1.

0 INTRODUCTION
1.1 What is Administrative Law?
● Administrative Law (hereinafter refer to as “AL”)is mainly judge-made by law

● Classified as being the branch of public law which is principally concerned with
relationship between individual and government agencies.

● AL is received and practiced in Malaysia as part of Common Law of England and by

the authorisation of the Court Of Judicature Act 1962 that the High Courts are
empowered to issue certiorari, prohibition, mandamus and habeas corpus.

1.2 Definition of Administrative Law

(1) M.P Jain
● AL deals with.
i. the structure, power & function of the administrative organ
(all kinds of public or administrative authorities)

ii. the limits on the power of administrative authorities

(express in statute & implied by the court)

iii. the methods and procedures followed by them in exercising their

powers and functions.

iv. the control mechanism in the power of administrative authorities

including the remedies available to the person affected by their
action.
(judicial, ombudsman, tribunal)

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 v. the control mechanism aspect is based on the twin propositions.
a. power is conferred by law
b. no power is absolute and uncontrolled

vi. the control is needed because the state involvement in many aspects
everyday life is increasing.

vii. the control and redress aspect is the most important aspect for the
individual

(2) Halsbury’s Laws of Malaysia, Vol 9, para [160.001]

● Administrative Law is understood to mean the law relating to the discharge of
functions of public nature in government and administration. It includes
functions of public authorities and of officers and of tribunals, judicial review of
the exercise of those function, the civil liability and legal protection of those
purporting to exercise them and aspects of the means whereby extra-judicial
redress may be obtainable at instance of persons aggrieved.
● AL is concerned with the exercise and limitation of powers of the executive and
domestic tribunals.
● AL consists of collection of general principles, rules and standards that governs
those authorities in the exercise of their powers.

(3) Wade and Philips in Constitutional Law (1977)

● AL is a branch of Public Law which is concerned with the composition, powers,
duties, rights, and liabilities of various organs of government that are engaged in
administration.
The most accepted view
● Wade is concerned with the nature of power of public authority & manner of their
exercise.

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(4) C. K Davis in Administration Law Text, 2 (1959) – American approach
● “AL is the law concerning the powers and procedures of the administrative
agencies including the law governing judicial review of administrative action”
● An administrative agency is a governmental authority (excluding court &
legislative body).
● Administrative agency can affect the rights of person through ‘adjudication’ by
the administration , but not to ‘discretionary’ administrative function

(5) A.V Dicey in Law of the Constitution, 8th Edn – British approach
● AL is a legal system which
i. determines the legal status and liabilities of all state officials.
ii. defines the rights and liabilities of private individuals in their dealing with
public official
iii. specifies the procedure by which those right and liabilities are enforced.

● Narrow and restrictive definition

● Excludes many administrative authorities, their powers and functions, or their
control by Parliament.
● Dicey’s concerned more on judicial control of public official.

(6) Jennings in The Law and the Constitution – modern British approach
● AL is the law relating to administration. It determines the organization.
powers and duties of administrative authorities.
Jenning’s definition includes administrative power & not so much on
administrative procedure.

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1.3 The Functions of Administrative Law
● To ensure that the government’s power are
i. carried out by the public authorities in accordance with the law (i.e
exercised based on proper legal principles, rules of reason and justice
and not on the fancy of administrative officers)
ii. not misused, abused or exceeded

● The main purpose is to protect the citizen against abuse of power by the public
authorities and to ensure that the government acted according to legal limit of
law.

● It is also to see that public authorities can be compelled to perform their duties
if they make default. eg: The Inland Revenue’s duty to repay tax, the licensing
authority duty to grant licence.

1.4 The relationship between Administrative Law and Constitutional Law

● Close relationship & inter-related
● Both deal with powers and functions of government
● Part of public law
● Constitutional law deals with the structure, powers and functions of the three organs
of government and the rights of individuals under the government.
● Administrative Law regulates the duties and exercise of statutory powers by the
administrative authorities and to give redress to the person affected by the
administration action.

1.5 Growth & Expansion of Administrative Law

● The reason for the growth of AL
i. growth of administrative device, functions & powers
ii. change in philosophy of the role and function of the state
(from laissez faire to social welfare state)

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● Laissez faire denoted
- individualism
- minimum government control over private enterprise
- maximum fee enterprise
- contractual freedom

● The role of government during Laissez faire – limited

- defending the country
- maintaining law and order
- collecting taxes for funding these activities etc.
- not interfere with free enterprises
- not concern with managing and regulating the social and economic life in the
country.

● Effects of laissez faire:

- Uncontrolled contractual freedom resulted in the stronger exploiting the weaker.
- Concentration of wealth in a few hands
- The management exploited labour, slum, child labour, unhealthy and dangerous
conditions of work.
- unhappiness of the majority & state intervention in the socio-economic welfare is
required ( emerged the concept of social welfare state )

● The concept of social welfare state

- state become an active instrument to promote socio-economic welfare of the
people – builds roads, run railway, postal and telephonic services; build houses

● Friedmann in The Rule of Law and The Welfare State

The functions of a modern state are :
i. As protector to defend the country against external or internal attack.

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 ii. As provider to provide social services and minimum welfare to the people to
ensure a minimum standard of living (provisions of pensions, medical assistance,
welfare benefits etc)

iii. As regulator to control various activities of the community ( urban planning,

environmental control and regulation of economic activities of individuals )
iv. As entrepreneur to undertake several public undertakings and enterprises

● Organs of government
i. legislative
ii. executive
iii. judiciary/the courts

● Increased in state activities in all aspects of life means increased work for all these
organs.
● The legislative - to enact more laws to initiate new socio-economic schemes.
● The courts- to interpret new laws and decide many disputes generated by the new
laws.
● The administrative
- to make policies
- to provides leadership to the legislative
- to execute and administer the law
● The executive – to discharge legislative function e.g making subsidiary legislation
● Expansion of administrative powers may lead to misuse of power by the executive
and an individual needs some protection.
● Lord Denning said, the vast power of the administration, if exercised properly, may
lead to the welfare state; but if abused they may lead to administrative despotism and
the totalitarian state.

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1.6 Classification of Functions
There are four(4) classifications of functions:
● Legislative function
● Judicial function
● Executive(Administrative) function
● Pure Administrative (or Ministerial) function

(1) Legislative Functions

● Under the legislative function, the administration lays down general rule of conduct or
policy.
● A function discharge by administrative authority is legislative in nature and it is of
general application.
● An example of legislative function is the making of subsidiary legislation.
● Generally, the courts will not award certiorari to quash legislative order.
● NJ is not applied to administrative authorities exercising legislative function.
● An authority to sub-delegate legislative power will be allowed on the exceptional
circumstances.

(2) Judicial Functions

● The judicial power – the courts
● The judicial power perform by the administration – known as quasi-judicial
● Quasi-judicial is an administrative proceeding with some ‘judicial’ elements.
● Examples of quasi-judicial functions:
- acquiring property for public purpose.
- dismissal or termination of services
- disciplinary action against a professional man
- expulsion of a student on the ground of misconduct
- termination of licence
- control of rent

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 - Industrial Court or Industrial Arbitration Tribunal
- granting Letters of Administration
- deprivation of citizenship under Act 24(2) read article 27
● Natural Justice (NJ) need to be observed by authority acting in judicial and
quasi-judicial functions

(3) Administrative Functions (Executive)

● Functions which are not ‘legislative’ or ‘adjudicatory’
● Example of administrative function
- administration of education, health and transportation services
- internal security
- Withdrawal of work permit/licenses
● Up to 1964. the administrative authority exercising administrative (executive)
functions were not subject to NJ
● Required to apply NJ if there is a ‘legitimate expectation’

(4) Pure Administrative (or Ministerial) Functions

● Examples of pure administrative functions are :
- registration of births and deaths
- regulation for businesses and activities
- grant of licenses
- grant of permission
- political decisions to grant a pardon
- police decision to arrest. to investigate, to raid or to prosecute an officer inspection
- granting or refusing applications for registration of a trade union

● Not allowed to use discretion

● Required to act according to the rules and procedures
● NJ – not applicable
● The court may issue an order of mandamus for non-fulfilment of the functions.

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 Loh Chin v Registrar of Trade Union [1957] MLJ 243
The nature of the act of the Registrar of Trade Unions in granting or refusing
applications for registration of a trade union is ministerial and not judicial.
Under S 10 of the Trade Union Enactment 1940, before the Registrar can register the
trade union, he must be satisfied that the trade union applying for the registration has
complied with the provisions of the enactment and of the regulations made there
under that the objects, rules and constitution of the union do not conflict with any of
such provision and are not unlawful and that such union is not likely to be used for
unlawful purposes.

Similarly under S 14 of the Enactment the Registrar may refuse to register the trade
union if he is not satisfied as aforesaid or if he is of opinion that the union is likely to
be used for unlawful purposes.

No power is either expressly or impliedly given to him by the Enactment to call for
evidence either oral or documentary or to administer the oath; S 12 gives him the
power to call for further information to enable him to a decision.

The ministerial nature of the duties of the Registrar of Trade Unions under the local
Enactment is more accentuated by the reason of the discretion vested in him to refuse
registration if he is of opinion that the union is likely to be used for unlawful purposes.

● R v Registrar of Friendly Societies LR 7 QBD 741, 743

In that case, the Registrar was dealing with his functions under S. 13(2) of the Trade
Unions Act 1871 which provides that:
“ The Registrar upon being satisfied that the union has complied with the
regulations as to registration in force under the Act shall register the union”

The Court held that his duties were ministerial, not judicial.

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3.0 SUBSIDIARY LEGISLATION

3.1 Definition of Subsidiary Legislation (SL)

● Sec 3, the Interpretation Acts 1938 and 1967, Subsidiary legislation is defined as

‘any proclamation, rule, regulation, order, notification, bye-law, or other

instrument made under any Act, Enactment Ordinance or other lawful
authority and having legislative effect. ’

● Sec. 25 Interpretation Acts 1948 and 1967 provides that SL shall be deemed to be
made under the Act under which it has been made.

3.2 The Importance of SL

● Federal Court in S Kulasingam & Anor v Commissioner of Lands, Federal
Territory & Ors [1982] 1 MLJ 204 held that,
“There is nothing to prevent Parliament from delegating power to legislate on minor
and administrative matters and for that very reason we have in addition to statutes
innumerable subordinate or subsidiary legislation having force of law. Without this
subordinate or subsidiary legislation the Government machinery will not be able to
function efficiently”

3.3 Judicial Control of SL under the Doctrine of Ultra Vires

By the doctrine of Ultra Vires, any SL may be declared void under the following
grounds:

(1) Parent Act that delegates the power to make SL is unconstitutional

(PA violated the constitution)
● If the parent act is unconstitutional, any SL made under it will be unconstitutional.
Johnson Tan Han Seng v PP [1977] 2 MLJ 66
Fact:
Parent Act – Emergency ( Essential Powers) Ordinance 1969
SL – Essential (Security Cases) Regulation, 1975

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 Law – making authority delegated to YDA

The validity of the Regulation, 1075 was challenged because the Ordinance 1969 was
alleged as unconstitutional as it has lapsed and ceased to be a law by the efflux ion of
time and changed circumstances. Therefore, it was argued that the regulation made
there under also unconstitutional.

Held: Federal Court (Suffian L.P)

The 1969 proclamation has not been revoked nor annulled by Parliament. The
ordinance has not been revoked nor annulled. Therefore, they are still in force and the
regulations are valid.

(2) The SL is inconsistent with the Constitution

● The parent Act is constitutional but the SL made there under unconstitutional
● The court will invalidate SL if it does not conform with the provisions stated in the
Constitution.
Teh Cheng Poh v PP [1979] 1 MLJ 50
Fact :
Parent Act – Emergency (Essential Powers) Ordinance 1969
SL – Essential (Security Cases) (Amendment) Regulation, 1975
SL made by YDA

The appellant (charged for possession in a security area of a revolver and ammunition)
was tried under the special procedure under the Essential (Security Cases)
(Amendment) Regulations 1975, and found guilty and sentenced to death.

An appeal to the Federal Court was dismissed and the appellant appealed to the Privy
Council.

