Introduction to Administrative Law and the Rule of Law

SITI NURLAILA ABDUL GHANI LEB140108
TASHA LIM YI CHIEN LEB140116
CHAPTER 1: INTRODUCTION TO ADMIN LAW (AL)
AL deals with the structure, poewrs and functions of the organs of administration; the limits of
their powers; the methods and procedures followed by them in exercising their powers and
functions; the methods by which their powers are controlled including the legal remedies
available to a person against them when his rights are infringed by their operation.
(MP Jain, Administrative Law of MY and SG, 3rd ed.,
14)
AL = control over governmental powers
AL main purpose: to ensure that the gov acts within the limits of its powers so that the people
are protected from abuse of power by it.
Development of AL/Why is it needed?
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 .
Definition of administrative law
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.
Relationship between admin law and consti law
Administrative Law Constitutional Law
- Both deal with powers and functions of gov
- Both purpose are supplementary and, to disperse and control state powers.
- Both are part of public law.
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
(instrument of control over exercise of

bureaucratic powers)
Focuses on specific aspects of control Focuses on broader aspects of control

mechanism: remedies, safeguards etc. mechanism: provisions in Constitution etc.
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)
** Development of modern administration process has a negative effect on freedom, rights,

interests and LE of person - threate ed a d eroded so they ust e prote ted. He e, hy Ad i s
powers need to be controlled - so that it s ot a used = true ala e.
CHAPTER 2: RULE OF LAW (R.O.L)
Di e s OL
3 Elements:
(a) Absence of Arbitrary Powers
The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary
power and excludes the existence of arbitrariness, of prerogative, or even wide discretionary
autho it o the pa t of the go e e t e ualit efo e the la o the equal subjection of all cases
to the ordinary law of the land.
- claimed that Englishmen were ruled by law and law alone
- denied that the gov was based on exercise by persons in authority
- whenever there was discretion, there was room for arbitrariness, which led to insecurity
of legal freedom
(b) Equality Before the Law

Equality before the law/the equal subjection of all classes to the ordinary law of the land as
administered by the ordinary law courts.
- maintained that in England, all was subject to one and same body of law administered by
ordinary courts
(c) Individual freedom (according to the British constitution)
Droit Administratif (DA)

- Droit Administratif system (France) emerged from the doctrine of the separation of powers.
o An individual cannot complain to normal courts if x satisfied w/ governmental authorities
o Judicial review does not happen to actions by gov authorities
o If one was abused by governing officers, could approach special tribunals which were
governed by governing officers themselves!
- T i u als Des Co fli ts: Cou de Cassatio , Cou d Appel, Co seil d etat, Cou ad i st ati e
d appel
- Conseil dEtat the highest tribunal and is independent. Highest appealing platform for
disputes. Decisions made were open to the court to review for points of law (only. Not facts).
Matter of mis-looking certain facts etc. is a matter of law.
- The practice of DA administration created 2 main principles in the French legal system:
1) Administrative tribunals cannot break the law = cannot act against the law. Decisions are
e ie a le o sil d etat
2) If one suffers loss/injuries due to a decision by public officers, damages must be given. If a
decision is not in accordance with the law, it is cancelled by the tribunal.
Di e s a guments (which some are accepted and some are criticised)
1) The French DA system contradicts the ROL concept

A.V. Dicey opposed it. He mistrusted the tribunal as they would be bias to the government. That
the system allowed the accumulation of powers to public authorities. However, reality has
shown that such tribunals remain independent.
2) AL is against ROL
England does not have AL because it is against ROL
3) Transfer of quasi-judicial powers to the public officers affects the basis of Rule of Law.
The setting up of tribunals affects the power of the courts - takes them away.
4) Arbitrary and Discretionary powers are against the ROL
AP = exercise of power without limits/guidelines - said this because of his own definition of ROL
DP = power to make decision based on a certain principle/guideline - the exercise of it is guided
- necessary in a social welfare state
Relevance and significance of R.O.L to Administrative Law
1) Both champion the absence of arbitrary powers.

2) Equality before the law.
3) Protection given by the law.
4) Fundamental human rights.
Despite Di e s defi itio of OL, DP a e a fa t of ode life; it is ot o l i possi le to do a a

with such powers, but such powers are indispensable in a modern industrialised welfare state.
Hence, there is still ROL where emphasis is placed on the basic values inherent rather than merely
on forms and structures.
1) Absence of Arbitrary Powers

The administration does not enjoy any power outside law
ROL = Absence of AP
Admin x inherent powers and cannot exercise power without legal sanction
Power orginates from law, and thus, has to act according to law, and the limits of it
If acting beyond jurisdiction, doctrine of ultra vires will apply
2) Distinction should be drawn between AP and DP
Officials can have DP, but not AP; and, DP should not be too wide.
AP = against ROL; DP = necessity
Efforts should be made to restrain expansion of powers
Hence, focus is not denying DP but on controlling its scope and application
3) AL is not against ROL
In actuality, promotes and upholds ROL
Provides for a control mechanism over the admin as well as a redress mechanism when an
individual is harmed
Ensures admin acts acc to ROL
4) Creation of tribunals is not inconsistent with ROL
Intends to control admin powers and dispense justice quickly
Ge e all , these t i u als a e still su je t to judi ial e ie th ough o ept of e o of
ju isdi tio a d e o of la , a d the o e ide e ule
Hence, courts still have main control - referred to when error on points of law
Development of modern Administrative Law in the common law world after 1963
a) Di e s i flue e o the de elop e t of Ad i La i E gla d

Di e s do t i e of ROL had left a prolonged a negative and deep effect on the development
of AL. Mid 20th century its development was interrupted by objections raised by Dicey
against the DA system. Up to now, its development can be said to have been piecemeal,
unsystematic and not according to proper planning and it lacks a coherent corpus. This only
changed in 1963.
b) 1963
This changed in 1963 through a prominent House of Lords argument on the introduction of
Statutory instruments Act 1946 which improves control on delegated legislation. The Crown
Proceedings Act 1947 allows individuals to sue the government for damages in contracts and
torts.
Ridge v Baldwin1 [1963]

Facts:
A relevant provision in statute states that authorities can dismiss whichever police constable that is
negligent while on duty/a constable deemed unfit. In this case, a chief constable was tried in court
for a number of accusations. At the end of trial, the chief constable was freed, found not gujilty and
acquitted by court. Nevertheless, the authorities decided to fire him although he has worked for
them for 33 years.
Issue:
Before dismissing, should have listened to his arguments - R2BH - NJ
House of Lords:
Po e of dis issal ould ot e gi e ithout gi i g a p ope oppo tu it to the pe so o e ed
to p ese t his ase i defe e
Decided to void the decision of firing the chief constable because the DP to sack, should not be used
without first giving the chief constable a R2BH.
Principle: Established that one must be given R2BH.
Restrictive judicial thinking as regards the applicability of natural justice (due to war-time
legislation) came to an end with this celebrated case.
[Natural justice: right to be heard, no hearing of case if conflict interest.

Ouster clause: any act cannot be challenged on any ground in any court.
Locus standi: who has the capacity to bring a case to court.
Grounds for judicial review: when one wants to challenge a governmental act, they must have
grounds.]
1
[1963] 2 All ER 66
Anisminic v Foreign Compensation Commission2

Facts:
There was a war in Egypt and British property was taken away. Foreign compensation act was
enforced to compensate those involved. There was an ouster clause that makes the Foreign
Compensation Commission (FCC) unchallengeable, which then makes the court unable to review a
decision by them and makes the authority invincible. The full effect of ouster clause is bad.
Held:
The e o of la FCC as that the e as o dete i atio at all a d the de isio as
beyond its powers.
The judgement set the notion of ouster clauses as ultra vires unless expressly stated [ground-
breaking]
Wh ? Be ause it sho s the elu ta e of ou ts to a ept a legislatio e ludi g a ou t s
power to judicial review
The court can dilute the function of the ouster clause through restrictive interpretation in order to
give room for some challenge. Even with ouster clauses, the court may still look at the way in which
the decision was made. The authority must take into account certain facts of law (such as the
acknowledgement of the importance of facts, the process made by the authority must also be 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.
R v Secretary for Foreign Affairs, ex parte World Development Movement3

Facts:
The relevant statute: Overseas Development and Cooperation Act 1988 UK as a colonizer had
promised commonwealth nations development aid. They did so under this Act. A company applied
under the Act to provide development for hydroelectric dam for a Bengal river in Malaysia.
According to this Act, before approval is given, researchers and experts must be sent to examine the
suitability and feasibility of the project. At the same time, The Secretary of State had made an
announcement that British would help MY but the project was not feasible. The NGO, World
Development Movement (an NGO) wanted to promote a more effective development and argued if
the project is not feasible, other countries will be limited of 60 million that will be wasted anyway.
(because can use that amount for some other country)
Issue:
Whether WDO had locus standi to challenge the decision
Held:
Took account:
1) Who else has locus standi?
2) Importance of issues raised
3) Likelihood of possible challenges
4) Nature of breach of duty
5) Prominence of its role in giving guidance and assistance regarding aid.
Hence, court allowed.
2
[1969] 2 AC 147
3
[1995] 1 All ER 611
Ketua Pengarah Kastam v Ho Kwan Seng4

Facts:
Respondent was given a permit under Customs Act 2967 and approval for import and export of
goods. R was found guilty in 2 offences under the Act and was fined. Afterwards, custom officers
i fo ed that the autho ities ould e oke the s li e se. Afte se e al o espo de es, it was
revoked and the R brought the case to court, under the grounds that the App did not hear s side of
story.
Held:
HC - Since there is no provision for RTBH in Customs Act, custom officers need not give.
FC - Overruled HC. RTBH must be awarded in the matter of cancellation of permit although not
expressly provided. The silence of the statue provides no room for the exclusion of natural
justice or to supply omission of the legislation.
Rohana Ariffin v USM5

HC looked at the legal development in England in respect to English law and made an important
summary of principles applicable in Malaysia for judicial review.
JR applies to any body of persons having legal authority derived from public law to determine
questions affecting the rights of subjects whether that right is derived from statute/common
law.
HC is not a court of appeal from the body under appeal
HC limits itself to determining whether the public authority/inferior tribunal has acted lawfully,
rationally and with due regard to procedures.
Diplock in CCSU.
The court will not substitute its judgment or discretion of the body under review (court has
moved on Ang Teck Seng and Hong Leon)
Facts determined by the body under review are rarely open to review in the HC (except special
case administrative body has more expertise)
HC will intervene unless there is an express statutory discretion to the contrary (ouster clauses)
If there is an established appeal procedure (from the decision of the body under review) the
court prefers the procedure to be followed (special exceptions can exist)
Only activities of public nature can be the subject of judicial review.
Syarikat Kenderaan Melayu Kelantan v Transport Workers Union6

COA (1995) refused to follow privy council decision of South East Asia Fire Bricks Sdn Bhd
GSR: An inferior or other decision-making authority, whether exercising a quasi-judicial function or
purely an administrative function has no jurisdiction to commit an error of law. Henceforth, it is no
longer a concern whether the error of law is jurisdictional or not. If an inferior tribunal or other
public decision taker makes such an error, then he exceeds his jurisdiction, So too is jurisdiction
exceeded where resort is to an unfair procedure.
4
[1979] 2 MLJ 152
5
[1989] 1 MLJ 487
6
[1995] 2 MLJ 317
Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan7

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

[not just mere existence, but to include livelihood (hence, jobs)]
The right to continue to work and to be 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
CHAPTER 3: SUBSIDIARY LEGISLATION

A. Introduction
Definition
s3 Interpretation Acts 1948 and 1967
A p o la atio , ule, egulatio , o de , otifi atio , -law, or other instrument made under any
Act, Enactment, Ordinance or other lawful authority and ha i g legislati e effe t.
Maker? (To whom is the power to pass SL delegated?)

Maker has to be the person specifically mentioned in the Parent Act.
Power to pass subsidiary legislation is delegated to various administrative agencies such as:
o YDPA/Minister/both
o Officers who are stated in the Parent Act (such as the Director General of a government
department)
o A statuto od ith the ele a t Mi iste s o se t.
Differences between an act and subsidiary legislation

Act SL
Contains general principles and policies The function of filling in the matters of details
concerning a particular matter
Which is passed in a wide and general form
Its fu tio is efe ed to as Esse tial Legislati e efe ed to as No -Essential Legislative
Fu tio Fu tio
Is and must be solely executed by Parliament (P) Usually delegated to specific and relevant
administrative agencies
Matters of details will not be included in Act Who have expertise and experience
Normally, more subsidiary legislation is passed every year when compared to the number of acts
passed by the Parliament.
Sources of Powers to pass SL and Government Gazette (GG)

*The technique of SL is a characteristic of modern admin process - necessary
SL is usually passed under the power delegated by the Act
Sometimes under legislative powers delegated by P
Or, another SL
Can be found arranged and collected in the GG - Legislative Supplements A & B (P.U. (A)/(B))
P.U. (A) - Royal proclamation, orders, rules, regulations and by-laws
Not all SL passed have to be published
Publication is only compulsory if it is stated in Parent Act (PA)
Factors leading to the growth of subsidiary legislation:

1. Division of duties b/n P (principal) and its agents (administrative agencies) in exercising the
essential and non-essential legislative functions
Legislature x able to cope with legislative programme fully
Always a number of bills pending
Saves time by conforming self to broad principles of laws and leaving details to agents
2. SL delegated to agents who have expertise and special experience in relevant areas
Details inevitably tend to be technical and complex
Impossible load of work if enact by self completely
3. The technique of SL has certain advantages: Flexibility, Speed, An opportunity to Experiment
May not be possible to foresee all difficulties that may arise
Through delegated legislation, possible to effect changes from time to time and adapt
constantly
Can be passed quickly without informing the party affected (making it necessary for the
controls and safeguard to be imposed upon it)
4. Capability of facing Emergencies
During dire situations
Able to take action in a short notice
B. Forms of powers to pass subsidiary legislation

In cases of legislature, there are several democratic safeguards available - discussion of bill on
floor/public opinion but.. Not available in cases of delegated legislation (DL)
DL is drafted in gov chambers by civil servants and often promulgated suddenly without much
notice - no one may come to know about it until it is notified - no public discussion/press
comments/public opinion
1) A General Power to Pass SL

EG. Minister of Finance may make regulation for purpose of carrying out/giving effect to the
provisions of the said section
*certain implied limitations may be imposed on the said power
2) A General Power followed by a Specific Power

Confers general power on Minister to make regulations and followed by subsection
EG. S44(1) Direct Sales Act 1993 confers a general power on Minister concerned to make
regulations, followed by S44(2) where certain specific powers to pass SL are listed therein
3) Parent Act only provides for certain specific powers to pass SL

EG. S45 of Pawnbrokers Act 1972 confers various specific powers listed therein to make
regulations.
*regulations made have to follow and be connected to a certain specific power
*limited strictly to powers provided
4) Power to exempt a person/body from the enforcement of an Act/its certain provisions of the Act
5) Power to (a) amend/ (b) modify provision of a statute

EG. (a) Power to amend the Schedule to an act
Minister may by order publish in GG to amend schedules to an act
(b) Power to modify the provisions of a statute
Minister may by the same order made under subsection (1)/by subsequent orders,
provisions apply subject to modification, exceptions, conditions and qualifications as he
may think fit.
6) Removal of Difficulty Clause

EG. S6(4) Constitution (Amendment) (No.2) Act 1973 provides that YdPA may when appearing
to be necessary/expedient, whether for the purpose of removing difficulties/in consequence of
passing of this Act, by order make such modifications to any provisions in any existing laws as
he may think fit.
S Kulasingam v Comm. Of Lands, Federal Territory

Issue:
P said that as he a thi k fit gi es too ide dis etion to YdPA.
Held: (FC)
- YdPA is merely to make such modifications for the purpose of removing administrative difficulties.
- Dis etio gi e to hi is lea l li ited to these t pes of odifi atio s , as he a thi k fit a
be ignored
- The o d odifi atio has ee a epted to ea a a e d e t hi h does ot i ol e a
change of policy but confined merely to alterations of such character which keep the policy of the
statute intact and produce only such changes as are appropriate to e isti g o ditio s.
C. Administrative Directives (not imp)
D. Need for Protection and Control over SL

- In the process of modern administration, the techniques of SL is a necessity and an important
concept.
- Without it, the administration would not be able to function smoothly and effectively.
- As such, reference has to be made to the following statement:
Delegated legislation has now come to be regarded as a useful and indispensable
technique of modern gov. Administration in any country could not function effectively
without it. .. The system of DL is both legitimate and constitutionally desirable for certain
purposes within certain limits and under certain safeguards..
- However, administrative authorities have wide and various types of powers to pass SL.
- These powers, when executed, may infringe rights and interests of individuals.
- In addition, the technique of SL does not have safeguards that exist for the process of passing
laws by P.
- SL passed by the administrative authorities can be declared quickly and without any notice to
the parties concerned.
- Therefore, the said powers must be controlled strictly so that there is no abuse of power.
- Can be imposed judicially, legislatively, or procedurally
E. Forms of Control for Subsidiary Legislation/Control Mechanism for SL

