CONFIDENTIAL LW

UNIVERSITI TEKNOLOGI MARA

TEST

NAME : NAHZATUL SHIMA BINTI ABU SAHID

STUDENT NO. : 2022519651

GROUP : NAMAF5A

HP NO. : 011-11938523

COURSE NAME : ADMINISTRATIVE LAW FOR PUBLIC

AUTHORITIES
COURSE CODE : LAW507
ASSESSMENT : 27 JUNE 2022 @ 9.00AM
RELEASE DATE
ASSESSMENT : 30 JUNE 2022 @ 6.00PM
LAST SUBMISSION
DATE

INSTRUCTIONS TO CANDIDATES

1. This TEST paper consists of three (3) Questions

2. Answer ALL questions. Start each answer on a new page.

3. Answer ALL questions in English.

4. Softcopy of answers will be submitted via email address: ismailfuu@gmaill.com.

5. Candidates are allowed to refer to any notes and materials offline and online.

6. Candidates are NOT allowed to plagiarise and copy other students’ works. Any student who
has doubt about the similarities with another student’s work, please do a plagiarism check.

7. Candidates are highly encouraged to paraphrase/ rearrange sentences/ provide endnote/

referencing/ (Ahmad, 2019) if sources used are from other author’s work. If any answer
discovered to have similarities with any work, in particular another student’s work, in which
the answer triggered the respective lecturer to do his/her own plagiarism check on student
answer sheet and found them >25% similar, NO MARKS (0) is given.

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QUESTION 1

Discuss the grounds for Judicial Review and the remedies available.

(25 marks)

QUESTION 2

Article 69(1) of the Federal Constitution provides that the Government may hold,
acquire or dispose of property and enter into contracts.

Discuss the above provision with reference to the Government’s liability in contracts.

(25 marks)

QUESTION 3

Under Section 10 of the Local Government Act 1979 (fictitious), The Minister of Local
Government and Housing may make regulations on matters relating to the local
government as he thinks fit. Further, section 11 of the Act states that before any
regulation could be made under section 10, the Minister shall conduct consultation
with the relevant parties. The Minister, however, without consulting the relevant
parties, make a regulation known as Business Regulations 2020. The following
orders were made under the Business Regulations 2020:

a) Order 4 - All shop lot owners need to paint their premises red colour only for
tourism attractions.
b) Order 6 - Every owner must pay RM 10,000 fees to the cleaning construction
appointed by the Minister for the purposes of cleaning the garbage and individual
shop premises.
c) Order 8 - The decision of the Minister on approving the Business Licence is final
and could not be reviewed in any court of law.

The business organisation known as Association for Business Traders (ABET) was
dissatisfied and wishes to challenge the validity of the orders.

Advise the Association.

(50 marks)

END OF QUESTION PAPER

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QUESTION 1

Judicial review, in general, is concerned with legality of the decision–making process of the
executive (government). In Malaysia, An application for judicial review is governed by Order
53 Rules of the High Court 1980. Such an application must be supported by an affidavit (a
formal sworn statement of fact). Judicial review is engraved in our primary shape of the
Federal Constitution. Judicial review is vital as Malaysia practiced separation of power a
number of the branches of government. The separation of power practiced in Malaysia
consists of the overlapping among branches of government. In the scope of judicial
assessment, overlappings occurred. First, is the overlapping among the Judiciary and the
Legislative and the opposite is overlapping among the Judiciary and the Executive.

In Administrative Law, there are 2 types of common law remedies, namely private law
remedies and public law remedies. Among the private law remedies are damages,
injunctions, and declarations. One can claim for damages as compensation. Injunctions, on
the other hand, are prohibitory in nature and forbid the commission of some unlawful act.
Declarations, in addition, aim to state or declare the legal position of the parties and to
challenge the action of the public authority. It is however noted that such remedy is not
enforceable per se, but it can be used with other remedies if successful. Among the public
law remedies are habeas corpus, certiorari, prohibition and mandamus.

