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LEGITIMATE EXPECTATION:

CONSTITUTIONAL DIMENSION OF THE


DOCTRINE
1.

What is Legitimate Expectation?

Legitimate expectation in administrative law refers to an


expectation that one would be conferred with a benefit
even though one might not have legal right to that
benefit. (Based on CCSUs case). The benefit claimed
may be procedural (Schmidts case) or substantive (Ex
p Coughlan or Dr. Chandra Muzaffar).
Legitimate expectation must be reasonable (substantive
in the context of abuse of discretion)1 and fair (in the
context of right to be heard or consultation).2

2. Legitimate Expectation: Possible constitutional


dimension of the doctrine
Legitimate expectation is expected to be of great relevance and significance
in the future particularly in the context of protection of livelihood or welfare
of the vulnerable groups in contemporary society when living conditions
become harsher on the poorer sections of the society where there is great
legitimate expectation on the part of the democratic government to protect
the rights, interests and legitimate expectations of the poor and the
vulnerable groups.

CCSU [1985]. Dr. Chandra Muzaffar. EX Coughlan.


Ex Asif Khan.
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AG of HK v Ng.

Several provisions of the Federal Constitution could be creatively


used to argue that the rights of the poor and vulnerable groups in
our society are either expressly or impliedly protected by the
Federal Constitution. The courts are expected to play an active part
as the sentinel on the qui vive in protecting the rights of the
weaker sections of our society. The courts must construe the
Constitution, ie., the fundamental rights provisions, the broadly
and liberally in favour of the claimants. Any restriction on
fundamental rights must be narrowly construed against the
government. See the case of Lee Kwan Woh on the rules of
construction of the Constitution by the Federal Court.
Part II (Articles 5 to 13) of the Malaysian Federal Constitution may
give rise to a claim on legitimate expectation when any our rights is at stake.
NCR rights are protected by the Federal Constitution and laws of our country.
The cases of Adong and Sagong Tasi are good examples that NCR rights are
protected under ours.
The next step is to up the ante on what our law has gained so far.
Legitimate expectation from the constitutional perspective could be
used as a great source of power to add more momentum to scope of the
protection. It is submitted that Art. 8(1) of the Fed Constitution could be
used as the source of judicial power to strike at any unfairness or
arbitrariness in the use of the state powers. When combined with Art. 5(1) or
13(1), for example, an activist court could intervene whenever there is state
arbitrariness or unfairness.
Another example could be looked into. In the case of the natives of mixed
parentage in Sarawak where one of parents is a non-native, there is
legitimate expectation on the part of the children of mixed parentage to be
treated as natives because of the express promise given to them during the
formation of Malaysia. This is enhanced under Articles 5(1), 8(1) and 161A
of the Federal Constitution.
In written constitutions such as those of South Africa and Fiji where the
constitution expressly imposes a positive duty on the part of the Government
to protect the rights of the people, the doctrine of legitimate expectation
may be more powerful in terms of protection of the poor and
the
vulnerables. Schedule 6 of South Africa Constitution expressly stated
that section 33 (1) and (2) must be regarded to read as procedurally fair

administrative action where any of their rights or legitimate expectations


is affected or threatened.

3.
From the Constitutional Perspective:
analyses
Lah Anyies case:
Appeal)

NCR Rights

Denied

Case

(Court of

Sadly, the Malaysian Court of Appeal held that the doctrine of legitimate
expectation cannot create a right when such right does not exist. Here the
Sarawak Land Code was used to deny NCR claim. But it must be
remembered that in Sagong Tasi, the Court of Appeal enhanced the rights
of the natives as contained in the Aborgines Peoples Act 1954 (APA 1954). It is
therefore argued that the stance of the Court of Appeal on legitimate
expectation of the natives was perverse. This is because the earlier NCR
cases have placed NCR on a high and constitutional pedestal by using
common law and statutes and the constitutional provisions.

