REFLECTIVE WRITING (LAW507)

FACULTY OF ADMINISTRATIVE SCIENCE AND POLICY STUDIES

UNIVERSITI TEKNOLOGI MARA (SABAH)

LAW 507 ADMINISTRATIVE LAW FOR PUBLIC AUTHORITIES

LECTURER: MUHAMMAD IZWAN BIN IKHSAN

NAME: MOHD RACHDAN WARIDY BIN ABDUL RAHMAN

ID MATRIX: 2021112847

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Table of Content

I. Administrative Law......................................................................................................................3

II. Non-judicial Review (Tribunals, Ombudsman & Public Complaints Bureau)......................7

III. Government Liability...............................................................................................................9

IV. Right to information and Access.........................................................................................13

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I. Administrative Law

Administrative law, often known as administrative rules or regulatory law, is a body of

legislation that regulates the functioning of various state and federal government agencies. It
is also commonly referred to as administrative law. Administrative laws manage not only the
establishment of governmental institutions but also the regulations that direct how these
entities are to function. The basic goal of administrative law is to protect the general public's
rights and interests in their interactions with the government. The executive arm of the
government is the origin of administrative law, which encompasses some of the most well-
known administrative agencies, such as The Ministry of Defence Malaysia (MINDEF) and
the Federal Court of Malaysia (Department of Justice).

What can I learned from this topic is where Administrative Law in Malaysia dealing with
four (4) aspect which is composition and powers in scope of Administrative Law, fixing the
limits of the powers, specifying the processes that authorities must follow while using their
authority and lastly is legaling and other measures of regulating the authorities. Therefore,
from this learning and study, I can identify the purpose and functions of Administrative Law
in Malaysia which is administrative laws are employed in the formation of government
agencies, as well as in the activities they do and the norms they follow. The Administrative
Procedure Act of Malaysia (APA) is the act that controls all federal and state agencies,
defining their roles as well as their processes, rules, and regulations. The APA further
distinguishes two sorts of administrative functions which is rulemaking and adjudication.
Adjudication entails evaluating any party who may be in breach of a government agency's
regulations or laws. It is responsible for enforcing the agency's regulations and policies.
Furthermore, the rule-making and adjudication roles might be formal or informal, while both
are binding.

This allows us to assess the local position's strengths and weaknesses. The victorious
litigant's remedies are critically reviewed, and the legal situation is summarised for easy
interpretation and use by busy legal practitioners. The book aims to outline the way forward
if the local position is uncertain or has not been directly examined by the courts. The study
syllabus also covers the government's tort responsibility and the availability of injunctions
against the government. The application of administrative law in Malaysia is of the utmost
importance. As a result of the rise in population in this country, both the federal and state
governments have ballooned to enormous proportions. There are federal agencies that
oversee nearly all aspects of areas such as telecommunications Radio Televisyen Malaysia
(Federal government-operated channels), the banking Bank Negara Malaysia (the Central
Bank of Malaysia) and financial systems (The Ministry of Finance Malaysia), and social

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issues such as worker's rights and employment (Department of Labour of Peninsular

Malaysia). In addition, there are federal agencies that supervise the financial systems of
Malaysia (Ministry of Human Resources Malaysia). In addition, there are agencies that
operate at the state level, such as the Malaysian Meteorological Department (MMD/MET
Malaysia) and the state transportation agency Government Agencies on Land
Transportation, Road Transport Department Malaysia Institute of Road Safety and Research
Malaysia (MIROS)

There are concist two type of constitutional power ruled by government in Malaysia as
we learned in chapter 1 which: -

 Rule of Law
 Separation Power

What is rule of law? from my understanding, one of the cornerstones of Malaysia's

unwritten or uncodified constitution is the rule of law. The essential principle of the rule of law
is that everyone, including those in positions of power, must be subject to the law.
Furthermore, the rule of law is the notion that the law should govern, in the sense that it
applies to all action and behaviour and covers both private and public authorities, no one is
above the law, everyone is treated equally under the law, the law is consistently enforced,
and people have access to the courts if they feel their rights have been violated. According
to dicey in 1885, rule of law consists the legal system is the safest place for people's rights
to be upheld. The rule of law is absolute and supreme over the populace. Although, no one
may be held accountable except from the law and via due process and no one should have
unchecked or capricious authority.