(Look at this Chart before starting, to get yourself familiarised)
(starting from right to left)
E1. Legislative Control

Malaysia practices parliamentary democracy system which highlight the function of legislative as
law-making body which possesses special right or duty as a principal to ensure that the agent
entrusted (executive) with delegated power always acts parallel within the boundaries served.
Therefore, legislative supervision over SL had been developed as one of the effective mechanisms
to control SL.
I. Pre-Natal Control By Parliament And Doctrine Of Excessive Delegation Of Power

Parliament in conferring powers to make SL to administrative authorities has to be cautious - must
ensure that powers conferred are not too wide ut o l li ited to o -esse tial legislati e
functions
Essential legislative function is executed by parliament and cannot be abdicated by its agent.
If this safeguard is not followed, there is a possibility that such delegation of powers will be
nullified by doctrine of EDP
EDP forbids delegation of absolute legislative powers to the administrative authorities.
Bla k he ue theo
Applied in India and USA
Eng Keock Cheng v PP 1

Facts:
A state of emergency proclamation was declared under A150 of FC. After the declaration, an
ordinance of emergency essential powers was made under the power given by A150(6) which allows
laws that are inconsistent with FC to be made. Under the 1964 Ordinance, YdPA a ake a
1
[1968] 1 MLJ 18
egulatio s hatsoe e fo se u i g pu li safet , defe e of the Fede atio a d Pu li O de . Thus,

a few regulations were made that infringed A8 (equality).
Issue:
Whether the regulations made were constitutional or not
Held:
FC: T[The provisions were constitutional] (As) the doctrine does not apply to laws passed under
article 150 of the Federal Constitution.
*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
II. Control through Laying Procedure

In a Parliamentary Democracy, Executive makes law. Parliament should play its role as principal to
ensure its work is done properly.
Principle: In the circumstances where the legislative wanted to carry out its function in controlling
L, it s i po ta t that it ee i fo ed ith the L ade o p oposed to e ade.
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
IGP v Lee Kim Hoong

Under A150(3), an ordinance made by YdPA has to be laid before BOTH houses of P.
Held:
The FC did not occasion to go into the question whether failure to lay the ordinance in terms of
A150( ould o l e a i egula it o ould ake the o di a e i alid. A si ple la i g
procedure such as A150(3) is regarded as directory and not mandatory
*eg of annulment procedure - A150(2B)
Hoffman-La Roche v Secretary of State for Trade and Industry

Lord Diplock
I e te tai o dou t that the ou ts ha e ju isdi tio to de la e it to e i alid if the a e
satisfied that in making it, the Minister who did so acted out with the legislative powers
o fe ed o hi ...
b) Laying with negative or annulment resolution

Generally, SL enacted will takes effect as soon as it is made.
Principle: SL will continue to take effect until there is an annulment resolution being passed
by Parliament.
Procedure Is merely directory in nature.

This concept only applicable to the annulment of the instrument and not to the act of
amendment. Thus, the effectiveness of this LP in governing the SL only extended upon the
matter related to the annulment and not the amendment.
EG: S17 Elections Act 1958 provides that regulations made are subject to the annulment
procedure in the Dewan Rakyat.
c) Laying subject to affirmative resolution

SL made will take effect as soon as it is made and will lapse if there is no affirmative
resolution passed by Parliament with a stipulated time-period.
Mandatory for the proposed instrument to be presented in draft before the Parliament.
Most effective form of control when compared to procedure (a) and (b).
Example S 46(2) Exchange Control Act 1953
All su h egulatio s shall e laid efore the Dewan Rakyat as soon as practicable after they are
ade ut shall ot o ti ue i fo e the eafte u less app o ed esolutio of the De a .
d) Laying in draft subject to annulment

S 6(1) Statutory Instrument Act 1946 - instrument shall not be enforced until after the
expiration date 40 days beginning from the day of the laying.
If within 40 days, the Parliament annuls it, then it shall not be enforced.
Mandatory in nature.
e) Laying in draft subject to affirmative resolution

Proposed instrument in draft is laid before the Parliament.
It will only take effect if there is an affirmative resolution made by the Parliament.
Most effective control procedure when compared to other procedures.
Procedure should also be deemed as mandatory.
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.
III. Parliament Scrutiny Committee in UK (PSC) (not that imp)

A standing committee to supervise and examine the statutory instruments that are laid (including
d aft efo e Pa lia e t to dete i e hethe Pa lia e t s atte tio should be drawn on certain
g ou ds hi h also fo the te s of efe e e. [ at h-dog of P o L]
If PSC finds that any of the instruments falls within its terms of reference, it will call for an oral or
written explanation from the relevant government department.
No such control in MY but yes in UK and India
E2. Judicial Control

I. Implied limitation on power to make subsidiary legislation
1) Exclusion of courts 2) Financial Levy 3) Retrospectivity 4) Unreasonableness
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.
R & W Paul Ltd v The Wheat Commission3

Facts:
Under 1932 Wheat Act, the What Commission (WC) was given the power to make SL for the purpose
of solving certain disputes through arbitration. (To provide settlement for certain disputes through
arbitration) WC then made a SL that states that all disputes must be settled by arbitration. Because
of that, the said SL has an effect of excluding regular courts from making decisions in all the disputes.
Held:
The said SL was invalid because the effect of it - the excluding of courts, was not stated in PA.
Commissioners of Customs and Excise v Cure & Deely4 -

Facts:
In this case involving taxes, the Parent Act gave powers to the Commissioners of Custom & Excise
(CCE) to make regulations to control any matter which they think fit (appear to them to be
necessary). CCE then made a SL about taxes and stated that the amount of tax due depends on that
SL alone.
Held:
The said SL is invalid because the said SL had obstructed individuals from solving issues of tax
assessment in court. = to exclude the power of court to revise the decision made by the
Commissioner was ultra vires the PA and also violates the individual right to make an appeal.
2
[1920] 1 KB 829
3
[1937] AC 139
4
[1962] 1 QB 340
B) Financial Levy is Prohibited (FL)

L a t i pose a fi a ial le u less it is provided so by the Parent Act.
AG v Wilts United Dairies5
Facts:
A Parent Act gave power to a food controller to make SL regulating or give directions with respect to
the production, manufacture, use, consumption, transport, storage, distribution, sale and purchase
of dairy products. The food controller had then issued an order that no one shall deal in milk
business without license, and in this case the Appellants were granted the license with the condition
that they had to pay the controller a FL for each gallon of milk sold - challenged.
Held:
Such an order was invalid because the administration can only be charged upon the subjects (the
people) if the administration can show in clear terms that P had authorised such charge to be
imposed.
Hence, the levy was invalid as it was not authorized by the PA. Here it must noted that for any SL
bring upon the financial levy matters, those SL must really adhere what had been stated in the PA or
else it's going to be invalid.
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.
Whe o st ui g a ta i g/statute, the ou t s sole fu tio is to dis o e the t ue i te tio of

Parliament. In the process, the court has a duty to adopt an approach that produces neither
injustice nor absurdity an approach that promotes the purpose or object underlying the
particular statute albeit that such purpose or object is not expressly set out therein. To impose a
tax by means of SL on a person not identified in the PA produces an absurd and unjust result and
therefore does not promote its purpose or object.
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)
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.
Effectiveness of this mechanism is depending on our judiciary decision as the concept of

u easo a le ess is ot so ethi g that is itte do i a statute. Kruse the court will
have to decide whether or not the SL is reasonable upon the affected party.
To permit the enforcement of unreasonable SL will be equivalent to cause grievous injuries
towards the affected party.
7
[1992] 2 MLJ 885
8
[1898] 2 QB 91
9
[1969] 2 All ER 1039
Arlidge v Islington Corporation10

A by-law was made, obligating landlords of lodging houses to cause their premises to be cleaned in
April, May or June every year - challenged in court
Held:
The SL was invalid as it is unreasonable to impose an absolute obligation on every landlord without
regard to the position they might be in. They may be unable to carry out cleaning works if the
houses were rented out and if forced to clean, may commit trespass or breaching the tenancy
contract.
Beatrice Fernandez v Sistem Penerbangan Malaysia11

Facts:
APP (flight stewardess) employment terms and conditions were governed by a collective agreement.
In that agreement, she is required to resign if she became pregnant. The APP became pregnant and
her service was later terminated.
Held:
Court upheld the termination mainly on 2 grounds: 1) Art 8(2) did not disallow discrimination on
grounds of gender and 2) APP was an employee in the private sector.
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
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).
Johnson Tan Hen Seng v PP14

Issue:
The validity of Essential (Security Cases) Regulations 1975 was challenged on the ground that the
Emergency Ordinance 1969 had lapsed and ceased to be law by effluxion of time, thus the
regulations made also became void.
> Lawyers argued that the SL was not valid (b) the Emergency had already passed
FC:
Rejected the argument and held that whether it was a proclamation of emergency to be continued
or not, is up to the Executive and not the courts.
B) S.L would be invalid if it itself is unconstitutional

Principle: if the SL contradicts with any constitutional provisions, that SL can be struck down by
courts.
Teh Cheng Poh v PP15
Facts:
An emergency was declared by YdPA on 15/5/69. An emergency ordinance was made to give YdPA
(himself) power to make law, to deal with issues of emergency. 20/2/71, P was seated and according
to A the YdPA s po e to ake O di a e e ds he P e o e es. I 9 , the YdPA ade
the ESCAR 1975 and it is this that is challenged.
PC:
The Regulations made in 1975 is ultra vires the Constitution, and thus, Unconstitutional - void as per
Article 150(2).This is because when P resits, YdPA no longer possess power to make essential
legislations having the force of law.
13
[1968] 2 MLJ 137
14
[1977] 2 MLJ 66
15
[1979] 2 MLJ 238; [1979] 1 MLJ 50
III. Doctrine of Ultra Vires (UV)

Subsidiary legislation is ultra vires upon the Parent Act/other statutes
A) Substantive UV (SUV)
Principle: Subordinate agencies have no power to legislate on any matter more than the scope or
power that had been conferred towards them by the Parliament
Court is said to have power to declare such excessive of power on part of the subordinate
agencies to be invalid, thus making the law made by them also to be void.
McEldowney v Forde
Held:
Where the validity of a SL is challenged, the court must perform a 3-fold task.
(1) Determination of the words used in the PA that describes the power conferred upon the SL
(2) Determination of the meaning of the SL and
(3) Determination on whether the SL complies with the description in the PA.
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(1) Interpretation Act 1948 and 1967:

A su sidia legislatio hi h is i o siste t ith a Act of Parliament (including the Act under
hi h the su sidia legislatio as ade shall e oid to the e te t of the i o siste
= SL inconsistent with PA shall be void
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.
Port Swettenham Authority v T.W. Wu & Co (M) Sdn Bhd16 -

Facts:
S29(1)(g) of Port Authority Act 1962 gives power to the Port Authority to make SL for the
purpose of limiting liability of the port authority in respect to any loss recurring without the
actual faulty of the authority.
Port Authority then made a SL:
the autho it shall ot e lia le fo a loss of goods f o a loss u less su h loss is
aused solel the is o du t/ eglige e of the autho it o its offi e s.
93 boxes of pharmaceutical boxes kept in custody of port authority. Subsequently, only 23
boxes taken by company and the missing boxes found in shops throughout Kuala Lumpur.
Company sued port authority for breach of contract and conversion of remaining 60+ boxes of
goods.
16
[1978] 2 MLJ 137
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.
Palmco Holdings Sdn Bhd v Commissioner for Labour17

Held:
Regulation 8 of the Employment (Termination and Lay Off Benefits) Regulations 1980 was held not
ult a i es j of the E plo e t A t as it as st i tl a illa a d i ide tal to the po e s
conferred by Parliament in the PA.
B) Procedural ultra vires

P i iple: L shall e oid if it s e a ted without following the procedure which is mandatory in
nature.
It must be determined if the procedure is mandatory or directive, if mandatory then it must be
followed
Banwarilal Agarwalla v State of Bihar18
Court found that the procedure determined in PA that required consultation made with interested
individuals who are interested with the matter before SL is allowed, is compulsory.
Held:
If the PA clearly states that consultations is mandatory but the SL does not uphold, it is UV and void.
E3. PROCEDURAL CONTROL

1. Publication
Ig o a e of the la is o e use
Important that sufficient measures are taken to publish SL so that no one is caught unaware of
its existence.
S 18(2) Interpretations Act 1948 and 1967 publication in the official Federal Gazette is
sufficient information
S 19(1) begins to take effect on the date stated in or under the Act or the SL, and if there is no
date mentioned, that it follows the date of publication according to S 18.
S 19(2) shall come into operation immediately on the expiration of the day preceding their
commencement.
2. Consultation with parties whose rights are affected

Must be done if the PA states it as such that consultation must be done when the SL is made
Based on the PA, consultation will be done with interested parties
Procedural in nature; mandatory
Only have to be followed if PA expressly provides the said procedure.
Non-compliance will affect its validity
17
[1985] 2 MLJ 262
18
AIR 1970 Pat 377
CHAPTER 4: NATURAL JUSTICE/PROCEDURAL

A. Introduction
= A common law concept created and used by courts to grant the right to explain to a person when
an administrative authority makes a decision or takes an action which has the potential of
affecting his rights and interst.
- Used in a situation when the relevant statute is silent on the R2BH in situations where the admin is
given power to make a decision which affects the rights and interests of individuals.
Characteristics of Natural Justice (NJ)

1. Procedural control, not substantive control.
2. A creation of courts which is a common law concept
3. Only arises when the statute is silent on it
Cooper v Wandsworth Board of Works1
Facts:
By the statutory provision in that case, no one could put up a house in London without giving 7
days notice to the local Board of Works of an intention to build it. In default of notice, the Board
had power to demolish the house. The P built his house without giving notice as required and
accordingly, his house was demolished.
Issue:
The Board could be said to be within its powers but the court considered the question whether a
person could be deprived of his property without being given an opportunity of being heard.
Held:
Ruled that the principle of hearing applied to various exervcises of pwoer and not only to
judicial proceedings.
The power of demolition carried with it enormous consequences as a house could be
demolished.
uled that the Boa d as a ti g judi iall as it had to dete i e the offe e a d appo tio
punishment as well as remedy, thus, a hearing was essential.
The Board had no power to act without giving him a hearing.
The justi e of o o la ill suppl the o issio of the legislatu e.
Willes, J:
A t i u al hi h is la i ested ith po e to affe t the p ope t of o e of He
Majest s su je ts, is ou d to give such subject an opportunity of being heard before it
proceeds: and that that rule is of universal application, and founded upon the plainest
p i iples of justi e
Principle:
When an authority is by law invested with power to affect the property of a person, it is bound
to give a hearing before it proceeds to act.
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.
4. Can be Denied by Statute

i) Expressly such as in S 59 Immigration Act (an exclusion of right to be heard)
ii) Impliedly
Furnell v Whangarei High Schools Board2
1
(1863) 143 ER 414
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.
Raja Abdul Malek Muzaffar Shah v Setiausaha Suruhanjaya Pasukan Polis

NJ should be given in matters that are administrative in nature (General rule is that natural
justi e o l e ists if it s i uasi-judicial matters)
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 .
Swadeshi Cotton Mills v Union Of India8

Urgency may not always exclude NJ. NJ is a flexible concept and competing claims of hurry and
hearing can be reconciled.
Components of Natural Justice

The two pillars:
1) Audi alteram partem (right to be heard - R2BH)
2) Nemo judex in causa sua (rule against bias - RAB)
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
Weaknesses of Natural Justice

Originated from common law, and hence, can be denied by statute.
Limited to only 2 components and thus, not flexible.
Consequence if the Admin Body denies NJ/Absence Of NJ

Individual can challenge the ad i ist ati e od s de isio - challenge for judicial review
Remedies available are certiorari/declaration.
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
When can Natural Justice be claimed?

