2.

1 Distinct Legal Systems of France and Malaysia : Diversed approach of law

Malaysia practices judicial control over the validity of an administrative action,

through judicial control and additional powers of judicial review of the High Court 1

while France, has Conseil d’Etat, which is a French national government that acts as a

legal advisor of the executive branch and as the highest appelate court for

administrative justice2.

Conseil d’Etat’s court system is inquisitorial3, meaning the court actively investigates

facts of the case and is distinct from the adversarial court system practiced in

Malaysian courts. The civil courts in Malaysia, as per the case of Sugumar

Balakrishnan v Director Immigration, State of Sabah4, did not allow the review of

both the substantive and procedural aspects of a decision, and this case is said to have

set a bad and restrictive precedent. Altough esteemed judges and scholars from all

around the world have commented and expressed their views on the decision,

Malaysian law operates on the basis on binding precedents and the precedent stands.

On the other side of our discussion, Conseil d’Etat looks into both the substantive and

procedural part of the case brought up, thus offering a bigger scope of judicial review.

The council holds full discretion to adjudicate on the legality of any executive branch

decision except for the category of “ acts of govenrment”. The council begins a

formal investigation, asking the government or government officers to satisy the

1
Gan, C. C. (2009). Malaysian Administrative Law at the Crossroads: Quo Vadis ?. The Journal of Malaysian and
Comparative Law, 36, 13-52

2
Conseil d'État. (n.d). Administrative Justice in Brief (Infographics). 6, Nov 2020, Retrieved from,
https://www.conseil-etat.fr/en/administrative-justice-in-brief

3
Supra 2
4
[1998] 3 MLJ 289
council with a detailed statement of defence. The council also checks whether there

was any form mistake or error in the information given. The importance of the case

often determines the formation of the judgement and the chambers to which the cases

will be sent to. In Malaysia, there are 4 grounds for judicial review on anyone from

the administrative body i.e, procedural fairness, substantive fairness, proportionality,

and the right to access to justice.5 In short, the “legal system” involving the control of

executive body in France is much more broad and dynamic compared to Malaysia.

Malaysian courts are bound by the binding precedents theory6 whereby the courts

are bound by previous decisions of the higher courts while this is not the case with

Admin courts in France. Precedents provides certainty in the law, and with consistent

decisions, fairness comes along. Courts consider similarity of material facts of the

case before deciding to apply a particular precedent, and in our opinion, this system is

effective enough and need not be changed. In French admin courts, judges often

intepret statute law, as well as generic principles derived from the French

constitution7. Malaysian courts intepret statute laws, turn them into case laws and use

them as precedents. Malaysia is clearly a step above in this aspect of the law and an

alteration is not necessary. As the saying goes, “when its not broken, don’t fix it”.

5
Sridevi Thambapillay (2007). “Recent Developments in Judicial Review of Administrative Action in Malaysia: A
shift from grounds based on common law principles to the Federal Constitution”. Persidangan Undang-Undang
Tuanku Ja'afar 2007 (pp. 275-290). Bangi: Fakulti Undang-undang, Universiti Kebangsaan Malaysia

6
Hamza WA, Bulan R. An Introduction into Malaysian Legal System. Malaysia, Oxford Fajar Sdn Bhd 2003.
7
Vroom, C. (1988-1989). Constitutional Protection Of Individual Liberties In France: The Conseil Constitutionnel
since 1971. Tulane Law Review, 63(2), 265-334.
Next, the remedial nature in French Administrative courts have been traditionally

limited, based on the theory of litigation whereby individual justice is less prioritized

compared to achieving proper operation of the state. Conseil d’Etat in the past used to

annul administrative acts or award damages in tort litigation but did not have the

source to afford injunctive relief8. However, in the past decade, the Administrative

Court of France have obtained a much wider jurisidiction of remedial power to

address gaps and injustices. French admin courts offer remedies in 2 ways, one being

a “request” to annul an administrative decision and the other being an “appeal” under

which claims can be made for losses suffered due to the executive’s illegal action.9

In Malaysia, in the words of Gopal Sri Ram in Hong Leong Equipment Sdn Bhd v

Liew Fook Chuan10, “the courts are entitled to undertake a critical scrutiny of the

factual matrix” of administrative decisions to determine whether such decisions are

reasonable. Justice Gopal has clearly opened a wider scope for Malaysian courts to

provide remedies to protect individual rights and civil liberties against attacks.

According to senior law profesor from University of Malaya, Profesor Emeritus

Datuk Dr.Shad Saleem Faruqi, remedies that citizens have against each other are not

available against the government11. For instance, specific perfomance will be ordered

against the government or any admin bodies in cases of breach of contract. Execution

procedures available for private parties are not available for admin bodies. To satisy a

debt for example, government properties cannot be sold. In a recent case of Finance
8
ibid
9
Michell, K. (1965). The Causes And Consequences Of The Absence Of System Of Public Law In The United Kingdom, Public
Law, 95.
10
[1997] 1 CLJ 665
11
Our Constitution. By Shad Saleem Faruqi. Subang Jaya, Malaysia: Sweet & Maxwell, 2019, pp. 425.
Minister and Sabah Government vs Petrojasa Sdn Bhd12 , judge of the Federal Court

faced a situation in which the age-old dictum that “wherever there is a right, there

must be a remedy” was being trumped by procedural rules hindering the obtaining

of a remedy. Besides that, laws like Order 73 r 12(1) of the Rules of the High Court

and Section 44(2)(b) of the Specific Relief Act have mentioned about the restrictions

in judgements involving administrative remedies.