Next is the separation of power. To prevent an excessive concentration of power in the

hands of the legislature, Montesquieu (1748) argued that the judicial branch should be
institutionally distinct from the legislative branch. He advocated for a split between the three
branches of government so that each might serve as a check on the other two. Legislation
passed by Parliament should be reviewed by the courts to ensure it reflects the values of
higher law (the constitution). In my various way to identify the information, I found that case
about Loh Kooi Choon V Govt. of Malaysia it is stated that “The constitution is not a mere
collection of pious platitudes. It is the supreme law of the land embodying three basic
concepts: One of them is that no single man or body shall exercise complete sovereign
power, but it shall be distributed among the executive, legislative and judicial branches of
government.” The YDPA, as stated in Article 39 of the Federal Constitution, possesses and
may delegate all executive power within the Federation to the cabinet. In Article 44, the

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Federation's Parliament was given the power to make laws. Judiciary authority of the
Federation is addressed in Article 121.

There are three type of Administrative Law in Malaysia in order to discharging their
function which is: -

 Legislative powers
 Quasi-judicial powers
 Executive powers

From my understanding and research, the legislative power is the Parliament in

Malaysia which consists of the Dewan Negara (Senate) and the Dewan Rakyat (House of
Representatives), is responsible for making laws in Malaysia. It is presided over by the Yang
di-Pertuan Agong (House of Representatives). Forty members are appointed by the Prime
Minister and advised by the Yang di-Pertuan Agong, 26 members are elected by the State
Legislative Assemblies and 3 members represent the Federal Territories of Kuala Lumpur
and Labuan in the Dewan Negara. There are a total of 69 members in the Dewan Negara.
With a total of 180 members, all of whom are referred to as "MP" (Members of Parliament),
the Dewan Rakyat is entirely representative in nature (Member of Parliament). Parliament's
check and balance system relies on having both government and opposition members. For
example, In any case, as far as we're aware, no Malaysian prime minister has ever been
ousted by a vote of no confidence in the Dewan rakyat. The case of Stephen Kalong
Ningkan v. Tun Abang Haji Openg in Sarawak, however, can serve as a precedent at the
level of statement. Datuk Harun Idris of Selangor and Datuk Mohd Nasir of Kelantan are
two such examples.

Secondly is Quasi-judicial powers. A quasi-judicial body is a government administrative

entity with powers and processes similar to a court of law or a judge. Facts must be
determined and conclusions drawn in an unbiased manner so that official action may be
justified on the basis of the findings. For example, The Industrial Court has "quasi-judicial"
powers under the Industrial Relations Act, as stated by Gopal Sri Ram (Act 1967) in
Syarikat Kenderaan Melayu Kelantan Bhd v Transport Worker's Union declared that the
lower tribunal or any other decision-making body has no capacity to commit a mistake in law,
regardless of whether it is playing a quasi-judicial position or a merely administrative one.

Thirdly is the executive power. The prime minister is in charge of the executive branch,
and according to the Malaysian constitution, the prime minister must be a member of the
Lower House of parliament who, in the YDPA's estimation, commands a majority in
parliament. Furthermore, the executive branch is crucial in appointing Federal Court, Court

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of Appeal, and High Court justices (see Art 122B where the YPDA acts on the advice of the
PM in appointing the judges). Judicial commissioner appointment under Art 122AB. There
are exist 4 four type of executive power which is: -

 Advisory power
 Investigating power
 Enforcement power
 Prosecuting power

As I learned from the topic, I understand there a various advantage of executive power
which is to solve matters without court's involvement, to empower public authorities to
conduct the investigation and to empower public authorities to prosecute those who breach
the law as instance Royal Police Department (RMP).