He challenged the validity of the regulation made by YDA under the emergency
(Essential Powers) Ordinance 1969 as unconstitutional under Act 150(2)

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 Under Art 150(2), the YDA had the power to promulgate ordinances having the force
of law during a Proclamation of Emergency until both houses of Parliament were
sitting. The power would come to an end when Parliament sat. The regulation was
enacted 4 years after Parliament’s first sitting after the Proclamation of Emergency.

Held : Privy Council

The regulation was invalid/void (ultra vires the constitution – unconstitutional) YDA
no longer had any power to make the Regulation having the force of law after
Parliament had sat.

Once Parliament had sat on 20 February 1971 the Yang di-Pertuan Agong did not
have any power to make Essential Regulations having the force of law. They are ultra
vires the Federal Constitution and for that reason void;

● Effects of Tan Cheng Poh v PP

Parliament enacted the Emergency (Essential Powers) Act 1979 replacing
Emergency (Essential Powers) Ordinance 1969

Sec 2 – all the SL made under the Ord was validated under the Act

The Act conferred powers on the YDA to enact what was already done and
with retrospective effect.

The FC in Phang Ching Hock v PP [1980] 2 MLJ 238 upheld the validity of
the Act

(3) The SL violates the parent act (Substantive Ultra Vires)

● This ground is regulated by Sec 23 of the Interpretation Acts 1948 and 1967
● Sec. 23(1) – (the basis for judicial review of SL in Malaysia)

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 Any SL which inconsistent with an Act of Parliament (including and Act
under which the SL is made) shall be void to the extent of inconsistency.
● Sec. 87(d) provides that
... no SL made under any Act of Parliament ... shall be inconsistent
with any Act of Parliament ... and no SL made under a State Enactment
shall be inconsistent with any Act of Parliament ... or Enactment

● SL is substantive ultra vires when the SL goes beyond the scope, extent and
range of authority (substance) given by Parent Act
● SL made outside the limits & scope of the power delegated will be declared as
void i.e Ultra Vires
● The test to determine the validity of SL – McEldoney v Forde (1969) 2 All ER
1039

i.) What was the power delegated?

ii.) What was in fact done?
iii.) Whether SL complies with the description stated in the parent act?

Ghazali v PP (1964) MLJ 156

Fact :
Parent Act – Road Traffic Ordinance 1956
SL – General Directive issued by Minister of Transport

Sec. 118(5), Road Traffic Ordinance 1956, the Licensing Board in exercising
its discretion in issuing a license shall give a preferences to an application
from Malay.

Under Sec 107, the Minister of Transport issued General Directive to the
Board – putting condition to the licences issued to Malays in respect of a taxi
or hire car that only a Malay driver should be employed to drive such a
vehicle.

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 The appellant was charged with breached of the condition attached to his
license that prohibited his taxi to be driven by a person other than Malay and
was convicted and fined.
He appealed on the ground that the Licensing Board in imposing the
condition was acting ultra vires

Held:
The Board acted ultra vires in imposing the said condition, as it had no power
to do so. The Minister’s authority was limited to issuing directives on policy to
be followed in determining applications, not matter arising thereafter.

(4) The doctrine of extended or broad ultra vires

(4.i) SL with Retrospective Effect
● Art (7)1 Malaysian Constitution prohibited criminal law from having
retrospective effect but not civil law
● SL should not have retrospective effect unless expressly allowed by the Parent
Act.
● In the absence of express provision in the Parent Act, a SL with retrospective
effect will not be allowed.
● Sec. 20 Interpretation Acts 1948 and 1967 allows SL to operate
retrospectively (any date – not earlier than the commencement of the Parent
Act). However, penalty should not be imposed in respect of any act done
before the date on which SL was published.
Note
Sec 20 – not applicable where there is express provision.

● AG v Gold Storage (Spore) Pte. Ltd. (1979) 1 MLJ 277

Fact :
19 March 1977 – Minister for Communication made a Port of Singapore,
Authority (Property Tax) Order 1977 under the Port of Singapore Authority Act

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 1964. The Order provides “The Property Tax Act shall apply to all premises of
or vested in the Port of Singapore Authority”

The operative date of the Order was October 28, 1976. The validity of the Order
was challenged on the ground that the Act did not enable an order to be made
with retrospective effect
Held :
The Order was a SL because it had the force of law. The order was valid for the
Act empowers the Minister to make order having retrospective effect.

(4. ii) Exclusion of Courts

● SL cannot exclude jurisdiction of the courts unless it is clearly worded in the
statue.
● SL should not stop (exclude) the citizen from coming to court to settle their
dispute.
Chester v Bateson (1920) 1 KB 829
Fact :
Under the regulation, the property owners are prohibited
- To eject tenants from their houses if they were employed in work connected
with war material.
- to bring this matter to courts without the consent of the minister.
Held :
The regulation that forbade property owner from having access to courts
without the consent of the minister was invalid. The exclusion to the access of
the court can only be inflicted by direct enactment of the legislature itself.

(4.iii) Financial Levy

● A charge of a financial levy cannot be imposed through SL unless the Parent
Act confers power for the purpose.
● Sec 44 – Implied powers in respect of fess and charges.

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 A power to make subsidiary legislation prescribing fee or charges includes
power to provide for –
(a) the imposition (either generally or under specified conditions or in specified
circumstances) of –
(i) specific fees or charges
(ii) maximum or minimum (or maximum and minimum) fees or charges; and
(iii) no fee or charge; and

AG v Wilts United Dairies [1922] K.B. 897

Fact :
A regulation empowered the Food Controller to “make orders, regulation or
giving directions with respect to the production, manufacture, consumption
and distribution of any article.
The Food Controller issued an order that no one should deal in milk without a
license. The appellants were granted a license on the condition that they paid
to the controller a levy per gallon of milk purchase.
Held:
The charge (levy) was invalid because a regulation can only impose a charge if
expressly provided by the Parliament through the Act.

(4.iv) Unreasonableness
● The court can declare SL as invalid on the ground of unreasonable.
● The principle of unreasonableness was stated in Kruse v. Johnson (1989) 2 QB. 91
The bye – laws were unreasonable if there were found to be
- partial and unequal in their operation as between classes
- manifestly unjust
- disclosed bad faith
- involved such oppressive or gratuitous interference with the rights of those subject
(no justification in the minds of reasonable man)

Arlidge v. Islington Corporation [1909] 2K. B. 127

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 Fact :
A bye law was made by the government requiring the landlord of a lodging house to
clean the house three times a year in the month of April, May or June. Penalty was
imposed for breach of the bye-law.
Held :
The bye-law invalid as being unreasonable as it imposed an absolute duty on every
landlord to cause the premises to be clean without regard to the position in which the
landlord might be.

● Kruse v. Johnson (1989) 2 Q. B. 9 1.

Fact :
The Kent Country Council made a bye law under the Local Government Act 1988
prohibiting anyone from playing music or singing in, any place within 50 yards from
dwelling house. The appellant was summoned for offending the bye-law. He persisted
in singing in a public highway within 50 yards of a dwelling house after having seen
required by a police constable to stop. The occupier of a dwelling house proved that
the singing of the appellant was an annoyance. Appellant argued that the bye-law was
unreasonable.
Held :
The bye-law was reasonable because before the accused can be charged there must be
a complaint from the public that the act of the accused is annoying the occupier.

● Air India v. Nergesh Meerza AIR 1981 SC 1829

Fact :
AIR India made a rule to retire any airhostess on her first pregnancy after marriage
Held: The rule was unreasonable, unfair and unequal in its operation

(4.v) Other Grounds

● In McEldoney v. Forde – SL can be declared invalid on the grounds of:
- vagueness
- ambiguity

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 - arbitrariness
- uncertainty and
- bad faith
● These may render a SL void, either as a separate ground of invalidity or as an aspect
of unreasonableness.

(5) Procedural Ultra Vires (Narrow Ultra Vires)

● The parent act may lay down a particular procedure that the administrative body
should follow in making SL
● SL may be held invalid on the ground of Procedural Ultra Vires i.e failed to comply
with the procedures stipulated in the parent act.
● The prescribed procedure is categorised as mandatory or directory.
● SL is ultra vires for non-compliance with the mandatory procedure only. It is not so
if the procedure is only directory.
● The court treat the following procedure as mandatory:
i. consultation with a specified body
Agricultural, Horticultural & Forestry Training Board v Aylesbury Mushroom
Ltd. [1972] 1 All ER 280
The Minister had failed to consult a small group of workers in the mushroom
growers’ industry, as he was required to do by the statute, before setting up a
training board scheme, to which those affect would have to contribute a levy. The
court held that the scheme was invalid as against the mushroom growers as they
had not been consulted. They did not, therefore, have to make a contribution. The
court nonetheless did not invalidate the whole scheme.

● an opportunity to the affected persons to file objection against any proposed

measure.

● pre-publication of draft rules.

Raza Bulan Sugar v Rampur Municipality IR S.C. 895

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 The municipality was required to publish the draft rules imposing tax in a
newspaper published in Hindi. The tax proposal in Hindi text was published
in a newspaper printed inUrdu.
Held:
o the requirement of pre-publication of draft rules was mandatory
o the mode of publication adopted by the municipality was in compliance of
the prescribed manner

The procedure relating to publication of SL in the Gazette

● If the order “shall be made through publication in the Gazette” –
publication is regarded as a pre-condition of ‘making’ and hence
‘mandatory’
● If the regulation “shall be made and published in the Gazette” –
publication follows the ‘making’ of regulation and hence it is only
‘directory’
M Ratnavale v Govt of the Federation of Malaya [1963] MLJ 393

4.0 DISCRETIONARY POWER

4.1 Definition of Discretionary Power
● The power which is exercisable by the administration authority in which they can
choose between alternative courses of action
● The administrative authority vested with the discretionary power has a range of
options and he uses his personal judgement in making his decision (making the
choice)

4.2 Nature of discretionary power

● The legislature confers discretionary power to the administrative authority in the
statute and it is denoted by the world such as:
- “… if it is satisfied…”
- “… if it is of the opinion…”

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● Article 24, Federal Constitution
“...if the Federal Government is satisfied that any citizen has voluntarily
claimed and exercised in a foreign country any rights available to him under
the law of that country, being rights accorded exclusively to its citizens, it may
by order deprive him of his citizenship.”

● Sec 8(1), Internal Security Act

“...if the Minister is satisfied that the detention of any person is necessary with
a view to preventing him from acting in manner prejudicial to the security of
Malaysia, ... he may make a detention order directing that person be detained
for any period not exceeding 2 years.”

● The parliament must have conferred the discretion on the authority (e.g Minister) with
the intention that it should be used to promote the policy and objects of the Act. The
policy and objects of the Act must be determined by construing the statute as a whole
and the construction is always a matter of law for the court.

4.3 Judicial Review over exercise of Discretionary Power.

● The rule of law demands that the should be able to control the exercise of
discretionary power.
● Usually the statutes do not lay down standards to guise the exercise of discretionary
powers and leave the administrators free to exercise the powers according to their
judgement. This creates the danger of administrative arbitrariness and discrimination.
● Broad discretionary power has the possibility of misuse of power or abuse of power.
In order to neutralise this danger, some safeguards need to be exercised.
● Courts do not interfere with discretionary action or decision if the discretion is
exercised properly and according to the law.
● However, the court does not accept the concept of absolute or unfettered discretion.

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 Raja Azlan Shah J in Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri
Lempah Enterprises Sdn Bhd. (1979) I MLJ 135 stated :

“Every legal power must have legal limit, otherwise there is dictatorship.
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 only
defence of the liberty of the subject against departmental aggression”

● The court review the manner in which the decision was made (the decision
making process) through the doctrine of Ultra Vires.

4.4 Ultra Vires Doctrine (UV )

● UV means beyond the powers (the decision maker has exceeded the power given to
him)
● Types of UV
i. Substantive UV
Narrow UV
ii. Procedural UV
iii. Broad or wide UV

(1) Substantive UV (SUV)

SUV means the authority exercising discretionary power lacks substantive power under the

Act to make decision or to take the action i.e the discretionary power was exercised outside

the ambit and scope set by the parent act.

