Chapter 1: Introduction

Question 1

What is Administrative Law?

Answer 1

Administrative law is a branch of law governing the administration and regulation of government agencies.

Question 2

Based on Halsbury’s Laws of Malaysia, what is administrative law?

Answer 2

”..the law relating to the discharge of functions of a public nature in government and administration.

It includes:
1. Functions of public authorities and officers and tribunals;
2. Judicial review of the exercise of those functions;
3. 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 the instance of persons aggrieved.”

Question 3

How does Dicey describe administrative law?

Answer 3

“…that portion of the nation’s legal system which determines the legal status and their liabilities, of all state officials, which defines the rights and liabilities of private individuals in their dealings with public officials and which specify the procedure by which those rights and liabilities are enforced.”

Question 4

What are the scope of Administrative Law?

Answer 4

1. Body of rules, regulations, limitations of powers and orders formulated by a government body or organs of administration responsible for carrying out a particular statute law; and
2. Legal rules and principles on which courts act in controlling the exercise of statutory powers of adjudication and rule-making by public authorities (other than the judiciary and legislature); and
3. The legal remedies available to a person against them when his rights are infringed by their operation.

Question 5

Where can administrative law principles and rules in Malaysia be found?

Answer 5

1. The Federal Constitution;
2. Legislation (Statute);
3. Subsidiary legislation; and
4. Case law

Question 6

What is the present philosophy of the role and function of the state?

Answer 6

The state assumes a positive role and become transformed into an active instrument to promote socio economic welfare, social justice of the people and taken up many functions which were previously left to be discharged by private enterprise.

Question 6

What led to the growth of Administrative Law?

Answer 6

The growth of administrative law has been the direct result of the growth of administrative apparatus, functions and powers.

Question 7

What was the past philosophy of the role and function of the state?

Answer 7

The state acted like the “police” or a “law and order” state and its role was limited to defending the country from external aggression, maintaining law and order within the country.

Question 8

What are the five functions of a modern state?

Answer 8

1. Protector: Acts to defend the country against external aggression;
2. Provider: Seeks to provide social services and minimum welfare to the people to ensure a minimum standard of living for all;
3. Regulator: To control various activities of the community, contemporary economic and social life by employing manifold process and techniques, direct national economy, and undertake social economic planning
4. Umpire: Discharges arbitral functions between competing interests in the society;
5. Entrepreneur: Undertakes several public undertakings and enterprises.

PURE P

Question 9

Who are public authorities?

Answer 9

• Public bodies or those public bodies entrusted with functions to perform task for public benefit and not for private profit.
• Examples are the officials serving in the Police Force, the Immigration, Public Universities, Public Hospitals.

Note: Not all public bodies are expressly defined as such - the meaning of a public authority or public body may vary by statutory context.

Question 10

What are the functions of administrative bodies?

Answer 10

1. Legal: Make/pass subsidiary legislation
2. Quasi-judicial: Internal decision making process - Dismissal, disciplinary action, land acquisition, licence revocation
3. Administrative: Enforce law and regulation such as to maintain services in education, health, and transportation
4. Pure administrative/ministerial: Does not involve any discretion to perform this function (e.g., tax collection)

Question 11

What are the three aspects of Dicey’s rule of law?

Answer 11

1. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary manner before the ordinary courts of the land. No one should have too wide and arbitrary or discretionary powers
2. No man is above the law; every man and woman, whatever may be his or her rank or position from the prime minister right down to the tax collector, is subject to the ordinary law of the realm and amendable to the jurisdiction of the ordinary tribunals;
3. Each man’s rights are best protected under the common law.

Question 12

What is the rule of law?

Answer 12

People are ruled by law, and law alone.

Question 13

What are the public authorities’ powers?

Answer 13

1. Legislative (Rule-making): Law-making through powers delegated by the legislator;
2. Judicial (Adjudicative): Adjudication power in imposing sanctions & taking administrative actions/decisions;
3. Executive (Administrative): Advisory & investigative work.

Question 14

What are the constitutional principles governing administrative law?

Answer 14

1. Principles of the Rule of Law; and
2. The principles of separation of powers.

Question 15

What does the rule of law require?

Answer 15

The rule of law requires that:-
* Government should** operate within the confines of the law**; and
* Aggrieved citizens whose interest have been adversely affected be entitled to approach an independent court to adjudicate whether or not a particular action taken by or on behalf of the state is in accordance with the law.

Question 16

What is ultra vires?

Answer 16

• Any action of any official or agency beyond the scope of power given to it is ultra vires (i.e. beyond power), hence it is considered as null and void.
• A public authority may not act outside its powers (ultra vires).
• The basis of judicial review of public authority’s administrative actions is the doctrine of ultra vires.
• Administrative law by invalidating an ultra vires act ensures that every administrative action is in conformity with the law; indirectly guaranteeing the observance of rule of law.

Question 17

What can an individual do when their rights are infringed by public authority?

Answer 17

Any individual whose right has been infringed because of administrative decisions or actions may challenge and review those decisions or actions and claim to restore his right or sought redress through certain avenues under the law.

Question 18

In Malaysia, how are an individual’s rights against an administrative action protected?

Answer 18

By way of common law and statute:
* The individual’s rights are acknowledge
* The right to review any administrative actions are provided

Question 19

How are administrative actions reviewed?

Answer 19

Reviews may be through:
1. Judicial review; or
2. Non-judicial review.

Question 20

What is judicial review?

Answer 20

• A judicial review is a form of a court proceeding.
• The judge reviews the lawfulness of a decision or action, or a failure to act, by a public body exercising a public function.
• It is only available where there is no other effective means of challenge.

Question 21

What is the focus of judicial review?

Answer 21

Judicial review is concerned with:
1. Whether the law has been correctly applied; and
2. Whether the right procedures followed.

Question 22

What is non-judicial review in Malaysia?

Answer 22

• In Malaysia, scrutiny and review of public bodies’ processes, decisions and actions, including complaint handling, may now be forwarded to certain other review agencies in the forms of administrative tribunals, ombudsman and public complaint bureau.
• These review agencies have their roots in administrative law culture and its values of legality, rationality, fairness, and transparency.