As conclusion, to finalize this topic, there a exist question about the administrative
law in Malaysia which is, it's incredibly hard for us to analyse whether the executive
authorities' actions are solely administrative, quasi-judicial, or quasi-legislative. Secondly,
there is no reliable criterion for distinguishing among these roles, and the legal system has
been unable to provide one. A categorization system is necessary and unavoidable because
of the wide-ranging effects it has. For instance, natural justice principles must be applied
when the executive performs a quasi-judicial function, but are not relevant when the
executive performs a legislative duty. What have I learned from this topic is the field of study
known as Administrative Law analyses how authority is given to agencies, how those
agencies operate, and how the courts and other bodies oversee them. An in-depth analysis
of how agencies exercise their authority to make laws, hear cases, and launch probes.
Beside, why should we learn this topic is because to prevent these agencies from abusing
their authority, administrative law regulates their internal operations. When a person
interacts with the government, such when they apply for benefits like Social Security or food
stamps, the primary objective of administrative law is to safeguard the interests of the
general public.

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II. Non-judicial Review (Tribunals, Ombudsman & Public Complaints Bureau)

The next topic that I’ve learned from this learning of study is about Non-judicial Review
(Tribunals, Ombudsman & Public Complaints Bureau). According to what I've read on
the subject, the Tribunal is a specialised entity set up by the applicable legislation to
adjudicate specific sorts of legal issues. Courts once had exclusive jurisdiction in settling
legal disputes, but they have gradually ceded that authority to administrative agencies. The
Tribunal is an autonomous judicial body, unrestrained by any administrative or political
interference. Same in Malaysia doctrine, after analysing the information that has been give.
The characteristics in Tribunal Malaysia is not subservient to any higher authority and
operates autonomously. Consistently renders fair decisions in disputes between the parties.
Because it is to ensure order for trial judges to do their jobs effectively, judicial autonomy is
essential. I think it's important that the courts have the authority to make decisions without
being subject to political or other outside pressure. I thought that this would also apply when
judges have to decide how to punish criminals on their own. As an example of keeping the
judiciary's independence, the Cabinet's decision to get rid of the mandatory death penalty
and give judges more freedom in how they hand down sentences. The Cabinet's decision to
get rid of the mandatory death penalty in Malaysia is mostly about giving judges more
freedom to decide on the best sentences for each case. According to the press news that I
study, On September 13 2022, Putrajaya agreed in principle to different sentences for the 12
crimes for which the law requires the death penalty. Alternative punishments would be used
instead of the death penalty for 12 crimes, including one that is punishable by law under
Section 39B of the Dangerous Drugs Act of 1952. From my research, I've learned that most
of the people who have been given the death penalty in Malaysia were found guilty of drug
trafficking. These people were mostly women and people from other countries. Although, the
majority of people on death row also come from low-income families, and people from ethnic
minorities are overrepresented there. From my view, I agreed to get rid of the rule that
everyone must get the death penalty. This will give judges more freedom when it comes to
sentencing. This is why because every person has the right to live, and it is the
government's job to protect lives, not take them. International law says that this right belongs
to all people, no matter what they have done, even if they have been accused or convicted
of the most serious crimes.

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Secondly is Public Complaint Bureau and Ombudsman in Malaysia. The notion of