The courts will see whether the discretionary power is subjected to some substantive
standards / restriction / conditions precedent) set by the Act. SUV applies when a
discretionary power is subjected to some substantive standards restriction or some condition

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precedent Action by a public authority, which is outside the statutory power (non-conformity
with standards or restrictions or condition precedent), set by the Act.

Re Tan Boon Liat

Art 151(1)(b), Federal Constitution (before the amendment in 1976) – no person
could be detained for me than 3 months unless the Advisory Boards had made
recommendation within the period.

Held: The detention order confirmed after 3 months, when the Advisory Board failed
to make recommendation within the prescribe 3 months periods was substantive UV .

Francis v Municipal Councillors of KL [1962] MLJ 40

Under Sec 16(5), Municipal Ord. 1948, the power to dismiss the employees was
vested in the President. Therefore, the dismissal of the employee by the Establishment
Committee of the Municipal Council (not the President) amount to wrongful dismissal
i.e the dismissal was UV.

(2) Procedural UV
● Usually the statute lays down certain procedures to govern the exercise of power by
administrative authority.
● The procedural requirement is characterised as mandatory or directory.
● Mandatory procedural requirement must be observed. Failure to do so, the
administrative action or decision is procedural UV & invalid.
● Non-observance of a directory requirement has no effect on the validity of any action
taken.
● The court treated the following procedures as mandatory i.e the requirement that
decision maker :
i. to make an inquiry before taking a decision.
ii. to consult with a specified body before taking a decision
iii. to give a hearing to the affected persons
iv. to record reasons for taking an action

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 v. to take consent of some authority before taking an action.
vi. to take action within prescribed period.

Re Tan Boon Liat

Held: Procedure stated in Art 151(1)(b), Federal Constitution (before the amendment
in 1976) – no person could be detained for more than 3 months unless the Advisory
Boards had made recommendation within the period. The detention order was
quashed because the mandatory procedure under Art 151(1)(b)had not been followed
(the Board failed to make recommendation within 3 months but the detention order
was confirmed by YDA)

Re Roshidi Bin Mohamed [1988] 2 MLJ 193

Held: The court quashed a detention order made by the Magistrate (under Sec 6,
Drugs Dependants (Treatment and Rehabilitation) Act 1983) for failure to comply
with the mandatory provisions of the Act[Sec 6(1), 6(3), 6(4), 6(5)] i.e failure to give
the detainee (arrested by the police on suspicion of being a drug dependant) an
opportunity to make representation. The writ of habeas corpus was issued.

(3) Broad or Extended UV

● Narrow UV is not effective to control broad discretionary power.
● Broad extended UV allows the court to review the exercise of wide discretionary
power.
● Judicial review under broad or extended UV:
i.) The authority abuses its discretionary power
● Mala fides or bad faith
● Improper purpose
● Taking into consideration irrelevant matters
● Not applying relevant consideration.
● Unreasonableness

ii.) The authority fails to exercise its discretion

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 ● acts under dictation
● acts mechanically without applying its mind
● fetters its own discretion through self-imposed policy.

(i) and ii) tend to overlap one another (several grounds merge into one another

(3.1) The authority abuses its discretion

[a] Mala fide / bad faith
● The exercise of discretionary power by the authority should be exercise with
good faith. Any action taken or decision made by the authority should not be
tainted by mala fide i.e dishonest intention or corrupt motive behind a
discretionary act, which leads to abuse of powers.
● Include cases of personal spite, animosity, or malice, fraud, corruption or
dishonesty on the part of the decision making authority.
Examples :
- the motive behind the discretionary act is personal animosity against the person
affected
- the authority concerned or their relatives/friends stand to gain benefit from the
discretionary act
- the authority uses his power to satisfy his personal or political purposes.

An exercise of discretionary power should not be done with bad faith by authority. Any mala
fide exercise of discretionary power by administrative authority is invalid.

Re Tan Sri Raja Khalid bin Raja Harun [1988] I MLJ 182
Held :The applicant’s detention by Inspector General of Police was invalid and unjust
(he was detained on the ground of disturbing public security). His detention was based
on mala fide as there was no evidence to suggest that he is in a position to do
something in the future, which will affect the security of the country. Habeas corpus
was granted because there were elements of mala fide in his detention.

24
 Partap Singh v State of Punjab AIR 1964 SC 72
Held:(Supreme Court)Disciplinary action initiated against an employee (Petitioner, a
civil surgeon) by the government on the ground of accepting a small bribe from
patient was quashed as it felt satisfied that the discretionary power was used with
malicious motive – Chief Minister of Punjab has a grudge against him because of
certain incidents. (the charge of mala fide against the Chief Minister was established)

● The onus of providing mala fide is on the person who makes the allegation i.e to prove
improper or bad motive and not mere suspicion.
● He needs to establish that the action taken by the authority is caused by bad motive
against him.
● The onus providing mala fide is difficult to discharge (Abdoolcader SCJ in PP v Dato
Yap Peng [1987] 2 MLJ 311) and in this case the applicant had failed to prove the
existence of mala fide.

[b] Unlawful or improper purpose

● The exercise of discretionary power should not be taken for improper purposes
i.e a purpose which lies outside the scope and purpose of the statute.
● The purpose of taking such action or making a decision must be in conformity
(corresponded) with the purpose stipulated in the Act.
● Exercising of discretionary power for improper purpose is unlawful.
● If a statute confers power on an authority for one purpose, one authorises and
the other not authorised, the administrative action may be held valid if the
authorised purpose is the primary or dominant purpose.
● The concept of improper purpose is broader than of mala fide

Sydney Municipal Council v Campbell

Facts :
The council was empowered by statue to acquire land for the purpose of making or
extending streets, or for carrying out improvement in or remodelling any portion

25
 of the city. The council decided to acquire the respondent’s land for the purpose of
remodelling and improving the city.
Held : Privy Council
No plan for improvement or remodelling has been decided upon the Council. The land
was not really required for the stated purpose but rather by unauthorised or improper
purpose of enabling the council to obtain the benefit of an expected increase in the
value of the land.

[c] Taking into consideration matters

● Means the consideration lying outside the scope of the statute concerned.
● If the authority takes into account certain irrelevant circumstances or consideration in
exercising its discretionary power, the act or decision can be declared
invalid.
● The principle was formulated in Short v Poole Corporation
“ It may be possible to prove that an act of the public body, though performed
in good faith and without the taint of corruption, was so clearly founded on
irrelevant grounds as to be outside the authority conferred on the body and
therefore inoperative”

Pengarah Tanah dan Galian WP v Sri Lempah

The applicant planned to develop the land by sub-dividing it into several lots, each
under a separate title and to convert a part of this land to commercial use. The
authority imposed a condition that the applicant should surrender his freehold title to
the land to the authority and accept the part of the land on lease for 99 years.

The condition imposed by the executive requiring the appellant to give up the
freehold title in exchange for a 99-year lease was held to be unrelated to the
application and thus has taken irrelevant considerations to the account. It was held
that the condition imposed was therefore invalid.

26
 Maradana Mosque Trustees v Mahmud
The Privy Council quashed a Minister’s order to take over a management of a private
school because it was based on irrelevant considerations. The Minister had to
consider whether the school is being mismanaged at the time of making an order and
not whether it was mismanaged in the past. Since the Minister considered the past
act, so he lacked jurisdiction to declare such order.

Congreve v Secretary for Home Affairs

Held: The court held that Revocation of a TV licence was quashed for the power
was exercised for reasons, which were bad in law. A licence, valid for 12 months,
was revoked prematurely by the Minister simply enable him to raise revenue. The
court ruled, “want of money was no reason for revoking a licence”. Thus, the
government powers are to be used only on proper grounds.

Padfield v Minister of Agriculture (1968) 1 AER 694,

Appellant complained to the Minister and asked that the complaint be referred to a
Committee of Investigation. The Minister declined to do so as he did not consider the
matter suitable for such investigation. The Divisional Court granted an Order of
Mandamus directed the Minister to refer the matter to the Committee of
Investigation. The case went up to the Court of Appeal and the order was set aside.
The matter then went up to the House of Lords(HOL).
Held: The Minister had used his discretion in a manner, in which was not in
accordance with the intention of the statute. The decision was based on bad reason
and extraneous consideration.

[d] Failing to take relevant consideration into account

Robert v Hopwood [1925] AC 578
Failure to consider the cost of living and the interest of the ratepayer was considered
as contrary to the law.

27
 Re Tan Boon Liat
The detention order was quashed as Art. 151(1)(b) of the Federal Constitution was not
taken into consideration when reaching the decision.

[e] Unreasonableness
● Unreasonableness is something so absurd that no reasonable or sensible person could
have come to that decision.
Tameside
HELD: (House of Lords) that two reasonable persons can reasonably come to
opposite conclusions but to be unreasonable an act must be of such a nature that no
reasonable person could possibly entertain such a thing. This effect gives judges with
discretion of deciding what a reasonable man might think.

Prescott v. Birmingham Corporation (1955) 1 CH 210

The corporation was authorized to run transport services and charge such fare. The
corporation decided not to charge any fare from old women over 65 and old man over
70 years. The corporation had exercised the discretion unreasonably.

Roberts v Hopwood
The council had given a power to employ servants and may state the wages as the
council may think fit. The council paid a minimum wage of $4 for every employee
regardless of the nature of the work done by him. Held: The discretionary power
conferred upon the council had to be exercised reasonably. The fixing of salary by the
council without regard to existing labour conditions was not an exercise of that
discretion.

(3.ii) When The Discretionary Power Failed To Be Exercised

[a] Acting under dictation from any person.
● If the decision maker does not consider the matter itself, the action taken is
invalid.

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 ● The principle is found in Simms Motor Unit v Minister of Labour when the
court quashed an order made by the national service officer acting under the
direction of the Minister.
P.Patto v Chief Police Officer Perak
Facts:
Appellant applied to the OCPD for permission for holding a dinner and a lion
dance in public place. Sec 27(2) of the Police Act empowered the OCPD
himself who is the licensing officer to grant or refuse permission. The OCPD
in his case, instead of dealing with the application, he forwarded the
application to the higher authorities. Held: (Supreme Court) that the OCPD’s
refusal was invalid.

Chong Cheong Wah v Sivasubramaniam

Facts :
Under the control of Imported Publication Act 1958, a publication could be
seized if the authorised officer suspected that it contained any prohibited or
prejudicial publication. There was a departmental circular saying that
particular book was prejudicial. The officer did not himself apply his mind but
seized the book in question because of the circular.
Held:The officer acted under the order of his employer is considered not
applying his mind.

[b] The authority act mechanically or without applying its mind.

● It is a principle where an authority neglect or avoid the matters, which the authority
ought to do. Considered in Emperor v Sibnath Banerjee The Privy Council quashed
a detention order issued by the Home Secretary automatically on the
recommendation of the police. The Home Secretary’s personal satisfaction was a
condition precedent to the issue of the order. In such situation, the Home Secretary
did not personally satisfy himself whether such an order was justified or not.

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[c] Fettering Discretion
● When an authority uses a policy to regulate its discretion without taking into account
the different merits of each individual case, the decision can be challenged.
B. Lavender v Minister of Housing
Fact :
The permission to extract minerals from an agricultural holding was refused on the
ground that the Minister of Agricultural objected to the proposed use of the land for
reasons of agriculture.
Held :
The refusal by the Minister of Housing to give permission for the extraction of
minerals due to objection from the Minister of Agriculture was held to be a fettering
of discretion and an improperly delegated power of discretion. The order was quashed
on the following ground.
o The Minister followed an inflexible policy
o The Minister left the making of the decision to the Minister of Agriculture
who had no power to make an effective decision.

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2.0 NATURAL JUSTICE (NJ)
2.1 WHAT IS NJ?
● NJ means :
The natural sense of what is right and wrong.
● a procedural safeguard given to the affected person against undue or improper
exercise of power by a public authority.
● a fair administrative procedure to be followed by the administrative body in
arriving at a right decision.

NJ is confined to the idea of fair hearing procedure. NJ represents the idea that a
person entitled to a hearing, and that the hearing must be a fair hearing.