Development of Natural Justice in England
- Requirement to observe natural justice is a judge-made one.
- T o t pes of fu tio s of the ad i ist ati e oa d: uasi-judi ial e a ple: li e se of
Ali had been revoked since there is food problem and therefore natural justice is
eeded a d ad i ist ati e e a ple: la had ee e a ted, it had ee ea hed
Ali, no natural justice is needed).
- In early stage, hearing given only when exercising quasi-judicial function.
B. Development of NJ
B1. Britain
In England, NJ must apply in such decisions but not purely-administrative decisions.
WIDE NARROW WIDE

INTERPRETATION INTERPRETATION INTERPRETATION
CONCEPT OF NATURAL JUSTICE AND LEGITIMATE

FAIRNESS EXPECTATION
I. Wide Interpretation (Pre-Ridge v Baldwin)

Cooper v Board Of Works For The Wandsworth District9
Facts explained earlier
Held:
When an authority is by law invested with power to affect the property of a person, it is bound to
give a hearing before it proceeds the act.
Board Of Education v Rice10

Facts:
A dispute between a local education authority and managers of schools came before the Board of
Education for decision. An administrative authority adjudicating a dispute between citizens with
another administrative authority.
Held:
When an official was deciding a controversy, he must act in a quasi-judicial manner and hear the
affected parties. Thus, fair hearing is a duty lying upon everyone who decides anything.
Principle:
1. NJ must be applied in all circumstances. A fair hearing must be given when an official was
deciding a controversy.
2. Fai Hea i g is a dut l i g upo e e o e ho de ides a thi g.
II. Narrow Approach

Nakkuda Ali v Jayaratne11
Facts:
A licensing system for dealers in textiles was introduced in Ceylon and the Controller could cancel
the li e e if he had easo a le g ou ds to elie e that a deale is u fit to e allo ed to
o ti ue as a deale . The Co t olle a elled A s li e e ithout gi i g hi a hearing.
Held: (PC upheld cancellation)
1. No one had a legal right to get a license. A license was a privilege and not a right, and no
hearing was called for when an executive action was taken to withdraw a privilege. This meant
that one could claim a R2BH only when a right of his was being affected but not when a
privilege enjoyed by him was being taken away.
2. PC went by bare words of statute and pointed out that there was no procedure included for a
hearing and, therefore, the Controller was under no duty to give a hearing to the licensee when
his licence was to be cancelled. Thus, refused to read BH into the statutory provision.
R v Metropolitan Police Commission, ex parte Parker12
9
(1863) 143 ER 414
10
[1991] AC 179
11
[1951] AC 66
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.
III. Wide Interpretation [1963]

Ridge v Baldwin13
Facts:
Under the relevant statutory provision, the watch committee of the o ough WC ould at a
time dismiss, any borough constable whom they think negligent in the discharge of his duty, or
othe ise u fit fo the sa e . No p o edu al safegua ds e e p o ided fo the e e ise of this
power. The chief constable of the borough (CC) had been tried on some criminal charges.
Although acquitted, the court nevertheless made some adverse remarks on his conduct and
accordingly, the committee summarily dismissed him after 33 years service.
Issue:
Order of dismissal had not observed NJ
HoL:
Majo it uashed the WC s o de uli g that the po e of dis issal ould ot e e e ised
without giving a proper opprotunity to the person concerned to present a case in defence.
Lord Reid pointed out that AAP went back many centuries though the concept of NJ was vague,
no reason to not apply
Offered three reasons for deviation/narrow concept:
- NJ given a limited application in cases arising out of war-time legislation
- NJ given a limited application to cases of ecxercise of wider statutory duties imposed on
Ministers and other governmental organs by modern legslation where deccisions were to be
arrived at more in the public interest
- Confusion arose from a misunderstanding of the dictum of Atkin LJ in Electricity
Commissioners case.
The judge had iti ized the Nakkuda Ali s judg e t.
First, Judicial element was not superadded but flowed from the nature of powers.
Second, Judicial element can be inferred when the nature of power includes when the body has
duty to determine the rights of individual.
Third, Nakkuda Ali was not the good authority to follow. Also natural justice must be served if
the individual right was affected by administrative body, thus draw a very fine line between
quasi-judicial and administrative function.
Malloch v Aberdeen Corporation14

HoL:
NJ was applicable to a case of dismissal of an employee by a public authority
IV. Other Developments
12
[1995] 1 All ER 73
13
[1963] 2 All ER 66
14
[1971] 2 All ER 1278
Concept of Fairness (1972)

Re H(K) An Infant15
Facts:
Pakistani man wanted to bring son to England. Immigration law said that the age of the person must
be 16 years old and above. The son looks big which caused the officer to stop him from passing
th ough the i ig atio gate although the dad alleged that the so s age as o l 5 .
Immigration officer refused the so s ad issio . Issue- should right to be heard be given?
Held:
The fine line between quasi-judicial and administrative function should be abolished. In this
case, although it is not a quasi-judicial matter but administrative body (immigration officer)
should gi e ha e fo the dad to p o e the so s age.
Lord Parker Good ad i ist atio a d a ho est o o a fide de isio ust e ui e ot e el
i pa tialit ut of a ti g fai l .
Principle:
(1) It was not a question whether he should act judicially or not, but being required to act fairly
(2) Good administration and an honest/bona fide decision must require not merely impartiality but
to act fairly. Should have given an opportunity to prove!
=Administrative that is fair and just only existed if the administrative body acted fairly and this
include to serve the individual with right to be heard.
Effect:
i) The difference between quasi-judi ial a d pu el ad i ist ati e eases to e i po ta t.
ii) Assists the courts in case afterwards to create new development using the concept of fairness
>> So what happens after that?

1) Diffe e e et ee ights a d p i ileges is set aside
R v Gaming Board, ex parte Benaim16
Although the li e se as a p i ilege, the ad i od ust a t fai l fai l R2BH).The board was
bound to observe rules of NJ in licensing system because the board had a duty to act fairly.
R v Hull Prison Board Of Visitors17

Facts:
One of the prisoners had been promised that if he behaved well, he will be freed early. Later there
was a big fight and the officer in charge withdrew the promise he made as he said it was only a type
of p i ilege . Boa d of P iso i posed dis ipli a pe alties agai st the p iso e s ithout BH.
Held:
The enforcement of discipline in prisons affect the rights, liberties or statuses of prisoners and
therefore, the Board was under a duty to act fairly in the discharge of its disciplinary function.
P i ilege o ot is i ele a t. Natu al justi e ust e served.
2) NJ must be given even in disciplinary matters.

Glynn v Keele University18
Facts:
A student had roamed around the campus naked.
Held:
R2BH/NJ must be served.
R v Senate Of University Of Aston19
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
Facts:
A student had been dismissed as he had re-sat for his examination.
Held:
R2BH/NJ must be served.
3) Natural justice is extended to administrative action that is solely about investigation

Re Pergamon Press Ltd20
Facts:
An investigation was ordered into the affairs of Pergamon Press Ltd, a public company, by the Board
of Trade under S 165(b) of the Companies Act 1948. Inspectors were appointed for the purpose.
I spe to s do t ake de isio . The just i estigate a d epo t .
Held:
The report might have wide repercussions and therefore, they must act fairly (opportunity to correct
or contradict what was said against him or her) before the inspectors could condemn or criticise a
person although they are not judicial, quasi-judicial but just administrative.
V. NJ: Legitimate Expectation

*Please remember that this is only from Procedural Aspect. Substantive is under Abuse of Discretion
NATURAL JUSTICE AND LEGITIMATE EXPECTATION
RIGHT PRIVILEGE EXPECTATION
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.
Schmidt v Secretary for State of Home Affairs****21

Facts:
Foreign worker came to England to work and been given the working pass of 1 year and it expired.
Issue:
Whether foreigner deserved a R2BH
Held: COA
A foreigner whose permit had expired did not have the R2BH if he was refused an extension of
ti e to sta lo ge , e ause he had o legiti ate e pe tatio of ei g allo ed to sta o
after permit expiry.
However, if the stay permit was being revoked before the expiry of its time-limit he ought to be
given a hearing because he was being deprived of legitimate expectation of being allowed to
stay on for the permitted period.
Lord Denning advanced the view that an admin authority should gi e a hea i g he a pe so s
liberty, interest, or some LE was being affected - it ould ot e fai to dep i e hi ithout
hea i g hat he has to sa
Introduced the doctrine of LE
19
[1969] 2 All ER 964
20
[1971] Ch 388
21
[1969] 2 WLR 337
Elements for Legitimate Expectation (LE)

1. LE given by the admin body must be valid in the eyes of the law (has to be valid).
2. There must be a reasonable basis for expectation. Either:
i) Administrative body undertook oath or promise
a) Towards individual
Re Li erpool Taxi O ners Association22
Facts:
The city corporation can determine amount of licenses issued out for taxis. They had
promised to an individual that they will only release 300 taxi licenses. Legitimate
expectation = there should be no more than 300 taxi licenses released by the
administrative body. But they breached the promise.
Held:
LE arose due to the promise, city corporation is bound to give hearing.
b) Towards the public

AG of Hong Kong v Ng Yuen Shiu23 -
Facts:
The gov promised that if the illegal immigrants surrendered, they will consider each case
on its own merits. In spite of assurance, those who surrendered were deported and not
given the R2BH.
Held: (PC)
R2BH must be given. It was unfair as a lE had been created.
ii) Regular practice

a) CCSU v Minister for Civil Services24 -
Facts:
Minister of Home Affairs was empowered to amend the terms of government/civil
services for the civil servant. No provision states that a R2BH must be given. However,
regular practice is that a discussion with the Trade Union will be carried out before the
changes are enforced. But in one decision, there was no discussion carried out.
Held: (HoL)
Before issuing an instruction making an imoprtant change in the service conditions of
gov employees, the Minister was bound to act fairly which would require consultation
ith the e plo ee s t ade u io
However, it was accepted that deviation from practice of consultation was valid as
the employees in question were working in the intelligence department and so
considerations of national security were involved, which superseded their LE.
Principle:
Regular practice is equivalent to LE and it must be served with R2BH.
22
[1972] 2 All ER 589
23
[1983] 2 All ER 346
24
[1985] 1 AC 374
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
Maneka Gandhi v Union of India26

Held:
Ruled in favour of giving a hearing when the government sought to impound the passport of a
citizen because of the adverse civil consequences which could ensue if such an order was made.
Cha a te isi g NJ as a g eat hu a isi g p i iple i te ded to i est la ith fai ness and to
se u e justi e, the ou t e phasised that the soul of NJ is fai pla i a tio hi h is i po ta t
in both quasi-judicial and administrative proceedings.
There can therefore be no distinction between a quasi-judicial and administrative function for
this pu pose. A it a i ess a d e ualit a e s o e e ies .
*But post-decisional hearing must be used restrictively and not as a substitute.
* The ruling represents universalism (to an extent) of the right to a hearing in the admin process
So, after looking at England and India, time for our beautiful country :D
25
[1969] INSC 129
26
Ibid at 3
DEVELOPMENT OF NATURAL JUSTICE IN MALAYSIA UNTIL 1996
WIDE CONCEPT OF POST LEGITIMATE

INTERPRETATION FAIRNESS 1977 EXPECTATION
(PRE-1977) (1977)
I. Pre-1977 Wide Interpretation

Wong Kwai v President Town Council Johor Bahru27 -
Facts:
Applicant was charged with the offence of having erected a semi-permanent building in
o t a e tio of the To Boa d s e-laws. On his plea of guilty, magistrate convicted him fined
him and made an order for demolition of the building. No R2BH was given.
Held:
Before passing an order of demolition of a building which had been constructed in contravention
of the by-laws of the Town Council, it was necessary to observe the hearing rule. (Demolition
should be last resort and not first choice)
Chief Building Surveyor v Makhanlall & Col28 -

Issue:
Whether the AAP rule should be followed by the admin authority passing an order to demolish a
building.
Held: (FC)
Magistrate should have given a hearing before passing the demolition order. Referred to the
principle recognised by PC,
that o a is to e dep i ed of his p ope t ithout his ha ing an opportunity to be heard,
u less of ou se the e a e e p ess o ds i the statute autho isi g dep i atio ithout oti e
Thus, invalid.
II. 1977 Concept of Fairness

Facts:
R was granted permission, under s90(1) of Customs Act 1967 to work as a forwarding agent to
transact business relating to the import and export of goods. As such, he was under a statutory
dut to e faithful a d i o upt . He as o i ted of offe es u de the A t a d pu ished
with a fine. He appealed to the HC against his conviction. In the meantime, a senior customs
officer informed him of his decision under s90(4) to cancel the registration of his forwarding
agency.
Issue:
Was the cancellation a quasi-judicial act such that NJ became applicable?
Held:
HC followed Nakkuda Ali - because no provision made, NJ did not apply.
FC: overruled HC on this point (Raja Azlanshah FCJ):
NJ was applicable in the matter of cancellation of the agency even though the statute in
question made no provision for it
Emphasised on 3 things:
1) That the p i iples of NJ pla a e p o i e t ole i Ad i La
27
[1970] 2 MLJ 164
28
[1969] 2 MLJ 118
29
[1977] 2 MLJ 152
2) The the ule e ui i g a fai hea i g is of e t al i po ta e e ause it a e used to

construe a whole code of administrative procedural rights
3) Fai ess is e ui ed as a ule of u ie sal appli atio
4) A hea i g does ot depe d o the la el hi h a e gi e to ad i a tio ; a hea i g
must be given when an individual is adversely affected by admin action.
Mak Sik Kwong v Minister of Home Affairs Malaysia30

Emphasised that the point that a discretionary decision does not always have to be characterised
as an admin decision. In modern times, the obligation to act judicially in accordance with
principles of impartiality and fairness may arise in the case of a body exercising discretionary
admin powers which seriously encroach on individual interests.
III. Post 1977

Fadzil Bin Mohamed Noor V Universiti Teknologi Malaysia31
Facts:
The University dismissed an assistant lecturer on the ground of absence without leave. The
lecturer challenged his dismissal. HC rejected his application for a declaration and he appealed.
Held: (FC)
Raja Azlan Shah CJ referred to Ridge v Baldwin stating that, in a pure master and servant case,
dismissal was governed by the law of contract and therefore no right to a hearing shall be given.
In other words, the principles of administrative law including NJ have no part to play for a pure
master-servant case.
Therefore, in this case, the University must follow NJ before dismissing a member of its own
academic staff.
The same proposition would seem to apply in regards to dismissal of a worker by any other
statutory body. (the case here acknowledges that the relation between the University and a
member of its academic staff has an element of public employment in it and is not purely a
matter of ordinary master and servant relationship)
Different from Malloch v Aberdeen because Lord Wilberforce meant cases where there is no
element of public employment
- HoL: a school teacher had a special status conferred by statute which converted the teacher
fo ei g a pu li se a t holdi g offi e at a pu li autho it s pleasu e i to a se a t
who, by virtue of statutory position, had implied into that position the R2BH.
- RAS CJ: L Wil e fo e s spee h is i po ta t e ause it ope s the a fo the e to e a
general application of principles of NJ to employment relationship.
Importance:
Acceptance of FC that the relationship b/n a University (a statutory body) and a member of its
academic staff has an element of public employment in it and is not purely a matter of ordinary
master and servant.
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
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.
Merdeka University Bhd V Government Of Malaysia33

Facts:
PF submitted a petition to the YDPA for incorporating a private university to be known as Merdeka
University. PF requested the Minister for a dialogue to clarify matters and the govrejected the
petition without holding any dialogue with the PF. PF challenged this order, inter alia, on the
ground that the gov acted unfairly in so far as it denied to it a dialogue which it had requested.
Held: (HC)
Accepted that an admin authority must act not only reasonably but also fairly.
Accepts the position that NJ is applicable to the exercise of a discretionary function by a
Minister.
But, in this case, the regusal by the gov to have dialogue with pf did x amount to acting unfairly
Referred to Pahang South Union Omnibus v Minister of Labour and Manpower
- ules of NJ a e ot i fle i le p i iples a d a a i thei o te t i the
i u sta es of the ase a d i thei a it i the o te t of thei appli atio .
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)
IV. Legitimate Expectation in Malaysia
33
[1981] 2 MLJ 356
34
[1982] 1 MLJ 204
John Peter Berthelsen v Director-General Of Immigration35

Facts:
Immigration officers revoke work permit of Applicant, a reporter of Asian Wall Street Journal, two
months before expiry date.
Held: (SC)
Quashed an order passed by the Malaysian Govt cancelling the work permit.
I. Referred to Schmidt and Ng Yuen Shiu, that he had LE to be entitled to remain in the country
at least until the expiry.
II. Any action to curtail that expectation would in law attract the application of NJ.
Dr Amir Hussein v USM36

Facts:
A professor appointed as Dean of a school in the university was not reappointed as such after the
expiry of his term. He was not given a hearing. He challenged by saying he had a legitimate
expectation.
Held: (HC)
Refused him permission to seek certiorari on the ground that none of his rights or interests were
affected by the Vice-Cha ello s efusal to appoi t hi as Dea o ould he ha e had a
legitimate expectation that he would be so appointed.
There was no promise by USM and it was not a regular practice to reappoint a dean. Hence, no NJ.
Dr Chandra Muzaffar v University Of Malaya37

Facts:
A left USM to be a Professor at UM where UM made a representation that he will work on a yearly
contractual basis first and subsequently, will be made a permanent staff of UM. However, UM idd
not renew his contract on a yearly basis and he was dismissed.
Held:
He had a legitimate expectation that he would be appointed until he becomes a permanent staff.
After this representation was made to him, he had the rights to expect UM to act according the
promise they made to him. Thus, Appeal allowed and molding of relief under Para 1 of CJA.
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 .
C. COMPONENTS OF NATURAL JUSTICE
35
[1987] 1 MLJ 134
36
[1985] 3 MLJ 298
37
[2002] 2 CLJ 448
38
[2005] 2 MLJ 493
Audi alteram partem - Right to be heard. No man shall be condemned unheard.