establishing an Ombudsman in Malaysia is currently being discussed stated again and again
in the Dewan Rakyat. From my view of study, PCB is not the same as the traditional
Ombudsman system that most countries use. An Ombudsman is usually chosen by
Parliament and works on its behalf. He or she has the power to look into complaints against
the government, make suggestions about those complaints, and try to get the government to
follow those suggestions. In Malaysia, this kind of system has not been put in place. PCB
has been set up to take its place. It is run by public employees under the Prime Minister's
Department. All of The Permanent Committee on Public Complaints' (PCPC) decisions must
be carried out quickly by the appropriate departments. This Malaysian model is different from
the traditional Ombudsman model, which doesn't have direct legal power to make its
suggestions happen. In a few research that I done, Ombudsman Malaysia, which will replace
the Public Complaints Bureau (PCB), will make the country's government more open and
accountable as it moves into the new Malaysia era. In September 2021, former Prime
Minister Ismail Sabri Yaakob said that an Ombudsman Bill would be introduced in 2022. This
news was welcomed by civil society groups like the Centre to Combat Corruption and
Cronyism (C4 Centre), which had issued a statement asking the government to create a
strong and independent Ombudsman as soon as possible. By looking at the situation
political in our country, the enforcement of this body will take a long time to start because the
unstable political environment. I fully agreed if Ombudsman will be presented in Parliament
and if 2/3 party parliament supporting to enforcing the Ombudsman, Malaysia will be more
advanced through the rule of country. As I learn more, one of the main reasons why an
Ombudsman should be set up instead of the PCB is that it will be independent. As it stands,
the PCB is an agency that is part of the Department of the Prime Minister. Transparency is
another important thing to look for in a body that looks into complaints. The PCB has no
power to make the complaints it gets public or to tell Parliament about anything. Instead,
complaints in the public interest are sent to the permanent committee and cabinet. Another
important thing to look for in a body that looks into complaints is that it is open and honest.
The PCB can't make the complaints it gets public or tell Parliament about anything. Instead,
complaints that are important to the public are sent to a permanent committee and the
cabinet. Just look at our people nowdays, they citizen rather to publish or make critique
through social media such Facebook or Tiktok, because why? Because the power of viral.
The system PCB in Malaysia is too old and we need a new revolution. As conclusion,
Malaysia can't keep having bad government and a lot of corruption.Setting up an
Ombudsman is a very important step toward getting rid of the corruption and favouritism that
are so common in our system. I can't say that I learned a lot of new things in this class, but I
did learn a few things about the law and judiciary in the government of Malaysia. I know that

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even though I may not have learned much from this course, I will be able to keep and use
the few things I did learn for the rest of my life.

III. Government Liability

Government Liability in the context means means any liability imposed by or related to
any Environmental Law or other Law, Governmental Authority or Governmental
Authorization. Referring to this subject, the state of being legally responsible for something is
called liability. There are three kinds of government liability: those related to contracts, those
related to military personnel, and those related to wrongdoing.

Contract

Government
Liability

Militry
Tort
personnel

Figu
re 1 Government Liability

Firstly, for the contractual liability, the government must engage into a contract to
undertake development operations due to the existence of contractual responsibility. The
government's authority to engage into a contract is established under Section 69(1) of the
Act. When the government enters into a contract that is recognised by law, it is bound by the
contract's terms and conditions and must follow them. This is done so that no one's rights
will be violated in the name of administering the case fairly. Referring to the database online
in the Law subject, the Federation may purchase, keep, and dispose of property of any sort
and may enter into contracts, as set forth in Article 69(1) of the Federal Constitution. A

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legally binding agreement must be formed by the proper governmental bodies. Claims
arising out of contracts ‘made by the authority of the government' are actionable against the
government under Section 4(c) of the Government Proceedings Act 1956. Therefore, Written
contracts, as defined by Section 2 of the Government Contracts Act 1949, must be made in
the name of the government, and the government officers signing them must have express
written authorization from the government. That is to say, every agreement representing the
government must be put in writing and signed by an appropriate minister or officer. The case
of Suwiri Sdn Bhd v Govt of the State of Sabah exemplifies this point. The case explains
that the respondent had agreed to allow the appellant to fell and extract timber from a forest
reserve in Sabah for a certain period of time, but after the appellant asked for more time, the
respondent cut back on the area that would be used for this purpose. The appellant filed an
appeal with the Federal Court over this matter. The Court determined that the contract was
invalid because the official involved lacked the written permission to bind the State.

Secondly, information that I able to gaining from this topic is about the Tortious
liability. As can I understand, the government can also be held responsible for wrongdoing.
"Tort" comes from the Latin word "tortus," which means "twisted" or "crooked." Civil wrongs
are distinguished from criminal wrongs. These include cases of carelessness, annoyance,
trespass, and even slander. If the officer is a government officer and the officer acts in good
faith and on the orders/instructions of the government, then the government will be
accountable for the unlawful act or negligence or default committed by the officer. In the
case of Mohd Nor Afandi Mohamed Junus v. Rahman Shah Alang Ibrahim, this is clear.
In this case, the plaintiff was able to prove that the defendant was a government officer
under Section 5 of the GPA 1956. This was because the defendant was driving a lorry that
hit the plaintiff while he was riding his motorcycle. The plaintiff also met Sec6(1) of the GPA,
and he could show that the second defendant, the Malaysian government, was the
registered owner of the truck that the first defendant was driving. There are two elements
need to be fulfilled in order to claim that government is liable intort.

