Procrastination in motion

Since finals is almost over, so will this blog, till the need arises. Till then, hope this thingy helped you guys out even the tiniest bit.  

x

Control over Subsidiary Legislation : Judiciary (Substantive Ultra Vires)

Time is running short so I'll be making just a brief summary of this sub topic aite :D

Substantive Ultra Vires

Definition

S UV refers to the scope, extent and range of power conferred by the statute to make SL. It is based on the principle that legislative power belongs to the Parliament and that any other subordinate agency has no power to legislate except to the extent allowed by the Parent Act. In simpler words, it could not exceed the scope of power as provided in the Parent Act.

                                                             McEldowney v Forde 

The judge in this case suggests the threefold test in order to ascertain the validity of a SL. The test is :

1) Court will determine the words used in the Parent Act that describes the subordinate legislation which the delegate is allowed to make

2) Then the Court will determine the meaning of the SL

3) Finally the Court will decide whether the SL complies with the description in the Parent Act.

The Malaysian Courts too have been firm in applying this doctrine, from the case of Wong Pot Heng v Gov. of Malaysia, the Court held that they have the jurisdiction to declare any SL that ultra vires the Parent Act as invalid.

Provisions

1) S. 23(1) Interpretation Act : Any SL inconsistent with Parent Act shall be void to the extent of inconsistency.

2) S. 87(d) Interpretation Act : No SL shall be inconsistent with Parent Act.

The types of Substantive Ultra Vires

I made an acronym for this, so that it's easier to remember, for me at least. It is :

F U R U E, and it stands for..

F : Financial levy

U : Unreasonableness

R : Retrospective

U : Ultra vires

E : Exclusion of Court

Financial Levy

A financial levy may not be imposed in a SL unless such power is expressly allowed in the Parent Act. S.44 of the Interpretation Act further states that in order for a SL to impose financial levy, the Parent Act has to allow such levying of fees and charging to be done.

                                               Attorney-General v Wilts United Dairies

In this case the Parent Act does not state anything to allow the SL to impose financial levies. However so, when the Respondent wants to make a licence to sell milk the Controller (Subsidiary Legislator) made a rule that the Respondent has to pay levy for every gallon of milk sold in order for him to get the licence.

Decision : Court held the Collector's action is invalid as no express provision in Parent Act to allow SL to impose financial levy.

Unreasonableness

It is implied in every SL that the SL shall not be unreasonable. Unreasonable was defined in the case of Kruse v Johnson as anything in the SL that is impartial, unequal, manifestly unjust, disclosed bad faith, and oppressive so as to find no justification in the minds of reasonable men. It was said that Parliament could never have intended to give authority to make such rules, they are unreasonable and ultra vires

                                                                McEldowney v Forde

In this case, there was a provision in the bye-law stating that anyone who is a member of any unlawful association shall be found guilty of an offence. Unlawful association refers to any Republican Club or 'any like organisation'. A person who was a member of a Republican Club which was innocent of any unlawful activity was prosecuted.

Decision : Court held that the SL was too vague and so arbitrary as to be unreasonable.

Retrospectivity

It is an implied restriction in SL that it shall not have retrospective effect unless expressly provided in the Parent Act. Section 20 of the Interpretation Act provides that SL may be made to operate retrospectively to any date not earlier than the coming of the Parent Act.

                                                      Attorney-General v Cold Storage

In this case the Parent Act was enacted in 1964 and the bye-law was made in 1976. The bye-law was to have a retrospective effect to the date of the coming of the Parent Act. The respondent argued that by doing that the claimant had acted above their powers.

Decision : Since the Parent Act allows bye-laws made to have retrospective effect, the bye-law was valid.

Ultra vires (Subsidiary Legislation ultra vires the Parent Act)

This is when the SL makes bye-laws which exceeds the extent allowed by the Parent Act.

