] holds offi e du i g the pleasu e of the YDPA
D. PREVENTIVE DETENTION
- Ouster clauses in inserted in preventive detention statutes.
E. PUNISHMENT BY PSC
Ng Hock Cheng
Statutory provisions that gives absolute discretion
1) S 18C Societies Act 1966
2) Art 150(8) FC.
39
[1982] 1 MLJ 68
40
[1993] 3 MLJ 265; [1993] 4 CLJ 155
41
[1993] 1 MLJ 204
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6.2 Procedure to Apply for Judicial Review (After amendment to Order 53; Before that RHC
1980)
Rule 1(1) Application for JR
Rule 1(2) Order is subject to provisions of Chpater VIII of Part 2 of Specific Relief Act 1950
(so it is under the SRA?!)
Rule 4(1) Where leave granted, Applicant within 14 days file a notice in Form 110
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Rule 4(2) Upon extraction, applicant serve a copy of the papers to those affected within 14 days
before hearing
Rule 6(1) After leave granted, any part to application for JR may apply for discovery and
inspection of documents or to cross-examine
Rule 7(1) Judge may allowed statement to be amended and allow further affidavits if they deal
with new matters arising
Rule 7(2) Every party to application must supply to any other party copies of affidavits proposed
to be used
Rule 8(1) Any person who wishes to be heard if considered proper, may be heard
Rule 8(2) If certiorari made, the order shall direct that the proceedings be quahsed forthwith
Rule 9 Application to set aside order x entertained but aggrieved party may appeal to CoA
1
[2010] 2 MLJ 333
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Distinction
1) Supervisory jurisdiction: 2) Appellate jurisdiction:
Hotel Equatorial (M) Sdn Bhd V National Union Of Hotel, Bar & Restaurant Workers & Anor2
(FC)
P: I the e e ise of its i he e t supe iso ju isdi tio o e i fe io t i u al of li ited
jurisdiction the High Court must always remember that it is not sitting as a Court of Appeal to
review the findings of the inferior tribunals. The High Court, it must be observed, has no
jurisdiction to consider the merits of the case; its only function is to consider whether the
i fe io t i u al has pe fo ed its duties a o di g to la
2
[1984] 1 MLJ 363
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>> Has inherent supervisory jurisdiction over inferior tribunals - no appellate jurisdiction = not a
jurisdiction to consider the merits of the case
>> Function is to consider whether the inferior tribunal has performed its duties according to law
(legality!, not merits!)
Tanjong Jaga Sdn Bhd V Minister Of Labour And Manpower & Anor 3 (Supreme Court)
P: judi ial e ie is of the hea i g a d ot of the de isio judi ial review is concerned not
with the decision but with the decision-making process, and that unless that restriction on the
power of the court is observed the court will, under the guise of preventing the abuse of power,
e itself guilt of usu pi g po e
Harpers Trading (M) Sdn Bhd V National Union Of Commercial Workers4 (Supreme Court)
P: Judi ial e ie is ot a appeal f o a de isio ut a e ie of the a e i hi h the
decision was made and the High Court is not entitled on an application for judicial review to
o side hethe the de isio itself, o the e its of the fa ts, as fai a d easo a le
Judi ial e ie is o e ed, ot ith the de isio , ut ith the de isio -making process.
Unless that restriction on the power of the court is observed, the court will in my view, under the
guise of p e e ti g the a use of po e , e itself guilt of usu pi g po e .
Facts:
Rama Chandran (APP) was dismissed after 2 years of employment. He made a representation to
the Director General for Industrial Relations claiming that he was dismissed without just cause
and excuse. He was asking to be reinstated to his former post, failing which he should be entitled
to reasonable compensation for loss of earnings loss of substantial gratuity and other benefits.
His representation was referred to the Industrial Court which held that he was dismissed with
just cause or excuse. He then applied to the High Court for judicial review but was then
dismissed. Then he appealed again to the Federal Court against the decision of the High Court.