Otherwise, remedies known as judicial comfort or a judicial remedy, is the way with which a
courtroom docket of regulation, typically withinside the workout of civil regulation jurisdiction,
enforces a right, imposes a penalty, or makes any other courtroom docket order to impose
its will so that it will make amends for the damage of a wrongful act inflicted upon an
individual. For example in Malaysia, Treasury Circulars offer for grievance mechanisms
handled by the MOF. The Treasury Instructions additionally offer for an inner audit
mechanism which, amongst others, calls for controlling officials to inform the applicable
officers of any non-compliance with the procurement procedures. Beside that, remedies also
available in civil law damage claims such as (i.e., for breach of contract etc.) claims and,
potentially, application for judicial review (i.e., for wrongful exercise of powers by a public
authority).

All remedies are discretionary and some, inclusive of injunctions, also are relied upon in
personal regulation hearings. However, certain orders inclusive of quashing orders or
obligatory orders are exceptional to judicial overview proceedings.

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There have three grounds for judicial review are outlined by Lord Diplock in Council of Civil
Service Unions v Minister for the Civil Service [1985] AC 374, namely illegality,
unreasonableness or irrationality, and procedural impropriety.

First, Illegality is a very broad ground for evaluate and covers a huge variety of feasible
abuses through public authorities., Lord Diplock's stated [at 410] "By 'illegality' as a ground
for judicial review imply that the decision-maker have to recognize effectively the regulation
that regulates his decision-making strength and have to deliver impact to it. Whether he has
or now no longer is par excellence a justiciable query to be decided, withinside the occasion
of dispute, through the ones persons, the judges, through whom the judicial strength of the
state is exercisable. Lord Diplock's quote explains the broad range of potentially illegal acts
that can be carried out by public authorities, acting in excess of their legal powers. When
public authorities act outside of their legal authority, they are acting ultra vires; this is a
central principle of administrative law.

The most straightforward illustration of the principle of ultra vires is where a public authority
has undertaken activities for which they have no legal authority. An important early case that
illustrates this kind of illegal act is Attorney General v Fulham Corporation [1921] 1 Ch 440.

Secondly, Lord Diplock explained that irrationality means unreasonableness.

Unreasonableness has been referred to many times by courts, in Roberts v Hopwood [1925]
AC 578, [1925] All ER 24, the House of Lords held that discretionary powers must be
exercised reasonably. The court held that this decisions fulfilled the third criteria of
Wednesbury in that it was a decisions which no reasonable authority could have made.

Lastly, Procedural impropriety generally encompasses two things: procedural ultra vires,

where administrative decisions are challenged because a decision-maker has overlooked or
failed to properly observe statutory procedural requirements; and common law rules of
natural justice and fairness. Historically, this power of judicial supervision as administered by
the High Court was only concerned with the decision-making process, i.e., where the
impugned decision is flawed on the ground of procedural impropriety. However, over the
years, our courts have made inroad into this field of administrative law. R Rama Chandran v
The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 is the mother of all those cases. In
this landmark decision, the Federal Court held that the decision of inferior tribunal may be
reviewed on the grounds of 'illegality', 'irrationality' and possibly 'proportionality' which
permits the courts to scrutinise the decision not only for process but also for substance.

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QUESTION 2

A constitution consists of basic principles that determine how a country is established and
governed as enshrined by laws, customs or rules generally accepted. The mentioned
constitution is related to how public decisions are made and how power is distributed among
government agencies, either at the central government or local government. The constitution
also sets limits of the government authority and ways of choosing and electing a
government.

The Federal Constitution of Malaysia (Malay: Perlembagaan Persekutuan Malaysia) which

came into force in 1957, is the supreme law of Malaysia and it contains a total of 183
Articles. A federal constitution is one which divides and apportions political Powers the
different tiers of government in a particular country, for example, the central, state and local
governments. The powers of each tier is properly defined and derived from the constitution.
Autonomy of each units is, therefore, guaranteed.

