Description
This thorough study addresses both the legal and practical aspects of Malaysian Administrative Law. Controls over subsidiary legislation, Natural justice, Judicial control over use of discretionary powers, and Government liability provide an essential starting point for in-depth understanding of this area of the law.
The book has been updated in this version to reflect recent changes in Malaysian Administrative Law, such as those relating to the reviewability of administrative actions and judgments, separation of powers, and the use of constitutional provisions in judicial review cases.
TABLE OF CONTENTS
CHAPTER I: NEED FOR ADMINISTRATIVE LAW AND THE REASONS FOR ITS GROWTH
CHAPTER II: NATURE AND SCOPE OF ADMINISTRATIVE LAW
Administrative law in the United States of America and the United Kingdom
The nature and scope of administrative law
Constitutional law and administrative law
CHAPTER III: RULE OF LAW
The rule of law and its values
The growth of administrative law in Britain, Australia and New Zealand
CHAPTER IV: SEPARATION OF POWERS
The development and influence of the doctrine of separation of powers in the United States of America
Droit administratif
Separation of powers and the Federal Constitution
CHAPTER V: SUBSIDIARY LEGISLATION
Factors leading to the growth of delegated legislation
Need for safeguards
Restraints on delegation of legislative power
Definition of subsidiary legislation
Forms of delegation of legislative power
Administrative quasi-legislation
CHAPTER VI: CONTROLS OVER SUBSIDIARY LEGISLATION (1)
Judicial control
CHAPTER VII: CONTROLS OVER SUBSIDIARY LEGISLATION (2)
Legislative control
Other controls
CHAPTER VIII: ADMINISTRATIVE ADJUDICATION
Introduction
Tribunals
Adjudicatory bodies in Malaysia
Adjudication within the administration in Malaysia
Inquiries
The Franks Committee
CHAPTER IX: NATURAL JUSTICE: WHEN CAN IT BE CLAIMED?
Natural justice
Exclusion of natural justice
CHAPTER X: PRINCIPLES OF NATURAL JUSTICE
Audi alteram partem
CHAPTER XI: RULE AGAINST BIAS
Pecuniary bias
Personal bias
Policy bias
Exclusion of bias
Waiver
Proposed reforms in the system of administrative adjudication
CHAPTER XII: FAILURE OF NATURAL JUSTICE
Introduction
Curing breach of natural justice
CHAPTER XIII: ADMINISTRATIVE POWERS
Nature of administrative powers
Statutory powers
Non-statutory powers
CHAPTER XIV: DISCRETIONARY POWERS (1)
Nature of discretionary powers
Conferment of excessive discretion
Judicial control over exercise of discretionary powers
Abuse of discretion
Non-exercise of discretion
CHAPTER XV: DISCRETIONARY POWERS (2)
Administrative delay
Yang di-Pertuan Agong
Non-statutory powers
Unreviewable discretions/non-justiciability
Estoppel against the government and legitimate expectation
CHAPTER XVI: SUB-DELEGATION OF POWERS
What is sub-delegation?
Delegatus non potest delegare
Government business
Sub-delegated legislation
CHAPTER XVII: GOVERNMENT LIABILITY
Contractual liability
Tortious liability
Misfeasance in public office
Governmental liability in case of injuries to military personnel
Public Authorities Protection Act 1948
Damages against municipal bodies
Liability of statutory bodies
Protection for public servants
Statutory exemptions
CHAPTER XVIII: RIGHT TO INFORMATION
Open government
CHAPTER XIX: JUDICIAL CONTROL OF ADMINISTRATIVE ACTION (1)
Judicial review
Habeas corpus
Mandamus
Certiorari and prohibition
Quo warranto
Moulding of relief
CHAPTER XX: JUDICIAL CONTROL OF ADMINISTRATIVE ACTION (2)
Declaration
Injunctions
Relator action
Monetary remedies
Statutory provisions excluding judicial review
Statutory provisions for judicial control
Equitable relief
CHAPTER XXI: OMBUDSMAN
Need for ombudsman
CHAPTER XXII: PUBLIC UNDERTAKINGS
Reasons for the growth of public undertakings
Public enterprises in Malaysia
Classification of public undertakings
Organization of public enterprises
Some select public undertakings
Control over public enterprises
Legal characteristics of a corporation
Privatization
Courts’ supervision over privatized sector
About the Author(s)
Dato’ Seri Mohd Hishamudin Yunus began his career in the Judicial and Legal Service in 1973 as a magistrate in Kuala Lumpur and went on to serve in other capacities, including President of Sessions Court, Deputy Public Prosecutor, Senior Federal Counsel and Chief Registrar of the Supreme Court. He also had held the posts of Legal Advisor of the Ministry of Primary Industry and State Legal Advisor of the Selangor State Government. In 1984 he was admitted as an Advocate and Solicitor of the High Court of Malaya. Dato’ Seri Mohd Hishamudin was appointed a Judicial Commissioner in 1992. He became a High Court Judge in 1994 and was elevated to the Court of Appeal in 2009, where he remained until his retirement in 2015. As a judge of the superior courts for almost 23 years, Dato’ Seri Mohd Hishamudin had written about 750 judgments. Upon retirement from the bench, Dato’ Seri Hishamudin was invited by Messrs Lee Hishammuddin Allen & Gledhill to be their Consultant. He was appointed as the Chairman of the Malaysian Competition Commission in 2018 and as a Commissioner of the Judicial Appointments Commission as well as Commissioner of the Human Rights Commission of Malaysia in 2019.
Dr Saw Tiong Guan read law at the University of Malaya and became an advocate and solicitor of the High Court of Malaya in 2005. In 2011, he obtained a doctoral degree from the University of Melbourne with a thesis examining the effects of censorship laws on the artistic vibrancy and commercial viability of the film industries in Malaysia, Hong Kong and Australia. He is currently a Senior Lecturer at the Faculty of Law, University of Malaya and teaches Administrative Law, Constitutional Law and Criminal Procedure.
Himahlini Ramalingam graduated with a LLB (Hons) from the University of Malaya in 2004 and was admitted as an advocate and solicitor of the High Court of Malaya in May 2005. She is a partner in Messrs Himahlini & Loh. Himahlini has wide experience advising and representing clients in the areas of corporate and commercial litigation, corporate insolvency and restructuring and defamation, across a broad spectrum of litigation in Court. Her clients include amongst others, government-linked companies, public listed companies, financial institutions, securities and broking houses, judicial managers, liquidators, receivers and managers, media organisations and high nett worth individuals.\
Lee Ting Han graduated with an LLB (Hons) from the University of Malaya and an LLM from the University of Cambridge. He previously served in the public sector and is currently an advocate and solicitor of the High Court of Malaya.
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