3
[1987] 1 MLJ 124
4
[1991] 1 MLJ 417
5
[1997] 1 MLJ 145
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Rama Chandran was given award more than what the industrial court would give (which
means that they could mould relief).
2) Courts can substitute the decision of the industrial court to their own
Wan Yahya FCJ (dissenting judgment)
It s ot the fu tion of the court to decide wrongful dismissal without excuse.
[Cut him some slack okay? He is a conformist/traditional judge xD]
Edgar Joseph Jr FCJ disagreed with Wan Yahya FCJ
By referring to S25 Courts of Judicature Act for the rights conferred by and read
together with para 1 of the CJA Schedule: fo the e fo e e t of the ight o fe ed
Pa t II of the Co stitutio . AT -13)
6
[1997] 1 MLJ 789
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7
[2004] 2 MLJ 288
8
[1998] 2 MLJ 372
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proposition in Rama Chandran and Amanah Butler may be, it does not include the review, in
e tio a i p o eedi gs, of fi di gs of fa t ased o the edi ilit of it esses.
>>> Salient features of Para 1 powers <<<<(in pari pateria with A226 of Indian Consti)
1. Primary purpose - to enforce fundamental rights, but other rights and matters of public
interest may come within the ambit of this provision
2. Jurisdiction of the HC to issue wri remedies is an extended and broad one as distinct from the
o o la it e edies e ause of the pe ulia atu e of the te i olog used, ie ... its
of the atu e of...
3. Non-writ remedies of declarations or injunctions may also be issued by virtue of this provision,
ie ...o a othe s...
4. The ph ase pe so o autho it a e po e the HC to issue a it o o de agai st a
private person or body breaching his/its public law obligations as distinct from the common
law position which only confines such issuance to a public authority
5. It empowers the court to mould the relief in accordance with the factual matrix of each
individual case.
9
[2000] 3 MLJ 91
10
[2000] 3 MLJ 714
11
[2000]2 MLJ 600
12
[2000] 2 MLJ 144
13
[1999] 5 MLJ 286
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A) Pre-1978
- Remedies usually given are mandamus and certiorari
1. Mandamus
- Court order to have the administrative body to do something.
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- Strict locus standi test appli a t ust ha e a spe ifi legal ight to e fo e a ge e al dut
- Loose locus standi test suffi ie t i te est : hoever that has sufficient interest can
challenge the action of the administrative body
R v Commissioner Of Police Of The Metropolis, Ex Parte Blackburn And Another (No. 3)15(1973)
Applicant (Blackburn) applied for a mandamus to secure enforcement of the law covering the
publication or sale of obscene matter. The issue of locus standi was not brought up but the court
assu ed that the appli a t had suffi ie t i te est .
2. Certiorari (Prohibition/larangan)
- Must show that you are aggrieved person by the action of administrative bodies.
- But the it as loose ed up to e suffi ie t i te est
3. Declaration
- AG has the espo si ilit to halle ge the go e e t s a tio supposedl as the AG is the
guardian of the people.
- If the AG hi self o t i g a a tio , the i di iduals a i g a elato a tio ith the
consent of the AG.
- If an individual wants to challenge the the test is of agg ie ed pe so .
14
[1968] 2 QB 118, [1968] 1 All ER 763, [1968] 2 WLR 893
15
[1973] 1 QB 241
16
[1976] 3 All ER 184
17
[1903] 1 Ch 109
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specifically laid down the test. It was held that PF can sue without joining the AG in two
circumstances.
i) Where a private right has been interfered with at the same time as the public right.
ii) Where no private right is interfered with, but the PF, in respect of his public right, suffers
special damage peculiar to himself from the interference with the public right.
(have to prove one, not together)
B) 1978
- Rules of the Supreme Court was amended - Rule 3(5) Order 53 [Our Rule 2(4)]
- The test of agg ie ed pe so as iti ised a d late ha ged to suffi ie t i te est test.
Lo us sta di test fo all e ed : suffi ie t i te est test.