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States that if the act complained of would

not have given rise to an actionagainst the
officer concerned the action against the
government will fail
Section 6 (1) The burden of proof lies upon the person
filing the suit against the government to
show that the act done by the officer is
inclose proximity to the cause of action

Stated that the government is not liable for

any act, neglect or defaultsof an officer
unless he was employed by the government
and paid in respect of his duties as anofficer
Section 6(4) wholly out of government revenues.
The officer who has acted negligently and
caused injury must be a person employed
by the government and whose salary is paid
entirely out of governmentrevenues.

Figure 2 two elements need to be fulfilled in order to claim that government is liable intort.

Thirdly is the liability for military personnel injuries. No action shall be taken against
the government for the death or personal injury of a member of the armed forces if the death
or injury results from the nature or condition of any land, premises, ship, aircraft, or vehicle
for the time being used for the purpose of the forces; and the Minister of Finance certifies his
entitlement to an award under any written law relating to the disablement or death of a
member of the armed forces. This provision is found in Section 14(2). Example cases is
Choo Fah Fatt vs. Che Rus Othman the plaintiff was hurt when the military truck he was
riding in collided with a civilian truck driven by another serviceman. The plaintiff and the
defendant driver were both serving in their official capacities. Finally, the required Sec. 14
certificate was issued by the Minister of Finance. Following the issuance of the certificate,
neither the state nor the driver could be held accountable for the plaintiff's harm.

This chapter has provided me with a wealth of information that will be invaluable to
me should I ever find myself in a legal bind. This chapter has equipped me with the
background and understanding I'll need if I'm ever confronted with government
responsibilities. My understanding of my rights as a government servant who pay the tax to
the government in the context of the government's contract is aided by this discussion. If I
am unhappy with a government contract, for instance, I have no legal recourse. This is due
to the fact that neither the Federal Constitution nor the Government Contracts Act obligates
the government to solicit and consider the opinions of any taxpayer or taxpayer group or to
listen to concerns. In addition, I would want to evaluate the efficiency of the applicable law in
Malaysia. For the most part, I believe that the legislation as it stands in Malaysia does a
good job of making the government and its officials answerable to the people. In the case of

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tortious responsibility, for instance, the government is entirely liable if a public official
commits a wrongdoing. The people are the agents, and the government is the principle. The
people followed the government's lead, therefore this happened. Therefore, holding both
parties accountable is the fairest and most efficient course of action.

As one of the government servants who working in Royal Malaysia Police (RMP), the
major cases that I can relate from this subject is where we bound to the 1967 Police Act,
though we use of force is specifically governed by the 1935 Criminal Procedure Code. As we
were on duty, we are on our officer in charge liability to ensure we working follow the SOP
because what we encounter is the from immediate dangers of combatting crime to the
chronic stresses of depression and PTSD. The stress on police health is a top priority
because of the critical nature of officer safety. Our duty will be investigate thoroughly if exist
misconduct. As one of the team, sometimes I feel lack of confidence in order exercise my
duty because lot of citizen always looking our mistake. I could said that we as the Police
Officers may feel that we have less protections than the criminals we catch. Inadequate
training, an overabundance of paperwork, and a lack of incentives for outstanding
performance all add up to make the job of law enforcement more stressful. The stress
caused by the criminal justice system increases and the exist of NGO in Malaysia who
always smashing Police officers to find our mistake.

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IV. Right to information and Access

After analysing and identify the information about the right of Malaysian citizen in order to
access the information of administration Malaysia government, I can conclude that the term
"freedom of information" (FOI) refers to the public's ability to request records from
governmental agencies. There is currently no federal law in Malaysia protecting citizens'
access to information. The Official Secrets Act of 1972 establishes a default system of
information access based on the principle of official secrecy. The purpose of this syllabus is
to have a conversation on the pros and drawbacks of instituting a federal Freedom of
Information Act in Malaysia, as well as the current constitutional framework and information
disclosure system in the country.