Nemo judex in causa sua - Rule against bias
C1. COMPONENTS OF AUDI ALTERAM PARTEM (7)

(1) NOTICE
- Before initiating adjudicatory proceedings, the party concerned should be given notice of the
case against him so as to enable him to adequately defend himself.
- Sine qua non of the right of hearing.
- Notice: adequate notice as regards the details of the case against the party, NJ requires that
along with particulars of the alleged offence so that he may have a fair opportunity of
answering the same. Without that, any proceeding will be invalid.
i) Time
Must be sufficient
Phang Moh Shin v Commissioner Of Police39
Facts:
Individual was dismissed from the police force and was only given the notice of charges on
the day of his trial. Also, not given a copy of charge.
Held:
Quashed proceedings due to insufficient notice.
ii) Sufficient and Reasonable Notice

Must be reasonable & inform all the reasons notice is given
Raja Abdul Malek v Setiausaha Suruhanjaya Pasukan Polis40
Facts:
Police was given an opportunity to write representation. However, he was dismissed based
o the easo s i his lette a d othe o ditio s .
Held:
It is necessary that all grounds on which the action is proposed to be taken that must be
communicated to the person.
Chong Kok Lin v Yong Su Hian

Notice was not given at all.
(2) DISCLOSURE OF EVIDENCE

All the material which is being relied upon by an adjudicating authority for giving its decision
against a person should be brought to his notice and he be given an opportunity to
comment, criticise, explain or rebut the same.
Right to a hearing may be of little value of the individual is kept in the dark as to the
evidence as against him and is not given an opportunity to deal with it.
Surinder Singh Kanda v The Government of the Federation of Malaya41

Facts:
Commissioner of Police appointed a Board of Inquiry to make a preliminary inquiry against
Ka da. Afte o side i g the oa d s epo t, the Co issio e appoi ted a adjudi ati g
officer to hold a formal inquiry into the charges against Kanda. As a result Kanda was
dismissed from the police service. The adjudicating officer had been given a copy of the Board
39
[1967] 2 MLJ 186
40
[1995] 1 MLJ 311
41
[1962] MLJ 169
of I ui s epo t hi h o tai ed a se e e o de atio of Ka da ut Ka da as t gi e a

op a d he did t ha e the ha e to o ect or contradict the report.
Held: (PC)
The proceedings of the adjudicating officer were vitiated and Kanda had been dismissed
without being given a reasonable opportunity of being heard.
It was not correct to let the AO have a copy of the report without giving one to Kanda.
The accused man must know the case which is made against him along with the evidence and
the relevant statements and then he must be given the chance to correct or contradict them.
The judge or whoever has to adjudicate must not hear evidence or receive representations from
one side behind the back of another.
Rohana binti Ariffin v USM42

Facts:
Disciplinary action was taken against 2 lecturers. They asked for all information and documents
in possession of the disciplinary authority as without this material they would be handicapped
in putting up an adequate defence. The disciplinary authority told them that only copies of
do u e ts as the oa d dee ed fit ould e supplied at the hea i g a d the othe s e e
confidential and unable to be supplied.
Held:
Ruled that there was a denial of NJ in two respects:
(a) R2BH necessarily means the right to know the case against oneself
(b) Under the university discipline rules, any written representation to be made by a staff
member must be made 10 days before his/her appearance before the disciplinary
authority
> envisages that the staff member must get copies of the relevant documents and
information relating to the charges a reasonable time before appearance
A thi g that est i ts o appea s to est i t the defe da t s ability to present his case may be
held to be breach of PF and, thereby be susceptible to judicial review. Dismissal was
invalidated.
HOWEVER THERE ARE EXCEPTIONS

a) If the individual did not ask/demand for it
Lim Ko v Board of Architects43
A complaint was made that a file which was produced as evidence against him at the inquiry
was not shown not to him. The file was produced at the hearing by a witness and questions
were asked about its contents which the APP made no demand to examine the file. There
was no denial of NJ.
b) E ide e/ epo t as t se ed to the adjudi ato
Sambasivam v Public Services Commission44
Charges were drawn against Sambasivam by the Public Services Commission. The dismissal
was challenged, inter alia, on the ground that the copy of the letter of complaint from the
Head had not been shown to the APP. Privy Council rejected this no breach of NJ as the
letter had not been shown to the board and thus, would not have influenced the
adjudicators.
(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
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.
II. Oral hearing

a) ENGLAND not compulsory
Pett v Greyhound Racing Association (Pett 1)45
Facts:
Licensed greyhound trainer had administered drugs to a racing dog. Inquiry was initiated into
his conduct by the association which might have resulted in the revocation or suspension of
his t ai e s li e e a d thus, jeopa dized his eputatio a d li elihood. He asked for an oral
hea i g ut hethe it as to e gi e o ot depe ded o the atu e of the i ui .
Held:
Lo d De i g: i a ase su h as this, fai ess a e ui e a o al hea i g .
> Whether an oral hearing should be afforded depends on the seriousness of the charge.
Since his reputation and livelihood are affected, it has to be given.
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
c) MALAYSIA
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
Zainal bin Hashim v Govt of Malaysia49

Dismissed police officer claimed his dismissal was contrary to NJ as he was not given the
opportunity of making oral representations though he had made written representations.
Privy Council rejected plea followed Najar Singh.
Ghazi bin Mohd Sawi50

Police inspector was dismissed from service. He sent a written representation but was
dismissed. He challenged the dismissal due to the lack of oral hearing. Charge sheet was
served.
Held: FC
According to Najar Singh and Zainal bin Hashim, oral hearing is not an essential element of NJ
The disciplinary authority has assiduously followed the relevant service regulations which
have legislative effect and no words can be added to them.
Raja Abdul Malek51

Charges of corruption and gross dereliction of duty were made against the PF and he was
then dismissed from service after filling a written statement explaining the charges made
against him. He claimed an oral hearing but he was not given. Dismissal was challenged
because of that.
Held:
Oral hearing was not needed here but GSR: Oral hearing is not a must but can be given in
certain circumstances.
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
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.
FC: (Referred to Najar Singh, Ghazi and Zainal) (TAK WAJIB)

(i) Art 135(2) did not state that oral hearing must be given, as the provision stated that
reasonable opportunity of being heard. Written representation is reasonable and
sufficient.
(ii) The issue had already been settle in local cases, thus it is not required to follow Indian
case.
Chai Kok Choi v Ketua Polis Negara52 -

APP admitted guilty. No oral hearing if the accused had pleaded guilty before the court.
Public Services Commission Malaysia & Anor v Vickneswary a/p RM Senthivelu53

No request for oral hearing.
Held: FC
Disciplinary authority that acts under General Order 1980 no need to give oral hearing
e ause it s ot e uested.
Ang Seng Wan v Suruhanjaya Polis di Raja Malaysia & Anor54

Made exculpatory statements but administrative body had no evidence to rebut his
statements of innocence.
Request for oral hearing was given. Because:
a) Accused made sufficient exculpatory statements.
b) Admin body has no evidence to strengthen accusations
c) No evidence to deny the exculpatory statements
d) Accused was not given related documents
= oral hearing given
Mat Ghaffar bin Baba v Ketua Polis Negara55

Oral hearing should be given
Yusof Sudin v Suruhanjaya Perkidmatan Polis & Anor56

1. Accused requested oral hearing and had reliable evidence in written representation
2. Administrative body had no rebuts
3. There were 2 sets of documents that contradicted each other
= Not compulsory but more lenient.
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
(4) RIGHT TO COUNSEL

Not a compulsory right but it Is upon the discretion of the adjudicator.
A. England
Whether PF could be represented by a lawyer at the inquiry.
L. Denning in the COA ruled that NJ require the PF should be represented by a lawyer as he
was facing a serious charge concerning his reputation and livelihood.

Overruled Pett 1, individuals do ot ha e ight to ou sel. It is at the adjudi ato s dis etio .
Enderby Town Football Club v The Football Association59

Adjudicator body has the power of adjudication on whether the counsel can be allowed
R v Secretary pf State for the Home Department; x parte Tarrant60

Court explained the matters to be reconsidered by adjudicator in allowing/disallowing
counsels:
1) The seriousness of the charge and the potential penalty
2) Whether any points of law are likely to arise
3) The capacity of a particular prisoner to present his or her own case
4) Procedural difficulties
5) The need for reasonable speed in making adjudication
6) The need for fairness as between prisoners and prison officers
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.
(5) RIGHT TO CROSS-EXAMINATION

Not obligatory in NJ when it comes to administrative adjudication. It is in the discretion of
the decision-maker.
One of the most efficacious methods of establishing truth and exposing falsehoods, but it
may cause delay in disposal of cases.
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
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.
Leong Kum Fatt v AG

-Even where cross-examination of witnesses is allowed, the authority may refuse to permit
unnecessary cross-examination of a witness.
(6) REASONED DECISION

Common law administrative body cannot be forced to give reasons.
Why they should give reasons:
a) Transparency
b) Admin body will be more careful while making decision
c) If it is not given, individual will find it hard to find any ground to appeal
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.
Breen v Amalgated Engineering Union63

Denning: giving reasons is one of the fundamentals of good administration.
Franks Committee was set up to consider whether RD should be given. As a result, s12 of
Tribunals & Injuries Act 1958 makes it compulsory to give reasoned decisions when:
a) Does not involve national security
b) If accused demands
c) Responsibility only applicable to tribunals listed in Schedule 1
62
[1968] 1 All ER 694
63
[1971] 1 All E.R. 1148
What if the tribunal is not listed down in Schedule 1?

Ex parte Doody, Ex parte Cunningham, R v Higher Education Funding Council Court also
does t asse t that i di iduals ha e a ge e al ight to easo ed de isio s. Ho e e , i the
cases court stresses that an administrative body does not have to give reasoned decisions if
the tribunal is not in Schedule 1.
- Padfield Inference applies for the tribunals not listed.
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.
Chan Meng Yuen

Minister not bound to give report (did not follow Rohana, followed old development)
Sanjiv Oberoi v Minister of Labour

No reasoned decision as S20(3) of the Industrial Act gives wide power for the Minister to give
decision without having to include reasoned decision. This section gives power to the
minister to decide whether or not the case should be referred to the Industrial Court (did not
follow Rohana, followed old development)
Phase 3: Hong Leong Equipment v Liew Fook Chuan

Based on A5(1) and A8(1) of the FC, the Minister when refusing representations in the
exercise of his discretion, is reasonably expected to give reasons for his decisions. =
Reasoned decisions must be extended to all cases where a fundamental liberty guaranteed
by FC is adversely affected in consequence of a decision taken by a public-decision maker.
Considerations that may exclude reasoned decisions include public safety, national
security or public interest.
If he gives no reasons or inadequate reasons, then, it is open for a court to conclude that he
had o good easo s fo aki g the de isio he did. till good la ha e t ee o e uled
(7) RIGHT TO MITIGATION

IGP v Alan Noor
If the show cause letter had included the propose punishment, no necessity to give another
opportunity of being heard before the punishment is imposed.
Shamsuddin Mohd Said v Pegawai Hospital Bahagia Ulu Kinta

Public servants do not have a right in plea in mitigation.
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.
C2. COMPONENTS OF NEMO JUDEX IN CAUSA SUA (3 TYPES)

Prohibits adjudicatory authority from acting impartially in resolving a dispute
Propounded by 2 rules:
o A man cannot be a judge in his own cause
o R v Sussex Justices - Justi e ust ot o l e do e ut see to e do e
Three types of bias:
i) Pecuniary/financial bias ii) Personal bias iii) Policy bias
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
II. PERSONAL BIAS

A personal relationship exists.
Family/friend/business/enemy/accuser (cannot be adjudicator)
Even if only one person is biased, it can still ruin the whole decision.
Tests for bias:
A. ENGLAND
PHAE : Reaso a le suspi io test
- Vague and will disrupt administrative process
- Not practical - too flexible
PHAE : Real likelihood of ias test

- Lord Denning in Metropolitan Properties v Lannon65
o The e as a eal likelihood of ias . The court does not look at the mind of the judge to see if
he did in fact favour one side at the expense of the other
o The court looks at the impression which would be given to people, depending on right-
minded people in the circumstances
Seeing bias through the lens of reasonable or like-minded people
REAL LIKELIHOOD OF BIAS
DEGREE OF BIAS: REAL WHOSE POINT OF VIEW?: REASONABLE

LIKELIHOOD MAN, NOT THE COURT
Reason: To make the old test stricter

P o le : L. De i g efe ed to eal likelihood of ias as if it s the sa e ith p o a ilit
of ias .
64
(1852) 3 HLC 759
65
[1968] 3 All ER 304
PHAE : Real da ger of ias

R v Gough66
A & B are siblings charged for robbery. A was released but B was charged and punished with
imprisonment or 15 years by the jury. After the result, A began to scream. Jury looked at A
and recognized A as his neighbour. Was there bias?
Held:
The court may ascertain relevant circumstances from the evidence which may not be
available to any ordinary observer.
2 tests by HoL:
1) Bias is of ou t s le s, ot easo a le a .
2) eal da ge of ias ea s possi ilit of ias.
= suspicion possibility probability
- Instead of likelihood, use real danger of bias which means the possibility.
- Prof Jain did ot ag ee ith the ou t s le s.
Opinion: emphasis should be given to public opinion about a matter that raises the issue of
bias. This is important to ensure public confidence in administrative fairness in favour of
real likelihood.
Both Phase 2 & 3 may be used.
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.
Govindaraj v President, Malaysian Indian Congress & Anor67

P eside t suspe ded the i e p eside t s PF e e ship fo o ths. PF halle ged the
o ittee s de isio to suspe d hi e ause P eside t hi self had p esided o e the eeti g
of the committee.
Held:
President in effect had acted as the accuser, jury and executioner in his own cause. Bias is real.
PHAE : eal da ge of ias test

MPPP v Syarikat Bekerjasama-sama Sg Gelugor68
A member of the adjudicatory was an uncle to one of the accused. Decision was then nullified.
(followed R v Gough)
III. POLICY BIAS

Policy bias happens when officer from the department that made the policy becomes the
adjudicator.
66
[1993] 2 All ER 727
67
[1984] 1 MLJ 190
68
[1999] 3 MLJ 1
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
Alkaff v The Governor-in-Council

Facts:
The Commissioner of Lands was an ex-officio member of the Singapore Improvement Trust.
The Trust approved certain backlane schemes. Under the law, an inquiry was to be held before
the Governor-in-Council.
Held:
As the Commissioner was a member of the Trust who brought up the schemes, this could result
in a suspicion that justice was not done. An inquiry is also a quasi-judicial capacity. Decision
quashed.
+ 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
>> The Shift from Fairness to Procedural Fairness

Branches from the Constitution
Scope of PF
i) Universal concept
ii) Can claim for audi alteram partem, nemo judex in causa sua, reasoned decision and right to
be heard in plea of mitigation. -> NJ (AAP+NJICS) + RD + PLEA IN MITIGATION
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
ust e applied i all ases he a pe so s

i te est is affe ted due to ad i od s a tio .
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.
Raja Abdul Malek (1995)

Same as Rohana. Follo ed CL s positio of fai ess.
Tan Tek Seng v Suruhanjaya Pendidikan Malaysia (1996)

First case to relate with the FC. Art 5 & 8 was read and applied together which had formed the
concept of PF which relates to FC.
TAN TEK SENG**

A case concerning a headmaster (APP) who failed to give a pay-cheque intended for school
gardeners back to the authorities in time and was dismissed.
4 significance of this judgment:
i) The effect of Art 135(2) of the FC once proven guilty for a criminal offence, no RTBH
available to the individual
ii) The concept of PF Art 5(1) and 8(1)
iii)The concept of proportionality upon the punishment
iv)The moulding of relief
2 main issues:
1. Whether TTS possess a R2BH?
Art 135(2) read together with exception (a) does not permit TTS to have a R2BH as a criminal
charge has been proven.
2. Whether the court may review on the punishment imposed

GSR introduces the concept of PF to discuss on the action
Art 5(1) right to life and personal liberty and A8(1) equality (equality is meant to be
fairness) as the source of PF
PROCEDURAL FAIRNESS
A 5(1) A 8(1)
Equality
Life/personal liberty
save in accordance
with the law
A. Fairness
B. Inclusive of procedural law
A + B = Procedural fairness
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
B. EXPANDING THE CONCEPT OF EQUALITY

G: E ualit should e gi e a oad a d li e al i te p etatio .
GSR referred to Indian cases: Maneka Ghani & EP Royappah
1. Art 14 Indian Constitution (in pari material with Art 8) equality guarantees fairness
2. easo a le o ept is a pa t of e ualit
GSR also added that we shall not use PF as in the common law sense as we have a
d a i o stitutio
Thus, as la i A t 5 i ludes p o edu al la , a d e ualit gua a tees fai ess, PF is p ese t i

the Constitution with a combination of Art 5 and 8.
When must PF be given?