According to Article 69(1) of the Federal Constitution provides that the Government may
hold, acquire or dispose of property and enter into contracts. Government Contracts Act, No
contacts shall be deemed to be made by the authority of the federal Government or of a
State unless those are made in accordance to the manner laid down in the Act. No public
officers shall be personally liable upon contract made on behalf of government.

Application

Sim Siok Eng v Government of Malaysia (1978).

The fact was the appellant entered into a contract with the government to construct certain
buildings and the government supplied several building materials due to the difficulty in
acquiring it. Later, without prior notice, the government stopped supplying and informed the
appellant to acquire those materials by his own means, to which he failed to complete the
construction on time. The former Federal Court held that the appellant had relied on the
promise and thus put his duty to acquire those materials in abeyance (been suspended).

This is a problem which falls under contractual liability as Syarikat Tunas Harapan wants to
initiate an action against the government due to unpaid final payment of the monies due to it
under the contract with the government. Syarikat Tunas Harapan can initiate an action
against the government under art. 69(2) where the Federation both ‘may sue and be sued’
and S. 4(c) Govt. Proceeding Act where a claim is enforceable by proceedings against the

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government as a contract was made between Syarikat Tunas Harapans for the construction
of a large dam in the Sg Kerian area.

In the Government Contracts Act Contract must be in writing, made in the name of the
Government of Malaysia and signed by Minister or any officer authorized in writing by
Minister or the head of the government department

Applying S. 4(c) Govt. Proceedings Act and the case of Sim Siok Eng v Government of
Malaysia, Syarikat Tunas Harapan can claim for the final payment of the contract as it had
completed the construction of the dam according to the time specified in the contact and
according to the plans approved by Ghani. The claim for contractual liability is enforceable
as stated in S.6 Government Contracts Act as the contract was made in the authority of the
government and is authorized by Jabatan Parit dan Taliair as stated in S.2 Government
Contracts Act.

Law:

Art.69(1) Federal Constitution.

the federation has power to acquire, hold and dispose of property of any kind and to make
contract

Art. 69(2) Federal Constitution

The Federation both ‘may sue and be sued’

S.4(c) Government Proceedings Act.

a claim is enforceable by proceedings against the government

The next question is whether Ghani the chief engineer with Jabatan Parit dan Taliair who
was required to check and approve the preparation of structural plans for the construction
was personally liable for the damage to the dam. Applying S.8 Government Contracts Acts,
where no public officers shall be personally liable upon contract made on behalf of
government, Ghani cannot be made liable as he made the decision in his capacity as the
chief engineer with Jabatan Parit dan Taliair thus excluding him from personal liability. In
conclusion, the government can be held liable for contractual liability.

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QUESTION 3

Introduction: Judicial review is the process whereby High Courts exercise control over the
decision and interpretation of law by the administrators. High Court can review decision and
analyses the merits of the decision, can replace the decision of the administrative body with
their own and they could also involve in the molding of relief granted to the aggrieved party.
Normally, judicial review was exercised whenever there is an allegation of
administrative authorities acting outside their conferred powers.

Issue 1: Whether Association can challenge the validity of the Order 4 that made by the
Minister.

Principle of Law: Subsidiary Legislation is a law made through delegated powers given by
the legislature to a body or person via a statute. Subsidiary Legislation Vires consists of
three ground which is substantive ultra vires, procedural ultra vires and extended ultra vires.
Under extended ultra vires it has four ground which is retrospective effect, ouster clause,
financial levy and unreasonableness. This issue is under unreasonableness.
Unreasonableness can be defined as absurd or illogic or cannot be accepted by reasonable
minded. Moreover, if bye-laws were manifestly unjust, if they disclosed bad faith, if they
involved such oppressive or gratuitous interference with the rights of person they are
unreasonable and ultra vires. In the case of Arlidge v Islington Corporation [1909] 2 KB
127, A by law obligated the landlord of a lodging house in the month of April, May or June in
every year to cause every part of the premises to be cleansed. Penalty was imposed for
breach of the by law. The court held that the court declared the by law to be invalid as being
unreasonable as it imposed on absolute duty on every landlord to cause the premises to be
cleansed without regard to the position in which the landlord might be.

