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1. INTRODUCTION
Lecturer:
Noor ‘Ashikin Hamid

2. Objectives
To discuss the reasons for growth of administrative law.
To explain the nature, scope and function of the
administrative law
To examine the relationship between the administrative
and constitutional law
To discuss the concept of rule of law and separation of
power and its application in Malaysian administrative
law.

3. Historical Background for the Growth
•Before 20
th
century, the state exercised laissez faire system
that is based on individualism or self control.
•Minimum control from the government.
•Recognized the concept of maximum free enterprises and
contractual freedom.
•The laissez faire system resulted:
i.Uncontrolled contractual freedom among private
individuals, unequal bargaining power between rich and
poor and stronger and weaker.
ii.Concentration of wealth to a group or certain people
only.

4. Continued
•As the result of this phenomenon, the concept of
social welfare had emerged.
•The government had been pushed to:
– Play the role in the socio – economic welfare of
the people.
–Protect the citizen in every aspect of citizen’s life
that is social, moral, economic, education, health,
welfare etc.

5. REASONS FOR GROWTH
1.Raising a number of the state authorities, thus
it provides necessary certainty and prescriptions
of each authorities.
2.Industrial revolution that resulted in the coming
up of cities and new types of economic
transactions necessitated handling of affairs by
govt in order to facilitate production, supply and
exchange of products and services.
3.Technological inventions and the increasing
specialization has called for the increased need
of specialised handling of affairs by govt
officials.

6. REASONS FOR GROWTH:
4.To allow necessary flexibility in the administrative
system so that the challenges arising due to social
and economic factors could be addressed more
adequately and efficiently.
5.To allow experimentation in order to ensure the
application of best fit model in a given circumstance.
6.To allow participation of people in the administrative
functioning to provide the necessary authority to the
administrative officials so that they can address the
challenges arising due to extraordinary circumstances
or emergency situations.

7. NATURE AND SCOPE
•Definition of administrative law
–American approach
•Davis:
“… administrative law is law concerning the
powers and procedures of administrative
agencies, including judicial review of
administrative action…”
•Lewis the process by which the courts
exercise a supervisory jurisdiction over the
activities of public authorities in the filed of
public law.

8. Continued
–England approach
•Dicey:
“… administrative law is a portion of a nation’s
legal system which determines legal status and
liabilities of all state officials which defines
rights and liabilities of private individuals in
their dealing with public officials and which
specifies procedures by which those rights and
liabilities are enforced…”

9. Continued
–Modern British approach
•Jenning:
“administrative law is the law relating to
administration. It determines the organizations,
powers and duties of administrative authorities”

•Wade and Phillips – similar to Jenning:
“… is a ranch of public law which is concerned
with the composition, powers, duties, rights and
liabilities of the various organs of government
which are engaged in the administration”

10. •Administrative law is the body of law that
governs the activities of administrative
agencies of the government which comprise
of rule making or legislation (when delegated
to them by the Legislature as and when the
need be), adjudication(to pronounce decisions
while giving judgments on certain matters),
implementation/enforcement of public policy.
•Example: the law relating to town and country
planning.

11. THE RELATIONSHIP BETWEEN A.L AND
CONSTITUTIONAL LAW
•Administrative law is derived from
constitutional law but differed from
constitutional in its scope and function.
•Function of constitutional law is to create the
policies and legislation and be interpreted by
the courts.
•The function of administrative law is to put
into practical of the policies and law.

12. Administrative

Constitutional law.
•It is not the supreme law of
the country rather it is
subordinate to the
constitutional law.

•It is the supreme and
highest law of the country.
• Administrative law is the
species of Constitution law.
•The constructional law is
always regarded as the
genus. It is the main law.

13. Administrative law Constitutional law
•It deals with the organs of
the state.
•It deals with the general
principal of state pertaining
to all branches.
•It mainly deals with the
various functions of the
state.
•It mainly deals with the
structure of the state.

14. Administrative law Constitutional law
•It doesn't deal with all branches
of law, rather it details with the
powers and functions of
administrative authorities.
•It touches all the branches of law
and gives guidelines with regard
to the general principal relating
to organization and powers of
organs of the state, and their
relations between citizens and
towards the state.
•It does not deal with the
international law. It deals
exclusively with the powers and
functions of administrative
authorities.
•It also gives guidelines about the
intentional relations.

15. Administrative Law Constitutional Law
•It deals with the powers
and functions of
administrative authorities,
including services, public
departments, local
authorities and other
statutory bodies exercising
administrative powers,
quasi judicial powers, etc.
•It imposes certain negative
duties on administrators, if
they are found violating the
fundamental rights of the
citizens and etc. It also
imposes certain positive
duties on administrators,
viz, implementation of
social welfare schemes.