The objectives of natural justice (the necessity for the right to be heard) are:
● to allow the affected person to give his side of the story and to enable the
decision making authority to determine a matter on a more informed basis.
● to secure justice (i.e to prevent miscarriage of justice)
● to ensure fairness and impartiality through governing the manner of arriving at
the
● decisions by the judicial process.
● to avoid erroneous conclusions.
● to promote confidence in the fairness of administrative process.

If a person or a body exercising judicial or quasi-judicial function fails to observe the

rules of natural justice, there is an error of law rendering an order or a decision of a
decision making authority as ultra vires i.e natural justice has been denied to the
applicant and the authority has acted ultra vires. The decision made will be quashed
by the superior court.

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2.2 WHEN CAN NJ BE CLAIMED
If the right of hearing is specifically conferred by the constitution or statute, the right
of hearing is claimed not as part of NJ but under the constitutional and statutory
provisions.

Examples :

Art 135(2), Federal Constitution

No member of any service specified in paragraphs (b) to (h) of Art. 132(1) shall be
dismissed or reduced in rank without being given a reasonable opportunity of being
heard

● Sec. 6(1) & Sec 6(2) , the Industrial Co-ordination Act

● The Minister may in his discretion revoke a licence of a manufacturer, but before
doing so, the Minister may call upon the manufacturer to show within such period as
may be prescribed due cause why his licence should not be revoked.
● NJ is not to be applied to person or administrative bodies performing a legislative
function.
● NJ is applicable to judicial and quasi-judicial bodies.
(Small Claims Court, Disciplinary Tribunal of University, Club, political parties, PSC,
Registrar of Societies and Companies – Shamsiah Ahmad Sham v PSC (1990);
Surinder Singh Kanda v Govt of Malaysia (1962); Fadzil Mohamad Nor v UTM;
Oxley Travel Service v Lee Kok Lian (1991); Metal Industry v Registrar of Trade
Union (1982)
● Up to the 1960’s,the law was that administrative bodies exercising administrative
function were not subject to NJ

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 ● Today administrative functions are divided into 2 categories by the court:
(i) Pure Administrative functions / Ministerial Functions ( e.g police decision to
arrest, to raid illegal activities, to prosecute an offence; policy and political
decisions to grant political asylum or of pardon ) These pure administrative
functions are not subject to NJ or duty to act fairly
(ii) Administrative / executive functions where there is a legitimate expectation
that the administration will observe the duty to act fairly ( e.g withdrawal of
work permit – JP Berthelsen; withdrawal of licence – Ketua Pengarah Kastam
v Ho Kwan Seng; modification of the terms of a licence – SESCO v Wong Ah
Suan; disciplinary proceeding against public servants ( Surinder Singh Kanda )
or students

● The decision of Ridge v Baldwin (1964) marked the liberal trend in administrative law
with regards to the rule of NJ.

The case of Ridge v Baldwin establishes the principle

a) the decision makers must observe the rules of NJ when they exercise their power in
making the decision which affect the rights of an individual.

b) If the statute is silent as regards procedures to be followed, the duty to observe the
rules of NJ arises by implication from the nature of the power conferred.

In Ridge v Baldwin the duty to observe the rules of NJ can be imposed on

decision-making bodies exercising quasi-judicial functions and administrative functions.

Ridge v Baldwin [1964] A.C. 40.

Facts :
The law allowed the Committee to “dismiss, any constable whom they think negligent in the
discharge of his duty...” Ridge, a Chief Constable of Brighton, had been charged with
conspiracy to obstruct the course of justice but he was acquitted by the court. In respect of
corruption charges, evidence was not adduced. The committee dismissed him after 33 years
without him being afforded a hearing before the committee. He challenged the order of

33
dismissal on the ground that the committee failed to observe NJ where he was not allowed to
know the full case against him.
Held : ( House of Lords )
The termination was ultra vires on the ground that the applicant’s right to be heard had
not been honoured. His dismissal was declared to be null and void. The courts can imply NJ
even if NJ is not expressly stated in the statute. An officer cannot be lawfully dismissed
without first telling him what is alleged against him and hearing his defence.

The landmark case in the development of the principle of NJ in Malaysia is Ketua Pengarah
Kastam v Ho Kwan Seng

Ketua Pengarah Kastam v Ho Kwan Seng [1977} MLJ 152

Fact :
Respondent granted permission, under the Customs Act 1967, to work as a forwarding agent.
He was convicted of two offences and fined. The registration of his forwarding agency was
cancelled because of his conviction.
Held: Federal Court
NJ was applicable in the matter of cancellation of the agency even though the statute in the
question made no provision for the same.

“ The rule of NJ that no man may be condemned unheard should apply to every case
where an individual is adversely affected by an administrative action, no matter
whether it is labelled ‘judicial’, ‘quasi judicial’, or ‘administrative’, or whether or not
the enabling statute makes provision for the hearing.”

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2.3 THE TWIN PRINCIPLES OF NJ
2.3.1 The rule of fair hearing to both sides or Audi Alteram Partem

● A Party whose rights, property, or legitimate expectations may be affected by an

administrative adjudication has the right to be heard; Audi Alteram Partem

● The rule aims at providing the party with an opportunity for a fair hearing before an
administrative decision is reached.

● There are common areas where the rules of Fair Hearing are relevant:
- Licensing cases: withdrawal or revocation of existing benefit; refusal to grant a
licence.
- Employment : dismissal
- Membership of professional bodies: termination of membership
- Students : dismissal on disciplinary matters; exclusion from academia program.
- Members of public services: dismissal and rank reduction

2.3.2 The Components of Right to a Fair Hearing

(1) Notice or Right to Know the Charge
● Notice is a vital requirement of the right of hearing.
● It must given before the proceeding
● The means of serving notice
- Personal service
- Postal service – posting notice to the party’s last known address.
- Substituted service
- Members of public services: dismissal and rank reduction.
● A notice must be issued by a person authorized to carry out the action contemplated –
Urban Housing Co Ltd v City of Oxford [1940] Ch &0.
● Prof de Smith concluded that there are 3 purposes in giving of notice :
o to allow a party to make representations on his own behalf; and
o to allow a party to appear at any possible hearing of inquiry is held
o to enable a party to effectively prepare his case and to answer the case against
him.
● To satisfy these purpose, the notice should include:

35
 - a statement of the time, place and nature of the hearing
- the statutory or other authority under which the hearing is held
- the legal and factual issues which will be discussed

The notice of proceeding should be formulated with sufficient precision to inform the affected
person as to what he is required to do. (the grounds on which action is to be taken should be
mentioned clearly.

● Ideally a notice should provide a party a sufficient indications of the issues as will
enable him to prepare a case.
● Notice must also set the extend necessary to enable a party to effectively prepare his
case i.e the notice should describe the offence briefly.
● Adequate notice should state clearly the grounds on which action is to be taken i.e
nature of the accusations @ particulars of offence alleged @ the charge
● The administrative authority cannot specify one charge and then proceed under
another or proceed to hear other charges of which a party has receive no notice, unless
an adjournment is granted to enable the party to prepare his defence.
● A charge should not be worded so that a party is found guilty no matter which way he
pleads –the charge is a ‘trap charge’ – Sloan v General Medical Council [1970] 1
WLJ 1130
● The grounds which action to be taken must be clear, specific and unambiguous. The
grounds fo the proceedings must be communicated in writing.
● A person must know the charges that he had to answer and he should be informed of
the nature and content of material which is he being considered against him ( Dixon v
Commonwealth, [1981] 3 ALR 289 )
● The particulars set out in the notice cannot be vague or too generalized. It must be
sufficiently explicit as to enable him to understand the case against him. ( Perkayuan
OKS (No 2) Sdn Bhd v Kelantan SEDC [1955] 1 MLJ 401 )
● If an action is taken on several grounds against the affected person, all the grounds
should be informed to him. Maradana Mosque Trustees v Badi-ud-din Mahmud

36
Maradana Mosque Trustees v Badi-ud-din Mahmud
Facts :
The government took over the school on 2 grounds (failed to pay salaries of teachers and
unable to manage the school), but the manager was asked to explain only one ground (failure
to pay salaries). The managers had no notice of other grounds, which influenced
government’s decision.

Held : (Privy Council) The decision to take over the school was quashed – the managers
were not given notice of one ground i.e not adequate notice. The Minister was acting in
quasi-judicial capacity and was bound to observe the rule of NJ.

Othman Bin Ali v Telekom Malaysia Berhad [2004] 3 AMR 227

The appellant was dismissed on the ground that he had been absent from work but the court
decided it was not the real reason for his dismissal. He was dismissed for something he was
not “charged” with in the first place (failure to improve himself after he had been given the
opportunity by his employer) and in respect of which he was not given an opportunity to give
explanation. The court decided that there was a breach of NJ.

● An inadequate notice is not a proper notice and the proceeding based on such a notice
would be void / invalid – infringers NJ

Chong Kok Lim & Ors v Yong Su Hian [1977] 2 MLJ

The Federal Court quashed the decision (the association’s member was expelled) because no
notice at all was given to the respondent of the allegations against him or the resolution to
expel him.

(2) Sufficiency of time and Adjournment

● Notice must be adequate in time
An adequate notice must give a sufficient time and reasonable opportunity to the affected
person to prepare his defence. What is “adequate” depends on the facts of each case. If a
statute has laid down a time limit then the statutory time limit applies.

● The need for time to prepare a defence is illustrated in the cases below:

37
R v Thames Magistrate Court : Ex parte Polemis [1974] 1 WLJ 1371
Fact :
A Greek master of a vessel was served at 10.30 am with a summons for discharging oil in
contravention of the law. The hearing was set at 2.00 pm the same day, adjournment was
granted until 4.00 pm and further adjournment was refused. He was fined £5000. Later
certiorari was granted by the court.

Held : Lord Widgery CJ

The mere allocation of court time was no value if the party was not able to present his
case in the fullest sense. Natural justice was violated because the vessel master was not
given an opportunity to take oil samples, to look for witnesses, or to prepare his
supporting evidence even though adjournment was granted.

Re Liverpool Taxi Owners Association [1972] 1 All ER 589

A letter was sent to the association to show cause by return of post against the issue of
fresh taxi licences. The letter was received by the secretary of the association on the
closing date to make objection. The notice was held to be ineffective.

Phang Moh Shin v Commissioner of Police [1967] M.L.J. 186

Fact:
Plaintiff challenged his dismissal from the Police Force for breach of NJ. He was
informed of the charge of the first time just before the hearing. A copy of the charge was
never given to him. The postponement requested by the plaintiff to prepare his defence
was not granted.

Held :
The court quashed the proceedings i.e the dismissal was unlawful – insufficient notice of
the charge against him – no opportunity to defend himself.

● In an oral hearing, adjournment requested by the affected person must be allowed to

enable him & his witness to appear before the decision-making authority. An

38
 adjournment is one of the most obvious means to avoid a party being prejudiced
during the course of a hearing.

A refusal to give an adjournment may amount to a denial of a opportunity to be heard i.e a

denial of NJ (de Smith, SA, Judicial Review of Administrative Action)

A refusal to adjourn a hearing to date a more convenient to the party if that party wish to
attend but is unable, for certain reason, to appear upon the scheduled hearing date, is a
breach of NJ.

Priddle v Fisher and Sons [1968] 1 WLR 1478

Priddle can be dismissed from his employment and applied to an industrial tribunal for a
redundancy payment. The tribunal knew that Priddle wished to attend the hearing but 5
minute after hearing had commenced it received a telephone call that the trade union
representative who was to appear for Priddle was too ill to attend and Priddle was unable to
come due to a snow fall. The tribunal continued the hearing and the application was
dismissed.

Held : Lord Parker CJ

The tribunal was acting wrongly in law, if, knowing that the appellant has all long intended to
attend and give evidence in support of his claim, and being satisfied that he was unable to
attend. Before deciding to continue, the tribunal should be satisfied that the party was inviting
them to continue in his absence.

Other cases on adjournment: In re M (An Infant) [1968] 1 WLR 1897; Rose v Humbles
[1972] 1 WLR 591

Phang Moh Shin v Comm. of Police [1967] 2 MLJ 186

Adjournment was requested after the charge was read to him & at the end of the prosecution
evidence – not granted. He was not ask to make his defence to the charge or given an

39
opportunity to make comments on the evidence against him. The court decided that there was
a denial of NJ in this particular case.

