FACULTY OF ADMINISTRATIVE SCIENCE AND POLICY STUDIES
DIPLOMA IN PUBLIC ADMINISTRATION
LAW309: ADMINISTRATIVE LAW FUNDAMENTAL
AM1105A
FINAL ASSESSMENT LAW
PREPARED BY:
NAME
MATRIX NUMBER
NABILAH BINTI MOHD NASIR
2017311049
PREPARED FOR:
MISS AZLINA MOHD HUSSAIN
DATE SUBMISSION:
6.7.2020
QUESTION ONE
The Food Prices Control Act 2015 (fictitious) (“Act”) empowers the Minister of Consumer
Affairs to make regulations in ensuring sufficient availability of food and the food prices in
Malaysia will always remain fair and stable. Section 25 of the Act requires that before the
Minister passes any regulations under this Act, he is required to obtain the opinions of all
local traders in the food industry such as restaurant owners, agricultural farmers, the wet
market traders etc..
As the world is facing the global health issue, and in order to control the spread of COVID-19,
the Malaysian Government had, on 16 March 2020, issued a Movement Control Order
(“MCO”) under the Prevention and Control of Infectious Diseases Act 1988 (Act 342)
effective from 18 March 2020.
The Minister of Consumer Affairs, worried that the MCO would result in panic buying
among consumers, then issued the COVID-19 Food Control Price Regulations on 19 March
2020. Due to the urgency of the situation, the Minister of Consumer Affairs, did not consult
the wet market traders before passing the aforesaid Regulations.
The regulations include, inter alia,
(a) Regulation 3: an additional annual fee of RM500 per month will be charged on all local
food traders if they wished to operate outside of the MCO restricted hours.
(b) Regulation 9: all restaurant workers operating food deliveries during the MCO must be
properly attired in Personal Protective Equipment (“PPE”) before they deliver food to their
customers.
The Malaysian Food Association felt that the Regulations were very harsh and burdensome,
especially during the MCO effective period. The Association wished to challenge the
Regulations. Advise the Malaysian Food Association as to the grounds on which it could
challenge the validity of the above said regulations.
(20 marks)
QUESTION TWO
Dr. Sakinah is the newly appointed Medical Officer at the Sungai Buloh Hospital. During the
COVID-19 pandemic, the Sungai Buloh Hospital became the headquarters for the disease
control and management of COVID-19. Dr. Sakinah was assigned to serve in the newly
established COVID-19 unit at the hospital.
During one of the daily routines of treating and checking patients for COVID-19, Dr. Sakinah
and several nurses were exposed to the COVID-19 virus when one of the patients, Yusoff,
suspected of contracting COVID-19, failed to inform them of his recent overseas trip to
China. As Dr. Sakinah had to act urgently, she quickly admitted Yusoff to the COVID-19
unit. However, Yusoff’s condition deteriorated very fast and soon he was put on the
ventilator. Subsequently Yusoff died of his illness due to the COVID-19 infection.
Two (2) months after Yusoff’s death, Dr. Sakinah received a letter requesting her to attend a
hearing before the Medical Board of Enquiry. The letter did not contain any specific details.
Dr. Sakinah went to the hospital administrator’s office to enquire about particulars of the
letter but the human resource manager simply informed her to attend the hearing. (notice,
b/copy of relevant documents)
During the hearing, Dr. Sakinah was informed that she was requested to attend the hearing to
answer allegations of gross negligence in treating Yusoff which resulted in his death. Dr.
Sakinah was also said to have been very unprofessional and discriminatory towards Yusoff.
Dr. Sakinah requested to bring two (2) witnesses to support her case but her request was
denied. (receiving evidence)
The hearing was continued and Dr. Sakinah was dismissed from service. It was after the
hearing that Dr. Sakinah discovered that one of the panels in the Medical Board of Enquiry
was the maker of the report of her alleged misconduct. Dr. Sakinah was really dissatisfied
with the Medical Board of Enquiry’s decision and wished to appeal against its decision.
(personal bias)
Advise Dr. Sakinah as to the grounds on which she can challenge the validity of the Medical
Board of Enquiry’s decision against her.
(20 marks)
QUESTION 1
ISSUE
The issue is whether Malaysian Food Association could challenge the validity of the
above said regulations.
Due to the urgency of the situation, the Minister of Consumer Affairs, did not consult
the wet market traders before passing the aforesaid Regulations.
LAW
Subsidiary legislation may be held invalid on the ground of procedural ultra vires. The
parent statute may lay down certain procedures for the subordinate legislator to follow in
making it. Non-compliance with the prescribed procedure may result in the subsidiary
legislation being declared ultra vires. This depends on whether the court regards the
procedural requirement as mandatory or directory. The subsidiary legislation is ultra vires if a
mandatory requirement is not complied with; it is not so if the procedure is only directory.