16. DICEY ON ADMINISTRATIVE LAW: rule
of law
•Dicey supported Rule of Law where everybody in a State shall be
subjected to same common law and no official irrespective of his
status and authority shall be kept outside the purview of Rule of
Law.
•Thus, he rejected the idea of administrative law that was akin to
Droit Administratif or that which was being practised in France and
other European countries where there are separate rules for
administrative officials as he believed that such an arrangement
would lead to a perpetual risk of excessive application of authority
with people having no window to their grievance redressed.
•The reason for this is that while analysing the concept of
administrative law, Dicey was always thinking of French
administrative law/rights system/ Le Droit Admanistratif that
existed under Napoleon's Bonaparte's rule.

17. DICEY ON ADMINISTRATIVE LAW:
•Droit Adminstratif practised the system of:
a)One rule for regulating the behaviour of individuals of society and
one rule for regulating the members of State and administration.
b)One court for members and individuals of the society and their
private aspects and another court for members of State and
administration which is the administrative Court/Tribunals and
the apex of this court will be the Council D'Etat.
•These are distinct and not overlapping neither are superior or
inferior to each other. They are equals. In case they ever overlap
then the final decision will be taken by a special court constituted
for this purpose.

18. DICEY ON ADMINISTRATIVE LAW:
•This was done so that administrative and State officials
have more autonomy in dealing with situations and
contingencies that arise in execution of administrative
duties and which would not be easily understood by
the normal law and courts.
•Thus, Dicey believed that there should not be such a
separation where there is one law that governs the
administrative and political officials( administrative
law) and one that governs society and its people(civil
and criminal law) and advocated the rule of law as
prevalent in UK where everybody was equal in the eyes
of law and only one common law governed each and
every individual.

19. RULE OF LAW
•Dicey’s postulates; Dicey identified three fundamental
meanings/principles of the rule of law.
•Dicey’s first principle of the rule of law is that “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 legal manner before the ordinary courts
of the land. In this sense the rule of law is contrasted
with every system of government based on the
exercise by person in authority of wide, arbitrary, or
discretionary powers of constraint”. (Dicey, 1897).

20. RULE OF LAW
•According to Craig the first sentence requires
that laws under which people are condemned
should be passed in correct legal manner and
the guilt should only be established through
ordinary trial process.

21. RULE OF LAW
•Dicey’s second principle of the rule of law
concerns equality that “every man, whatever
be his rank or condition, is subject to the
ordinary law of the realm and amenable to
the jurisdiction of the ordinary tribunals.” It
concerns with equal access to the courts, not
with the nature of the rules which individuals
find when they get there.

22. •Dicey’s third principle is to upheld the
supremacy of the common law/ unwritten
constitution on the UK .
•This is because the general principles of the
constitution rights to personal liberty, or
public meeting in UK derived from judicial
decisions whereas under many foreign
constitutions such rights flowed from a
written constitution (Dicey, 1897).

23. RULE OF LAW
•In other words, Dicey’s rule of law entails the
traditional principles of legality and equality
before the law.
•Craig argued that the rule of law provides that
foundation for the controls exercised by the
courts over governmental action through
judicial review. In this sense the rule of law is
expressive of how the state ought to behave
towards individual in society.

24. RULE OF LAW
•But, Dicey was heavily criticised
i.as he did not take into account that even the Crown in
UK was immune from civil and criminal proceedings,
thus, there was no rule of law or equality here.
ii. for not taking into account the future issues that would
arrive in administration due to modernization and
complexity like delegated legislation, etc. Delegated
legislation was very much a part of UK administrative
setup as well as the system of administrative
adjudication through tribunals that was contrary to
Dicey's rule of law stating only one law making body
which is the legislature and it being applied everywhere
universally and interpreted by the judicial courts as and
when required for each and every one.

25. •The basic values of rule of law:
i.Administration does not enjoy any power
outside the law. No inherent power on its
own so as to affect individual’s right. The
administration gets power from law itself.
ii.Distinction between arbitrary and
discretionary power. Officials can have
discretionary power but not arbitrary
powers.

26. iii.Rule of law is to draw a balance between public
power and private interest, provides for a control –
mechanism over the administration and a redress
mechanism when the individual get hurt by the
administrative action and ensures the exercise of
the administrative power in a lawful manner.
iv.The creation of tribunals shall not inconsistent
with rule of law as they are used to control the
administrative powers and provide quick justice to
individuals.