                                                         Re Lee Kian Soo, An Architect 

In this case, the Parent Act empowered the Boards of Architect to strike an architect's name of the list of they were found 'guilty of any act or conduct' which in the Board's opinion is infamous any professional conduct. However so, the bye-law made pursuant to this Act, specifically in Section 13 of the Architect Bye-Law defined what was misconduct on the part of an architect. The aggrieved party claims that the SL ultra vires the Parent Act on the ground that it has removed the Board of Enquiry's opinion in deciding what was an infamous conduct by limiting it to whatever is provided in Section 13 of the bye-law.

Decision : Court held that the bye-law was invalid as it exceed the scope of power allowed by the Parent Act.

Exclusion of Courts

Any SL which excludes the Court in reviewing the decision made via SL is invalid unless the Parent Act allows for such exclusion.

                                         Commissioners of Custom & Excise v Cure & Deeley

In this case the SL had exclude the power ofteh court to revise the decision made by the Commissioner.

Decision : Court held that the SL is void because it violates the right of an individual to make an appeal to the court of law and it contradicts the Parent Act.


So.. F U RU E FTW! :D

Control over Subsidiary Legislation : Judiciary

Some form of control is needed over subsidiary legislators an persons authorised to enact law as a safeguard. This is to minimise the disadvantage of the system and to maximise it's benefits.

Therefore, several forms of control have been formulated and they are :

1) Parent Act Ultra Vires FC     :  PA UV FC

2) Subsidiary L Ultra Vires FC   :  SL UV FC

3) Substantive Ultra Vires           :  S UV (will be discussed in a separate post)

4) Procedural Ultra Vires            :  P UV

Parent Act Ultra Vires FC

Article 4 FC provides that the FC is the Supreme Law of the Land and every law inconsistent with it shall be void to the extent of it's inconsistency. Therefore, should a Parent Act be found to be inconsistent with the FC, and thus vois, so shall any subsidiary legislation made pursuant to the Parent Act

                                                Johnson Tan Heng Seng v Public Prosecutor

In this case, the validity of the ESCAR was challenged (the ESCAR is a SL made pursuant to it's Parent Act, the Emergency Ordinance 1959). The claimant said that since the situation have now changed (not an emergency situation any more) therefore the Emergency Ordinance is invalid and consequently the ESCAR too.

Decision : The Court held that it was up to the Executive and not for the Courts to decide whether a proclamation of emergency under Article 150(1) should or should not be terminated. Therefore, in this case, the Emergency Ordinance 1959 was deemed to be valid and so does the ESCAR.

Subsidiary Legislation Ultra Vires

If the Parent Act does not contradict the FC but the SL contradicts the FC, only the latter will be invalid.

The Parent Act will remain valid.

                                                  Teh Cheng Poh v Public Prosecutor

In this case, again the validity of ESCAR was challenged. It was argued that the ESCAR was made 4 years after Parliament had sat. Article 150(2) FC states that the YDPA may not make regulations having the force of law after Parliament sat. Therefore, the SL ultra vires the FC.

Decision : The Privy Council overturned the FC's decision. They held that the power of the YDPA to promulgate regulations having the force of law lapsed as soon as Parliament sat and this power would not revive even during periods when Parliament was not sitting.

Procedural Ultra Vires

SL may be held invalid on the ground of procedural ultra vires. A Parent Act may stipulate procedures that the subsidiary legislators have to follow in making a regulation. Non-compliance with the procedure may result in the SL deemed invalid, depending if the procedure is directory or mandatory. With regards to that, it is the Court that will decide whether a procedure is directory or mandatory.

                                                 Wong Keng Sam v Pritam Singh Bar

Court held in this case that a person may not seek for redress in a court for any breach or non-compliance with a rule which not mandatory and only directory.

So this is about it for Judiciary Control, as for Substantive Ultra Vires, it'll be in a separate post. Probably :-\

Subsidiary Legislation : Definition and Reason for growth

Definition 

Section 3 of the Interpretation Act defines Subsidiary Legislation (SL) as "Any proclamation, rule, regulation, order, notification, bye-law or other instrument made under any Act, Enactment or other lawful authority.

In simpler words it means law made by bodies or persons pursuant to a power delegated by the legislature to them having the force of law. This type of law has the same effect as if they were passed in Pt or State Legislature itself.