Disobedience to a directory procedural rule only results in irregularity not affecting the
validity of the subsidiary legislation made. One of the procedural ultra vires is consultation.
Based on the case of Agricultural, Horticultural and Forestry Industry Training Board v
Aylesbury Mushrooms Ltd, 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 mushroom 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 of 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 the industry representative should be consulted, the
Secretary could not go ahead without doing so. The regulations were not binding on the
defendant.
APPLICATION
Based on this case, knowing that the Malaysian Food Association is not satisfied with
the regulation proves that the Ministry of Consumer Affairs did not take any consultation
with the wet market traders before passing the regulations. Although the Ministry of
Consumer Affairs has a position to regulate new laws, however he still needs to be consulting
with representatives from the industry involved regarding on the price control market. The
ministry needs to listen to the demand of the public. No matter how urgent the regulations, it
must be consulted with someone that has knowledge and will get affected regarding the case.
The ministry could use Zoom Meeting platform to discuss and have meetings with the traders
regarding the problems if he find that it’s hard to get connected with the wet market traders.
This is because that is the only way of the Ministry in showing their effort to do consultation
with the traders during this pandemic. Thus, Malaysian Food Association can challenge the
Ministry as they did not have consultation before regulating the regulations which is held
invalid on the ground of procedural ultra vires.
Regulation 3: an additional annual fee of RM500 per month will be charged on all local
food traders if they wished to operate outside of the MCO restricted hours.
LAW
Next, the principle that can be used in this case is financial levy. Financial levy or
charge is an impose of obligation to pay. Mostly, the levy is done in terms of money like
charge and fees. Administrative regulation under general power to make regulation cannot
impose a financial levy except when the parent Act specifically grant power to do so. The
general principle is that financial levy cannot be imposed by a subsidiary legislation unless
the parent act provided so. Therefore, the court is responsible to determine whether the
charge imposed is a financial levy or otherwise. The validity of the financial levy is depended
on the availableness of expressed provision in the parent act to the charge as such. For
instance, in the case of Attorney-General v Wilts United Dairies, the Food Controller was
empowered by a regulation to make orders regulation with respect to the production,
manufacture, treatment, use consumption, transport, storage, distribution, supply, sale or
purchase of any article. Under the authority, the Food controller issued that anyone who
wants to deal in milk must have a licence. The appellants were granted licence but with
condition that they should pay a levy per gallon of milk purchased. The court decided that the
charge was invalid with the reason being that the executive could only justify a charge upon
the subject if it could show in clear terms that the parliament had authorized the particular
charge.
APPLICATION
Based on Regulation 3, an additional annual fee of RM500 per month is charged on
all local food traders that wished to operate during MCO restricted hours. This is wrong as
financial levy only can be imposed through administrative regulation under a general power
and only be effective if the Parent Act specifically confers to do so. However there are no
specific mention from Parent Act that the local food traders must be charged. Plus, the
government should not be charged citizens money as during the pandemic, most of them have
to shut down their business. Instead of charging the citizens, government should provide
solutions in handling the SME group. Therefore, the regulation was invalid as the ministry
has go beyond his delegated legislation. Thus, the Malaysian Food Association can challenge
the Ministry’s validity due to the misuse of power on financial levy.
Regulation 9: all restaurant workers operating food deliveries during the MCO must be
properly attired in Personal Protective Equipment (“PPE”) before they deliver food to
their customers.
LAW
One of the laws that applicable in this case is unreasonableness under extended ultra
vires. The test of unreasonableness is applicable to subsidiary legislation. An implied
restriction on delegated legislation is that it should not be unreasonable. Basically, this means
that what is unreasonable for other people may not be unreasonable for an individual. Hence,
not everyone has the same idea of what is reasonable and what is not reasonable. However,
something which is generally unreasonable for everyone will mean that it does not
unreasonable. In the case of Kruse v Johnson, the principle was enunciated this case in
relation to bye-laws made by local bodies. It was stated that the courts should jealously watch
the exercise of these powers and guard against their unnecessary or unreasonable exercise to
the public disadvantage. Consequently, the doctrine of unreasonableness is required to be
based on a strong basis than the principles of common law alone. If the by-laws were found
to be discriminatory and unfair in their application as between different groups, if they were
manifestly unjust, if they contained such oppressive or gratuitous interference with the rights
of those who were subject to them as could find no justification in the minds of rational
people, the courts might just as well conclude that Parliament never intended to give
authority to make such rules as they are unreasonable and ultra vires.