Furthermore, all of our most basic rights, including those to life, to free thought and
expression, to peaceful assembly and association, to religious liberty, to legal protections
against discrimination and to private property, are spelled forth in Article II of the United
States Constitution. There is no Freedom of Information Act clause in the Constitution. Every
citizen, within the parameters laid out in Article 10(1)(a), shall have the right to freedom of
speech and expression. In light of this, the question of whether the right to information is a
subset of the right to freedom of expression has arisen.

Besides, The Federal Court made this point in the case of Loh Kooi Choon v. The
Government of Malaysia [1977] 2 MLJ 187, for instance. Questions of policy, especially
those related to human rights, should be discussed and decided in Parliament. In a similar

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vein, the Court said that it has no freedom to stretch or corrupt the text of the Constitution in
the interests of any legal or constitutional doctrine, or even to fill omissions or fix purported
faults, in Datuk Harun v PP [1976] 2 MLJ 116. Furthermore, the Federal Court emphasised
in Phang Chin Hock v Public Prosecutor [1980] 1 MLJ 70 that Parliament may change
the Constitution in any way it thinks proper, so long as it satisfies all the requirements
previous and subsequent respecting method and form established by the Constitution. The
system of keeping things secret Malaysian Official Secrets Act 1972 (OSA) does not think
that the harm caused by the disclosure is bad enough for it to be illegal under the Act. The
Act covers any kind of disclosure of a classified document, no matter how small or unrelated
it is to national security, defence, or crime prevention. Also, it is said that Section 8 of the
Malaysian OSA creates a strict liability offence, which means that the accused's bad
intentions don't matter. The Court in PP v. Lim Kit Siang (1979) 2 MLJ 37 said that the
main crime was giving information that belonged to the government to the wrong people.

Based on my perspective and input according to this topic, as a citizen of a democratic

country, we should know that the "Right to Information" is a basic human right that lets we
know how our country is being run. It is important to know that public bodies don't keep
information for themselves, but for the public's benefit and on behalf of the public. If the right
to know is taken away, people won't be able to make decisions based on accurate
information. The reason is because Right to Information is a basic right that is protected by
international law. It gives people the right to ask their government for any information and
look at it. The Right to Information is based on the idea that people need to know what's
going on. We also look at proactive disclosure, which means that we expect the State and all
of its parts to make sure that all information is clear and made public. Although there are
exceptions for purposes of national security, public order, and data privacy, everyone should
assume that everything is public knowledge and should provide justification for any
restrictions or denials of access. Chapter 6 deals with information and access, and here I'd
like to offer my own thoughts on how unsuccessful the present laws in Malaysia are. Back in
July 2019, Tun Dr. Mahathir Mohamad, who was then prime minister, promised to keep the
government's promise to replace the Official Secrets Act with a Freedom of Information Act
(OSA). In Malaysia, people aren't very aware of the Right to Information because many
people don't connect information to problems that have happened. When they were fighting
corruption, they didn't realize that corruption happened because we didn't have access to
information. Official Secrets Act is, without a doubt, the biggest problem. It is the biggest
problem for them when they try to get a Right to Information law passed. For example, it lets
documents be classified without explaining why they were classified. They just use a stamp.
Also, there is no time limit on how long a document can be classified. The punishments and

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penalties for breaking the law are also very harsh. It makes people feel afraid. As a public
officer, how are we supposed to do our jobs in a way that is open and honest by sharing
information that we do in good faith? In Malaysia, however, Right to Information is only a
legal right in two states: Selangor and Penang. This is because of the Freedom of
Information Enactments (FOIE), which let anyone get information that belongs to the state
governments.

As conclusion, Freedom of Information Enactments (FOIE) must be put into place before
a system of openness and transparency can be made. The Official Secrets Act of 1972 has
strict rules about who can get information. This needs to be changed a lot to make the right
to know work better. Access to information is a key part of being a good citizen. If the
electorate didn't have enough access to information, they wouldn't be able to make a
decision based on informed discussion. Without a way for people to get information, they
couldn't participate in a meaningful way in the democratic process. FOI also encourages the
government to be more open and honest. Also, it improves the professionalism of the public
sector and the officers' abilities to come up with, analyse, explain, and carry out policies that
can stand up to public scrutiny. With better access to government information, the public will
feel closer to the government and have more faith in its institutions.

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