Bancolts case
Sadly the hopes and rights of the Chagosian islanders had been frustrated by
the House of Lords decision by using the antiquated and oppressive doctrine
of royal prerogative had been used to subvert their rights. The appeal to
the UCHR also failed on contractual ground. It is doubtful if the arbitration
case before UNCLOS will have any chance of success.
It is strongly argued that this case needs to be reconsidered and re-opened
in the UK courts by using the doctrine of fundamental rights at common law
where the most anxious scrutiny test applies and the doctrine of legitimate
expectation which springs from the fundamental right to life at common law.
It is submitted the doctrine of res judicata does not apply here. This because
new and serious points or questions of law will be looked into in the revisited
case.

Laker Airways
Lord Denning in Laker Airways case prevented the doctrine of Royal
Prerogative from being abused to subvert and revoke the aviation license
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given to Lakers Airways to operate the low cost Trans-Atlantic airway.


Unfortunately in Bancolt case, the House of Lord had uses the prerogative to
subvert the claims of the poor natives of the Chagosian islands. It is argued
that Royal Prerogative must not be misused to subvert the law or legitimate
claims and expectation of the poor and vulnerable natives. This is arguably
an abuse of the Royal Prerogative against the poor and vulnerable natives.
As such, both the decisions in Lah Anyie and Bancolt should be revisited and
reconsidered.

4. Natives Customary Rights (NCR) in Malaysia:


Another possible constitutional perspective of
legitimate expectation
4.1 Adong bin Kuwau v Kerajaan Negeri Johor (High Court)
Adong Kuwau case has referred to and relied upon Amodu Tijani v
Secretary, Southern Nigeria [1921] on the matter of communal
usufructuary
right:
That title, as they have pointed out, is prima facie based on a communal
usufructuary occupation In their opinion there is no evidence that this
kind of usufructuary title of the community was disturbed in law, either
when the Benin kings conquered Lagos or when the cession to the British
Crown took place in 1861. The general words used in the treaty of cession
are not in themselves to be construed as extinguishing the subject rights.
The original native right was a communal right, and it must be presumed
to have continued to exist unless the contrary is established by the
context or circumstances. There is, in their Lordships' opinion, no
evidence which points to its having been at any time seriously disturbed or
even questioned.
The Court of Appeal in Adong approved of the decision of the High Court.

4.2 Kerajaan Negeri Selangor v Sagong Tasi (Court of


Appeal)
The Court of Appeal affirmed the decision of Adong Bin Kuwau and held
that the natives have a usufructuary right (ie., the right of the natives to
go over the land of the State and take things from the land) over the
surrounding land outside the aboriginal village. In other words, the land
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outside their settled village where they forage, fish and hunt in that area is
deemed to be part of the NCR. The fact that the Government has refused to
gazette the said land as part of aboriginal area or reserved does not matter
in law. The Court of Appeal in Sagong Tasi & Ors also held that the State
Authority owes a fidiuciary duty to protect the right of the natives.

4.3
Mohamad bin Nohing (Batin Kampung Bukit Rok)
(High Court)
The High Court held that even FELCRA cannot override the rights of the
natives. Not by using Malay Reservation either. Any alienation (of the
land) after the period when the right first accrued to the natives was illegal
and could be regarded as an unlawful encroachment.

4.4 Protection of NCR under the Federal Constitution


Article 8(5)(c) of the Federal Constitution protecting the aboriginal
peoples of West Malaysia like reservation of land and confers privileges on
the natives in terms of land and job reservations. Art. 161A does the same
for the natives of East Malaysia.
Article
13(1) and (2) of the Federal Constitution of Malaysia
guarantees rights to property and rights to reasonable compensation for loss
of their land respectively via, for example, acquisition by the Govt. They
may apply to the natives as well.