- Amendment is criticised lo us sta di is a su sta ti e issue a d ou a t put it i the ules
(rules is for procedural issue)
- Therefore, they amended the parent act and inserted locus standi test in S 31(3) of the
Supreme Court Act 1981
Ho to i te p et suffi ie t i te est
R v Inland Revenue Commissioners, Ex Parte The National Federation Of Self-Employed And
Small Businesses Ltd19 (landmark decision)
Li e al appli atio of the ide suffi ie t i te est test fo lo us sta di i PIL ase.
Fede atio had o lo us sta di as it had ot sho suffi ie t i te est . Lo d Diplo k di tu :
It ould e a g a e la u a i ou system of public law if public spirited people were
prevented by out-dated technical rules of locus standi from bringing the matter to the
atte tio of the ou t to i di ate the Rule of La a d get the u la ful o du t stopped.
C) POST-1978
R v Inspectorate of Pollution ex parte Greenpeace Ltd (No 2)20
Greenpeace (well-known environmental organisation) applied for judicial review by way of
certiorari to quash the decision of the respondents granting the application of a company for
variations of authorisatio to dis ha ge adioa ti e aste f o the o pa s p e ises.
Question was whether Greenpeace had the locus standi and the court ruled in favour of
Greenpeace on the ground that its prime object was the protection of the natural
e i o e t. The e a respectable and directly responsible for a clean environment.
R v Secretary of State for Foreign and Commonwealth Affairs; ex parte World Development
Movement Ltd21
the Secretary of State for Foreign and Commonwealth Affairs made a decision to allow a
grant under Overseas Development and Cooperation Act 1980 (UK) for construction of a dam
in Malaysia. The World Development Movement objected to it not enough monetary aid.
Court held that the group had locus standi.
Principle:
18
[1978] AC 435, [1977] UKHL 5, [1977] 3 All ER 70
19
[1981] 2 All ER 93, [1982] AC 617
20
[1994] 4 All ER 329
21
[1995] 1 WLR 386
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Hussainara (II)
The Supreme Court ruled that free legal aid should be provided to a prisoner who was unable to
secure legal assistance by reason of poverty if justice required the State to provide such a
service.
Court can intervene and order guidelines to be enforced to improve the deplorable condition
and treatment of prisoners.
Protecting public health
George Mapilly v State of Kerala23
An order was sought to quash the decision of a state government to allow the sale of liquor in
polythene bags which was harmful to the health of people who consumed it.
22
AIR 1979 SC 1360
23
AIR 1985 Kerala 24
24
AIR 1993 Orissa 157
25
AIR 1983 SC 378
26
AIR 1996 SC 2715
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An NGO brought suit against tanneries causing serious pollution across several states, seeking
orders of closure, orders to install pollution prevention devices in the tanneries and orders of
compensation to the affected farmers and to rehabilitate the polluted rivers.
Dr Upendra Baxi
A citizen has locus standi to sue the government for not providing adequate welfare homes for
the poor in his area.
a few mine lessees, contractors or empoyers, or were being denied the benefits of social
welfare laws.
1. Mandamus
- S 44 Specific Relief Act 1950 (Power to order public servants and others to do certain specific
acts)
Loh Wai Kong v Government of Malaysia34
A mandatory order under S 44(!) cannot be issued either to the government or a Minister, but to
a public officer.
3. Declaration
- O. 15 R. 16 Rules of Court 2012 no locus standi.
34
[1978] 2 MLJ 175
35
[1966] 2 MLJ 177
36
[1988] 1 MLJ 319
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De la ato judg e t O. , .
16. No action or other proceeding shall be open to objection merely on the ground that a
declaratory judgment or order is sought thereby, and the Court may make binding
de la atio s of ight hethe o ot o se ue tial elief is o ould e lai ed.
- A: pe ifi legal ight
Pre-1988 1988 and cases afterwards 2000
A. Pre-1988
- Liberal interpretation
- Lim Cho Hock v Government of the State of Perak37
- PF sought for declaration on the validity of the appointment of the Menteri Besar Perak as
the President of the Municipal Council of Ipoh. Case referred to ex p. Blackburn, judicial
attituePF has a locus standi a ratepayer.