Reason for the growth of Subsidiary Legislation

A number of factors have contributed to the growth of SL :

1) T : The Time Factor

Parliament does not have enough time to legislate all the laws in the land. The Public requires a vast quantity and type of law, which the Parliament, on it's own is unable to make and meet. Thus, to resolve this issue, Parliament would enact the broad principles of law in the 'Parent Act' and allow the bodies or persons authorized in the Act to deal with the details.

2) D : Details and Technicalities of the Law

Members of Parliament enacts the law, indeed, however so, they may not be an expert in the area of law they are legislating. For instance, MPs generally may not be able to enact an Act which deals with all the complexity and technicalities of Marine Law, often only experts specialised in the subject-matter can work them out. Therefore, to overcome this, again the Parliament enacts only the 'Parent Act' and leave the details to such experts.

3) F : Flexibility of Subsidiary Legislation

A SL is very flexible as compared to an Act of Parliament (AoP). For instance, if something needs to be changed in an Act of Parliament, it would have to pass an amending legislation. This is not the case for SLs as it is possible to rapidly change details of the SL from time to time so as to adapt to formerly unforeseen and unknown future problems.

4) E : Emergency Situations

Should there be a time when the country is under emergency and there is a need for a legislation immediately to handle the situation, Parliament can't be convened nor can they enact laws immediately. They have mandatory procedures that they have to adhere to. This is when SL comes in handy as it allows for the administration to promulgate the necessary rules and regulations according to the needs of the emergency situations.

Reference : M.P Jain, 4th Edition, Page 45-47.

Application of Separation of Power in Malaysia

The Doctrine of SOP exists in Malaysia and is entrenched in our Federal Constitution. The three organs of government are (on the surface) separated and distinct from one another, as I'll show below.

Legislative

Article 44 FC provides that the legislative authority of the Federation shall vest in the Parliament. This means that the power to enact laws lies within Parliament.

Executive

Article 39 FC states that the executive authority is vested in the YDPA and the ministers. Their function is to enforce and execute the laws enacted in Parliament.

Judiciary

Article 121 gives the courts powers to adjudicate disputes.

In theory, Malaysia indeed adopts the Doctrine, but in practice, this Doctrine is not strictly applied. This is as observed by LP Suffian in the case of PP v Kok Wah Kwan. The functions of the three organs overlaps, for for example :

• Members of the Executive are also Members of the Pt (Executive and Legislative)
• YDPA has the power to enact laws during an emergency (Executive and Legiclative)
• Prime Minister has the power to dissolve Pt 
• YDPA may grant pardons (Executive and Judiciary)

This right here proves that we do not practice the Doctrine religiously. 

That's all for this sub-topic :)

Doctrine of Separation of Power

The doctrine of Separation of Power (SOP) was first coined by Montesquieu (I've always imagined him as a short man with a curly moustache. Apparently not the case). Anyways, back to the main point, his argument was that no one person should hold all the powers as it will lead to arbitrariness, and Montesquieu knew this very well as that was the reality back then in France. Louis XIV, the then ruler of France had absolute authority over everything and this caused oppression unto the citizens as nothing could be done to remedy the injustice (Louis XIV held all the powers alone).

Thus, due to that bitter tragedy, Montesquieu formulated the doctrine of SOP.

So how does this doctrine works? It basically separates the three organs of a government, that being the :

• Legislative  : To enact laws
• Executive   : To implement laws
• Judiciary     : To interpret the laws and adjudicate disputes

And the doctrine operates based on these principles :

• No one person can be in any two or all organs of the government at the same time.
• Each organ must exercise only their function.

That's it for the Doctrine. Coming up if I'm up to it is the Application of the doctrine in Malaysia.

Spots for Admin [UiTM Jan 2013]

Part A

Introduction to LAW 506

• Growth of AL
• Nature and scope of AL
• Differences between CL System of AL and Droit Administratif

Rule of Law

• Theories of ROL
• Application of ROL in Malaysia

Separation of Power

• Theory of SOP
• Application of SOP in Malaysia

Ombudsman

Part B

Subsidiary Legislation

Discretionary Power + Government Liability/Privilege

Remedies

Part C

Natural Justice + Government Liability/Privilege

These are the spot questions I got for finals, do add in (via comment/twitter) if you guys got anything else, sharing is caring, remember? Haha. Note this too, spots, being spots, if they don't come out don't break my neck. Happy studying!