The Malaysian public law has also to grapple with the presence of some

restrcitive and traditional laws which have to a large extent affected its proper

development. The recent Petrojasa’s case13 has highlighted the presence of

restrictive laws blocking the enforcement of rights or taking of actions against the

governmental authorities. This calls for reform of Malaysian public law and the

applications of Droit Administrative System into our system of law ‘might’ be the

answer.

In terms of the advisory role of Malaysian Courts, The Federal Court , as the highest

court of appeal in Malaysia has advisory jurisidiction to give an advisory opinion on

questions referred to it by the Yang di-Pertuan Agong concerning the effects of any

provisions of the Constitution14. In the case of Michael Lee Fook Wah v Minister of

Human Resources15, it was held that, “ when hearing an application for judicial does

not sit in its appelate jurisidiction but merely performs its supervisory jurisdiction”.

12
[2008] 4 MLJ 641
13
Supra 11
14
Azlan. M. (1984). Journal of Malaysia and Comparative Law (Vol. 11): Supremacy of Law In Malaysia. Kuala Lumpur:
Department of Publication, University of Malaya.
15
per Justice Veer Alam J, Maqsood Ahmad & Ors v Ketua Pegawai Penguatkuasa Agama & Ors
[2019] 9 MLJ 596 at para 79
In Conseil D’Etat, the council holds the statutory authority to examine all draft

legislation proposed by non-parliamentary members and prior to being

introduced before Parliament. There is where the question as to whether this feature

can be implemented in Malaysia comes into context. A bill in Malaysia might come

from anybody, the citizen, legislative or the execustive. Article 67 of the Federal

Constitution16 however states that money bill can only be introduced by the Dewan

Rakyat and the minister. For a minister to introduce a bill in the parliament, all he/she

has to do is to give early notice to the clerk about his/her intention to introduce the

bill. Here is where I believe the application of the laws in Conseil D’Etat in Malaysia

makes some sense. The draft legislations proposed is not statutorily examined before

being brought to the attention of the parliament in Malaysia. During the committee

stage, the representatives will group themselves into several committes to discuss the

bill in detail but this particular discussion only takes place after 2 stages in the

parliament17.

We believe that there needs to be a body to scrutinize and examinate the draft

legislation before being brought to the parliament. Without this process, anyone can

propose anything and the proposed legislation will be debated without being

examinated in the very first place.

16
Article 67 of Federal Constitution, Malaysia
17

Auby, J. M. (1970). The Abuse of Power in French Administrative Law. The American Journal of Comparative Law, 549-564.
Bibliography :

1. Gan, C. C. (2009). Malaysian Administrative Law at the Crossroads: Quo Vadis ?.

The Journal of Malaysian and Comparative Law, 36, 13-52

2. Conseil d'État. (n.d). Administrative Justice in Brief (Infographics). 6, Nov 2020,

Retrieved from, https://www.conseil-etat.fr/en/administrative-justice-in-brief

3. Sridevi Thambapillay (2007). “Recent Developments in Judicial Review of

Administrative Action in Malaysia: A shift from grounds based on common law

principles to the Federal Constitution”. Persidangan Undang-Undang Tuanku Ja'afar

2007 (pp. 275-290). Bangi: Fakulti Undang-undang, Universiti Kebangsaan Malaysia

4. Hamza WA, Bulan R. An Introduction into Malaysian Legal System. Malaysia,

Oxford Fajar Sdn Bhd 2003.

5. Vroom, C. (1988-1989). Constitutional Protection Of Individual Liberties In

France: The Conseil Constitutionnel since 1971. Tulane Law Review, 63(2), 265-334.

6. Michell, K. (1965). The Causes And Consequences Of The Absence Of System Of

Public Law In The United Kingdom, Public Law, 95.

[1997] 1 CLJ 665

7. Our Constitution. By Shad Saleem Faruqi. Subang Jaya, Malaysia: Sweet &

Maxwell, 2019, pp. 425.

8. Azlan. M. (1984). Journal of Malaysia and Comparative Law (Vol. 11): Supremacy

of Law In Malaysia. Kuala Lumpur: Department of Publication, University of

Malaya.
9. per Justice Veer Alam J, Maqsood Ahmad & Ors v Ketua Pegawai Penguatkuasa

Agama & Ors

[2019] 9 MLJ 596 at para 79

10. Auby, J. M. (1970). The Abuse of Power in French Administrative Law. The

American Journal of Comparative Law, 549-564

11. Article 67 of Federal Constitution, Malaysia

12. [1998] 3 MLJ 28

13. [1997] 1 CLJ 665

14. [2008] 4 MLJ 641