1) PF applies he a fu da e tal li e t u de A t 5 is affe ted. Life e te ds to any matter
on the quality of life (right to a clean environment, rightful employment)
2) However, PF is only limited to a deprivation of right to life under Art 5.
Development after the case of TTS

2 aspects of development from TTS:
1st Aspect: When To Claim Pf?
Tan Tek Seng:
COA:
PF is used he i di iduals rights u der Art 5 is affe ted. G i te p ets life as ot e e
existence but includes clean environment, life, equality, livelihood, personal liberty and right to
gain income.
Weakness: only focus on these 6 circumstances.
Suggestion: Use Art 8(1) as it covers everything.
Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah

- PF and NJ are different concepts, PF is wider than NJ, PF has a higher standing as it originates
from the Constitution.
- PF is not confined to fundamental rights under Art 5 but also applies to all circumstances.
- Referred to Art 8 which covers both procedural fairness and substantive fairness. As long as any
right of an individual is affected, hence, RD must be given.
-However, RD may be given before a decision is made or after the decision is challenged in court.
FC overruled COA decision.
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)

Maintain these exceptions.
2nd ASPECT: What can be claimed?

Tan Tek Seng:
Introduces the concept of PF ut did t explai hat a e lai ed.
Did not explain the relation between PF and natural justice.
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 .
Hong Leong Equipment

For the first time, admin body is forced to give reasoned decisions on matters that affect
fundamental liberties guaranteed under Art 5-13 FC
PF includes the right to reasoned decisions where fundamental liberties (Art 5-13) are affected.
(Criticism by M.P Jain: why limit to only fundamental liberties?)
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
Both ases did ot de ide that ad i od a t e ade to gi e easo ed de isio s. It o l

says that minister a t e fo ed/ o pelled to the ou t procedurally to give reasoned
decisions.
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.
ART 8 (DUTY TO ACT PF

FAIRLY)
SF
PF includes the responsibility of giving reasoned decisions.

efe ed to MP Jai s iti is PF must be given in all situations where individual rights are
affected. Not just fundamental liberties.
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?
FC: Recurring issues (inter alia)

A) whether the State Authority has any statutory duty under S 65(1)(c) Immigration Act to give
reasoned decisions?
B) If not, whether courts can review the reasons given by the Immigration officer during court
proceedings?
Whethe the de ial o TBH u de 59 I ig atio A t affe t the EP s ight to li elihood is i alid
and unconstitutional (refer to Art 5 & 8)
MPPP v Syarikat Bekerjasama-sama Sungai Gelugor

Issue:
easo ed de isio as t gi e .
Held:
Edga Joseph J FCJ did t efe to the o stitutio o did he efe to TTS, Hong Leong/Sugumar
Balakrishnan (COA) but instead referred to his own decision in Rohana Ariffin v USM
Reasoned decision is not compulsory depends on facts of the case
In this case, reasoned decision had to be given
+ 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)
Different decisions by courts:

IGP v Alan Noor b. Kamat [1988]69
If the show cause letter had included the proposed punishment, no necessity to give another
opportunity of being heard before the punishment is imposed (no plea in migitation)
Utra Badi [1998]70 [HC]

It would be unjust to deny him a right to mitigate, as the punishment itself involves a separate
decision making process. Right to be heard in mitigation is implicitly encompassed in GO23 of the
regulation and Art135(2) of FC.Plea in mitigation must exist, decision in Alan Noor is just an obiter.
Samsuddin Mohd Said v Pengarah Hospital Bahagia,Ulu Kinta71 [1999]

Public servants do not have a right in plea in mitigation. No plea in mitigation, followed decision in
Alan Noor regarded as ratio decidendi.
Utra Badi72 (COA) [2002]

Disciplinary action involves 2 stages:
1. PSC makes a decision as to whether the officer had committed a misconduct
No misconduct (not guilty) charge not correct
There is misconduct RTBH must be given
2. PSC decides on an appropriate punishment to be imposed.

Plea in mitigation must be given
Alan Noor decision was only obiter dicta. No discussion on PF and no reference to Art 5(1) &
8(1)
eputatio is also o e of the defi itio i ight to li e , a d its i f i ge e t is e ui ale t to the
breach vs Art.5(1) of FC.
Yap Jack Keet73

HC: Refused to follow Utra Badi.
Utra Badi (FC)74 :

Agreed with Alan Noor, Samsuddin & Yap Jack Keet
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.
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
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.
CHAPTER 5: DISCRETIONARY POWERS

DP are a necessity and an undeniable characteristic of a country that practices the social welfare
administrative policy. Almost all the powers that rule a state originate from statutes. The ROL
requires DP to be granted and safeguarded by law. As a general rule, we can say that all DP are
subject to judicial control through the doctrine of ultra vires (UV)
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.
5.0.2 Ministerial Powers v DP:

MP DP
Only one course of action can be Admin bodies have a choice - to
taken and in such a situation, the choose what to do
decision made is in accordance with
the implementation of a duty
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 .
5.0.3 Tendency in conferring DP

Parliament now has a tendency of conferring wide DP to the Executive. This effort will affect judicial
control over execution of DP. If power given becomes wider, then JC over it becomes narrower. It is
important for P in conferring a DP to expressly lay down the controls over the execution of such
power. However, this is not usually done.
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
departmental aggression. In these days when government departments and public

authorities have such great powers and influence, this is a most important safeguard for
the ordinary citizen; so that the courts can see that these great powers and influence are
exercised in accordance with law. I would once again emphasise what has often been said
efo e, that pu li odies ust e o pelled to o se e the la a d it is esse tial that
bureaucracy should be kept in its pla e .
Padfield v Minister of Agriculture

Lord Upjohn:
E e if a state o fe s u fette ed dis etio o a de isio -maker, the use of the
adjective unfettered can do nothing to unfetter the control which the judiciary has over
the e e uti e.
5.1 Judicial Control

It is done through the doctrine of UV and the grounds of review are:
ULTRA VIRES
PROCEDURAL SUBSTANTIVE
EXPRESS IMPLIED EXPRESS IMPLIED

(NATURAL (SIMPLE ULTRA (EXTENDED
JUSTICE) VIRES) ULTRA VIRES)
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
The Development of Judicial Control:

Substantive UV:
Traditional Approach > Reclassification of Grounds (CCSU) > New Grounds
5.1.1 TRADITIONAL GROUNDS

A. ABUSE OF DISCRETION
1. Mala fide
- Dishonest intention or corrupt motive or personal animosity or vendetta on the person
exercising a discretionary power.
- If a decision/action is influenced by mala fide, it would amount to abuse of power and as
such the decision made is void and illegal.
- Burden of proving mala fide:
PP v Dato Yap Peng1

The e is o de isio HC that uashes a de isio a ad i od ased o the
reason of MF. This is because the burden of proof for MF is too heavy
Majlis Perbandaran S Prai V Tropiland Sdn Bhd2

PF wanted to build a building and obtained planning license from the local governing
authorities. It was given with the condition that PF must build large sewers and gates on
go e e t la d that is eside the PF s la d a d PF ag eed.
Soon after, PF could only complete 80% of the promised work and was unable to complete
the leftover 20% as there some squatters living on that land. The local authority was mad.
When the building was completed, they did not give the P a permit. P challenged the local
authority who failed to give them a certificate of fitness on grounds that the decision was
made mala fide.
HC:
Yes there was MF on part of the A
COA:
Nope, no MF
Dato Seri Anwar Ibrahim v PP3

AG brought 4 allegations of corruption against DS Anwar Ibrahim. He challenged the
accusations on the ground that it was done mala fide.
COA:
Nope, MF not proven
1
[1987] 2 MLJ 311
2
[1996] 4 MLJ 1
3
[2000] 2 MLJ 486
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
Padfield V Minister Of Agriculture & Fisheries4

A case regarding a scheme for milk marketing under the Agriculture Marketing Act. Under this
Act, a milk marketing board was established. The board was tasked with the duty to determine
the price of milk. There was one milk distributor that did not agree with the price set by the milk
marketing board. This is because the board did not take into account the difference in
expenditure to transport the milk from other parts of the country.
The said opposer requested for the Parliament to refer to this complain to the Investigating
Board. The Mi iste efused to do so ased o the easo that it ill e a ass e .
Court:
1. Stated that when DP were given by Parliament, this was on the condition that the DP will be
used to improve the policy and object of the statute. Policy and object of statute can only be
determined by interpreting the provisions of the statutes as a whole.
2. Mi iste s de isio as shado ed a i p ope pu pose a d ou t de ided that the Mi iste
had used his DP not as intended by statute.
Pengarah Tanah Dan Galian V Sri Lempah5

Under s124(5)(c) of the NLC, the state authority is given the power to impose conditions that are
deemed necessary and expedient on the request with regards to ownership of land.
In this case, an application was made to change a part of the land to commercial purpose. PBN
Pihak Be kuasa Ne ge i ade a o ditio that the appli ato s f eehold title ould e
e ha ged fo a leasehold .
P challenged this condition and the court quashed the decision.
Held:
the Go e e t had o po e to ake the applicant give up its freehold title and receive in
exchange a 99 year lease. The condition which the applicant objected to did not relate to the
permitted development, it was unreasonable and was used for an ulterior object, the object
being to bring developed land into line with newly alienated land as to which only leases not
titles i pe petuit a e g a ted .
- Raja Azlan Shah s fa ous uote
- Condition imposed must be relevant, reasonable and in relation to the purpose of the act.
(they wanted to ha ge the title e ause of the go e e t s poli
4
[1968] 1 ALL ER 694, HL
5
1979] 1 MLJ 135
3. Setting aside relevant considerations/taking into account irrelevant consideration.

Statute does not confer what is relevant/irrelevant. It is implied by the court.
Padfield - (Previous case as the difference between setting aside and improper purpose is quite
blurred at times)
Sri Lempah
Associated Provincial Picture House V Wednesbury Corporation6

Cou t ga e the e a ple of, let s sa a tea he had ed hai a d as fi ed e uase of the olou
of he hai . Lo d G ee stated that a de isio as su h a e uashed ased o t he easo s of
(1) improper purpose (2) irrelevant consideration + (3) MF and (4) Unreasonableness
If, i the statute o fe i g the dis etio , the e is to e fou d, e p essl o by
implication, matters to which the authority exercising the discretion ought to have
regard, then, in exercising the discretion, they must have regard to those matters.
Conversely, if the nature of the subject matter and the general implication of the Act
make it clear that certain matters would not be germane to the matter in question, they
ust dis ega d those atte s.
Minister Of Labour, Malaysia v National Union Of Journalists7

A journalist had attended a conference in Tokyo. The accusations were that he had behaved
improperly with the female journalists in Tokyo. When returning to Malaysia, he was fired.
The Human Resource Minister id not want to refer his case to the Industrial Court because
al ead the e is so u h pu li it , if I efe the ase, a ig fuss ill ki k up .
Held:
The Mi iste s e use as i ele a t. He had take i to a ou t i ele a t o side atio s. He
had also not taken into account relevant considerations such as (1) why charges in the
newspaper were denied and (2) there were representations made by the national union of
journalists on behalf of the accused.
4. Unreasonableness
ASSOCIATED PROVINCIAL PICTURE HOUSE LTD V WEDNESBURY CORPORATION (L.GREENE)
2 TYPES
BROAD INTERPRETATION NARROW INTERPRETATION
INCLUDES EXISTING WEDNESBURY

GROUNDS UNEAONABLENE
6
[1984] 1 MLJ 67
7
[1991] 1 MLJ 24
- 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.
As a result of the narrow interpretation,

(1) it gave a lot of room for the admin body to reach decisions that were different based on the
same facts
(2) It gave a narrom room for courts to interfere in the business of admin bodies.
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.
b) Chai Choon Hon v Ketua Polis Daerah, Kampar10 -

a license was granted to hold a meeting during a period under S 27(2) of the Police Act
1967. A condition was imposed that the number of speakers would only be seven.
The Supreme Court
Ruled that the condition imposing the restriction on the number of speakers was
unreasonable. There was a specific limit imposed in the licence for holding the meeting.
Therefore, there was no valid reason for restricting the number of speakers within the
prescribed time-limit. This condition was unreasonable in the circumstances as the
police had the means to deal with any infringement of the time-frame.
**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
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.
Sukumaran v Timbalan Menteri Hal Ehwal Dalam Negeri11

HC quashed a detention order made under s4(1) of the Emergency (Public Order and Prevention of
Crime) Ordinance 1969 which requires a Minister to be satisfied before making an order. In this case
the order stated that the Minister was the one who should be satisfied but in fact it was the Deputy
Minister who signed to order without applying his mind that it was only the Minister who could sign
it.
The judge observed:
The Mi iste a ot e satisfied if so e od else sig ed the dete tio o de o his ehalf.
The Minister can only be satisfied if he himself signed the dete tio o de I judg e t,
the Deput Mi iste i e e isi g his fu tio s ust a t as a hole a d a ot a t pa tiall
o ehalf of the Mi iste [as] he did i this ase
>> Non-application of mind and therefore, order set aside.
2. Acting under dictation

- When an authority does not consider a matter itself, but acts under dictation from, or at the
behest of, a superior officer
- If power to grant licences is conferred to an official, and he or she grants a licence to a
person, but later cancels it at the direction of the government, the cancellation of the
licence will be bad.
11
[1995] 2 MLJ 247
Chong Cheong Wah v Sivasubramaniam

Under a statute, a publication could be seized if the authorized officer suspected that it
contained any prohibited or prejudicial publications. The officer had seized a book based on
two circulars issued by a senior officer which alleged that the book was prejudicial.
Held:
The seizure was wrong for it was for him to personally suspect and subsequently, to personally
think that the book was a prejudicial publication. The officer should have examined the book
before seizing it.
Patto v Chief Police Officer Perak

Under s27(2) of the Police Act, the power to grant a licence was on the OCPD. The A applied to
the OCPD for the grant of a license for holding a solidarity dinner and lion dance in a public
place. Instead of dealing with it himself, he sent it to the Chief Police Officer for disposal.
Held:
The ou t uashed the CPO s de isio as the po e as gi e to the OCPD ut ot the CPO.
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.
Emperor v Sibnath Banerjee12

The Home Secretary issued an order of preventive detention in a routine manner on the advice
of police without himself applying his mind to the materials and satisfying himself,
independently of the police recommendation, whether an order of preventive detention was
called for in the circumstances of the case. The Home Department followed a practice of issuing
a detention order automatically when the police recommended it and the Home Secretary did
not personally satisfy himself whether such an order was justified in a specific case.
The Privy Council:
Quashed the order and uled that the Ho e e eta s pe so al satisfa tio i ea h ase as a
condition precedent to the issue of an order without which it would be invalid.
Because the HS relied on the poli e s ad i e i a outi e a e a d did ot appl his i d to
the material before him and satisfying himself.
Morgan Perumal v Hussein Abdul Majid13

APP was arrested by the 1st RESP under the Emergency (Public Order and Prevention of Crime)
Ordinance 1969. By a subsequent order, the Deputy Minister for Home Affairs acted under S 4(1)
of the Ordinance and ordered the APP to be detained for a period of 2 years. The APP then
applied to the HC for a writ of habeas corpus for his release which application was dismissed.
The APP appealed.
Main ground was the detention was 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.
It was held that he was acting in a mechanical manner.
4. Fettering of discretion
12
AIR 1954 PC 156
13
[1998] 3 MLJ 335 / [1998] 3 CLJ 629
- A version of non-application of mind by an authority arises when it lays down a policy to

regulate its exercise of discretion in some matter, and seeks to apply that policy inflexibly to
all cases irrespective of the merits of the case.
- Invalid on the ground that when a statute confers discretion on an authority to decide
individual cases, the authority is expected to consider each case on its merits.
- Courts do not approve of an authority fettering its discretion by adopting a policy and
applying it generally to all cases irrespective of their merits.
H Lavender and Son Ltd v Minister of Housing and Local Government