APPLICATION
According to Regulation 9, it says that all the restaurant workers that operating food
deliveries during MCO must properly attired in Personal Protective Equipment (PPE) before
deliver food to their customers. This is unreasonableness and burdensome to the entire
delivery runner. This is because the delivery people do not need to wear a full attire of PPE as
it is burdensome to them if they ride a motorcycle. PPE consists of some kind of long skirt
that will occurs dangers if they ride bike due to long skirt that will stuck in at the motorcycle
chain. Moreover, during the delivery, most of restaurant has their own standard operating
procedure which they will avoid having physical contact with the customers so they will
simply put the food infront of the customer’s house with the concerned of the customers.
Also, during pandemic, most of the restaurants will use online transactions only instead of
using cash to avoid any physical contact happen. Therefore, it is not necessary to wear full
attire of PPE as it is enough to wear a mask, long sleeves clothes and gloves to avoid physical
contact. Thus it is unreasonable to have this as regulations and the Malaysian Food
Association could challenge his validity.
CONCLUSION
In conclusion, the Malaysian Food Association can challenge the validity of the above
said regulations as the Ministry of Consumer Affairs go against the subsidiary legislation.
QUESTION TWO
ISSUE
The issue is whether Dr Sakinah can challenge the validity of the Medical Board of
Enquiry’s decision against her.
Dr. Sakinah received a letter requesting her to attend a hearing before the Medical
Board of Enquiry. The letter did not contain any specific details.
LAW
A basic element in natural justice is that before the case gets into the court, the party
concerned must be given a notice of the case that is against him or her. According to the case
Khoo Cheng & Ors v Gan Hong Yock, the court of appeal mentions that a failure to serve
notice of a hearing is a clear violation to the rules of natural justice. This is because the right
of hearing will become illusory when the party has no knowledge about the allegations to
meet. Thus, notice is regarded as essential condition of the right to be hearing. However, a
notice must state the grounds on which action is proposed to be takin in clear, specific and
unambiguous terms. A person cannot be regarded as having a reasonable opportunity of
hearing if the grounds given the notice are vague, unspecific, uncertain and ambiguous.
Based on the case Perkayuan OKS No 2 Sdn Bhd v Kelantan State Economic
Development Corp, the court ruled that notice given to the appellant before terminating an
agreement was inadequate as particulars set out therein were unspecific, ambiguous and
vague. Notice was held to be vague when a charge-sheet served on an employee containing
allegations of fraud without mentioning any particulars thereof according to the case State of
Uttar Pradesh v Salig Ram Sharma.
APPLICATION
Based on this case, it was known Dr Sakinah received a letter requesting her to attend
a hearing before the Medical Board Enquiry. However, the letter received did not contain any
specific details. The letter is regarded as the notice given by the Medical Board to Dr
Sakinah. However, the notice given is unspecific and vague where it mentions that there are
no specific details. It is important for the notice stated in grounds to be clear and specific as
Dr Sakinah will acknowledge the accusations made towards her so that she will not have
illusory during the hearing sessions. Plus, it is her rights to have adequate notice of the case
against her by pointing out the particulars or details of the alleged offence so that she could
have a fair opportunity to answering the same towards her opposition. Thus, the proceeding
taken against her is invalid as there are no sufficient details and unspecific notice as
mentioned which was contradict with the rules of natural justices.
Dr. Sakinah went to the hospital administrator’s office to enquire about particulars of
the letter but the human resource manager simply informed her to attend the hearing.
LAW
The law applied on this case is disclosure of materials to the party. The general
principle is that all material which is being relied on by an adjudicating authority for giving
its decision against a person should be brought to that person’s notice and that person should
be given an opportunity to comment, criticize, explain or rebut the same. It is necessary for
the authority to not rely on any material against a person without informing him or her of it.
According to the case of Rohana Btw Ariffin v Universiti Sains Malaysia, copy of relevant
documents, the university took disciplinary action against two of its lecturers. Before the
proceedings, the lecturers did ask about all the information and documents in the possession
of the disciplinary authority in defending themselves. However, the copies of documents
could not be supplied as the board deemed fit. The court ruled that the right to be heard
means the right to know the case against oneself. Also under the university’s rule, any written
representation needed to be made 10days before their appearance at the hearing, This shows
that the staff needed to get copies of relevant documents and information regarding to the
charges. Thus the court observed that this case breach procedural fairness and therefore
breach of natural justice to conceal such evidence.
APPLICATION
Based on this case, Dr Sakinah was not given any disclosure information regarding to
the charges given to her. She did go to human resource manager to get particulars about the
letter but the administration simply informed her to attend the hearing without her knowing
her fault. She was later know during the hearing that she needed to attend the hearing in order
to answer the allegations of gross negligence in treating Yusoff which resulted in his death.