(3) Right to Oral Hearing and Written Representation.

● Forms of hearing
- oral hearing
- written representation
- consultation
- interview
- dialogues

● Whether hearing should be oral or written depends on the situations and the statute
in question i.e The Statutory Bodies (Discipline & Surcharge) Act 2000 (Act 605)
Regulation 37(2) – the committee has been given discretion to allow the officer to be
present in persons or to require him make written submissions. Regulations 37(1)(b),
37(3), 37(5) – the right to an oral hearing is to be given to the officer

● The affected person must make use of the opportunity afforded to him. If he refuses to
be present or to make representations, he cannot complaint later that NJ was breached
– AG v Lee Keng Kee.
● Oral hearing is not regarded as compulsory part of NJ
● Oral hearing is too slow and costly
Local Government Board v Arlidge [1915] A.C. 120
Held : (HoL)The Board was not bound to conduct the hearing orally.

Ketua Pengarah Kastam v Ho Kwan Seng

Held : (FC)Representation in writing met the test of fair hearing and it was not
necessarily an oral hearing. An oral hearing in every case would result in the breakdown
of the administration because such a hearing is too slow, too technical and too costly.

40
 Najar Singh v Government of Malaysia
Facts : A police officer challenged his dismissal on the ground that he was entitled to an
oral hearing, which had not been given to him.

Federal Court: Hearing does not necessarily mean an oral hearing. He never demanded
an oral hearing. Had he demanded and not been given, he would have a stronger case

Privy Council – Dismissed the appeal. No denial of NJ in the absence of oral hearing to
him. He was given an opportunity to make an explanation in writing.

● An oral hearing could be claimed as part of NJ under the following circumstances:

i. complex and technical legal questions involved
ii. complicated questions of fact involved.

Travancore Rayons v Union of India AIR 1971 SC 862

The issue to be decided by the court in this case is whether the product of the company

was subject to an exercise duty. The company argued that the product was not dutiable.

The Government of India rejected the company’s contention without giving it an oral

hearing. The court held that where the cases are complex and difficult questions are

raised.

iii. The seriousness of charge – will affect the reputation & livelihood

Pett v Greyhound Racing Association

Lord Denning held that the inquiry initiated by the association into the conduct of the
appellant (a licensed greyhound trainer was accused of administering drugs to a racing
dog) was not in accordance with NJ. It should be done orally because he was facing a
serious charge affecting his reputation and livelihood. In such a case, fairness may require
an oral hearing.

(4) Reasonable Opportunity of Being Heard

Reasonable opportunity of being heard includes the following elements :

41
(i) Duty of the Adjudicating Authority to disclose evidences or materials to be used against
the affected person (Right of the affected person to obtain evidence / Access to
documentation)
● All evidence relied upon by the public authority must be disclosed to the affected
person i.e all incriminating evidence available to the committee must be made
available to the affected person.
● The affected person must know what evidence, has been given and what statements
have been made affecting him.
● Under the principle of NJ, all evidence, written or oral, that implicates the affected
person must be made known to him automatically.
● Purpose – give him an opportunity to comment, criticise, explain or rebut the matter
i.e to defend himself.
● Exceptions to the rule requiring disclosure of evidence :the doctrine of ‘public
interest privilege’ Materials, the disclosure of which would be detrimental to the
public interest may be withheld from the accuse eg. In some drug trafficking or other
serious wrongs, the name of the informers should not be disclosed or a document is
protected under the Official Secret Acts or has been declared by the authority to be
‘sulit or ‘terhad’
● The adjudicator must not take into considerations evidence not raised in the hearing or
evidence which the affected person not allowed to rebut

Phang Moh Shin v Comm. of Police [1967] 2 MLJ 186

Facts : The inquiry officers was having the files (services sheet, personal record, investigation
paper & papers relating his conduct) --- never disclosed to PMS during the inquiry.
Held : There was a breach of NJ. The dismissal order was quashed because he was not given
an opportunity to explain the contents of the documents.

Surinder Singh Kanda v The Govt. of the Federation of Malaya

Facts :
A copy of the report of the Board of Inquiry, (contained grave allegations against Kanda),

42
was given to the adjudicating officer by the Commissioner of Police but not to Kanda. It was
this report that caused the Commissioner to institute of disciplinary proceeding against Kanda
and to appoint to a person to enquire into Kanda’s conduct and to report to him. He had no
opportunity to correct or contradict the report

Held:

Kanda’s dismissal was void – a reasonable opportunity of being heard was not given to him.
There was a breach of NJ because the adjudicating officer was given the report containing
allegations against SSK without his knowledge.

(iii) The administrative authority should not take into account the past conduct or
records of the affected person unless he was informed about the matters

In Raja Abdul Malek v S/U Suruhanjaya Pasukan Polis [1995] 1 MLJ 311. The court
quashed the dismissal order because the disciplinary authority took into account some matter
outside the charge without informing him. He was not given an opportunity or to rebut or give
comment on the matters.

Shamsiah Ahmad Sham v PSC [1990] 3 MLJ 364

S was dismissed for negligence. The disciplinary authority took into account her past record
and she was not asked to explain. The Supreme Court squashed the dismissal and held that
She should have been given an opportunity of stating her case regarding her past conduct
because the dismissal of a public servant was a serious matter.

(iv) Right of the affected person to cross-examine witnesses & to rebut the case

Sir Rupert Cross on Evidence stated that the object of cross-examination is two-fold:
o to elicit information concerning facts in issue or relevant to the issue
o to cast doubt upon accuracy of the evidence-in-chief given against the party
seeking cross-examination.

43
 ● Cross-examination can be used as means of securing information.
● The right to cross-examine witness should be conferred where appropriate as a
component
● of the right to defend oneself.
● Cross-examination need to be allowed if its denial in all circumstances of the case
would
render the decision an unfair one.
● Phang Moh Shin v Comm. of Police [1967] 2 MLJ 186
PMS was not given an opportunity to cross-examine all prosecution witness and it was
amount to denial of NJ.

(v) Right of the affected person to be represented by a legal counsel (lawyer)

● An advocate is defined in s. 3 of the Interpretation Acts 1948 and 1967 as a person
who is entitled to practice as an advocate or as solicitor under the law in force in any
part of Malaysia.
● The words “counsel”’ “advocate” and “legal practitioner” are used interchangeably.
● General rule – right to be represented by counsel cannot be claimed under the
principle of NJ
Enderby Town Football Club v The Football Association [1971] 1 All ER 215
The Court held that the Right to counsel is not an absolute right to the affected person.
Court’s discretion whether to allow a lawyer to appear before the tribunal

● Doresamy v PSC [1971] 2 MLJ 127

The court held that the right to counsel can be restricted either by express words in
statute or by implication.
● Exceptions to general rule – right to legal representation will be part of NJ if :
- expressly stated in the law
- complicated question of law and fact arise
- evidence is elaborate
- the affected person is not in a position to represent himself
- the affected person is facing serious charges

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 ● Pett v Greyhound Racing Association [1968]
The court held that NJ required that a lawyer should represent the plaintiff as he was
facing a serious charge concerning his reputation and livelihood.

● Federal Hotel Sdn Bhd v National Union of Hotel, Bar and Restaurant Workers
[1983] 1 MLJ175
The Federal Court characterised it as “a gross violation of fundamental principles of NJ
when the Industrial Court refuse permission to the appellant’s counsel to act on his
behalf and appear and address the court.

(vi) Duty of adjudicator to give reasons for his decision

● There is no general duty on the part of the adjudicator (administrative authorities) to
provide reasons for his decision.
● Exceptions where a court may require the giving of reasons as matter of fairness and
openness.
- where the duty to provide reason is imposed by law
- where personal liberty is involved
- where the absence of reasons can frustrate the plaintiff’s appeal rights
- where ‘legitimate expectation’ may give rise to the need for reasons

● Pemungut Hasil Tanah, Daerah Barat Daya, PP v Kam Gin Paik [1983] 2 MLJ 392
Federal Court held that the land Collector need not give reasons for compensation paid
to the landowner whose land has been acquired by the government.
● Rohana bt Ariffin v USM [1989] 1 MLJ 487
High Court held that the administrator must give reason for their decision if they are
exercising quasi-judicial function. A reasoned decision can be an additional constituent
of the concept of fairness. Neither the disciplinary authority nor the University Council
gave reasons for their decision and the applicants are entitled to succeed on this ground.

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2.3.3 Rule against Bias or Nemo Judex in Causa Sua
(1) Introduction
● Freedom from bias is one of the 2 major limbs of rules of NJ
● It is a NJ’s requirement that the opportunity to be heard includes the opportunity to be
heard by an independent and impartial decision maker / adjudicator
● The rules against bias requires that the adjudicator / decision maker should :
i. be impartial and neutral in fact between the parties
ii. apply his mind objectively
iii. be free bias
● The justifications for the rule against bias:
i. impartially is one of the characteristics of a good administration
(Frank Report at para 23 )
ii. the public confidence in the administrative process can only be committed
when the person entrusted with the responsibility making a decision
are not motivated by any desire to deal with the party.

● Types of bias
i. pecuniary / financial bias
ii. personal bias
iii. policy bias

(2) Bias due to pecuniary / financial interest (Pecuniary / Financial bias)

● Probably the best-known test for bias was formulated in R v Susexx JJ ex p. McCarthy
[1924] 1 KB 256. Taking the view that a reasonable suspicion of bias was enough to
amount to breach of the rule, Lord Hewart CJ said:
o ‘. . . it is not merely of some importance but is of fundamental importance
that justice should not only be done, but should manifestly and undoubtedly
be seen to be done.’
o

46
However from time to time the courts have taken a somewhat more relaxed view, preferring
to say that the rule is breached only when there is a real likelihood of bias. For example, in R
v Camborne JJ ex.p. Pearce [1954] 2 All ER 850.
● Financial bias occurs where the decision maker has a direct financial interest in the
subject matter and the outcome of the proceeding.
● The effect of financial interest is that the adjudicator is disqualified from acting as an
adjudicator. In order to disqualify the party from hearing the case, it must be shown
that:
- the decision maker stand to gain or lose personality as a result of his decision
- the person interested in the outcome of the decision maker’s brother, cousin,
wife or son (Metropolitant Properties Co Ltd v Lannon [1969] 1 QB 577 )

● In the Victorian era, the courts strove to establish the principle that a decision-maker
with a direct pecuniary interest in a decision will always be treated as being biased.

The most famous Victorian case in this area is Dimes v Grand Junction Canal Co
(1852) 10 ER 301. The most parties were involved in a long series of cases between
1831 and 1853. On three occasions the Lord Chancellor, Lord Cottenham, was on the
bench. Dimes subsequently discovered that Lord Cottenham held shares in the
company.
The House of Lords held that this was a breach of natural justice, even though no one
would seriously think that the Lord’s Chancellor’s judgement had been affected: the
appearance of bias was enough.
● Similarly, in R v Rand (1866) LR 1 QB 230, Blackburn J, said, obiter:
‘There is no doubt that any direct pecuniary interest, however small . . . does
disqualify a person from acting as a judge in the matter . . . ‘

● The same point was again made in R v Gaisford [1892] 1 QB 381, but this time it was
part of the ratio. AL Smith J said: ‘ . . . the fact that a man has even the slightest
pecuniary interest operates to disqualify him from adjudicating upon a case . . .’

47
● Indeed, it seems that the courts will still apply the same principle. In the Camborne
case, (above), Slade J said: ‘ It is of course clear that any direct pecuniary or
proprietary interest in the subject-matter of the proceeding, however small,
operates an automatic disqualification. In such a case, the law assumes bias ‘
● Therefore, the affected person / aggrieved party need not go on to prove a real
likelihood of bias. Nor need one prove that the decision was influenced in any way by
the interest.

● Dimes v Grand Junction Canal [1852] 3 HLC 759

Fact:
A company filed a case against landowner. The Lord Chancellor, a shareholder of a
company, (he held shares worth several thousand pounds) gave judgement in favour of
the canal company.
Held: (HOL)
The decision was set aside (quashed)because of Lord Chancellor’s financial interest in
the company.