27. •The Malaysian Constitution clearly embodies, expressly in
many of its provisions, the principles outlined by Dicey.
•The equality provision is found in art 8(1) which states that:
“All persons are equal before the law and entitled to the
equal protection of the law”. The legal meaning of article 8
is that no one is above the law, thus everyone is equal in
the eyes of the law (Andrew Harding, 1996).
•Modern day concept of rule of law has been given a very
broad meaning by providing opportunities to unequal
people in order to equal themselves with the others like
reservation, etc.

28. Lee Kwan Woh v Public Prosecutor
[2009] 5 MLJ 301
•The Federal Court:
•“The rule of law forms part and parcel of the common
law of England…the rule of law in all its facets and
dimensions is included in the expression 'law' wherever
used in the Constitution. Hence, the expression 'law' in
art 5(1) includes written law and the common law of
England, that is to say the rule of law and all its integral
components and in both its procedural and substantive
dimensions. For, it is now settled that the rule of law
has both procedural and substantive dimensions”.

29. SEPARATION OF POWERS
(UNITED STATES)
Institution Power Personnel Control
Congress Power to
make laws
Elected
representatives
Presidential vote; the
Supreme Court review of
validity
President Executive
power
Elected cannot be
a Member of
Congress
Senate ratification necessary
for cabinet and diplomatic
appointments, and treaties;
judicial review; impeach by
removal by Congress.
Supreme
Court
Judicial power
inc. judicial
review of
legislative &
executive
activity.
Appointed by
President with
Senate ratification
Impeachment by Congress

30. SEPARATION OF POWERS
(WESTMINSTER)
Institution Power Personnel Control
Parliament Make Laws
Representatives elected
to lower House. Elected
or appointed to upper
House
(Royal Assent) Supervision
and/ or expulsion by the
House.
Executive
Council
(Cabinet)
Executive
Power
Ministers appointed
by the Crown with the
support of the lower
House.
Must be MOP
Maintain support of
the lower House
Parliamentary and
Judicial Review
Courts Judicial
Power
Judges appointed by
Executive
Superior Court justices’
removal by the Crown and
address from both Houses
on certain grounds.

31. SEPARATION OF POWERS
•Montesquieu was one of the foremost supporters of
the doctrine. His writings considerably influenced the
opinions of the framers of Constitution of the United
States. There, it is widely known as "checks and
balances".
• In United States, the Federal Constitution gives
Congress the legislative powers; the President
executive powers and the Supreme Court the judicial
powers.
•The President is both the head of the state as well as
its chief executive.

32. •He appoints and dismisses other executive
officers and controls the policies and action of
the government departments.
•The president is not bound to accept the
advice of the Congress nor any member of
the executive is a member of the Congress
and a separation of power is maintained
between the legislative and executive .

33. SEPARATION OF POWERS
•Administrative Law and separation doctrine are some
what in compatible, for modern administration
process envisages mingling of various types of
functions at the administrative level.
• Administrative process arises because new demands
are made on the government to solve many complex
social-economic problems of contemporary society
and thus new institutions need to be created and
new procedures evolved.
•For this practical reason the doctrine of separation of
power had to be diluted or reduced.

34. SEPARATION OF POWERS
•As result of this, the doctrine therefore calls for
system to have an adequate check and balance
mechanism so that the governmental powers are
exercised according to law.
•These checks and balances are necessary to ensure
that the government is to exercise its powers in a
legitimate manner.
• At the same time, within the system there should
exist independent bodies to see that these powers
are not used except as authorized by law.

35. SEPARATION OF POWERS
•A pure doctrine of the separation of powers might be
formulated in the following way: It is essential for the
establishment and maintenance of political liberty that
the government be divided into three branches or
departments, the legislature, the executive and the
judiciary.
•To each of these three branches there is a
corresponding identifiable function of the government,
legislative, executive, or judicial.
•Each branch of the government must be confined to
the exercise of its own function and not allowed to
encroach upon the functions of other branches.

36. •Furthermore, the persons who compose these
three agencies of government must be kept
separate and distinct, no individual being
allowed to be at the same time a member of
more than one branch. In this way, each of the
branches will be check to others and no single
group of people will be able to control the
machinery of the state (Vile, 1998).

37. SEPARATION OF POWERS
•Chong Chung Moi @ Christina Chong v The
Government of the State of Sabah and Sarawak
.

[2007] 5 MLJ 441.
•Y.A. Tuan Haji Hamid Sultan Bin Abu Backer, JC:
The doctrine of separation of powers is not a
concept written in the Federal Constitution,
because it is the foundation of the constitution
itself, without which the establishment will
collapse and will have no footing to stand on.
•There are also other concepts such as
Independence of Judiciary.

