ADMINISTRATIVE

POWER
CHAPTER 2
Contents
• Introduction
• What is Administrative power?

• Duty of decision maker

• StatutoryProvisions that Grant

Decision Making Powers
• Introduction to judicial review (JR)

• JR vs. appeal
Introduction
• Administrative law - area of public law which includes the composition,
powers, principles, duties, rights and liabilities of the various administrative
agencies of the government both at Federal and state.

• Administrative power is the power to administer or enforce a law.

• Administrative power intends to carry the laws into effect, practical

application of laws and execution of the principles prescribed by the
lawmaker.
Introduction
• Thus, these public bodies are given powers to make decisions. However
their decisions must not be made arbitrarily.

• The bodies that make decisions have to act within the given powers.
Duty of decision maker
• Therefore, administrative law allows these government agencies to make
decisions.

• However, their decisions :

• must be made in accordance to the law; and
• must follow the stipulated procedures.

• If these rules are not followed, the affected persons can challenge the
decision making process.
Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri
Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135
• His Royal Highness Al-Marhum Sultan Azlan Shah stating in Pengarah Tanah dan
Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135:

• “Every legal power must have legal limits, otherwise there is dictatorship … The
courts are the only defence of the liberty of the subject against departmental
aggression”
Statutory Provision that Grant Decision
Making Powers
Industrial Relations Act 1967
• S20(3): Upon receiving the notification of the Director General under
subsection (2), the Minister may, if he thinks fit, refer the representations to
the Court for an award.
Statutory Provision that Grant Decision
Making Powers
Trade Unions Act 1959

• S4A: In addition to the powers, duties and functions conferred on the Director
General by this Act and any regulations, the Director General shall have and may
exercise all such powers, discharge all such duties and perform all such functions
as may be necessary for the purposes of giving effect to and carrying out the
provisions of this Act

• s 12(2): The Director General may refuse to register a trade union in respect of a
particular establishment, trade, occupation or industry if he is satisfied that there
is in existence a trade union representing the workmen in that particular
establishment trade, occupation or industry and it is not in the interest of the
workmen concerned that there be another trade union in respect thereof.
Introduction to Judicial Review (JR)
• In essence this process ensures that public bodies DO NOT act
outside their powers.

• Refer to pgs. 7-11.

• Example: Article 10 of FC
Intro – Definition of JR
• Judicial review as defined in Halsbury Laws of Malaysia, Volume 9 (paragraph
160.059) is: … the process by which the High Court exercises its supervisory
jurisdiction over the proceedings and decisions of inferior courts, tribunals, and
other bodies or persons who carry out quasi-judicial functions or who are charged
with the performance of public acts and duties (it is the process of looking into the
decision-making process and proceedings of the inferior courts, tribunals, and
other persons or bodies that carry out their duties in a public nature).
Introduction - Cont
• Judicial review may be defined as a set of legal standards, enforced through
specific process of litigation, to enable people to challenge the lawfulness of
decisions made by public bodies and others exercising public function. (taken from
Administrative Law in Malaysia. 2nd Edition. Wan Azlan Ahmad, Nik Ahmad
Kamal & Mohsin Hingun).
Introduction to Judicial Review (JD)
• Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. &
Anor [2017] 1MLJ 563

“A judicial review is a court proceeding where a challenge is made on the

decision of the relevant authority or entity by challenging the lawfulness of the
decision-making process.”

• Gasing Meridian Sdn. Bhd. v Datuk Bandar Kuala Lumpur,[2004]1 AMR 594
Introduction to Judicial Review (JD)
• Sheila Sangar v. Proton Edar Sdn Bhd & Anor [2009] 4 MLJ 285
“The first principle of judicial review concerned the decision making process and
not the merits, substance or justification. The second principle is that there can
be an exception to the first principle where the court could examine the
substance or justification to satisfy itself that the decision maker had not
transgressed the principles of procedural impropriety, illegality or irrationality”.
Cont …
• Gasing Meridian Sdn Bhd v Datuk Bandar Kuala Lumpur [2004] 1 AMR 594, CA:

• “It is the commissioner who has to be satisfied. … It is not for the court to be
satisfied and then force it on the commissioner. What the appellant is doing here is
to the court for the commissioner, to exercise the powers provided by s. 30. That is
clearly misconceived.
Intro - Cont
• The expression judicial review may be taken to refer to the process by which the
courts exercise their supervisory jurisdiction to see that public authorities do not
act outside the remit of their powers. In other words, judicial review is a process
whereby a court of law examines the conduct of a body to establish whether or
not that body has acted lawfully, in the sense of acting within the scope of its
lawful powers (De Smith, Woolf and Jowell, Judicial Review of Administrative
Action (London: Sweet & Maxwell, 1995), p 552.).

• In practice, this power of judicial supervision is administered by the High Court on

other courts in the lower judicial hierarchy, as well as other public entities which
are entrusted with the task of administering judicial or quasi-judicial functions
(Arjunan, Krishnan, “Judicial Review and Appellate Powers: Recent Trends in Hong
Kong and Malaysia”, [2000] 2 MLJ lxx).
Judicial Review and Appeal
• The aggrieved person has two alternatives, he can either have the decision
reviewed, or request for an appeal.

• If he seeks a review, that means the courts only look at the manner the
decision was made, it only looks at the decision making process and NOT at
the correctness AKA merit of the decision. If the correctness of decision is to
be challenged, then he has to appeal against the decision.

• Hotel Equitorial (M) Sdn Bhd v National Union of Hotel, Bar and Restaurant
Workers [1984] 1 MLJ 363
• Micheal Lee Fook Wah v Minister of Human Resources [1997] 4 AMR 4258
Differences …
• Judicialreview, in general, is concerned with legality of the
decision–making process of the executive (government), not
with the merits of the decision. To put it in a nutshell, the
application concerns review, not appeal. The court will not
substitute its decision; it will only review the legality.
• An appeal is as of right whereas certain conditions must be
fulfilled for one to seek leave for judicial review.
Differences - Cont
• Power of the Court:
in appeal proceedings the court might substitute its decision for
the decision of the court at first instance.
In judicial review proceedings the courts basic power is to quash
the challenged decision and to find it invalid; for the merits of
the case to be determined the case must return to the original
decision-making authority.
Differences – Cont …
• Subject matter of the court's jurisdiction.
• The appeal court has to decide whether a decision was right or wrong based on
the considerations of law.. Whereas the judicial review court has the ability to
decide if the question was legal, based upon the appropriate powers that the
public body have been endowed with.
• There are many statutes, which provide for appeals from decisions by public
bodies; commonly such appeals are limited to points of law, but in certain
instances they may extend further to the facts of the case. Judicial review cases
are always confined to questions of law.
Differences – Additional
• Appeals usually deal with the decisions of the court or a tribunal’s decision
whereas judicial review mostly deals with the decisions of administrative tribunals
or public.
• Some administrative tribunals may provide in their legislation that you may have a
right to appeal, while other administrative tribunals, in their relevant statute may
provide that you may be able to apply for a judicial review.