Application: In this case, it is under unreasonableness because the Minister implemented in

rule 3 that all shop lot owners need to paint their premises red colour only for tourism
attractions. It is clearly unreasonableness because it is illogic rule and cannot be
accepted by reasonable minded.

Conclusion: Yes, Association for Business Traders (ABET) can challenge the validity of
the Order 4 made by the Minister for being unreasonableness

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Issue 2: Whether Association can challenge the validity of the Order 6 that made by the
Minister.

Principle of law: In the first instance, a financial levy is a sum of money, a charge, fees, or a
tax imposed by the government, an organization, or another authority. In general,
administrative bodies such as local governments cannot impose any charge or payment in
Subsidiary Legislation passed by them unless the parent act allows them to. The court must
decide whether or not the charge imposed by the public body is a financial levy. In the case
of Attorney General v Wilts United Diaries, based on the order made by Food Controller, the
appellants in this case were ordered to pay the Controller a levy per gallon of milk
purchased. The court held that the levy imposed was not valid because there was no
express provision in the Parent Act, which allowed such a levy to be charged.

Application: Order 6 mentioned- Every owner must pay RM 10,000 fees to the cleaning
construction appointed by the Minister for the purposes of cleaning the garbage and
individual shop premises. However, there is a financial levy in this case. This is due to the
fact that a public body has no authority to levy a financial levy unless authorized by the
Parent Act. However, because there is no permission from the Parent Act in this
case, the subsidiary legislation is null and void.

Conclusion: Yes, Association for Business Traders (ABET) can challenge the validity of
the Order 6. As a result, the The Minister of Local Government and Housing is Ultra Vires
and invalid because the The Minister of Local Government and Housing lacks the authority
to levy a financial levy.

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Issue 3: Whether Association can challenge the validity of the Order 8 that made by the
Minister without consulting the relevant parties.

Principle of Law: Subsidiary Legislation is a law made through delegated powers given by
the legislature to a body or person via a statute. Subsidiary Legislation Vires consists of
three ground which is substantive ultra vires, procedural ultra vires and extended ultra vires.
This issue is under procedural ultra vires. Under procedural ultra vires, administrators
must follow certain procedures laid down by the parent act in making subsidiary legislation.
There are two types of procedure under procedural ultra vires which are mandatory
procedure and directory procedure. Mandatory procedure which must be followed and
non-compliance with the procedure will render the subsidiary legislation invalid. However,
directory procedure does not need to be followed and non-compliance with the
procedure will not make the subsidiary legislation invalid. The examples of mandatory
procedure are (not all subsidiary legislation are required to follow these procedures, it much
depends on whether the enabling Act mandates it), requirement of consultation with a
specified body, opportunity for affected persons to file for objections, pre-publication of draft
rules and gazette or subsidiary legislation must be tabled in parliament.

In the case of Agricultural, Horticultural and Foresty Industry Training Board v

Aylesbury Mushroom Ltd [1972]1 AII ER 280, the Secretary of State proposed to introduce
new regulations for the training of agricultural workers. It sent a notice inviting
representations from a body representing the mushrooms growing industry, but the letter
was not received. The regulation was made and the respondent now argued that it was not
bound by the regulations because the industry had not been consulted as required. The
court held that consultation requires more than the mere giving a notice or as in this case
the sending of a letter: ‘the essence of consultation is the communication of a genuine
invitation, extended with a receptive mind, to give advice’. Having decided that he industry
representative should be consulted, the Secretary could not go ahead without doing
so. The regulations were not binding on the defendant.

Application: In this case, it is under procedural ultra vires because the Minister did not
discuss first with Association for Business Traders (ABET) before implementing the rules as
required by the Act. Moreover, (ABET) have right to know and be discuss first before the
Minister implemented the regulation to them.

Conclusion: Yes, Association for Business Traders (ABET) can challenge the validity of the
Rules 8 made by the minister because without having consultation with (ABET)
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