38. continue
•Judicial Review, which are not written in the
constitution but stands as a sine qua non to
protect the constitution and without these
concepts and its application the constitution,
cannot function as intended.
•As such the constitution cannot be read in
isolation.
• The judges have taken oath of office to
protect the constitution.

39. continue
•The executive and legislatures under the doctrine
of separation of powers has a duty to the public
to ensure that judges' oath to protect the
constitution is not made illusory by enacting laws
which attempts to take judicial scrutiny on
executive decisions.
•This duty is a sine quo non to protect the
constitution, the protection of which in its true
sense means protecting the public.
• This is also the basic tenet of the constitution
and Rukun Negara.

40. continue
•All the said pillars before coming into office
take an oath to protect the constitution.
•In consequence, they have taken upon
themselves a sacred duty and obligation to
the public to ensure that one pillar does not
undermine the other in whatever manner,
because the weakness of any of the pillars will
undermine the stability of the constitution
and this will ultimately affect the public.

41. continue
•Although, humans can stand on two legs or
one, the Federal Constitution needs all three
to stand individually to uphold the
constitution and protect the public.
•This concept of standing separately to protect
public interest is often termed as the doctrine
of separation of powers.

42. SEPARATION OF POWERS
•The question in the administrative law is not how
true the ideas behind the doctrine of separation of
power is today, but of more immediate concern is
the question whether there is adequate check and
balance to correct, minimize or remove abuse of
power by public authorities.
•In Malaysia, the judiciary plays an important role in
ensuring that the government will not abused its
power, this will be further study under the topic of
judicial review.

43. continue
•The Federal Constitution has entrusted to an
independent judiciary the task of interpreting the
supreme law and, indeed, all laws enacted by the
legislative arm of government.
•Hence, it is to the courts that a citizen must turn
to enforce rights conferred by the Federal
Constitution or other written law or existing at
common law.
•This is a cardinal principle of constitutional law
and has been stated in a number of cases.

44. Sugamar Balakrishnan v Pengarah Imigresen
Negeri Sabah [1998] 3 MLJ 289
•The Federal Court referred to
•Minerva Mills Ltd v Union of India AIR 1980 SC
1789, Bhagwati J (later CJ) said (at p 1825): that
every organ of the State, every authority under
the Constitution, derives its power from the
Constitution and has to act within the limits of
such power. But then the question arises as to
which authority must decide what are the limits
on the power conferred upon each organ or
instrumentality of the State and whether such
limits are transgressed or exceeded.

45. continue
•Now there are three main departments of the
State amongst which the powers of Government
are divided; the executive, the legislature and the
judiciary.
•Under our Constitution, we have no rigid
separation of powers as in the United States of
America, but there is a broad demarcation,
having regard to the complex nature of
governmental functions, certain degree of
overlapping is inevitable.

46. Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ
1
•The Federal Court stated: … we have our own model.
Our Constitution does have the features of the
separation of powers and at the same time, it
contains features which do not strictly comply with
the doctrine.
•To what extent the doctrine applies depends on the
provisions of the Constitution.
•A provision of the Constitution cannot be struck out
on the ground that it contravenes the doctrine

47. continue
•Similarly no provision of the law may be struck out as
unconstitutional if it is not inconsistent with the
Constitution, even though it may be inconsistent with the
doctrine.
•The doctrine is not a provision of the Malaysian
Constitution even though no doubt, it had influenced the
framers of the Malaysian Constitution, just like democracy.
•The Constitution provides for elections, which is a
democratic process.
•That does not make democracy a provision of the
Constitution in that where any law is undemocratic it is
inconsistent with the Constitution and therefore void.

48. Gobind Singh Deo v Yang Dipertua, Dewan
Rakyat & Ors [2010] 2 MLJ 674
•The doctrine of the separation of powers is a
feature of the Malaysian Constitution. The
separation of powers, in the sense of checks and
balances within the three branches of
Government exists and animates the Malaysian
Constitution. Article 63(1) of the Federal
Constitution is an instance of the application of
such doctrine.
•The doctrine of separation of powers is a feature
of our Constitution, and that is recognised even
in Kok Wah Kuan.

49. continue
•It could not have been the intent of the Federal
Court in Kok Wah Kuan to completely deny the
relevance of the separation of powers doctrine,
and as the passage quoted above clearly
indicates, the Federal Court in fact did not so
deny. Separation of powers, in the more readily
understandable sense of checks and balances
within the three branches of government, exists
and animates the Constitution of Malaysia.
• Article 63(1) of the Federal Constitution is but
one instance of its application.