● In R v Bow Street Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [2000] AC

119
Where an adjudicator has a financial interest in the outcome of the proceeding, however
small, the decision reached could not stand, and it is unnecessary to determine whether
there is a reasonable suspicion or real likelihood of bias. Therefore, a financial bias
would disqualify an adjudicator and it is not necessary to determine whether there is a
real responsibility, or a real danger, of bias.
Facts:
Extradition of the former Chilean dictator for crimes against humanity and Lord
Hoffman who sat in the case in HOL was a member and the chairman of Amnesty
International Charity Ltd (AICL), a body that carried out the activities of Amnesty
International (AI).

48
 Held : Lord Browne Wilkinson
“...although the cases have all dealt with automatic disqualification on the
ground of pecuniary interest, there is no good reason in principle for so limiting
automatic disqualification. If Lord Hoffman had been a member of AI he would have be
automatically disqualified because of his non-pecuniary interest in establishing that
Senator Pinochet was not entitled to immunity.”

● In an Indian case, the chairman of an investigating committee was disqualified because

he had receive from Air India, free passage from himself and his wife and free
hospitality during his stay in New York, and Air India was one of the parties in the
proceedings. (See: OP Malhotra and KR Malhotra, The Law of Industrial Disputes
(1981), Tripathi, Bombay at p 1060 )

(3) Bias due to personal interest (Personal bias)

● Personal interest is the tendency of the adjudicator in favour of or against one of the
parties to the proceedings before him.
● Whenever a decision maker becomes personally involved with one of the parties there
arises the suspicion that a determination may not be reached exclusively on the merits
the case as discussed at the hearing.
This personal or non-pecuniary bias may operate in many ways;

● family or personal relationship, friendship of the adjudicator with any of the

parties to the proceedings

● the adjudicator has business dealing in the matter

● Personal hostility or animosity between the decision maker and a party or his
counsel may create an impression that justice is not seen to be done.

● Effect of personal bias – the adjudicator is disqualified from adjudicating the case
where there is a real likelihood that a hearing will not be fair (de Smith at 232 – 437)

49
 ● AK Kraipak v Union of India AIR 1470 SC 150
Fact :
A Selection Board was formed to select employee of state service to the Indian Forest
Service. The Acting Chief Conservator of Forest was one of the candidates and he was
a member of the Selection Board.
Held :
The appointment of Commissioner to inquire the merit of the scheme could result in
suspicion that justice might not be done. The order was quashed.

2.4 EFFECTS OF BREACH OF NJ

● When a decision maker failed to observe NJ in making an order, the order will be
treated as a VOID or VOIDABLE ORDER.
● A voidable order – the order is valid at its inception and remains valid until set aside by
the court Durayappah v Fernando – the Minister’s order was attacked for denial of NJ
and was voidable and not a nullity
● A void order – the order is null and void ab initio
Ridge v Baldwin – HOL held that the order of the watch committee dismissing the
Chief Constable was null and void.

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5.0 REMEDIES IN ADMINISTRATIVE LAW
5.1 Introduction
● Types of remedies
i. Public law (prerogative) remedies
● Habeas Corpus ( ad subjiciendum)
● Mandamus
● Certiorari
● Prohibition
● Quo warranto

ii. Private law remedies

● Declaration
● Injunction

5.2 Habeas Corpus (HC)

(1) Definition of HC
● HC is an order issued by the court to release a person who has been detained
unlawfully or without any legal justification
● Right to HC is guaranteed by Federal Constitution – Art 5
● Power of High Court to issue HC is under:
i. the Court of Judicature Act 1964 (Revised 1972) – Sec 25 (2) and
ii. also the Criminal Procedure Code Revised 1999 – Sec 365

(2) Application for HC

● An application for the habeas corpus may be made by the prisoner (detainee) himself
or by someone else on his behalf.

(3) Purpose of HC
● Used to secure a release of a person, detained unlawfully or without just cause.
● Court shall quash an illegal detention of a person by issuing HC order.

51
Unlawful arrest
Where a person is unlawfully arrested, HC is granted
● Ooi Ah Phua v Officer in Charge, Criminal Investigation, Kedah [1975] 2 MLJ 198
Ooi’s application for HC was rejected by the court because his detention was lawful.
(He was detained on reasonable suspicion of his involvement in armed robbery. By the
time he filed his application for HC, he was detained by an order of a magistrate)
● Re Datuk James Wong Kim Ming [1976] 2 MLJ 245
The court issued HC setting free the detainee because the order of detention was
served while he was in West Msia, but the law relating to his detention applied only in
Sarawak. The detention order was invalid and his detention was unlawful. HC granted.

Repetition of hearing(res judicata)

Where the applicant is rearrested on the same charge where he is found not guilty HC will be
granted. Abdul Hamid bin Jamal v Public Prosecutor[1934] MLJ 46. The applicant was
detained under the Extradition Enactment. Because of insufficient evidence he was discharged
but then rearrested on the same charge. The court held that it was wrong to reopen the same
issue. A person cannot be retried again for the same offence. HC was issued.

Bail
When a person is on bail he has permission from the Court to be out of jail till his trial is
heard or pending trial. In Re Onkar Shria[1970] 1 MLJ 28, the Singaporean Court held that a
person on bail after his arrest is not entitled to a writ of habeas corpus because he is not under
unlawful arrest. In Sejahratul Dursina v Kerajaan Malaysia & Ors [2006] 1 CLJ 59 HC not
granted for an applicant held under restricted order pursuant to ISA.

Delayed/continued detention
MINISTER OF HOME AFFAIRS v CHU CHOON YONG [1977] 2 MLJ
20, A person was being kept in detention under a Banishment Act 1959, for more than 6
years awaiting banishment from Malaysia. It was clear that no country was willing to accept
him. The question, therefore, was whether, in the circumstances of the case, his continued

52
detention could be regarded as lawful. The High Court accepted his application for habeas
corpus ruling that his detention became unlawful because of unlawful delay in his banishing
him. But, on appeal, the Federal Court reversed the High Court. Instead of going into the
question of validity of continued detention even when the purpose for which it was initially
made was frustrated, the court looked at the question from a different angle; the order of
detention was valid when it was made; so, the order remained valid until revoked by the
concerned authority itself

In LUI AH YONG v SUPERINTENDENT OF PRISONS, PENANG [1977]

2 MLJ 226,

A person under an order of removal from Malaysia was being kept in prison for several years
under Section 34(1). The question was now whether his continued detention for eight years
could be regarded as valid? The High Court held that the detention had become invalid. In the
instance case, the purpose of detention was frustrated as no country was willing to accept the
detainee and so his continued detention became unlawful.

However in ANDREW v SUPERINTENDENT OF PUDU PRISON, KUALA LUMPUR

[1976] 2 MLJ 156, the Federal Court ruled that as the detaining authority had power to detain
the appellant, and had complied with the law, the detention remained valid.

Preventive Detention
Sometimes a person can be detained without a hearing/trial. Whether HC is granted, is
dependable on the operative part of the law which a person has been detained.

In the case of RE TAN SRI RAJA KHALID BIN RAJA HARUN [1988] 1
MLJ 182, The High Court has recently ordered release of a former director of a bank who
was arrested under S 73(1) of the Internal Security Act and holding his detention as not
justified and wrongful. He had been detained in connection with approval of certain loans
affidavit of the police officer that there was no evidence that the applicant had acted in any

53
manner prejudicial to in security of Malaysia which alone could justify his detention under
the ISA. On appeal, the Supreme Court sustained the High Court order.

(4) HC is granted if the authority detained a person without applying the procedure by
law.
(i.) Procedure under Act 5(3), Federal Constitution – the detainee was not informed of
the ground of arrest “as soon as may be”
● Yit Hoon Kit [1988] 2 MLJ 638 2 MLJ 638
Applicant was arrested on 26/12/1985 but was informed of the ground oh his arrest on
21/2/1986 when a detention order until the Emergency Ordinance was served oh him
(57 days)
Held:
There was an unreasonable delay and non-compliance with Art 5(3). His arrest
became illegal and the detention order served on him was invalid. HC was ordered.

(ii.) Mandatory procedure for detention of a person under Sec 4(1), Emergency
(Public Order & Prevention of Crime) Ordinance.

● Sukumaran [1995] 2 MLJ 247

HC was granted because the detention order was signed by the Deputy Minister and
not by the Minister of Home Affairs as required by law.

(iii.) Detention order made under Restricted Residence Enactment

● Lee Weng Kin v Menteri Hal Ehwal Dalam Negeri Malaysia [1991] 2 MLJ 472
An order of restricted residence was declared null and void as the copy of the order
served on the applicant was unsigned by the Minister and merely the rubber stamp of
his name.

(5.3) Mandamus
(1) Definition of Mandamus

54
 ● An order issued under Sec 44, Specific Relief Act 1950 by the High Court requiring
the public authority to perform a public duty.

(2) Purpose of Mandamus

● To compel public authorities to exercise the power given to them by the law within a
reasonable time.
● To keep the public authority and officers exercising public functions within the scope
of their jurisdiction.

(3) Nature of Mandamus

● May be used in combination with other remedy, commonly certiorari.
● The decision of the public authority can be quashed by certiorari and a fresh decision
will be obtained by mandamus.
● Mandamus is a discretionary remedy.
● Application for mandamus must be with the consent of the High Court.
● Sec 2(a), Public Authorities Act 1948 (Revised 1978) – 3 years for bringing an action
for mandamus against any public authority.

(4) Conditions to be fulfilled before mandamus is issued –

Specific Relief Act 1950 (Revised 1978) – Sec44. Power to order public servants and
others to do certain specific acts.

(5) Restriction on issuing mandamus

● Sec 44(2) Specific Relief Act 1950 – Mandamus will not be issued against :
i. YDA
ii. Government servant merely to enforce the satisfaction of a claim upon that
government
iii. Excluded by any law.

(6) Mandamus will not be granted if an alternative remedy is available.

● Semantan Estate Sdn Bhd. [1987] 2 MLJ 345

55
 The Collector of Land Revenue made an award for land acquired by the government.
The award was lower than demanded. The appellant had a right to appeal against the
award. After the lapse of the right of appeal, appellant seek for mandamus. The
Supreme Court refused to grant mandamus because the alternative remedy is
available.

(7) Mandamus against the government

● In Malaysia, mandamus cannot be issued to the government.
A Chandera Segaran v PM of the Federation of Malaya [1958] MLJ 278. It was
decided that no one has a right to pension and mandamus cannot be issued directing
the government to give pension to the applicant.

(8) Mandamus issued to enforce a mandatory legal duty against a public official.
● Khoo Siew Bee v Ketua Polis KL [1979] 2 MLJ 49
High Court directed the Ketua Polis KL to supply the applicant (accused) a certified
copy of his cautioned statement, as it was a public document in which the applicant
was interested.

5.4 Certiorari
(1) Definition of certiorari
● Certiorari is a remedy available to quash a determination/decision already made.

(2) Function of Certiorari

● Certiorari can be used to quash the discretionary decisions of Minister and
administrative authorities.
● Certiorari can be issued to any body/authority whether quasi judicial or administrative,
which has legal authority to determine the rights of the people.

(3) Natures of Certiorari

● Certiorari is a discretionary remedy.
● Certiorari will not be issued if the

56
 i. applicant has suffered no real injustice
ii. applicant lacks real merit
iii. applicant has failed to disclose relevant facts
iv. applicant has an alternative & adequate legal remedy
Badat Drani v Tan Kheat [1953] MLJ 67
High Court refused to grant certiorari to quash an order of the Rent Board because the
petitioner can appeal to the High Court against the Board’s order.

(4) Application for Certiorari

● Anyone whose interest was affected by the administrative decision may apply for
certiorari
● Application for certiorari must be with the consent of the High Court
● Application for certiorari must be made within 6 weeks of the date of the decision to
be challenged (proceeding)

(5) Decided cases where certiorari was granted

(i) Denial of natural justice
● Malayawata Steel Bhd v Union of Malayawata Steel Workers [1978] 1 MLJ 87
Certiorari was granted for denial of natural justice by the Labour Court.
● Coelho v PSC [1964] MLJ 12
Certiorari was issued to the PC quashing its decision to dismiss a civil servant
without giving him a hearing.
(ii) An error of jurisdiction.
● Error of jurisdiction arises when there is a complete absence of jurisdiction in an
authority over the subject of matter of the dispute.
● Re Ijot Bte Beliku [1966] 1 MLJ 22
2 claimants over the deceased’s estate. The probate officer ordered that the said
property be divided equally. The High Court quashed the decision of the probate
officer by issuing certiorari because the officer has ni jurisdiction to issue such order.

