Administrative law tutorial 1

Week One

Question One

1. Referring to Constitutional law and relevant cases, describe the meaning of

“Constitutional Law” and “constitutional rights.”

Constitutional law is the body of law which defines the relationship of different entities
within a state, namely, the executives, the legislature and judiciary. Not all nation states have
codified constitutions, though all such states have a just commune, or law of the land that may
consist of a variety of imperative and consensual rules. These may include customary law,
conventions, statutory law, judge-made law, or international rules and norms. Constitutional law
deals with the fundamental principles by which the government exercises its authority. In some
instances, these principles grant specific powers to the government, such as the power to tax
and spend for the welfare of the population. Other times, constitutional principles acto to place
limits on what the government can do, such as prohibiting the arrest of an individual without
sufficient cause. In most nations, including the United State, constitutional law is based on the
text of a document ratified at the time the nation came into being.

Constitutional right can be a prerogative or a duty, a power or a restraint of power,

recognized and established by a sovereign state or union of states. All constitutional rights are
expressly stipulated and written in a consolidated national constitution, which is the supreme
law of the land, meaning that any other laws which are in contradiction with it are considered
unconstitutional and thus regarded as invalid. Usually any constitution defines the structure,
functions, powers, and limits of the national government and the individual freedoms, rights, and
obligations which will be protected and enforced when needed by the national authorities.
In Malaysia, there are few fundamental rights that are working. Among them are protection
against slavery (Article 6 of the FC), protection against backdated criminal laws and repeated
trials (Article 7), freedom of religion for non-muslim (Article 11), freedom of movement (Article 9),
rights in respect of education (Article 12), and the right to property (Article 13). However,
personal liberty, freedom of speech and freedom of assembly are subjected to significant legal
restraints. Taking worker’s rights in consideration, it was protected by an enlightened set of legal
and administrative policies and devices. Social Security measures, disablement benefits,
pensions, medical facilities, scholarships, car, and housing loans are made available to our
workers. An industrial Court and a full-fledged Ministry guard workers’ rights and maintain
industrial peace.

2. Explain by giving the relationship between the concept known as the ‘rule of law’ and
administrative law.
 Rule of law is a classical principle of administrative law. As a matter of fact this principle
was one of the principles that acted as impediment development of Administrative Law
principles. The irony further is that the rule of law is now an important part of modern
Administrative Law. Whereas the rule of law is still one of the very important principles
regulating common law countries and common law derived countries modern laws have denied
some of the important parts of rule of law as proposed by Dicey at the start of 19th Century.

Dicey defined rule of law as the “absolute superiority or predominance of regular law
over arbitrary power, and excludes the presence of prerogatives or even broad
discretionary power on the part of government.” Dicey said that where discretion exists,
there is space for arbitrariness, which contributes to citizens' legal insecurity. Another feature of
Dicey's Rule of Law is equality before the law, or the equal application of ordinary law by
ordinary courts to all groups of citizens. He claimed that the French Droit Administratif is a bad
law because it has separate tribunals for different matters, but he also claimed that no similar or
identical structure existed in England. Dicey's later views on equality and the supremacy of law
over arbitrariness became the standard for most civilized constitutions around the world.
However, later views on administrative law hindered the advancement of administrative law at a
time when it was most needed. Administrative law was present almost the entire time, including
Dicey's dominion, but it was never accepted as it should have been for a smooth and satisfying
growth in common law countries.

The acknowledgment of some of Dicey's contemporaries demonstrates the presence of

Administrative Law and its inevitable outcome. Maitland was one of the first scholars to
acknowledge the existence of Administrative Law in the United Kingdom. It is also clear that
Administrative Law was present but was overlooked by Dicey in his early years. The famous
case of Board of Education v. Rice and Local Government Board v. Arlidge affirmed the practice
of Administrative Law in England. It is evident that it is after this case that Dicey realized the
presence of Administrative Law in positive form. He however maintained that the presence of
Droit Administratif in England is nobody‟s case and that rule of law must be preserved.

The rule of law, as proposed by Dicey, has its own set of benefits and drawbacks. It not
only established the foundation for all common law countries, but it also established the
foundation for Administrative Law principles. It is a mechanism by which the executive, in
general, and the government, in particular, maintain control over the abuse of broad powers
entrusted to them. It also removes the unjustified discretion, prejudice, and arbitrariness of
government that come with executive power. Furthermore, the rule of law establishes the
superiority of courts over all other state officials. This leads to even more restrictions, as the
government can no longer be judged on its own actions. Dicey's submission to the rule of law
has several drawbacks. Where Dicey's rule of law abolished the role of arbitrary authority in
government, it also eliminated the government's "broad discretionary" power. Dicey's protest, in
the face of broad discretionary control in government, would result in failed policies and law
implementation, as well as poor evaluation prior to policy formulation. In Dicey's Rule of Law,
the greatest mistrust is in the judiciary's ability to manage state affairs.
Friendly Reminder:

Make sure you have the Federal Constitution with you during lecture and tutorial sessions.