The government adopted a policy to reserve high quality agricultural land for agriculture against
disturbance by gravel working. The Minister of Housing who had discretion to allow extraction of
minerals, refused permission to the petitioner to extract minerals from an agricultural holding
on the ground that the Minister of Agriculture objected to the proposed use for agricultural
reasons. The order of the Minister of Housing was quashed on the ground that:
i) The Minister followed an inflexible policy in such cases and fettered his discretion by
a self-created rule of policy
ii) the Minister in effect left the decision-making (power for doing which was vested in
him) to the Minister of Agriculture who under the law had no status to make an
effective decision except perhaps in a consultative capacity.
The Minister could, before making a decision, obtain the views of other government
depa t e ts. But the Mi iste ould ot e i fle i le a out his poli , Whe e a Mi iste is
entrusted by Parliament with the decision of any particular case he must keep that actual
de isio i the last eso t of his o ha ds . B appl i g a d a ti g o his stated poli , the
Minister had fettered himself in such a way that it was not he who made the decision of for
which Parliament gave him the responsibility. It was the decision of the Minisetr of
Agriculture = Minister had by his policy improperly delegated to the Minister of Agriculture
the effective decision. The decision-maker may adopt a policy but should be prepared to
listen to new arguments, and consider any special circumstances applicable to an individual
case as to why the general policy should not be applied.
MUI Finance v Menteri Kewangan Malaysia14

U de Custo s A t , the Mi iste has po e to deli e to the o e a good
seized a d fo feited u de the A t. A lo elo gi g to the appli a t as seized Custo s
a d late o de ed fo feited a agist ate. The o e s appli atio to the Minister for release
of the lorry under S 129 was rejected.
The court quashed the decision of the Minister as he had failed to exercise his discretion
properly. The court found that he had followed the policy of rejecting all applications made by
fi a ial i stitutio s u de .A o di g to the Mi iste s affida it filed ith the ou t, the e
ould e a auto ati eje tio of all appeals o i g f o fi a ial i stitutio s u de .
I that e e t uled the ou t, the dis etio a po e given to the respondent by S 129 would
e ugato .
14
[1993] MLJU 434; [1994] 2 CLJ 630
RECLASSIFICATION OF GROUNDS
CCSU (LORD DIPLOCK)
GROUNDS
PROCEDURAL IRRATIONALITY ILLEGALITY

IRREGULARITY
PROCEDURAL WEDNESBURY OTHER GROUNDS

FAIRNESS UNREASONABLENESS
4th ground that might able be used in the future: Proportionality

1) Procedural impropriety
- Procedural fairness
2) Irrationality
- Outrageous defiance of logic
3) Illegality
- Others
4) Proportionality
- R Rama Chandran - follows CCSU
- Kumpulan Perangsang Selangor
NEW GROUNDS
DOCTRINE OF PROPORTIONALITY
- A new ground that is accepted in Malaysian courts.
- Originated from continental countries.
- 2 important concepts: the action taken by the government + the purpose/objective of the
government
- Requirements:
a) The action taken by the government must be suitable with the purpose that it wants to
a hie e suita ilit test
b) The action taken must a hie e the go e e t s o je ti e e essit test
c) The a tio take the go e e t ust e p opo tio ate to the go e e ts
o je ti e p opo tio alit test
DOCTRINE OF PROPORTIONALITY IN CONTINENTAL COUNTRIES

- Not limited to punishments only but is a general principle that is used in all actions.
- Administrative bodies must consider every pros and cons of their actions before taking any
a tio s ala e sheet theo
- 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 ,
R v Barnsley Metropolitan Borough Council; ex parte Hook15

the Council revoked a stall-holde s li e e fo u i ati g i a side st eet afte a ket ahd losed.
The Court of Appeal uashed the Cou il s de isio ai l o the g ou d of de ial of atu al
justi e, ut it as also stated that the Cou il s de isio as a disp opo tio atel d asti step
o e he e the pu ish e t [ as] altogethe e essi e a d out of p opo tio to the o asio .
R v Secretary of State for the Home Department; ex parte Brind16

House of Lords by way of obiter had discussed on the viability of proportionality as a 4 th ground
of judicial review of administrative action.
Lord Roskill said that while proportionality was not appropriate on the facts in this case, this did
not exclude possible future development of proportionality as a separate head of judicial review.
Lord Lowry and Lord Ackner rejected proportionality as an independent head or review and
treated it as a part of Wednesbury unreasonableness.
DOCTRINE OF PROPORTIONALITY IN INDIA

- Indian courts accept proportionality but on the requirement that proportionality is used in
disciplinary actions taken on public officers
Ranjit Thakur v Union of India17

Supreme Court has reduced the punishment imposed on the ground of it being excessive or
disproportionate.
DOCTRINE OF PROPORTIONALITY IN MALAYSIA

Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan18
Issue:
1) Not given audi alteram partem
2) Punishment was not proportionate
The case concerned the allegedly wrongful dismissal of Tan Tek Seng, a headmaster. 1 st case to
bring in the principle of proportionality in Malaysia. It was brought in by using Article 5 and 8 of
the FC and can only be used in punishments ordered by the Public Services Commission (only
civil servants). It referred to the case of Ranjit Thakur under the ground of Wednesbury
unreasonableness.
Weak point e e though the ase dis usses p opo tio alit , it did t dis uss it in its own
ground.
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
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).
Ng Hock Cheng v Pengarah Am Penjara (FC)20 LIMITED TO CASE CONCERNING PSC

APP (government servant) incurred heavy debts amounting to more than six times the amount
of his monthly salary and became liable to disciplinary proceeding for reduction in rank or
dismissal. In the proceeding, he said he had to be in debt to help his father who was in debt. The
APP s writ is for declaration that his dismissal was declared void. The PSC after deliberating his
representation had dismissed him from service.
Issue:
whether HC (judicial review) had the po e to ha ge o e ie PC s de isio .
Held: (Federal Court)
Did not agree with TTS on issue of proportionality. According to the judges, in the jurisdiction of
judicial review, HC can only review the decision- aki g p o ess. The a tio take PC a t
be reviewed on the ground of unreasonableness.
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.
Is there space to accept the principle of proportionality in Malaysia?:

while most say no, but we can argued it on these 3 reasons:
1) In Ng Hock Cheng the ratio of the case small,
2) FC did t dis uss p opo tio alit i dept. The efo e, FC is ot o lusi e to sa that
p opo tio alit a t e used i Mala sia.
3) Ng Hock Cheng overruled Tan Tek Seng on the ground of Wednesbury
U easo a le ess. This ea s the de isio does t ea that the p i iple of
proportionality can be brought up a as a separate ground for the actions of other
administrative bodies (Ng Hock Cheng is only limited to cases concerning PSC)
3) Sugumar Balakrishnan (FC)21 did not refer to Ng Hock Cheng but instead referred to R
Rama Chandran. Here it was said that substantive fairness cannot be applied as a
sepa ate g ou d e ause e e i E gla d the do t ha e it. The efo e, the FC efused
to accept substantive fairness as a ground for judicial review.
4) MPPP v Sg Gelugor (FC)22 Planning permission case. This case allowed proportionality
but did not refer to Malaysian cases. Only referred to English cases.
SUMMARY OF THE STATUS OF PROPORTIONALITY IN MALAYSIA

- Proportionality cannot be used in cases where actions were taken by PSC (such as Ng Hock
Cheng)
- Proportionality can used for other actions (such as COA Sugumar Balakrishnan, MPPP v Sg
Gelugor)
- It s ot lea hethe the p i iple of p opo tio alit is ought i as a principle of law or
under the constitution.
20
[1998] 1 MLJ 153
21
[2002] 3 MLJ 72
22
[1999] 3 MLJ 1
- Not lea hethe p opo tio alit is ought i u de Wed es u s u easo a le ess
Sugumar Balakrishnan - refer above

MPPP v Sg Gelurogr
Referred to ex parte Hook and basic principles of NJ extended to include proportionality
5.3? ESTOPPEL and LEGITIMATE EXPECTATION
A) ESTOPPEL
Used against government or a public authority when a person is relying on promise, assurance,
representation or advice and has thereby acted detrimentally and suffered loss. However, it is
difficult to raise.
- 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
Minister of Agriculture & Fisheries v Hulken

If Minister made a representation that was ultra vires, it cannot be accounted for. A
ep ese tatio that is ult a i es does t bring a person right to raise estoppel.
Maritime Electric Company Co. Ltd v General Dairies Ltd23

if a statute confers statutory duty for the administrative body, an individual cannot bring up
estoppel to stop administrative bodies from making any decision.
Court should first determine nature of obligation imposed on statute before considering
admission of estoppel
Southend-on-Sea Corporation v Hodgson24

If a statute confers discretionary powers to administrative bodies, estoppel cannot be raised by
an individual to stop the administrative body from exercising their discretionary powers.
Laker Airways v Department of Trade25

The government has the freedom to create and amend policies even though the individual might
experience losses due to the change of policies.
Conclusion: England hard to raise estoppel.
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,
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
Govt of Negeri Sembilan v Yap Chong Lan (NEED FACTS)
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
B. SUBSTANTIVE LEGITIMATE EXPECTATION

- A new principle. There is connection between substantive legitimate expectation and estoppel.
- The courts in England were slow to accept legitimate expectation. After a while, they start to accept
but only procedural legitimate expectation (CCSU, AG OF HK, NG YUEN SHIU & SCHIMDT)
Difference between procedural legitimate expectation and substantive legitimate expectation
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 Khan28 -

A circular giving guidance to persons in the UK who wished to adopt a child from abroad stated that,
although the immigration rules did not permit a foreign child to enter the UK for the purposes of
adoption, the Secretary of State would in exceptional circumstances exercise a discretion to allow a
child to enter the UK for adoption if specified criteria were met. A married couple wished to adopt a
child from Pakistan. Based on the conditions, the husband and wife already fulfilled all the
requirements. But then new conditions are passed, husband and wife cannot adopt the child. They
challenged the decision.
The ou t uashed the de isio of the i iste ut the ou ts did t use su sta ti e legiti ate
expectation. The court decided on the ground that the action of the government was unfair.
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.
R v Inland Revenue Commissioners; ex parte MFK Underwriting Agents30 -
28
[1985] 1 All ER 40
29
[1987] 2 All ER 518
30
[1990] 1 WLR 1545; [1990] 1 All ER 91
Clai a t s ights ill o l e fou d esta lished he the e is a lea a d u a iguous

representation upon which it was reasonable for him to rely. Because of that, the admin or other
public body will be held bound in fairness by the representation made unless only its promise or
undertaking as to how its power would be exercised is inconsistent with the statutory duties
imposed upon it. (Pn Sri SLE may exist if representation was one to individual/public)
R v Devon County Council, Ex Parte Baker31
A Local Authority considering closing a residential home did not have a duty to notify and consult
with each resident who might be affected, but did have a duty to act fairly, and to give sufficiently
prominent notice and sufficient time to allow residents to make representations and give their
objections, and for these to be considered.
Co side i g legiti ate e pe tatio s: o eti es the ph ase is used to de ote a su sta ti e
right: an e title e t that the lai a t asse ts a ot e de ied hi .. a ious autho ities sho
that the claimants right will only be found established when there is a clear and unambiguous
representation upon which it was reasonable for him to rely. Then the administrator or other
public body will be held bound in fairness by the representation made unless only its promise or
undertaking as to how its power would be exercised is inconsistent with the statutory duties
imposed upon it.
The doctrine employed in this sense is akin to an estoppel.
I so fa as the pu li od s ep ese tatio is o u i ated a of a stated poli , this
type of legitimate expectation falls into two distinct sub categories: cases in which the authority
are held entitled to change their policy even so as to effect the claimant, and those in which
the a e ot.
R v Ministry of Agriculture, Fisheries and Foods, Ex Parte Hamble Fisheries Ltd32

LJ Sedley:
1) Substantive LE may be used in the UK.
2) However, not all LE is protected substantively.
3) Individuals must prove 2 conditions:
a) Reasonable basis
b) Worthy of protection (court looks at overriding public interest)
>> LE reserved for expectations which are not only reasonable but which will be sustained in the
court in the fact of changes of policy. It must be also worthy of protection in which the court
will determine (w) there is overriding public interest.
>> LE is not merely a procedural benefit or protection but that SLE has also been recognised
Cases that do not accept SLE:

A) R v Secretary of State for Transport, ex parte Richmond upon Thames London Borough
Council and others, Ex parte Richmond33 LE must be limited to procedural only.
B) Ex parte Hargreaves overruled Hamble Fisheries SLE can only be used via
Wednesbury Unreasonableness. Not as a separate ground.
MALAYSIA:
MPPP v Sg Gelugor
referred to Hamble Fisheries and accepted SLE.
Dato Seri Anwar Ibrahim
31
[1995] 1 All ER 73
32
[1995] 2 All ER 714
33
[1994] 1 All ER 577
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.
A. ROYAL PREROGATIVE POWER OF PARDONING

- Art 42 FC
INDIA:
Art 72 power of pardoning given to the President of India
SC power can still be reviewed if conducted arbitrarily.
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.
Sim Kie Chon v Superintendent of Pudu Prison35

Me is ot a legal ight . P o eedi gs i ou t ai ed at uestio i g the p op iet o othe ise
of su h de isio a e the efo e ot justi ia le . It is a othe a solute dis etio .
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.
Johnson Tan Han Seng v PP36

Cou t said that AG a dis i i ate ithout o t a e i g A t . The hoi e is e ti el o the
AG , A t is ot su je ted to A t article 8 must be read subject to Art 145(3)
Mohn Nordin Johan v AG of Malaysia37

While FC took the view that regulation 2(2) is certainly draconian in terms, it ruled that the
su je ti e opi io of the AG that the alleged offe e of u de the a used affe ted the
se u it of the Fede atio as the dete i ati e fa to . The la guage of the egulatio lea es
no room for the relevance of a judicial examination as to the sufficiency of the grounds on which
he acted in forming his opinion. His opinion in the context of the regulation in question is not
ope to e ie / Cou t the efo e o luded that egulation 2(2) attracts the pure judgment of
the AG which cannot be subjected to an objective test and is not accordingly amenable to
judi ial e ie .
PP v Lau Kee Hoo38

AG has complete discretion whether to charge the RESP under one or other law pertaining to
unlawful possession of arms.
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
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
Pengarah Pelajaran Wilayah Persekutuan v Loot Ting Yee39

Whether the transfer of a government employee was subject to court review on the ground that
the transfer was actuated by bad faith. Article 132(2A) gives effect to doctrine of pleasure on
public services matters is also an absolute discretion.
D. PREVENTIVE DETENTION
- Ouster clauses in inserted in preventive detention statutes.
Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri40 -

HC uled that this p o isio ousts the ou t s ju isdi tio o atte s of ala fides o ad faith o
the part of the Minister in making an order of preventive detention.
Shaharudin b Idris v Menteri Hal Ehwal Dalam Negeri41 -

Vincent Ng J ruled that an issue of mala fides on the part of the detaining authority was non-
justiciable by virtue of S 7C(1) of the Emergency (Public Order and Prevention of Crime)
ordinance 1969.
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
CHAPTER 6: JUDICIAL REVIEW

6.0 Definition
Ridge v Baldwin
A, chief constable was dismissed without being afforded an opportunity to defend his actions
Held:
The dismissal has violated the doctrine of NJ and hence, void.
>> First ever decision to apply doctrine of NJ in admin
Sri Lempah Enterprise S/B

The ou ts a e the o l defe e of the li e t of the su je t agai st depa t e tal agg essio ...
That public bodies must be compelled to observe the law and it is essential that bureaucracy
should be kept in pla e
6.1 Purposes of Judicial Review

Protection of individual against illegal acts and omissions of the admin
Provide remedies for wrong done to an individual
Ensure that the admin bodies act lawfully within boundaries of law
Ensure that admin bodies perform their public duties
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 2(1) Application shall be in Form 109

Rule 2(2) Remedies applied for - can be more than one
Rule 2(3) The court is not confined by the relief claimed and may mould a remedy
>> This ule t e e dousl e pa ds the ou t s po e . Befo e if we ask for certiorari, they
would either approve or reject you. But now, upon the hearing for an application for JR,
the court shall not be confined to the relief claimed by the applicant but may make relief
including an injunction for relief and monetary compensation and damages (influenced
by Rama Chandran)
Rule 2(4) Locus Standi
A pe so ho is ad e sel affe ted the de isio of a pu li autho it shall e
entitled to ake the appli atio
Rule 3(1) Application for leave to commence JR

Rule 3(2) Leave must be made ex parte to Judge in Chambers - one party apply cukup dah
Rule 3(3) Must give notice of leave not later than 3 days before hearing date to AG Chambers +
copies of statements and affidavits
Rule 3(4) Judge may in granting leave, impose terms as to costs and giving security
Rule 3(5) Shall not operate as a stay unless directed to be
Rule 3(6) Limitation of 40 days from date of knowledge of decision (before this was 6 weeks)
Rule 3(7) May upon application, extend time in Rule 4(1) if there is a good reason
Rule 3(8) Application to extend time must be served on all respondents and be heard inter partes
Rule 4(1) Where leave granted, Applicant within 14 days file a notice in Form 110
Rule 4(2) Upon extraction, applicant serve a copy of the papers to those affected within 14 days
before hearing
Rule 5(1) Power of courts to grant damages + monetary compensation allowed