H: P as a atepa e has a lo us sta di. The ou t oted that the e ha e ee sig s of a ha ge i
judi ial attitude to a ds a o e li e al s ope of sta di g
B.1988 onwards
- United Engineers (M) Bhd v Lim Kit Siang39
- Had to do with PLUS. L.K.S (a member of Parliament and the leader of the Opposition in
Dewan Rakyat) had applied for a declaration that a Letter of Intent issued by the
government to UEM is respect of PLUS contract is invalid and for a permanent injunction to
restrain UEM from signing the contract with the government.
H:
HC dismissed the appeal (in UEM . It as said that he did t ha e the lo us sta di ut
judges ga e hi i te lo uto i ju tio . C i UEM : Majo it : split said that he did t
ha e lo us sta di. The used the agg ie ed pe so test a d efe ed to Bo e & Gou iet.
uffi ie t i te est test a ot e applied.
A dul Ha id CJ Majo it : ..Li e alizi g the ules fo lo us sta di ill ope the flood
gates to litigatio . If lo us sta di ules is ade st i t, the i di idual has to sho that his
private rights are affected. Therefore, the said individual will prepare his case diligently in
the ou t. If the go e e t does t follo the la , the the espo si ilit falls o the AG.
37
[1980] 2 MLJ 148
38
[1982] 2 MLJ 177
39
[1988] 2 MLJ 12
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Seah & Abdoolcadeer SCJJ (Minority): L.K.S should have locus standi. He is the opposition
leader and he has the right to question the government. He is also a taxpayer and a citizen
of Malaysia. (They also said that we are backwards when it comes to locus standi)
Kajing Tubek & Ors v Ekran Bhd & Ors41 (Pn Sri spoke in detail about this case and told us to
read) - Issue was whether Kajing Tubek and 2 others have locus standi. Ekran Bhd was given
the o t a t to uild the Baku Da . The ati e e e gi e a othe la d ut the did t
want the other land.
The case went to COA. G: Ek a e e a gui g that the th ee does t ha e lo us sta di a d
sadly, GSR agreed with the Boyce and Gouriet (aggrieved person) test.
Whe ou ou ts o e to de ide hethe to g a t sta di g to appl fo a de la atio i
public law in a particular case, they must be extremely cautious in applying decisions of
courts of other countries because the reasons for granting or refusing standing in those
other jurisdictions may depend upon the economic, political and cultural needs and
a kg ou d of i di idual so ieties ithi hi h the pa ti ula ou t fu tio s
Coming back to the facts of this case were their personal rights affected? No, because they
e e s uatte s. Whe the ou sel a gued a out thei li elihood, G said that TT s
decision is good and admitted that the PFs all have their livelihood but their livelihood was
taken by Sarawakian law and it is allowed by the Constitution (Art 5(1) sa e i a o da e
ith the la . As the ou sel did t halle ge the alidit of the la , the e as othi g
more to say.
GSR mentioned on two types of locus standi:
1) Initial/threshold locus standi: right of a litigant to approach the court in relation to
the facts which form the substratum of his complaint. Usually tested upon an
application by the DF to have the action struck out on the ground that the PF, even if
all that he alleges is true, cannot seek redress in the courts.
Although a litigant may have threshold locus standi in the sense discussed, he may,
for substantive reasons, be disentitled to declaratory relief.
2) Substantive locus standi: courts have by the exercise of their interpretative
jurisdiction recognized that certain issues are unsuitable for judicial examination
(e.g national security, public interest, determination of relations between Malaysia
and other countries, exercise of the treaty making power). Jurisdiction is decline
either because supreme law has committed such matters solely to either the
Executive or Legislative or because the court is entirely unsuited to deal with such
matters.
