Friday, January 11, 2013

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.






No comments:

Post a Comment