Application of Rule of Law in Malaysia

Malaysia, by virtue of Article 4 of the Federal Constitution recognises and upholds Rule of Law. It is the foundation of the Rule. From the case of Ah Thian v Government of Malaysia, LP Suffian in his judgement   observed that :

“The doctrine of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and State Legislatures in Malaysia is limited by the Constitution, and they cannot pass any law as they please. Under our Constitution, written law may be invalid on one of these grounds: (1) Article 74; (2) in the case of both Federal and State written law, because it is inconsistent with the Constitution; (3) Article 75”.

The Malaysian Courts further saw to the implementation of this rule in several other cases, namely :

                                     Chai Choon Hon v Ketua Polis Daerah Kampar

A condition was attached to a police permit to hold a dinner for DAP, the condition being that there should be only 7 speakers was struck down by the Courts because the said permit has already impose a time limit, which rendered the aforementioned condition unnecessary. This decision is said to be in line with the provisions of Article 10(1)(a) of the Constitution

                                     Public Prosecutor v Mohamad Ismail

The defendant was charged for drug trafficking which was punishable with life imprisonment or death under S. 39B(1) of the Dangerous Drugs Act 1952. While his trial was still going on, the law was deliberately amended to provide for a mandatory death penalty. At the final stage of the said trial, the PP suggests to the court to impose the enhanced penalty. The Court refused saying that such amendment could not be applied to the instant case, as it was only enacted after the offence was committed. At such, the decision of the said court was in line with the Article 7(1) of the Federal Constitution and the Delhi Declaration.

So, these are examples for the application of ROL in Malaysia. Hope it helps :)

The Declaration of Delhi

So, what is the Declaration of Delhi. Basically it is a meeting held in Delhi comprising of 185 people from the legal profession. They were there to discuss on the principles and procedures underlying the Rule of Law as well as defining and clarifying the concept itself.

Take note that I'm reading this from Wikipedia (not a good authority I know, but it has served me well over the years, so, yeah, judge me I don't care, haha). 

So what did they do in Delhi besides riding on elephants and visiting the site where Chirangi shot his son?(remember, Chirangi v Nagpur? Hehe *just keep on reading if you don't find it funny*)

Anyways, the Delhi Declaration came to three elements important in the concept of ROL, that being :

Firstly, that the individual is possessed of certain rights and freedoms and that he is entitled to protection of these rights and freedoms by the State;
Secondly, that there is an absolute need for an independent judiciary and bar as well as for effective machinery for the protection of fundamental rights and freedoms; and
Thirdly, that the establishment of social, economic and cultural conditions would permit men to live in dignity and to fulfill their legitimate aspirations.

To achieve and fulfill those three elements, they came up with four themes :


1. The Legislative and the Rule of Law
2. The Executive and the Rule of Law
3. Criminal Process and the Rule of Law
4. The Judiciary and Legal Profession under the Rule of Law.

You can read further on that here .

Dicey's postulation of Rule of Law

Rule of Law, in bahasa is 'kedaulatan undang-undang'. I will subdivide this topic into three limbs, namely :

1) Dicey's postulation of Rule of Law

2) Rule of Law in the perspective of the International Commission of Jurists as per the Delhi Declaration.

3) The application of Rule of Law in Malaysia.

Dicey's postulation of Rule of Law

Rule of Law (ROL) according to Dicey means the absolute supremacy or predominance of regular law. It excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government.

Dicey is of the idea that his Englishmen were ruled by law, and law alone without any exercise of discretionary power by the government. Thus, he said that Administrative Law does not exist in England as the Executive has no such power that needs to regulated. He also said that ROL emphasises on 'equality before the law', meaning that every single person is subject to the same law. With regards to this view of his, he criticised the French system of Droit Administratif (DA) which we have touched on in the previous posts.  This is because the French system of  DA exempts the government and public authorities from being tried by the ordinary courts, instead they are tried by the administrative tribunals.