C. 2000
- Amendment made to O. 53 RHC
- P. K. : Any person who is adversely affected by the decision of any public authority
shall be entitled to make the application
- Ad e sel affe ted si ila to agg ie ed pe so . e t a: it s a O) lo us sta di uli g
40
[1995] 2 MLJ 287
41
[1996] 2 MLH 388
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42
[2002] 2 MLJ 413
43
[2000] 1 MLJ 1
44
[2006] 3 MLJ 164
45
[2014] 3 MLJ 145
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- Courts held that if it is jurisdictional error, the body does not have jurisdiction to hear your
case and therefore, the ouster clause will not protect the decision. However, if it is error of law,
it is within jurisdiction and not so serious. Ouster clause will still be effective in ousting the
courts.
Conclusion:
This means that now, error of law is brought under jurisdictional error. Should the admin
body commit an error of law at any time, they will lose their jurisdiction.
L. Reid:
ouster clause can only help a legitimate decision and not a decision of nullity.
46
[1969] 1 All ER 208
47
[1979] 1 QB 56
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Because of Anisminic, the difference between jurisdictional error and error of law is too
fine that the difference has to be set aside (Dictum referred to Re Racal Communications
a d O eill Ma k a
Dissenting Opinion of Judge Geoffrey Lane
Error of Law should fall under non-jurisdictional issue and not under jurisdictional issue
(meaning he did not agree with Anisminic).
Pre-SEA Fire SEA Fire Bricks After SEA Fire Bricks &
Bricks SKMK
Sela gor O ibus Co Ltd v Tra sport Workers U io 49 - S 29(3)(a), Industrial Relations Act did
not suffice to prohibit judicial review, whether on ground of error of law or jurisdictional error.
Gill J in the case had to consider the effect of Regulation 9 of the Essential (Trade Disputes in the
Esse tial e i es egulatio s, 9 hi h stated that u je t to the p o isio s of these
regulations an award of the Industrial Arbitration Tribunal shall be final and conclusive and shall
ot e halle ged, appealed agai st, e ie ed, uashed o alled i uestio i a Cou t . The
court held that it is clear that from a line of authorities that the wording of regulation 9 did not
suffice to prohibit applications for certiorari, whether on the ground of error of law on the face
of the record or excess or lack of jurisdiction.
Re Soon Hiang51
48
[1968] 2 MLJ 88
49
[1967] 1 MLJ 280
50
[1974] 1 MLJ 90
51
[1969] 1 MLJ 218
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Applicant that applied for an expulsion order to be set aside on the ground that he was a citizen.
The application was dismissed because the court found that he had not discharged the onus of
proving he was a citizen. Raja Azlan Shah J speaking on the scope of privative clause in question
stated that the clause could not take away by implication judicial review by means of certiorari.
I his ie , the o d fi al o l ea t ithout appeal . It ould ot ea ithout e ou se to
e tio a i . He e phasized the p i iple that the su je t s e ou se to the ou ts fo
determination of his rights should not be excluded save by clear wo ds a d ought ot to e
hittled a a , o di i ished, a d that offi ials a d Mi iste s ust e o pelled to o se e the
la a d it is esse tial that u eau a ust e kept i its pla e .
C. Post-SEA Firebricks
Inchcape Malaysia Holdings Bhd v RB Gray 57 (SC)
J George Seah: In the future the Supreme Court in Malaysia is free to reconsider the SEA Fire
Bricks case.
52
[1975] 2 MLJ 168
53
[1975] 2 MLJ 175
54
[1974] 2 MLJ 41
55
[1975] 1 MLJ 136
56
[1980] 2 MLJ 165
57
[1985] 2 MLJ 297
58
[1986] 1 MLJ 18
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They were waiting for a super hero to emerge. Then SKMK came along and saves the
day (yay)
Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union60 - COA GSR:
1)Abolished the difference between jurisdictional error and error within law.
2)Cou t s ju isdi tion to review administrative decision cannot be excluded if the tribunal has
committed an error of law, as no administrative body has jurisdiction to commit an error of
law. By committing an error of law itself would render its decision exceeding the
jurisdi tio . Thus, it a ot e i u ized a ouste lause ho e e idel d afted .