4.5 May NCR Rights be Compromised under S 68A of the


Land Acquisition Act (LAA 1960)?
Section 3 LAA provides that the State Authority may acquire any land
which is needed for any of the stated purposes.
S. 68A LAA goes on to say that an acquisition of land cannot be invalidated
by reason of any subsequent disposal, use or dealing with the land acquired
earlier by the State Authority. This purportedly shields any purported
acquisition by the government from being challenged in the High Court.

If S 68A of the LAA 1960 were to be used against the


natives: How do they strike back?
If the State Authority were to invoke s.68A against the land claims of the
natives for an ulterior purpose, such as extreme profiteering at the expense
of the poor and ignorant natives, how do we put up a strong case against the
purported acquisition? It is argued that the purported use of S. 68A of the
LAA is deemed to be in violation of the fundamental rights of the natives
guaranteed under the Federal ConstitutionArts 5(1), 8(1). Art. 13, 8(5)
(a) and 161A. As such, s.68A is deemed to be a perverse law because it
has also failed the test of proportionality as established in the Sivarasas
case. Therefore, it is unconstitutional as it is a deliberate attempt to deny
and frustrate the rights of the aggrieved natives.
It is also strongly argued that S 68A of the LAA 1960 cannot be lawfully and
validly used against the poor and ignorant villagers or farmers if the State
Authority and its crony(ies) were to use it in order to reap huge and
unconscionable profits at the expense of the poor and helpless villagers or
farmers.
It is also argued that prima facie S 68A of the LAA is inherently
unconstitutional. This is because it is a blatant attempt by the Executive
and Parliament to confer arbitrary power or discretion on the Executive
to the grave detriment or prejudice of the aggrieved landowner(s) whose
property rights under Art. 13(1) and (2) and also the right to livelihood
under Art. 5(1) of the Federal Constitution are rendered illusory in the face
of utter greed on the part of the Executive. It also falls outside the
sanctioned s 3 purposes of the LAA.

4.5.1

Application of S 68A to Non-NCR Land

It is submitted that the effect is the same if it involves non-NCR land


provided that the aggrieved victim(s) is/are poor, ignorant and defendless.
Art. 8(1) of the Federal Contstitution comes into the picture if the action of
the State Authority is arbitrary, oppressive and exploitative.

5. Right of the poor to food and water: How important


are these rights ?
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It is possible to argue that under a written Constitution like the Indian


Constitution or, more so, the South African Constitution, there is a right to
food or water particularly on the part of the poor. The Indian Constitution
has social economic rights in Part IV of the Constitution. The Government is
under a constitutional duty to provide such rights. The South African
Constitution is a positive right Constitution. S 27 of the Constitution expressly
guarantees the right to food and water.
In Malaysia, on the other hand, it is more difficult to argue for such rights
because Part II of the Fed Constitution is more of a Chapter on civil and
political rights. It is suggested that amendments be made to the Federal
Constitution along the line of the South African Constitution in order to
remove the uncertainty in the current Part II of the Federal Constitution.

6.
Citizens versus Government:
Is poverty or
vulnerability is right or disadvantage or weakness that
can be
taken advantage of or exploited by an
unscrupulous public authority or the rich and the
powerful crony of the Executive acting in cahoots with
the public authority?
Under a written Constitution guaranteeing fundamental rights particularly in
the case of positive rights constitutions (South Africa) or where the
constitutions guarantee social economic rights (India), it is possible to argue
that vulnerability is a fundamental right. It is not a weakness or disadvantage
that can be taken advantage of by the government or any of its
administrative agency. The government is also under a positive or fiduciary
duty to protect the poor, the weak and the ignorant from being exploited by
the rich and the powerful in the society. This is based on the ruling of the
Court of Appeal in Sagong Tasi & Ors.
PIL/SAL is automatically part of the pubic law jurisprudence in India
(Vishakas case) and South Africa (Grootbooms case).
Judicial creativity and strong civil society movement are needed to pressure
the government into accepting this kind of pro-poor policy.