57
(iii) Error of law
● Lian Yit Engineering Works v Loh Ah Fun [1974] 2 MLJ 41
High Court quashed a decision of the Industrial Court on the ground of errors of law
on the face of the records. In this case the strike of the employees was illegal. The
Industrial Court found it legal and thus erred in the law.

(iv) Questions of fact

● Capt Alimudin v Lembaga Pelabuhan Kelang [1994] 1 MLJH 685
Respondent (statutory body) suspended the applicant’s pilot licence for a month. High
Court issued certiorari to quash the decision because there was no valid licence issued
to the applicant by the respondent. Therefore, the respondent has no jurisdiction on
him. Certiorari was issued because jurisdictional fact was absent.

(v) Procedural defect

● Certiorari may be issued to quash the decision made without observing the mandatory
procedure only.

5.5 Prohibition
(1) Nature of prohibition.
● Prohibition is issued to prohibit/prevent the commission of a future act which would
be ultra vires or in breach of natural justice.
● Prohibition is a discretionary remedy

(2) Grounds for the issue of prohibition

(i) Denial of natural justice
(ii) Error of justification
● Kee Peng Kwan [1975] 2 MLJ 139
Prohibition was issued against the court martial on the ground of lack of jurisdiction
to proceed with the trial of the applicant.

58
5.6 Quo Warranto
● The writ of quo warranto is used to challenged the appointment of a person to a public
office where he is not qualified to hold that office or his appointment suffers from any
legal flaw.

5.7 Declaration
(1) Definition of Declaration
● An order that declares the legal rights of the parties concerned.
(2) Nature of declaration
● Granted at the discretion of the court
● Sec 41, Specific Relief Act makes provision for a declaratory order
● A flexible remedy – no special procedure, not limited to any specific matter, no leave
of court is required, no limitation period for getting a declaration

(3) Declaration in Service Matters

● Leong Kum Fatt v AG [1984] 2 MLJ 197
The court refused to grant a declaration that the applicant’s dismissal from the police
force was null and void as there was no breach of natural justice in the inquiry
proceeding.

● Mahan Singh v Govt of Malaysia [1978] 2 MLJ 133

Appellant was terminated from a permanent service. He brought an action against the
government for a declaration that the termination was void because no reasonable
opportunity had been given to him to be heard as required by art 135(2)

Privy Council declared his dismissal as void for denial of the right of hearing. A
declaration was made that he was remained a member of public service until he was
require to retire and he was entitled to receive salary from the date of the termination
of service.

59
 ● Joseph v Government of Sarawak [1981] 2 MLJ 18
Federal Court upheld the High Court decision granting a declaration that the appellant
was a servant of the Sarawak Government from 16/7/1956 onwards. The court refused
to grant him a declaration regarding arrears of pay.

5.8 Injunctions
(1) Definition of in injunction
● An order by the court requiring a person to do a thing or not to do something
● Injunction is sought to restrain an administrative authority from an unlawful or ultra
vires exercise of power i.e the purpose is to restrain a person from doing a wrongful
act.
● Sec. 50 – 55, Specific Relief Act – provisions for the issue of injunction.

(2) Types of Injunctions

(i) Temporary Injunction
● Sec 50, SRA, An injunction for a specified time or until further order of the court
● Can be granted at any stage of the proceeding
(ii) Perpetual Injunction
● An injunction granted permanently
Sec 51, SRA, a perpetual injunction can be granted after a hearing and upon merits of
the case.
(3) Sec 54, SRA – An injunction cannot be granted :
(i) to interfere with the public duties of any department of any government – Sec 54(d)
● Tan Suah Choo v Majlis Perbandaran PP [1983] 1 MLJ 323
Majlis Perbandaran is a local authority under Sec 2 of the Local Government Act 1976
(i.e not within the scope of any department of any government). Therefore, an
injunction can be issued against a local government .
(ii) to stay proceedings in any criminal matters – Sec 54(e)
(iii) if an equal relief can be obtained – Sec54(f)
(iv) if the conduct of the applicant has been such as to disentitle him to the assistance of
the court – Sec54(j)

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6.0 PROCEEDING AGAINST GOVERNMENT

6.1 CONTRACTUAL LIABILITY

(1) Can a government enter into a contract
● PART IV – THE FEDERATION
Chapter 6 – Capacity as respects property, contracts and suits

Article 69. Capacity of Federation as respects property, contracts and suits.

● The Federation has power to acquire, hold and dispose of property of any kind and to
make contracts.
● The Federation may sue and be sued.

(2) How to make a binding contract on the government?

● The Government Contracts Act 1949 is an Act for making the contracts on behalf of the
Federal Government and the government of the States.
● A contract is binding on the government if it is made by the authority of the government.
● Sec 6 – government contract
Contracts are made by the authority of the government if they are made according to the
manner stated in the Act.
● Sec 2 – contract for Federal Government
A contract made on behalf of the Federal Government

“...shall, if reduced to writing, be made in the name of the Government of

Malaysia and may be signed by a Minister or by any public officer duty
authorized in writing by a Minister …”

● Sec 3 – contract for State Government

A contract made on behalf of the State Government
“...shall if reduced to writing, be made in the name of the Government
of that State, and may be signed by a Minister or by any public officer duty
authorized in writing by the Chief Minister…”

61
(3) Effects of contract
● Once the government enters into a legally valid contract, it is obligated to abide by it and
government becomes bound by its terms and conditions.
● The government is bound by a contract made by the public officer in that capacity.
● Sec 8 – the government is not liable when a public officer
i.) pledges his personal credit
ii.) contracts in his personal capacity and not as a government’s agent. (i.e he is
personally liable)

Sec 8. Limitation of personal liability of public officer.

No public officer shall be liable to be sued personally upon any contract which he makes
in that capacity; but a public officer shall be personally liable when he expressly pledges
his personal credit, or where he contracts otherwise than as the agent of the Government
or of a State

(4) How to enforce a contact against Government?

● Sec 4(c), Government Proceedings Acts 1965
“... any claim against the Government which –
(c) arises out of any contract made by the authority of the Government which
would, if such claim had arisen between subject and subject, afforded ground for
civil proceedings; or shall be enforceable by proceedings against the Government
for that purpose in accordance with this Act.”

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6.2 TORTIOUS LIABILITY
6.2.1 Tortious Liability of Public Officer
(1) Introduction
● The government’s liability in tort is covered by Section 5, Government Proceedings Act
1965 and the provision needs to be read together with Sec 6
● Sec 5, Government Proceedings Act 1965 – Liability of the Government in tort.

Subject to this Act, the Government shall be liable for any wrongful act done or
any neglect or default committed by any public officer in the same manner and to
the same extent as that in which a principal, being a private person, is liable for
any wrongful act done, or any neglect or default committed by his agent, and for
the purposes of this section and without prejudice to the generally thereof, any
public officer acting or purporting in good faith to be acting in pursuance of duty
imposed by law shall be deemed to be the agent of and to be acting under the
instructions of the Government.

● Sec. 5, Government Proceedings Act 1965 defines the tortious liability of the government
in Malaysia. The government is liable to pay damages when the action of the
administration falls under torts, e.g. trespass, nuisance, negligence.
● Sec. 5 provides :
The government shall be liable for any wrongful act done or neglect by the public officer.
The government is the principle whereas the public is the agent. The particular officer who
commits the tortious act is personally liable while the government is vicariously liable.

(2) The Government is vicariously liable for any tortious act committed by the public officer
under the following situations.
i. Sec 5 – the officer concerned was acting in ‘good faith’, otherwise, he will be personally
liable

ii. Sec 5 – the said officer was acting under the instructions of the government (i.e acting in
pursuance of a duty imposed by law)

63
 Note: An officer acting in his personal capacity without any government authority is
personally liable for his tortious act.

iii. Sec 6(4) – the relevant officer must at all material times be an officer of the government
(employed by the government) and paid in respect of his duties wholly out of government
revenues.

iv. A cause of action for damages against the government on account of any act,
negligence or default can only be instituted if such claim could have been brought against the
relevant office personally.

~~ The correct government department or officer has been established and identified

~~ Sec 6(1) – An action shall not lie against the government unless proceedings would have
lain against such officer personally.

~~In every case of alleged negligence, the tortfeatsor officer @ actual defendant should be
clearly identified (named) and his liability determined.

Haji Abdul Rahman v Government of the Federation of Malaysia [1966] 2 MLJ 174.In this
case there was a failure to join as a defendant the servant of the Government and this was
held to be non-compliance with the requirement of Sec 6(1)
Fook Lee v Conservator of Forest [1970] 2 MLJ 60

v. The suit must be commenced within the special time limit applicable to proceeding
against the government.

~~ Sec 2, Public Authorities Protection Act 1948

No suit, action or proceeding shall lie unless it is commenced.
a. within 36 months after the act, neglect or default complained of

64
b. in case of a continuing injury or damage, within 36 months next after the ceasing
thereof.

(3) The limitation and immunity of the Government’s liability

i.) If the officer has any defences to the action (e.g. he was not negligent) the government
enjoys the defence as well: Govt v Jumat bin Mohamed [1977] 2 MLJ 103

ii.) Sec 6(2) – if any law limits the liability of the officer, the liability of the government is
also limited.

iii.) Sec 6(3) – immunity for “judicial acts”

No proceedings shall lie against the Government by virtue of section 5 in respect of anything
done or omitted to be done by any person while discharging or purporting to discharge any
responsibilities of a judicial nature vested in him, or any responsibilities which he has in
connection with the execution of judicial process.

The government officers acting in a judicial capacity are also immune.

iv) Sec 7 – immunity for exercise of certain public duties:

v.) Immunity for actions during emergency

Sec 5, the Emergency Essential Powers Act 1979 along with Sec 6(2) and Sec 39 of
the GPA confers a very wide immunity on the government and its personnel, whether
military or civilians.

If during an emergency, an act was done in good faith, and in reasonable belief that it

65
was necessary for the purpose to be served thereby then the government and its officer are
both immune. Telok Sabang v Govt of Malaysia. [1978] 2 MLJ 76 ; Zaharah Bte Hussin v
Govt [1978] 2 MLJ 63

In ZAHRAH BTE HUSSIN v GOVT. OF MALAYSIA ]1978] 2 MLJ 65, A member of a

security forces shot dead two villagers in the forest at night suspecting them to be communist
terrorists. A suit for damages was brought against the government on the ground of
negligence of the concerned member of the security force. Dismissing the suit, the court ruled
that although he was negligent in what he did, he was not acting mala fide. He might have
been careless in what he did but he has acted in good faith and in reasonable belief that it was
necessary for him to act as he did and therefore he acted within the law. Explaining the scope
of Section 5, the court said that no action can be taken against the public officer or the
Government provided that he acted in good faith and in a reasonable belief that the action
was necessary for the purpose intended.

In the TELOK SABANG BHD v GOVT OF MALAYSIA {1978] 2 MLJ 76,

The suit arose as a result of the occupation of the plaintiff’s sawmill by the armed forces. The
platoon vacated the shed and a fire broke out in the main building of the sawmill 31 hours
later. The plaintiff claimed damages for the destruction of the sawmill by the fire through
negligence of the platoon. The Government invoked section 5 in protection. The court
accepted that section 5, no doubt, gave indemnity to public officers for the purposes intended
therein during an emergency.

But the court ruled that it was a doubtful proposition whether Section 5 was intended to
indemnify an act of expropriation of private property without paying compensation by the
armed forces. Indeed, if it were so, it would contravene Article 13 of the Federal Constitution
guaranteeing the right to compensation when private property was so acquired. Nevertheless,
the court held that the fire at the sawmill could not be attributed to the negligence of the
armed forces as it broke out 31 hours after they had left.