However so, quite a number of scholars have come to the conclusion that Dicey had erred in saying as such. This is because the Crown of the UK (and thus the whole government) themselves are immune from any lawsuit. This is by way of the constitutional maxim 'the King can do no wrong'. The immunity enjoyed by the Crown was abolished only in 1947. Not only that, some of the statutes in the UK did grant the Executive discretionary powers which Dicey failed to see. There were even administrative tribunals outside of the judicial hierarchy set up to address the violated rights of the people. Besides that, Dicey saw the operation of the DA from a wrong angle, he thought that it was to protect the government and the public authorities when in essence it was actually to control their powers and act as a medium to address individuals aggrieved by their actions! Thus, Dicey's observation that there is no Administrative Law in England is described by scholars a his gravest and most unfortunate error as it does exist.

It was only after the case of Rice v Aldridge that Dicey reluctantly agreed with his fellow Englishman, Maitland that Administrative Law indeed has a place in England.

As a conclusion, Dicey's idea of ROL is that written law is the supreme law of the land. It is the standard by which every vessel of the government and public operates. There is no room for discretionary power by the government, not even a tiny speck as such power is a sign of arbitrariness. However so, he failed to see that Administrative Law has always been in England. That's about it for Dicey's postulation.

Characteristics of the Droit Administratif

These are the characteristics of the DA :

1) As mentioned in my previous post, it is independent of the French Courts.

2) At first instance, if a person has a case, he will be referred to the Tribunal Des Conflicts.
The tribunal will decide whether the case should go to the ordinary courts or the administrative tribunals.
Should it be an administrative dispute, it will be adjudicated by the administrative tribunals.

Now, if he is unhappy with the decision arrived by the administrative tribunal, he can appeal to the Conseil D'Etat, The Conseil  is a very important administrative tribunal as it acts as the Court of Appeal for all other administrative tribunals regardless if they are within or not within the Conseil's control.

Should the complain concern an abuse of power by the administrative also called  as recours pour excess de pouvoir, then, the Conseil acts as the court of first instance.

3) If upon trial the administrative body is found to have acted ultra vires, then the tribunal may nullify their actions.

4) All decisions arrived by the administrative tribunals are subject to review by the Conseil on points of law.

5) Administrative tribunals also supervises administrative functioning. With regards to this, they have spelt out two limitations on administrative bodies which are :

    i. They must not act against the law and ;
   ii. They must pay damages should they cause any injury.

With regards to an action for damages, it can be granted to an individual who is injured due to an administrative action regardless if the state is at fault or not.


As a conclusion, we could say that the French DA gives significant protection to an individual against any unlawful action done by administrative bodies. Scholars have said that the DA is better than the CL as it gives better protection to an individual. Besides that, M.P Jain made fun of Dicey too in his book, HAHAHA. It's kinda long for me to explain, nyways it 's on Page 44 of his book on AL, 5th Edition I think.

Difference between the Common Law System of AL and the French System of Droit Administratif

There are quite a number of differences between the Droit Administratif (a tribunal dedicated for deciding cases between the French government and it's citizens) and the Common Law System of AL. I'd like to make a side-by-side comparison but I don't know how to do it cos I'm lame and stuff so you'll have to manually compare it. 

Differences

1) The Common Law System (CL) allows Ordinary Courts to accept appeal cases from Statutory Tribunals.   

For instance, if you're unhappy by the Income Tax Tribunal's decision, you can make an appeal at any one of the Ordinary Courts (whichever that suits your case).

                                                                         VS

The Droit Administratif (DA) is a separate tribunal.They are not part of the French Courts and are independent of them.

2) The Ordinary Courts in the CL hears all originating motions and appeals (including those from Statutory Tribunals). They 

                                                                          VS

The DA only listens to administrative-based grievances only.

