ADMINISTRATIVE LAW

LAW 309

NOORIMAH BINTI MISNAN

 Chapter 1

INTRODUCTION TO
ADMINISTRATIVE LAW
 POWER OF AN CONTROLLING
ADMINISTRATIVE LAW ADMINISTRATOR MECHANISM
OR EXECUTIVE

1. Davis
2. Dicey
3. Jennings 1. to make subsidiary
4. Wade & legislation IF BREACH
Phillips 2. to adjudicate cases in
5. Wade tribunals
6. Beatson & 3. to make contracts
Matthews 4. to exercise discretionary
7. Jain powers
5. to delegate further power
given to them REMEDIES
6. to withhold information
and document
1. habeas corpus
2. injunction
3. certiorari
4. mandamus
5. prohibition order
6. declaration order
ADMINISTRATIVE LAW THE WHOLE IDEA

3
DAVIS :
is the law concerning the powers and procedures of
administrative agencies, including especially the law
governing judicial review of administrative action.
DICEY :
that portion of a nations legal system which determines
the legal status and liabilities of all state officials, which
defines the rights and liabilities of private individuals in
their dealings with public officials and which specifies
the procedure by which those rights and liabilities are
enforced
JENNING :
Administrative law is the law relating to the
Administration. It determines the organisation, powers,
and duties of administrative authorities
WADE & PHILLIPS :

Administrative Law is a branch of public law which is

concerned with the composition, powers, duties,
rights and liabilities of the various organs of the
government which are engaged in administration.

WADE :
the law relating to the control of governmental
power.
 RULE OF LAW
Government must be conducted according to
law
According to Aristotle : It was preferable to
have government by laws rather than
government by men
According to Wade : everything must be done
according to law
 The basic Rule of Law
Administration does not enjoy any power outside the
law
Distinction should be drawn between arbitrary and
discretionary powers
Rule of law is to draw a balance between public
power and private interests, provides for a control
mechanism over the administrative action and a
redress mechanism when the individual get hurt by
the administrative action.
The creation of a Tribunal shall not inconsistent with
the rule of law as they are used to control the
administrative powers and quick justice to individuals.
 THE CONCEPT OF SEPARATION OF
POWERS
The concept of separation of powers means that
every body in the government will have its own
function separated each other.

Legislative or Parliament to make law

Executive or administrative to execute law
Judiciary to interpret law and to settle disputes

The doctrine of separation of powers was first

introduced by Montesquieu, a French jurist and
philosopher.
His argument was based on political reason in his
country in which in the 18th century, the absolute
authority was given to the ruler Louis XIV.
During his reign, oppression had been done on the
citizen but no action could be taken because all
powers given to the ruler alone.
This had lead to riot in the country.
He compared with the system exercised in the USA
in which the separation of power formed the basic
of the constitution.
 USA - constitution
Article 1 confers the legislative power to
the Congress.
The executive power is vested in the
President by virtue of article II and
the Supreme Court has a judicial power
as stated in Article III.
 Application of separation of power in
Malaysia.
Basically in Malaysia adopted the concept of
separation of power. Government power is
usually (but not always) derived from and defined
by statute. Action outside the boundaries of the
defined area is unauthorized. Basically there are
three main organs of government namely:
I. Legislative or Parliament to make law
II. Executive or administrative to execute law
III. Judiciary or adjudicatory to interpret law and
to settle disputes
 Legislative

Article 44 of the Federal Constitution : The

legislative authority of the Federation shall
be vested in a Parliament, which shall consist
of the YDPA and two Majlis ( Houses of
Parliament) to be known as the Dewan
Negara (Senate) and the Dewan Rakyat
(House of Representatives).
 Executive
Article 39 of the Federal Constitution :
The executive authority of the Federation
shall be vested in the YDPA and exercisable,
subject to any provisions of any federal law
and of the 2nd Schedule, by him or by the
Cabinet or any minister authorized by the
Cabinet, but Parliament may by law confer
executive functions on other person.
 Judiciary
Article 121 of the Federal Constitution : there
shall be two High Court of Co-ordinate jurisdiction
and status the High Court of Malaya and High
Court of Sabah and Sarawak.

In theory, Malaysia adopted the concept of

separation of power but in practical, the
separation of power between each body cannot be
strictly applied. As far as executive and legislative
concerned, there are overlapping of functions and
membership.
 Examples :
Cabinet are responsible to the Parliament
The prime Minister has a power to dissolve Parliament
Executive members are members of Parliament
The YDPA has a power to make law during emergency
(overlapping between executive and legislative)
The YDPA has a power to pardon (overlapping
between executive and judiciary)
Article 125(3) FC judges can be terminated by the
YDPA on the advice of the Prime Minister (overlapping
between executive and judiciary).
 Legislative functions
Power of legislative nature can be seen under
subsidiary legislation.
The administration seeks to lay down a general
rule of conduct or policy to be followed in the
generality of cases.
This function relates to the administrative action
in giving or interpreting general regulation
without reference to the specific cases.
For instance, in making delegated regulation or
law, the court will not grant certiorari to
invalidate the implementation of this power.
 Administrative function
Examples of Administrative function are the
implementation of law and regulations and
preservation of peace.
In order to exercise this type of function,
administrator will give certain order or use general
regulation based on specific cases.
Usually, the administrators action is free from any
procedure unless the statute had provided specific
procedure to be followed. They also can use their
discretionary power and it is not required to give
reasoned decision.
 Ministerial function
The administrator should exercise power
within the law, follow the relevant procedure
and decide based on collective opinion.
For examples : registration of births and
deaths, business activity, granting licence and
etc. Mandamus will be granted by the court if
the administrator failed to exercise this
function.
JUDICIARY FUNCTION
Normally this function is owned by the court to
settle the dispute in the society and also to
interpret the existing law.

However, the administrator nowadays also can

exercise this function, which is known as quasi
judicial. The decision given by the administrator
normally based on discretionary power and also
has to follow the principles of natural justice.

Examples of this functions are revocation of licence,

inspection and investigation, termination of an
employees (misconduct) and so on.
 conclusion
In conclusion, Malaysia had adopted the
concept of separation of powers with
modification according to the need of the
country. Basically Malaysia practiced 2+1 in
which the power to enact law is also given to
the executive. The concept of separation of
powers cannot be strictly applied especially
for the purpose of check and balance in the
administration of each government organ.