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Section 7 states that no proceedings are to lie against the government on account of anything
done or omitted to be done or refused to be done by the government or any public officer in
exercise of the public duties of the government. The expression exercise of public duties
provided under section 7(2) includes:
o constructions, tenancy etc, of railways, roads, bridle-paths or bridges;
o construction, maintenance etc of school, hospitals or other public building
o drainage, flood prevention and reclamation works;
o channels of rivers and waterways.

However, under section 7(3) a party may sue for damages or compensation arising out of
negligence or trespass in the execution of any works of construction or maintenance
undertaken by the government in the exercise of its public duties.

In a case of a State, a suit is to be brought against the State Government as laid down in
section 22 of the Government Proceedings Ordinance. In FOOK LEE BROS. v
CONSERVATOR OF FORESTS [1970] 2 MLJ 60, a suit was brought against the
Conservator of Forests for excess royalty on timber paid to him. The suit was dismissed for
the royalty on timber is State revenue and hence the claim could be enforces against the State
Government.

In HASHIM BIN SAUD v YAHYA BIN HASHIM [1977] 1 MLJ 259, The plaintiff claimed
damages against a police inspector for wrongful detention. He was arrested on suspicion of
being involved in theft but was released after a few days detention. The court dismissed his
claim on the ground that he had not been detained illegally or unlawfully by the defendant at
any time as there was reasonable suspicion that he was concerned with the theft and so his
arrest was lawful.

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6.2.2 Tortious Liability of Armed Forces – Sec 14, Government Proceeding Act 1956
● Sec 1494) – the expression
(a) “armed forces” means any armed force, whether volunteer or otherwise, raised and
maintained in Malaysia;

(b) “forces” includes the armed forces and the police force; and

(c) “police force” means the Royal Malaysia Police and includes any volunteer,
auxiliary or special force attached to, or coming under the jurisdiction of, that Force.

● Sec 14(1) – the government or member of the forces is not subject to any liability for
any tortious act or omission done by him causing death or personal injury to another
member or forces if \
(a) the deceased or the injured person was:
- on duty as a member of the forces or
- he was on any land, premises, ship, aircraft or vehicle for the time being used for
the purpose of the forces (not on duty)
(b) The Minister of Finance certifies his entitlement to an award under any written law
relating to the disablement or death of the members of the force of which he is a
member.

Proviso to Sec 14(1) – a member of the forces is subject to any liability if the court is
satisfied that the act or omission was not connected with the execution of his duties as a
member of these forces.
● Sec 14(2) – no proceedings in tort shall lie against the Government for death or
personal injury due to anything suffered by a member of the forces if-
(a) that thing is suffered by him in consequences of the nature of:
- land, premises, ship, aircraft or vehicle, or
- any equipment or supplies used for the purposes of those forces
(b) the Minister of Finance certifies as mentioned in the proceeding subsection;
● Choo Fah Fatt v Che Rus bin Othman [1977] 1 MLJ 230

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 ● Mohamed bin Hussain v Hashin bin Said [1978] 1 MLJ 127

GOVERNMENT LIABILITY IN CASE OF INJURIES TO MILITARY

PERSONNEL
A significant limitation on governmental liability is imposed by Section 14 of the
Government Proceedings Ordinance. It refers to acts or omissions causing death of, or
personal injury to, a member of the armed forces by another member of the armed forces
while on duty.

Neither the government nor he is subject to any liability if the following two conditions are
fulfilled:
● the person deceased or injured was on duty as a member of the forces, or, if
not on duty, was on some premises or vehicle used at the relevant time for
purposes of the forces;

● the Minister of Finance certified that his suffering or death would be treated as
attributable to service for the purpose of entitlement to an award under service
regulations.
In CHOO FAH FATT v CHE RUS BIN OTHMAN [1977] 1 MLJ 230,
The action for damages arose out of an injury caused to an army personnel as a result of a
collision between a military lorry and a civilian lorry. The injured person was travelling in a
military lorry driven by another military of the force. The Minister of Finance issued the
necessary certificate under section 14 of the G.P.O. After such a certificate, neither the
government nor the lorry driver could be held liable for the plaintiff’s injury and so his action
was dismissed by the court.

MOHAMED BIN HUSSAIN v HASHIM BIN SAID [1978] 1 MLJ 127,

There arose and interesting question. The respondent, a member of the armed forces, met
with an accident while traveling in a vehicle driven by another army man. The injured person
filed a case claiming damages from the Government as employer of the driver whose
negligence has caused the accident. But before the case could proceed much further, the
necessary certificate under section 14 was granted. The case was dismissed but the respondent
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claimed his costs. The Federal Court awarded the costs to the respondent against the
government.

Government’s Contractual liability

I. FEDERAL CONSTITUTION
● PART IV – THE FEDERATION
Chapter 6 – Capacity as respects property, contracts and suits

Article 69. Capacity of Federation as respects property, contracts and suits.

(1) The Federation has no power to acquire, hold and dispose of property of any kind
and to make contracts

(2) The Federation may sue and be sued.

II. GOVERNMENT CONTRACTS ACT 1949

● Section 6. No other contracts to be deemed Government contracts.
No contracts made after the commencement of this Act except those made in the
manner hereinbefore provided shall be deemed to be made by the authority of the
Government or of a State Government, as the case may be.

● Section 2. Contracts on behalf of the Government.

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 All contracts made in Malaysia on behalf of the Government shall, if reduced to
writing, be made in the name of the Government of Malaysia, and may be signed by a
Minister or by any public officer duly authorized in writing by a Minister, either
specially in any particular case, or generally for all contracts below a certain value in
his department or otherwise as may be specified in the authorization.

● Section 3. Contract on behalf of a State Government.

(1) All contracts made in Malaysia on behalf on a State Government shall, if reduced to
writing, be made in the name of the Government of that State, and may be signed by the
Chief Minister of the State, or by any public officer dully authorized in writing by the
Chief Minister, either specially in any particular case, or generally for all contracts
below a certain value in his department of otherwise as may be specified in the
authorization.

(2) In the application of this section to Sabah and Sarawak “Chief Minister” includes
any State Minister.

● Section 8. Limitation of personal liability of public officer.

No public officer shall be liable to be sued personally upon any contract which he
makes in that capacity; but a public officer shall be personally liable when he expressly
pledges his personal credit, or where he contracts otherwise than as the agent of the
Government or of a State Government.

● Section 9. Form of authorization.

Any authorization made under section 2 or 3 shall be in the appropriate set out in the
Schedule
SCHEDULE [Section 9]

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III. GOVERNMENT PROCEEDINGS ACT 1956

● Section 3. Right of the government to sue

Subject to this act and of any written law where the government has claim against any
person which would, if such claim had arisen between subject and subject, afford
ground for civil proceedings, the claim may be enforced by proceedings taken by or on
behalf of the Government for that purpose in accordance with this Act.

● Section 4. Claims enforceable by proceedings against Government.

Subject to this Act and of any written law, any claim against the Government which-
(a) is founded on the use or occupation or the right to the use or occupation of State
land; or

(b) arises out of revenue laws; or

(c) arises out of any contract made by the authority of the Government which would, if
such claim had arisen between subject and subject, afford ground for civil proceedings,
or

(d) is a claim (other than a claim in tort) for damages or compensation not included in
the proceeding paragraphs which might lawfully be enforced by civil proceedings as
between subject and subject;

shall be enforceable by proceedings against the Government for that purpose in

accordance with this Act.

● Section 5 - Liability of the Government in tort.

Subject to this Act, the Government shall be liable for any wrongful act done or any
neglect or default committed by any public officer in the same manner and to the same

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 extent as that in which a principal, being a private person, is liable for any wrongful act
done, or any6 neglect or default committed by his agent,

and for the purposes of this section and without prejudice to the generality thereof, any
public officer acting or purporting in good faith to be acting in pursuance of a duty
imposed by law shall be deemed to be the agent of land to be acting under the
instructions of the Government.

● Section 6. Limits of liability of the Government.

(1) NO proceedings shall lie against the government by virtue of section 5 in respect of
any act, neglect or default of any public officer, unless proceedings for damages in
respect of such act, neglect or default would have lain against such officer personality.

(2) Any written law which negatives or limits the amount of the liability of any public
officer in respect of any act, neglect or default committed by that officer shall, in the
case of the proceedings against the Government under section 5 in respect of such act,
neglect or default of such officer, apply in relation to the Government as it would be
have applied in relation to such officer if the proceedings against the Government had
been proceedings against such officer.
(3) No proceedings shall lie against the Government by virtue of section 5 in respect of
anything done or omitted to be done by any person while discharging on purporting to
discharge any responsibilities of a judicial nature vested in him, or any responsibilities
which he has in connection with the execution of judicial process.

(4) No proceedings shall lie against the Government by virtue of section 5 in respect of
any act, neglect or default of any public officer, unless that officer was at the martial
time employed by the Government and paid in respect of his duties as an officer of the
Government wholly out of the revenues of the Government, or any fund certified by the
appropriate financial officer for the purposes of this subsection or was at the material
time holding an office in respect of which the appropriate financial officer certifies that
the holder thereof would normally be so paid.

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 (5) For the purposes of subsection (4) the expression “appropriate financial officer”
means, in respect of the Federal Government, the Minister of Finance, and in respect of
the Government of a State, the State Financial Officer, and in the case of the States of
Sabah and Sarawak, the State Minister responsible for finance.

● Section 7. Savings of acts done in exercise of public duties.

(1) Notwithstanding any other provisions of this Act to the contrary no proceedings,
other than proceedings for breach of contract, shall lie against the Government on
account of anything done or omitted to be done or refused to be done by the
Government or any public officer in exercise of the public duties of the Government.

(2) For the purposes of subsection (1) the expression “exercise of the public duties”
includes-

▪ the construction, maintenance, diversion and abandonment of

railways, roads bridle-paths or bridges;

▪ the construction, maintenance and abandonment of schools

hospitals or other public buildings;

▪ the construction, maintenance and abandonment of drainage,

flood prevention and reclamation works; and

▪ the maintenance, diversion and abandonment of the channels of

rivers and waterway.

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Exercise questions
APR 2006 QUESTION 4
Ahmad and Sakri are employed by the Fisheries Department in Port Dickson. Both were
directed to attend a course in Kuala Lumpur. They travelled in a departmental car driven by
Bashir.

Due to Bashir’s negligence, the car was involved in an accident. Both Ahmad and Sakri were
hospitalized but Bashir escaped unhurt. Ahmad suffered only minor injuries. Sakri had to
undergo surgery because of a fracture on his leg. After the surgery, Sakri complained of pain
in his fractured leg. On further examination it was revealed that the pain was caused by a
surgical needle that was left in his leg on the previous operation which which resulted in a
second surgery. Both Ahmad and Sakri want to sue the government for damages. Discuss the
government’s liability in the above cases. ( 70 marks )

Article 69 (1) of the Federal Constitution provides that the Government may hold, acquire or
dispose of property and enter into contracts. Discuss the above provision with the reference to
the Government’s liability in contracts. ( 30 marks )

NOV 2005 QUESTION 3

Sergeant Mote wishes to claim his medical cost for the accident he sustained while he was
under going a drill routine where a rifle belonged to the another member of the team had
accidentally gone off injuring badly his left arm. In light of the Government’s liability for
injuries sustained by a member of the armed forces as provided in the Government
Proceedings Acts 1956, advice Sergeant Mote. (40 marks )

Discuss the provisions in the Government Proceedings Act 1956 in relation to the
Government’s liability in tort for any wrongful act done, neglect or default committed
by any public officer.( 60 marks )

APRIL 2005 QUESTION 3

While cycling to a nearby shop in the Batu Dua Army Camp, Yop Leman was hit by a Land
Rover driven by Captain Hairi, an army officer stationed in that camp. He sufferers serious leg
injury and a broken rib. At the same time, Captain Lobo, a colleague of Captain Hairi, who
was walking near Yop Leman was also injured while trying to escape from being hit by
Captain Hairi. He felt into a deep drain and broke both of his legs. Apparently, Captain Hairi
was on his way to his office to collect some documents before going to a meeting in Kuala
Lumpur.

Advise Yop Leman and Captain Lobo as to their rights against the government, if any.( 100
marks )
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