Rule 5(2) Order 18, Rule 12 shall apply relating to a claim for damages as it applies to a pleading
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
Negative aspect: Positive aspects:
i) Locus standi i) Compensation

ii) Time limit ii) 1 application for all remedies
iii) Limits the additional powers of the Sivarasa Rasiah v Bar Council Malaysia1 - Court will
High Court under CJA subject to ignore aspects of O. 53 that tries to limit the
SL. fundamental rights of individuals. This statement by
GSR is good because it strengthens the enforcement of
fundamental rights in our laws.
Amendment to ROC 2012

r. 2(4) - Locus standi:
A y pe so ho is ad e sely affe ted y the de isio , a tio o o issio in relation to the
exercise of the public duty or function shall e e titled to ake the appli atio it s not
sufficient interest, but the scope is bigger
r. 3(6) Time limit:
A appli atio fo judi ial e ie shall e ade p o ptly a d i a y e e t within three months
from the date when the grounds of application first arose or when the decision is first
communicated to the applicant. (90 days)
r. 3(7) Court can extend time limit upon application and if there is a good reason to doing so.
1
[2010] 2 MLJ 333
6.3 Scope of Judicial Review
Pre-1988 1988 Post-1988
PRE-1988 TRADITIONAL APPROACH

There are three powers of the court (important ones for this topic is the bold ones)
a) Supervisory jurisdiction (judicial review on the high court)
b) Appellate jurisdiction
c) Original jurisdiction
Distinction
1) Supervisory jurisdiction: 2) Appellate jurisdiction:
- It is the inherent right of court to conduct - Power is statutorily conferred.

judicial review. Statutes are not needed to - Courts can enter into the merits of the case,
confer power to the courts. can substitute the decision of the
- However, statutes can deny the power through administrative body with their own.
ouster clauses. - Courts can review the facts of the case.
- Courts cannot enter into the merits of the case
(substantive) but courts only can review the
decision making process (procedural).
- Cou t a t su stitute the de isio of the
administrative body with their own.
- Cou t a t ould elief they can only grant
or deny certiorari.
- The a t review the facts of the case.
Cases that laid down the traditional approach

Chief Constable of the North Wales Police v Evans
JR is concerned with the decision making process, not the decision itself
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
>> 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 .
1988 - RAMA CHANDRAN

R Rama Chandran v The Industrial Court Of Malaysia & Anor5 (FC) [2:1 Majority]
Principle:
The case has given additional powers to the high court. Meaning that now the high court can:
a) Review decision and the merits of the decision.
b) Substitute the decision of the administrative body with their own.
c) Can mould relief.
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.
Held: (damn got balls lah)

In this case, they cancelled the award of the industrial court
Did not return the case to the industrial court.
They also reviewed the case and decided whether the dismissal of Rama chandran was
appropriate or not (which means that they entered into the merits of the case).
The court decided that the dismissal was unreasonable (which amounts to substituting the
decision of industrial court)
3
[1987] 1 MLJ 124
4
[1991] 1 MLJ 417
5
[1997] 1 MLJ 145
Rama Chandran was given award more than what the industrial court would give (which
means that they could mould relief).
Rational of the Federal Court

1) Court can review the decision and merits of the case
- The case referred to Lord Diplock in CCSU procedural irregularity, irrationality& illegality.
- Edgar Joseph Jr SCJ
But Lo d Diplo k's othe g ou ds fo i pug i g a de isio sus epti le to Judi ial
Review make it abundantly clear that such a decision is also open to challenge on
grounds of 'illegality' and 'irrationality' and, in practice, this permits the courts to
s uti ize su h de isio s ot o l fo p o ess, ut also fo su sta e . to ake it si ple,
p o edu al i p op iet tou hes o the p o edu al aspe t, illegalit a d i atio alit
tou hes o the su sta ti e aspe t. The efo e, that s h the ou t a e ie the e its
of the ase th ough illegalit a d i atio alit .
- Kumpulan Perangsang Selangor Bhd v Zaid Bin Hj Mohd Noh6 (SUPREME COURT) decided
that the minority judgment of Wan Yahya FCJ in R Rama Chandran is wrong. They
decided that the merits refer to the substance of a case.
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)
3) Courts can mould relief

- Referred to statute: S 25(2) & Schedule 1 (Additional Powers) of the CJA 1964
- Referred to A 226 of the Indian Constitution (which is in pari material with para 1 of the
Schedule in CJA)
Wa Yahja FCJ s disse ti g judg e t a d h -

1) Industrial court is formed intentionally to hear cases on dismissals. The function of the
i dust ial ou t a t e take away by the High Court or the Federal Court in judicial
review.
2) If a case is sent back to the industrial court, it will hear the case again and might be able
to hear a new statement that will affect their decision. Federal court cannot hear new
statements and is limited to statements included in affidavits in court.
3) If a ase is ought a k to the i dust ial ou t, it s ot su e o hethe the i dust ial
court will arrive at a different decision.
4) One of the points brought up by Edgar Joseph JR if the case is sent back to the
industrial court, it will take a longer period. (Wan Yahya everyone knows the process of
judicial review will take a long time).
Limitations to this Glorious Case
6
[1997] 1 MLJ 789
- HC must be cautious in using these additional powers in Rama Chandran

- These additional powers depend on the subject and nature of the challenged decision.
- The facts of Rama Chandran is special as he is already old and the case has been ongoing
for 9 years. (exception)
Cases after Rama Chandran

MPPP v Sg Gelugor
the situation in Rama Chandran's case was poles apart from that of the present case. No
question of extension of time, always a creature of statute, was involved there and the
Judge as a eful to e phasize the e spe ial i u sta es' of the ase
Petroliam Nasional Bhd v Nik Ramli7

FC:
(1) The views expressed by the majority in R Rama Chandran v The Industrial Court of
Malaysia that, in judicial review proceedings, the courts had the powers to: (a) review the
decision of a tribunal on the merits; (b) substitute a different decision in place of the
tribunal's decision without remitting it to the tribunal for re-adjudication; and (c) order
consequential relief were not the product of 'judicial excessivism'. On the contrary, they
reflected the kind of controlled judicial activism that was needed in order to meet, in a
supervisory context, the ever-widening powers conferred upon statutory tribunals or other
bodies which had proliferated in modern times
(2) Not every case was amenable to the Rama Chandran approach. It depended on the
factual matrix and/or the legal modalities of the case. This was a matter of judicial
discretion on the part of the reviewing judge
Exceptions to Rama Chandran

1) Policy considerations involved in decisions of administrative bodies
R Rama Chandran
Fo e a ple, he e poli o side atio s a e i ol ed i ad i ist ati e de isio s a d
courts do not possess knowledge of the policy considerations which underlie such decisions,
courts ought not to review the reasoning of the administrative body, with a view to
substituting their own opinion on the basis of what they consider to be fair and reasonable
on the merits, for to do so would amount to a usurpation of power on the part of the
ou ts.
Kumpulan Perangsang Selangor Bhd

The e ay, however, be cases in which, for reasons of public policy, national interest, public
safety or national security, it may be wholly inappropriate for the courts to attempt any
substitution of views. The present case, however, did not fall within any of these e eptio s.
2) Fa ts of the ase depe ds o the it ess edi ilit

Swedish Motor Assemblies v Hj Mohd Ison 8
The uestio at the e d of the da is hethe a easo a le t i u al si ila l i u sta ed
would have come to a like decision on the facts before it. However widely understood the
7
[2004] 2 MLJ 288
8
[1998] 2 MLJ 372
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.
The cases afterwards include the same statement above

- Bayer (M) Sdn Bhd v Rugayah bte Parman9
- Airspace Management Services v Col (B) Harbans Singh A/L Chingar Singh10
- Quah Swee Khoon v Sime Darby Bhd11
- National Union of Plantation Workers v Kumpulan Jerai Sdn Bhd, Rengam12
3) The dismissal of civil servants

Mohd Yusof Bin Mohammad v Kerajaan Malaysia & Anor13
Judge cites Edgar Joseph FCJ from Rama Chandran as to why the court should not apply the
same decision to review cases arising from administrative decisions by bodies or persons
who are charged with the performance of public acts or duties It ust e e e e ed
that we are here concerned with an appeal which arises from Judicial Review proceedings
whose target was an Award of the Industrial Court, an inferior court, and not an
administrative decision by bodies or persons who are charged with the performance of
public acts or duties. It cannot be said, therefore, that by intervening in the manner which
we propose to do, we would be trespassing into the domain of the executive, thus violating
the doctrine of the separation of powers, and so acting undemocratically.'
>>> 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.
POST-1988 (AFTER Rama-Rama)

Rohana bte Ariffin v USM (did not refer to Rama)
JR applies to any body of persons having legal authority derived from public law to
determine questions affecting the rights of subjects (w) that right is derived from statute or
from common law
The HC is not a CoA from the body under review
The HC limits itself in determining (w) the public authority or inferior tribunal has acted
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
lawfully, rationally and with due regard to proper procedures

The court will not substitute its judgment or discretion for the judgment or discretion of the
body under review
Facts determined by the body under review are rarely open to review in the HC
HC will intervene unless there is express statutory direction to the contrary
If there is an established appeal procedure from the decision of the body under review, then
the court usually prefers this course to be followed
Only activities of a public nature can be the subject of JR
Hong Leong Equipment Bhd v Liew Fook Chuan (Followed Rama)

Para 1 powers are additional powers to those already seized of by court
Intent of Parliament is to empower the court to grant relief beyond the scope of usual public
law remedies
Courts are not confined to usual prerogative powers known to English Law
E a les the ou t to adopt a fai l fle i le app oa h
Courts can mould the relief to suit every individual case
Petroliam Nasional Bhd v Nik Ramli

(refer above - but did not follow Rama)
6.4 Standard of LOCUS STANDI to apply for JR

6.4.1 Position in ENGLAND
A) Pre-1978
- Remedies usually given are mandamus and certiorari
1. Mandamus
- Court order to have the administrative body to do something.
- 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 (1968)14

The police took a policy decision not to prosecute gaming clubs for breach of gaming laws
barring certain exceptions. Blackburn (applicant) sought a mandamus against the Police
Commissioner directing him to enforce the laws in question and to reverse such policy decision.
The ou t did ot eje t the appli atio o the g ou d of Bla k u s lo us standi but it decided
the controversy on its merits.
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
R v Greater London Council, Ex Parte Blackburn16 (1976)

Blackburn applied for an order of prohibition against the Council to stop allowing the exhibition
of pornographic fils in London Cinemas.
The argument was that Blackburn had no locus standi because the duty is owed to the general
public but not any specific person as he could not claim specific injury by the showing of the
films.
Held:
Blackburn was a citizen of London and a taxpayer, and has children who might be harmed by the
exhibition of pornographic films.
If he has o suffi ie t i te est, the o othe itize has
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 .
Boyce v Paddington Borough Council17

The ou t ould o l o sider claims from one whose interest was affected by what had been
do e ut ot a e e us od ho as i te fe i g i thi gs hi h did ot o side ith hi
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
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)
Gouriet v Union of Post Office Workers18 -

followed the position in Boyce v Paddington Borough Council
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
1. A e e us od , eddlesome or troublesome person cannot be given locus

sta di .
2. But a factor that influenced the court in giving locus is the importance of upholding
the Rule of Law; the government cannot act on a whim.
3. The absence of other suitable person to challenge the government.
- Locus standi is loosened until it is known as public interest litigation (PIL).
6.4.2 Position in INDIA

- The courts play an important role in loosening the locus standi and improving PIL.
Criminal justice: The plight of the under-trials and right to legal aid
Hussainara (I) 22
A public interest suit was brought in the Indian Supreme Court seeking the immediate release of
under-trials who languished in jails pending their trials. The Supreme Court held that a fair trial
implied a speedy trial, and this right was an integral and essential part of the fundamental right
of life and personal liberty enshrined in Article 21 of the Indian Constitution.
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.
Janamohan Das v State of Orissa24

HC ordered the reopening of an inquiry into a liquor disaster that had killed many people. The
stats government initially closed the inquiry upon a newspaper report of involvement of
government ministers. The state government was also ordered by the HC to pay an amount of
sum to each of the families affected by the disaster.
Protecting the rights of women

Sheela Barse25
A journalist sought orders to prevent ill treatment of women in a Bombay prison. The
Supreme Court gave orders to the relevant authority including the provision of legal assistance
to the under-trial prisoners.
Protection of the environment & ecological balance

Vellore Citize s Welfare Foru v I dia26
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
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.
MC Mehta Ganga water Pollution case27

court will not hesitate to use its innovative power to enforce and safeguard the right to life
and livelihood against polluting industries (guaranteed under Article 21 of India Constitution)
to promote public interest.
R.L & E Kendra28

Court can grant injunction against the activities on limestone quarries as it interferes with the
right to livelihood and to a clean environment.
Taj Mahal case29 (Preserving ancient monument)
orders were sought to prevent damage caused to the ancient monument as well as the green
belt surrounding the monument by visitors as a result of a musical concert organized and held
in the vicinity of the monument.
Exploitation over Power? (sendiri reka)

SP Gupta30 (Upholding judicial independence)
Public has a right to take action upon the questionable transfer of judges to uphold judicial
independence. No PIL = No Rule of Law which will eventually lead to arbitrariness and without
any legal redress.
Dr Upendra Baxi
A citizen has locus standi to sue the government for not providing adequate welfare homes for
the poor in his area.
Chaitanya Kumar v Karnataka31(Fighting corrupt practices of public officials)

Indian Supreme Court held that award of contracts by the Government to ineligible
candidates over eligible applicants could be quashed on the ground of abuse of discretion
even though no loss was caused to the State Exchequer.
Exploitation of foreign or poor labourers

Asian Games Village case32
Violatio of fo eig la ou e s ights du i g the p epa atio fo the Asia I te atio al
function.
Bandhua Mukti Morcha v India33

An organization dedicated to the cause of release of bonded labour was allowed to vindicate
the plight of bonded labourers before the Indian Supreme Court. The State Government was
censured by the court for raising a preliminary objection to stalla n inquiry into the complaint
that a large number of peasants or workers were bonded serfs or subjected to exploitation by
27
(1987) 4 SCC 463
28
AIR 1985 SC 652
29
(1998) 9 SCC 93
30
AIR 1982 SC 149
31
AIR 1986 SC 825
32
AIR 1982 SC 1473
33
Air 1984 SC 802
a few mine lessees, contractors or empoyers, or were being denied the benefits of social
welfare laws.
- For more refer pg 70-73 of pro-forma
6.4.3 Position in MALAYSIA

Pre-2000
- There was no mention of locus standi in Order 53 RHC (application for judicial review) So,
they have to look at each remedy.
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.
2. Certorari no statute, has 2 differing judgments

a) Agg ie ed pe so test
- District Council Central, Province Wellesly v Yegappan35
the DCCPW approved the site plan and building constituting a housing scheme on land. RESP
o e of adja e t la d halle ged the Cou il s app o al of the pla s. He o ed the ou t
to issue certio a i to uash the Cou il s sa tio o the g ou d of -law breached. Taking an
extremely restrictive view of standing, the FC held that applicant had no legal standing to seek
certiorari for neither his right of ownership nor that of possession of his land was affected by
the breaches of by-la s. Appli a t s e e dissatisfa tio ith the app o al of the pla i g
authorities did not constitute wrongful deprivation of his rights. Therefore, he was not a
person aggrieved. (M.P Jain criticised: it is not clear why the applicant, a taxpayer to the
District Council, could not challenge an action of the council on the ground of its illegality)
b) uffi ie t i te est test

- George John v Goh Eng Wah Bros, Filem Sdn Bhd36
PF applied for certiorari toward scensorship board from showing Happy Bigamist which shows a
guy that lives happily with two of his wives in the same house. It was held that PF has
sufficient interest citing the following factors:
i) He was a member of the Malaysian Bar
ii) He was a rate-payer
iii) He had contracted a monogamous marriage; and
iv) He strongly adhered to the sanctity of such a marriage.
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
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
- Tan Sri Hj Othman Saat v Mohd bin Ismail38

- F: R together with 183 applied for alienation of State Lands which were subsequently
alienated to the Menteri Besar. Hence they applied for a declaration questioning the
alienation of land.
H: HC: Used agg ie ed pe so test. a s that PF has a lo us sta di as a Mala sia itize . FC:
Dictum agreed that locus standi should be loosened.
Any public-spirited citizen, even if he has no greater interest than a person having regard for
the due o se atio of la ought to ha e lo us sta di. Pu li i te est de a ds a ide a d
more libe al o st u tio e gi e ... A ilesto e i the g o th of pu li i te est litigatio i
Malaysia.
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
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)
Abdul Razak v Majlis Bandaraya Johor Bahru40