3)So too is jurisdiction exceeded where resort is had to an unfair procedure, or where the
decision reached is unreasonable, in the sense that no reasonable tribunal similarly
circumstanced would have arrived at the impugned decision
4)Accepted in the Federal Court case of Hoh Kiang Ngan v The Industrial Court
- *Note this case: - Gopal Sri Ram attempted to overrule the Privy Council in SEA Firebricks.
Luckily his decision was accepted in the Hoh Kiang Ngan Case to grant it weight.
59
[1991] 1 MLJ 417
60
[1995] 2 MLJ 317
61
[1995] 3 MLJ 369
62
[2003] 3 MLJ 1
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
GSR ignored the earlier FC decision of Sugumar and said that access to justice was a right under
Art 8 of Constitution. Hence, he held that S 72 of the Danaharta Act did not oust the powers of
the Court.
FC: Applied a k FC ase of ugu a a d e e sed G s de isio .
*Note we now have two conflicting Federal Court cases on ouster clauses in Sugumar and MPPP
v Sg Gelugor where OC have respectively a narrow and wide interepretation.
6.6 REMEDIES
2 Categories:
Prerogative remedies Non-prerogative remedies
Certiorari, mandamus, prohibition order, - Declaration and injunction
habeas corpus, quo warranto
- Called prerogative remedies as it was - Known as such because it was
e pa ded the Cou t of Ki g s Be h developed by the chancery court and
- It as o igi all k o as p e ogati e not the common law .
it . Ho e e , these e edies a e - Still can be awarded by courts
then known as prerogative order since - Injunction cannot be used against
1938. government because of s29
- Malaysia ou t s ju isdi tio a e
from the prerogative jurisdiction that
we inherit from English courts and
Para 1, Schedule in Courts of
Judicature Act
63
[1987] 1 QB 815, [1986] 2 All ER 257
64
[1983] 1 MLJ 179
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
Issue: Whether certiorari can be given towards KL Stock Exchange (KLSE) which was a private
company that is registered under Companies Act. The court held that certiorari can be given
to quash a decision by KLSE because it is an organization that involves the public (they sell
shares to the public).
B. Habeas corpus
- Used to release an individual from unlawful detention.
- Source of power: Art 5(2) FC, S 25(2) & Para 1 of the CJA, S 365 Criminal Procedure Code.
- This writ cannot be granted by the court if the complainant:
1) is detained on reasonable suspicion that he has committed crime
2) has been sentenced to imprisonment by the court according to the law on a criminal
charge
3) complains that he was denied the right to consult a legal practitioner
4) detained under the Banishment Act 1959 and no country is willing to accept him
C. Mandamus
- Divided into 1) mandamus orders and 2) mandatory orders.
- Mandamus used to compel public bodies to carry out public duties.
- Source of power: inherent in S 25(2) of the CJA and Para 1
- Mandatory orders source of power: S 44 SRA 1958. They are very hard to get because
it cannot be asked for against the minister or government (Govt of Malaysia v Loh Wai
Kong shows that the scope of a mandatory order is much narrower)
D. Quo Warranto
65
[1988] 1 MLJ 174
SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
- Used to challenge the election of a public official on the grounds that he is not qualified
for the position or there were flaws in his appointment.
- Relates to the appointment of a certain public officer if one is not satisfied. > Challenge
the validity
Lim Cho Hock v Government of Perak66
concerns the appointment of the Chief Minister of Johor as the President of the Municipal
Council. PF seek for quo warranto and the court granted locus standi on the grounds that
he was a tax payer.
- Source of power S 25(2) of CJA & Para 1, Schedule
B. Injunction
- Source of power: SRA, 25(2) CJA and Para 1
- Types:
i) Interlocutory (given before the hearing begins)
ii) permanent (given after the hearing)
- Cannot be applied against the government and ministers (SRA & S 29 Government
Proceedings Act). However, it can be sued for statutory bodies and local councils (Sabil
Mulia (M) Sdn Bhd v Pengarah Hospital Tengku Ampuan Rahimah & Ors)
66
[1980] 2 MLJ 148