3) From the case of PP v Kok Wah Kuan, the Court held that Malaysia does not practice the Doctrine of Separation of Powers strictly, I quote 

"It is common for a statute to make provision for a Minister in charge of an Act of Parliament to make rules or regulations. The Minister is an executive. Rules and Regulations and by-laws, having the effects of law, is within the realm of the legislature to make, not the executive. Yet, I am unable to find any provision in the Constitution giving power to the legislature to make law to give the power to make such by-laws to the executive. So, are the provisions in the statutes giving Ministers power to make by-laws unconstitutional too on the ground that they contravene the doctrine of separation of powers? All these show the absurdity of applying the doctrine as a provision of the Constitution." 

- PP v Kok Wah Kuan

Therefore, it is allowed for the Executive itself to have their own Statutory Tribunal, subject to the Parent Act of course, whether it allows it or not.

                                                                         VS

The separation of powers in France is very strict. This resulted in a total dependence of the administration from judicial control (Executive from Legislative). The Ordinary Courts exercise no control over administrative functioning. Thus, a person has no avenue for redress of grievances against the administration through the courts.

These are some of the differences, it may seem to overlap, but the three key differentiating factors are :

1) Whether they are independent or not CL/DA.

2) What type of cases can the Courts/Tribunals hear.

3) The operation of the CL/DA with regards to the doctrine of separation of power.

That's all for now.

Nature and Scope of Administrative Law

Nature and scope of administrative law concerns the different writers approach in defining and discussing how far the tentacles of Administrative Law (AL) could reach. I will list down each and every scholar's opinion, though it should be noted that all scholars agreed that the true definition of AL is that it regulates the relationship between the government and it's citizens. Definitions relevant to my area of study are the ones from England and India.

England

Sir William Wade made two observations with regards to the definition of AL. They are :

1) AL is the law relating to the control of governmental power. (Governmental power being powers of all public authorities [PA] other than Parliament, and that the PA must be subject to legal limitations in order to protect citizens of an State).

2) AL is the body of general principles which governs the exercise of powers and duties by PA.

India

M.P Jain  defines AL as a law that deals with the structure, powers and functions of an organ of administration (a fancier way to call a State :p) It :

1) Limits the State's power.

2) Lays down methods and procedures that the State has to follow in exercising their power/function.

3) States the method by which the State's power is controlled.

4) Provides legal remedies to persons aggrieved by the State's unlawful action.

These are the definitions relevant to my area of study, I think. 

Historical Background of Administrative Law

I'm doing this for two reasons :

1) I read law.

2) To make me feel less guilty because instead of reading law I'm stalking hot guys.

Anyways, here goes :

Historical background before the growth.

Now, back then, things were much simpler (or so they think). The government couldn't be bothered much with the tidings of the people, they only :

1)  Defend the country from external aggression

2)  Maintain order within the country

3)  Collect taxes from the citizen to fund intra-state activities

This is known as the laissez faire system, which basically means that the government has minimum control over private businesses and a direct result of that = contractual freedom for private persons/bodies.

Now, this posed a problem as such freedom in enterprises caused :

1)  Unequal bargaining power between the rich and the poor

2)  Concentration of wealth in a certain group of people only

In a nutshell, the rich gets richer, and the poor, poorer. See, this is when the concept of Administrative Law first stepped in. The government, due to the problems mentioned above was urged to protect the socio-economic welfare of these aggrieved group of people and the state, namely in five ways :

1) P ; Protector : To protect the state from external aggression

2) P ; Provider : To provide social welfare for the people

3) R ; Regulator : To enact and provide law to control state activities

4) E ; Entrepreneur : To take part in the business of a State

5) U ; Umpire : To judge disputes between individual parties

With these new roles that the State has to play, the chances of misuse of power affecting individuals simultaneously increases too. Therefore, a constant need to adjust the relationship between the government and the governed is required in order to establish a proper balance between private rights and social control for the interest of the public.

This is the view of Sir William Wade whereby he said that administrative law is required to control governmental power. That is the heart of the subject (AL). It is to keep the powers of the government within their legal bounds, to prevent the powerful engine of the authority from running amok..

So, this sums up the historical background before the growth of Administrative Law.