The charges against her was kept in the dark and due to this reason, she is incapable of
defending herself during the hearing as she is not given the opportunity due to the unfair
procedural. The Board did not disclose anything to Dr Sakinah and simply decides the
matters against the party which made them violated the rights of Dr Sakinah to be heard
which is highly unfair for her. Besides that, every hospital must has their own rules and
procedures that needed to undergo in disciplining their staff. The staff must be given warrant
letter or any kind of warning from the disciplinary department in order for them to give
explanation or comment regarding the charges before they went to the court. However, it was
not done by this case which makes this case invalid.
Dr. Sakinah requested to bring two (2) witnesses to support her case but her request
was denied.
LAW
The law applied in this case is receiving evidence. In oral hearings, the adjudicating
authority is obliged to give the persons concerned an opportunity to produce evidence to
support their case and to rebut any evidence against them. Refusal to receive evidence of the
affected person may well amount to breach of natural justice. Meaning to say that, the
adjudicating authority should permit the parties to bring material witnesses to testify. Denial
of this may be a denial of natural justice vitiating the decision given by the authority.
According to the case of Malayawata Steel Bhd v Union of Malaywata Steel Workers, the
company challenged an award of the Industrial Court on the ground of breach of natural
justice as the company was denied in giving opportunity to call witnesses. The high court
held that there was a denial in natural justice as it did not allowed the applicants to call any
witness in providing evidence at the hearing. Thus, it was denied a reasonable opportunity in
presenting the case. This confirms the proposition that failure on the part of adjudicatory
body to permit material witness to testify on behalf of the parties may amount to denial of
natural justice. However, the party could only provide necessary and relevant evidence which
the authority will decide if the proposed evidence is relevant or not.
APPLICATION
According to this case, Dr Sakinah was not allowed to bring two witnesses to support
her case which her request was denied. This is wrong as Dr Sakinah is trying to defend
herself by trying to provide evidence at the hearing but she was not given the opportunity to
produce evidence to support her case. In fact, she was later dismissed from service. The court
should have listen to her witness statement first as the statement given could be relevant and
necessary towards the case. This is because refusal to receive evidence of the affected person
may amount to breach of natural justice as the basic principle of natural justice is the affected
person must have the opportunity of adducing all relevant evidence on which that party relies.
The part where the adjudicatory body denies her request in showing her witness to testify for
her shows that the adjudicatory body has go against the natural justice thus Dr Sakinah could
challenge the validity of the Medical Board Enquiry’s decision.
It was after the hearing that Dr. Sakinah discovered that one of the panels in the
Medical Board of Enquiry was the maker of the report of her alleged misconduct.
LAW
The law applied in this case is personal bias. Personal bias may arise in the
adjudicator being against, or in favour of, one party to the dispute I many varied
circumstances. For example, relationship, family, friendship or business dealings or hostility
towards a party, may disqualify an official from acting as an adjudicator in the dispute. The
court however do no go into the detailed facts of a case to see whether the petitioner had been
prejudiced or not. It the actual bias is proved in a case, that is an end of the matter and the
adjudicator must be disqualified. The test has been whether there is a ‘real likelihood’ of bias
on the facts of the case and it has to be ascertained with reference to ‘right minded persons’.
Based on the case of AK Kraipak v Union of Indian, the court quashed the selection. It
emphasized the rule of law would lose all the validity if state instrumentalities were not
obliged to discharged functions in a fair and just manner. It was improper to have candidate
himself sitting as a member of the selection board. There was reasonable ground to believe he
was likely to be biased as he would be interested in safeguarding his own position while
making the selections as at every stage of his participating in the selection process there
would be conflict between his interest and duty.
APPLICATION
Based on the case, it was only after hearing that Dr Sakinah discovered that one of the
panels in the Medical Board of Enquiry was the maker of the report of her alleged
misconduct. The panel of Medical Board of Enquiry is known to be the hostility towards the
party as he is the one who report her. Therefore he could not be the panel who will be making
the decisions for the case as this is because the decision made by him will be bias. He will be
influence by his personal hatred towards Dr Sakinah and would causes conflict between his
interest and duty. He is automatically disqualify to become the panel as he is the one who
reports her as it will be likelihood for him to be bias on the facts of the case. The panels need
to be selected from independent persons and will be no way biased by the presence of the
person in question. Thus, Dr Sakinah could challenge the Medical Board’s Enquiry as there is
personal bias in solving this case.
CONCLUSION
In conclusion, Dr Sakinah can challenge the validity of the Medical Board of
Enquiry’s decision against her as the Medical Board of Enquiry’s had already go against the
rules of natural justice. Thus, she could win this case.