7. Is detriment or prejudice a needed element?


Detriment or prejudice is not an element needed in the field of public law as
confirmed by Lord Hoffmann in Reprotechs case. So, the question on
whether a claimant must suffer a detriment by relying of the promise so
made by the administrator is the negative. This is to be contrasted with the
doctrine of estoppels from the private law perspective, where detriment on
reliance of a promise is needed to be proved by the claimant.
[Reduce this part. Not that important. As brief as possible. Focus on
constitutional perspective.]

8. May legitimate expectation arise out of a promise


made by an administrator who had acted ultra vires
his or her discretion?
The answer is no. Statements by unauthorised public officers gave rise to
no legitimate expectation: Western Fish Products Ltd [1981] 2 All ER
204.

9. May a legitimate expectation which has arisen be


subsequently revoked by the administrator?
Yes, on the authority of Schmidts case. It was held that proper and
reasonable notice of the termination must be given to the affected claimant.
If this was duly carried out by the administrator upon due notification, the
legitimate expectation could be duly terminated or revoked without
attracting any legal liability. If no such notice was duly given to the affected
claimant, then claim of legitimate expectation will succeed against the public
authority: Ex P Asif Khan [1984] 1 WLR 1337.
[Reduce this part. Not that important. As brief as possible. Focus on
constitutional perspective.]

10. Does a breach of legitimate expectation sound in


damages?
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Yes. In Dr. Chandra Muzaffars case, since it was a case of a breach of a


yearly contract, the aggrieved claimant was awarded damages amounting to
one year of his wages or salary. The permanent tenure had not arisen as he
had not been confirmed yet in his post with the University of Malaya.
In a case where a public authority concerned has deliberately and without
any justification sought to abuse its discretion to oppress the poor or the
weaker section of our society, aggravated (vindicatory) damages may
also be imposed by the reviewing court on the authority concerned in order
to penalize the wrongdoer for harm it has caused to the aggrieved victim(s).
This is based on the authority of the Court of Appeal case in Sagong Tasi &
Ors.

11. Must be a formal contractual relationship exist


between the claimants and the local authority which
made and breached the promise?
Law Pang Ching & Ors v Tawau Municipal Council (Court of
Appeal)
In this case, the claim of legitimate expectation by petty market traders,
based on a promise made to them by the president of the local authority,
failed because of the lack of privity of contract and, therefore, no locus
standi on their part. It is a judgment by a majority of 2 to 1 in the Court of
Appeal.

Judge Gopal Sri Ram dissented in this case


It may be seen from the judgment of the majority that judges were focusing
on the privity of contract or other legal relationship between the appellants
and the respondent. With due respect, this is a serious misdirection. The
appellants' claim before the High Court was not based upon a private law
action in contract or tort against the respondent. It was a claim for a public
law remedy by way of judicial review. By deliberately hijacking a claim in
public law with perverse reference to private law (ie., contract law) principles
is, in my respectful view, a serious error and misdirection in law.
The more important question to consider here was the loss of livelihood of
the poor petty traders to whom a promise to allow the market to continue
operating was made by the president of the local authority.

[Important. A matter of livelihood of the poor. Constitutional


perspective!]

12. Conclusion
The time has come for our laws, Malaysian or elsewhere, to be revisited and
reconsidered particularly in the interest of the poor and vulnerable groups
and the natives. Here it is strongly argued again that poverty and
vulnerability are not a disadvantage in law; conversely they are
fundamental rights and are, therefore, capable of more vigorous or
most anxious scrutiny by the reviewing courts-- from to Ex p Daly (UK:
2001) to Sivarasa Rasiah (Malaysia: 2009) to Kong Yunming (HK: 2013).
The courts are duty bound to protect the poor and the vulnerable!
The courts in Lah Anyie, Bancolt and Law Pang Ching have applied the
wrong test and have therefore caused manifest injustice and unfairness to
the aggrieved parties.

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