REVISION QUESTIONS

1. The Rule of Law excludes arbitrariness and unreasonableness. To ensure this ... it is necessary
to have a democratic legislature to make laws but this power should not be unfettered, and that
there should be an independent judiciary to protect the citizen against the excesses of
executive and legislative power."
Discuss.

2. "The system of delegated legislation is both legitimate and constitutionally desirable for
certain purposes, within certain purposes, within certain limits and under certain safeguards."
(a) Comment on the above statement.
(b) What are the safeguards on delegated legislation that exist in Malaysia? Are the
safeguards sufficient to protect the rights and interests of individuals?

3. The Sanitation of Theatres and Cinemas Act 2013 (hereafter referred to as the Act) was
passed recently. The Preamble to the Act provides that the object of the Act is to improve
the sanitation and hygiene of theatres and cinemas.
Section 2 of the Act provides that the Minister may make regulations for purposes of
carrying this Act into effect.
Section 3 of the Act provides that the regulations made under the Act will have effect as if
enacted or included in the Act itself'.
The Sanitation of Theatres and Cinemas Regulations 2014 (hereafter referred to as the
'Regulations') were made pursuant to section 2 of the Act. The Regulations have been
published in the official Gazette.
Regulation 1 provides that every theatre and cinema operator has to apply for a licence
from the minister.
Regulation 2 provides that a licence fees in the sum of RM1,000,000.00 will be levied in
respect of each licence.
Regulation 3 prohibits children below the age of 15 from entering any theatre or cinema
halls.
Regulation 4 prohibits any eatables from being brought into the theatre or cinema halls.
Regulation 5 prohibits smoking in the theatre or cinema halls.
Regulation 6 provides that any theatre and cinema operator who breaches any of the
Regulations shall be guilty of an offence and shall be liable upon conviction to a fine not
exceeding RM5,000.
Regulation 7 prohibits theatre and cinema operators from access to the courts.
The Association of Theatres and Cinema Operators (hereafter referred to as 'the
Association') are unhappy with the Regulations.
Advise the Association on the following:
(a) Can the Association challenge the Regulations in a court of law? Why?
AND
(b) If so, what are the grounds upon which a challenge can be made?

4. "In my opinion, the rule of natural justice that no man can be condemned unheard should
apply to every case where an individual is adversely affected by an administrative action,
no matter whether it is labelled "judicial", "quasi-judicial" or "administrative" or whether
or not the enabling statute makes provision for a hearing."
(per Raja Azlan Shah F.J. in Ketua Pengarah Kastam v Ho Kwan Seng (1977) 2 MLJ
152). Explain the significance of the above statement.

5. The Private Hospitals Act 2005 provides that all persons operating a private hospital must
be registered. It is an offence to operate a private hospital without being registered.
Registration must be renewed annually. The decision to grant or renew an application for
registration rests with the Minister of Health. S.10(1) of the Act provides that '... the
Minister shall have the absolute discretion in the granting and renewing of the application
for registration to fit and proper persons." The term "fit and proper" is not defined in the
Act.
Medi-Rakyat operated a private hospital in Kuala Lumpur and has been registered to do so
for many years. A month ago, Medi-Rakyat applied for a renewal of its registration under
the Act. Medi-Rakyat received a reply from the Ministry of Health that it was considering
rejecting the application for renewal of its registration on the ground that Medi-Rakyat
was not "fit and proper" within the meaning of the Act. Medi-Rakyat wrote back
requesting to meet the Minister. The Minister denied this request and rejected Medi-
Rakyat's application for renewal of registration.
Medi-Rakyat has recently been told by an officer in the Ministry of Health that the present
Government's policy was to limit the number of private hospitals and to provide more
public health facilities. A directive had been issued by the Cabinet to the Minister of
Health to refuse the registration of a private hospital wherever possible.
S.11(1) of the Act provides that "the decision of the Minister is final and shall not be
questioned in any court of law." Medi-Rakyat wishes to challenge the Minister's decision
and seeks your advice. In providing your advice, answer the following questions:
(a) Is the decision of the Minister subject to judicial review?
(b) If so, what are the remedies available to Medi-Rakyat?
(c) Can the Minister be compelled to provide the reasons for his refusal to renew the
registration?
(d) What are the grounds that Medi-Rakyat can rely on in challenging the decision of the
Minister?

6. "Unfettered discretion is a contradiction in terms ... Every legal power must have legal
limits ... In other words, every discretion cannot be free from legal restraints, where it is
wrongly exercised, it becomes the duty of the court to intervene. The courts are the only
defence of the liberty of the subject against departmental aggression. In these days when
government departments and public authorities have such great powers and influence, this
is a most important safeguard for the ordinary citizen; so that the courts can see that these
great powers and influence are exercised in accordance with law. I would once again
emphasise what has often been said before, that 'public bodies must be compelled to
observe the law and it is essential that bureaucracy should be kept in its place."
(per Raja Azlan Shah, Ag CJ (Malaya) in Pengarah Tanah & Galian, WP v Sri Lempah
Enterprise [1979] 1 MLJ 135, 148.)
In the context of the above dicta, discuss the following:
(a) What is the legal basis of those dicta?
(b) What are the powers referred to?
(c) How are those powers referred to controlled by the courts? Discuss.
(d) On the other hand, subsequent to Pengarah Tanah & Galian, WP v Sri Lempah
Enterprise, the Malaysian courts have also created a few categories of unfettered
discretionary powers. What are those unfettered discretionary powers referred to?
Elaborate.
(e) Parliament too has added more confusion by conferring some unfettered discretionary
powers via statutes on the administration. Elaborate by giving examples.
(f) In the light of the subsequent developments referred to above, comment on the
enforcement of Rule of Law in this country. What are the most obvious consequences of
the subsequent developments?

7. "The distinction between an error which entails absence of jurisdiction, and an error made
within the jurisdiction, is very fine. So fine indeed that it is rapidly being eroded.
Do you agree with the above view? What impact will erosion of the distinction
mentioned above have in Administrative Law?

8. "For myself, I believe that our view on the powers of the court in Judicial Review
proceedings, although they constitute a departure from previous cases decided in this
country to which I have referred, is a progressive one ... In doing so, I trust that we have
pointed the way to new horizons in the forward march of judicial review ."
Per Edgar Joseph Jr. FCJ in R.Rama Chandran v The I ndustrial Court of Malaysia &
Anor (1997) 1 MLJ 145.
(a) Explain in what aspects the decision in the above case departed from the previous
cases decided in Malaysia.
(b) Explain the basis upon which the Federal Court adopted the concept of "moulding
relief".
(c) Do you agree that this decision has pointed the way to new horizons in the forward
march of judicial review?

9. How do we interpret our standing rule under the new Order 53 of the Rules of the Court
2012?