PF has o lo us sta di. I e tu e to describe him as a trouble shooter, a maverick of a sort
out to sti t ou le. so e so t of us od
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
Sivarasa Rasiah v Badan Peguam Malaysia42

O. 53 should be interpreted liberally.
Raja Segaran v Bar Council Malaysia43

Locus standi interpreted liberally.
QSR Brands Bhd v Suruhanjaya Sekuriti & Anor44 (COA)

Gopal Sri Ram JCA:
O. 53 RHC 1980 was amended in 2000 to put a single test for all the remedies given
under the order.
Ad e sel affe ted should e gi e a li e al i te p etatio .
Appli a t should sho that he falls ithi the fa tual spe t u o e ed the o ds
ad e sel affe ted .
Spectrum on locus standi was divided into three:
I) Cases where nexus between the applicant and the legality of the action under
challenge is so tenuous such that it is may rightly be disregarded as de minimis
II) Cases in between which are in the nature of PIL.
III) cases where the particular applicant has an obviously sufficient personal interest in
the legality of the action impugned. This includes cases where the complaint is
that a fundamental right such as the right to life or personal liberty or property
in the widest sense has been or is being or is about to be infringed. In such cases
the court must grant threshold standing.
GSR quoted Malik Brothers v Narendra Dadhich for the test to determine whether an
application is PIL:
PIL is usually entertained by the court for the purpose of:
i) Redressing public injury
ii) Enforcing public duty
iii) Protecting social rights
iv) Vindicating public interests
- The real purpose of entertaining such application is the vindication of the rule of law,
effective access to justice to the economically weaker class and meaningful realisation of
the fundamental rights. The directions and commands issued by the courts of law in
public interest litigation are for the betterment of the society at large and not for
benefiting any individual. But if the Court finds that in the garb of a public interest
litigation actually an individual's interest is sought to be carried out or protected, it
would be bounden duty of the court not to entertain such petition as otherwise the very
purpose of innovation of public interest litigation will be frustrated.
- Malaysian Trade Union Congress v Menteri Tenaga, Air dan Komunikasi45 -

- Issue: whether the test used in LKS can still be used under 0.53 R. 2(4) RHC. No, FC
applied p i iples i Q to o side the issue of lo us sta di. Ad e sel affe ted test is
the single test for all the remedies provided for under O.53. The applicant has to at least
show that he has a real and genuine interest in the subject matter.
42
[2002] 2 MLJ 413
43
[2000] 1 MLJ 1
44
[2006] 3 MLJ 164
45
[2014] 3 MLJ 145
- Amendments to the Rules of Court 2012:

O. . : Any person who is adversely affected by the decision, action or omission in
relation to the exercise of the public duty or function shall be entitled to make the
application. (not anymore limited to public authority)
6.5 OUSTER CLAUSE

- Against Rule of Law. Dicey: everybody is equal before the law and subject to equal protection
of the law. Raja Azlan Shah states that the courts are the only defence of the subjects
- Ouster clauses are inserted into statutes by the Parliament to exclude courts from conducting
judicial review on the actions of the administrative body.
- Example: S 388(1) Industrial Court Act, S 8(1) ISA (repealed), S 150(8) FC.
- Effect:
1)Cannot challenge decision of admin body
2)Admin body can act arbitrarily
3)This becomes violation of Rule of Law
Jurisdictional error
arise when a body is not properly constituted according to the law. E.G. if a statute
requires a tribunal to be composed of three members, it will be acting without
jurisdiction if it is composed of 2 members only.
Error of law
e.g when hearing the case they were mala fide, fettered their discretion, selective in
the RTBH
- 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.
6.5.1 Position in ENGLAND

A. Pre-Anisminic
- Courts made a strict distinction between jurisdictional error (when admin body has no
power to make such a decision) and error of law (mala fide, unreasonableness etc).
Error of Jurisdiction Error within Jurisdiction/Error of Law
[OC is not valid, so we can JR] [OC valid, so cannot JR]
Tribunal listens to your case. Tribunal does During the conduct of the case, commits
not have inherent powers as they come error!
from statute
EG. Number of tribunal members is min 4 Same example but 4 people sitting
but max 6. However, during your case, only There was mala fide, unfetttered
3 came! So, yes it is a jurisdictional error discretion, X R2BH, ~~ error within
because they did not follow the statute jurisdiction
and hence, no jurisdiction to hear your
case
happens at the initial stages -
- Courts held that if there was jurisdictional error, the body does not have a jurisdiction to
hear your case. Therefore, the ouster clause will not protect the decision. However, if it
is e o of la , it is ithi ju isdi tio a d it s ot so se ious a d the efo e, ouste lauses

would be effective in ousting the courts.
B. Anisminic decision
Anisminic Ltd v Foreign Compensation Commission46 -
A s p ope t as o fis ated the Eg ptia go e e t afte the uez isis, hi h i
return paid a sum of money to the British government. R was delegated the task of settling
the lai s. A s lai as eje ted. Thus, A seek de la atio . But, the Foreign Compensation
A t o tai s a ouste lause dete i atio of the Co issio shall ot e alled i
uestio i a ou t of la .
Held:
A tribunal may exceed its jurisdiction in the course of enquiry if it took into account matters
which it had no right to take into account (error of law), rendering the decision a nullity and,
thus, subject to judicial review.
Ouster clause can only exclude judicial review on valid decisions, not null ones.
Error of law was included within the scope of of jurisdictional error.
2 significant results: (i) It diluted the efficacy of finality clauses by confining their protection
to non-jurisdictional errors; (ii) it extended the scope of jurisdictional error.
HOL: Lord Reid:
a) The uestio of a t i u al s ju isdi tion not only can be determined at the start of an
investigation and a trial but also during when a tribunal is ongoing during the
investigation.
b) Therefore, even if a tribunal has jurisdiction at the start of the investigation, it can
get rid of such jurisdiction or beyond its jurisdiction when conducting investigations.
[He moved category (2) to (1) - narrowing the distinction]
c) Tribunals will lose their jurisdiction if they commit the following errors;
(i) act in a mala fide manner,
(ii) acting beyond their powers,
(iii) not giving natural justice,
(iv) interpret statute which gives jurisdiction to them wrongly until they fail to solve
the intended objective of the law (error of law) &/or
(v) fail to take into account relevant considerations or considered irrelevant
considerations. This is not an exhaustive list.
[So he geniusly expanded the list for jurisdictional error]
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.
C. Cases after Anisminic

Pearlman v Keepers and Governors of Harrow School47
F: Ouste lause de la es the de isio of the ou t ou t as fi al a d o lusi e .
H: It precludes an appeal but not a judicial review for excess of jurisdiction or error of law.
L. Dening:
46
[1969] 1 All ER 208
47
[1979] 1 QB 56
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).
6.5.2 Position in MALAYSIA
Pre-SEA Fire SEA Fire Bricks After SEA Fire Bricks &
Bricks SKMK
A. Pre-SEA Fire Bricks

Liberal interpretation on jurisdictional error as decided in the case of Anisminic.
Ouste lause is ot effe ti e a d does ot p ote t ad i ist ati e odies de isio s.
Soon Kok Leong v Minister of the Interior, Malaysia48
Applicant by way of motion sought the setting aside of an order of deprivation of citizenship and
a e pulsio o de . The go e e t i epl i oked the fi alit lause i , P , nd Schedule,
Malaysian Constitution). Depe di g upo the state e t f o Lo d De i g i e Gil o e s
Appli atio , Is ail Kha J took the ie that the o d fi al i the lause o l a ed a appeal
to the court but not recourse to certiorari, and that to question an order of deprivation if
citizenship by government, the applicant should apply for certiorari.
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.
Kannan & Anor v Menteri Buruh dan Tenaga Rakyat50

Where the court held that the better view of the law is that the court cannot interfere with a
decision by reason of an ouster clause will only be accepted if the decision was reached
according to the law. If the decision is not according to law, the court would invariably interfere
with it. (if the decision is bad, court still will interfere it even though there is an ouster clause)
This case affirmed the courts decision in Omnibus.
Re Soon Hiang51
48
[1968] 2 MLJ 88
49
[1967] 1 MLJ 280
50
[1974] 1 MLJ 90
51
[1969] 1 MLJ 218
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 .
Mak Sik Kwang v Minister of Home Affairs (I)52 and (II))53

The court gave a broader significance to the clause and, consequently restricted the scope of
judicial review of orders of deprivation of citizenship. Certiorari not available for error of law.
Lian Yit Engineering Works Sdn Bhd v Loh Ah Fon54-

HC issued certio a i to uash a I dust ial Cou t s de isio suffe i g f o e o s of la o the
face of the record. The court asserted that it had power to issue certiorari to quash an Industrial
Court aard which, on the face of it, was wrong in law.
Sungai Wangi Estate v UNI55

HC: It is now settled law that notwithstanding the finality clause enacted in section 29(3)(a) of
the Industrial Relations Act 1967, this court has power to issue an order of certiorari to quash the
I dust ial Cou ts de isio hi h o the fa e of it dis loses e o of la
B. The FALL XD *dramatic music*

SEA Firebricks (1980) He e s he it all e a e a k a ds
South East Asia Firebricks Sdn Bhd v Non-Metallic Mineral Products Manufacture Employees
Union56 Privy Council Lord Frazer:
decision of Jeff e La e i Pea l a s ase is o e t. Does ot a k o ledge Lo d De i g s
decision.
>> The difference between jurisdictional error and error of law is maintained and a liberal
interpretation is given to ouster clause.
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.
Enesty Sdn Bhd v Transport Workers Union58 (SC)

J Mohd Az i: Pe haps the ti e ill o e he this Cou t ill de ide hethe Lo d De i gs
decision will continue henceforth.
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
Harpers Trading (M) Sdn Bhd v National Union of Commercial Workers59

Again the Supreme Court had the opportunity to overrule SEA Fire Bricks but chose to follow it
instead.
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.
Hoh Kiang Ngan v Industrial Court Malaysia61

Ag eed ith G i KMK a d eaffi ed the ase. The e e p aised the ase. This ga e G s
judgment in SKMK legitimacy and backing of Apex Court.
Edgar Joseph even stated that SEA is no longer law. Therefore, courts can review decisions of
admin bodies or tribunals that have error of law even though there is an OC.
MPPP v Sg. Gelugor

Agreed with L. Denning in Anisminic. Federal Court (Edgar Joseph Jr) accepted that SEA Fire
Bricks is no longer good and that Courts should be able to review the decisions of admin bodies
even in the existence of ouster clauses.
Sugumar Balakrishnan (COA and FC)

In the Court of Appeal, Gopal Sri Ram went a step further and placed the access to justice under
right to personal liberty. Hence, Parliament cannot make laws that limits that right and ouster
clauses in section 59A of Immigration Acts cannot prevent JR. However, ouster clauses can
prevent JR if the decision was made without any error of law (stated in Anisminic). This approach
is called the rule of harmonious construction reconciliation of statutes with the provisions of
the constitution.
FC: Overruled the case and stated that JR should not be allowed if there is an ouster clause
because parliament inserted it. However, the good thing is that they did not overrule Art 5
ega di g a ess to justi e so it s good la .
Kekatong Sdn Bhd. v Danaharta Urus Sdn Bhd (COA)62
59
[1991] 1 MLJ 417
60
[1995] 2 MLJ 317
61
[1995] 3 MLJ 369
62
[2003] 3 MLJ 1
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
6.6.1 Prerogative Remedies

A. Certiorari & prohibition order
Certiorari - sought for after the administrative body has made the decision in order to quash
that decision.
Prohibition order sought for before the decision is made or when the administrative body
is in the decision-making process.
Both can be issued against the government/statutory body and private bodies that carry out
public duties.
R v Take-Over Panel, Ex Parte Datafin PLC63
If a private body has functions that involve the public, JR can be applied for. (dealing with
public matters)
OSK & Partners Sdn v Tengku Noone Aziz64
63
[1987] 1 QB 815, [1986] 2 All ER 257
64
[1983] 1 MLJ 179
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).
Ganda Oil Industries Sdn Bhd v Kuala Lumpur Commodity Exchange65

Diff f o OK s de isio . C held that KLCE as ot su je t to e tio a i. easo s e e
given:
1) Ministerial control over this body is only in respect of policy matters and not daily
administration and business; and
2) The relation between the parties who are members of the KLSE is contractual.
Received criticism from M.P. Jain:

1st ground:
courts should not differentiate between KLCE and KLSE. The central issue is not the control of
the Minister over the administrative body but whether or not the said body carried out any
public power.
2nd ground:
the reason with regards to contract is not convincing as it is mandatory for all members of
KLCE to sign a deal. As such, there is no contractual element there. A member of KLCE has no
choice and is bound by the terms of it. Therefore, the courts should not have differentiated
the OSK case on any reason [still good law btw]
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
Yeap Hock Seng v Minister for Home Affairs, Malaysia

It is to enforce the civil right of personal liberty and it entitles the detainee the judicial
determination as to whether such detention is void.
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
- 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
6.6.2 Non-Prerogative Remedies

A. Declaration
- It is a lesser remedy than certiorari. It exists as a declaratory relief to denounce decisions
of admin bodies as unlawful.
- Used to declare your right/status
- Doubtul position in law
- Usually only the AG can bring an action or an action can be brought through the AG. But
if cannot, the other remedy is a declaration which is used to:
a) Declare the rights/positions whether in law/equity
b) To declare the illegitimacy of a law (for subsidiary legislation)
c) Resolve a doubtful legal question
- Cannot be used to [for matters that are non-law related]:
a) Discuss matters that are not associated with the law (such as moral, social or
political matters)
b) Free persons that have been illegally detained
- Effect: There is no coercive power (unlike certiorari and mandamus therefore not the
best option to adhere to)
- Source of power: O. 15 r.16 ROC 2012, S 25(2) CJA & Para 1, S 41 of SRA
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

Introduction to Administrative Law and the Rule of Law

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SITI NURLAILA ABDUL GHANI LEB140108

TASHA LIM YI CHIEN LEB140116

CHAPTER 1: INTRODUCTION TO ADMIN LAW (AL)

Development of AL/Why is it needed?

Definition of administrative law

Relationship between admin law and consti law

Administrative Law Constitutional Law

- Both deal with powers and functions of gov

- Both are part of public law.

(instrument of control over exercise of

Focuses on specific aspects of control Focuses on broader aspects of control

** Development of modern administration process has a negative effect on freedom, rights,

CHAPTER 2: RULE OF LAW (R.O.L)

(b) Equality Before the Law

(c) Individual freedom (according to the British constitution)

Droit Administratif (DA)

Di e s a guments (which some are accepted and some are criticised)

1) The French DA system contradicts the ROL concept

Relevance and significance of R.O.L to Administrative Law

1) Both champion the absence of arbitrary powers.

Despite Di e s defi itio of OL, DP a e a fa t of ode life; it is ot o l i possi le to do a a

1) Absence of Arbitrary Powers

a) Di e s i flue e o the de elop e t of Ad i La i E gla d

Ridge v Baldwin1 [1963]

Principle: Established that one must be given R2BH.

[Natural justice: right to be heard, no hearing of case if conflict interest.

Anisminic v Foreign Compensation Commission2

R v Secretary for Foreign Affairs, ex parte World Development Movement3

Ketua Pengarah Kastam v Ho Kwan Seng4

Rohana Ariffin v USM5

Syarikat Kenderaan Melayu Kelantan v Transport Workers Union6

Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan7

The o d life i A as gi e a oad ea i g G

CHAPTER 3: SUBSIDIARY LEGISLATION

Maker? (To whom is the power to pass SL delegated?)

Differences between an act and subsidiary legislation

Sources of Powers to pass SL and Government Gazette (GG)

Factors leading to the growth of subsidiary legislation:

B. Forms of powers to pass subsidiary legislation

1) A General Power to Pass SL

2) A General Power followed by a Specific Power

3) Parent Act only provides for certain specific powers to pass SL

5) Power to (a) amend/ (b) modify provision of a statute

6) Removal of Difficulty Clause

S Kulasingam v Comm. Of Lands, Federal Territory

C. Administrative Directives (not imp)

D. Need for Protection and Control over SL

E. Forms of Control for Subsidiary Legislation/Control Mechanism for SL

(starting from right to left)

E1. Legislative Control

I. Pre-Natal Control By Parliament And Doctrine Of Excessive Delegation Of Power

Eng Keock Cheng v PP 1

egulatio s hatsoe e fo se u i g pu li safet , defe e of the Fede atio a d Pu li O de . Thus,

II. Control through Laying Procedure

IGP v Lee Kim Hoong

Hoffman-La Roche v Secretary of State for Trade and Industry

b) Laying with negative or annulment resolution

Procedure Is merely directory in nature.

c) Laying subject to affirmative resolution

d) Laying in draft subject to annulment

e) Laying in draft subject to affirmative resolution

III. Parliament Scrutiny Committee in UK (PSC) (not that imp)