Administrative Law

Can a Minister’s aide Convey a Notice of Rejection?

This was my answer to the Individual Test for our Administrative Law. Based on the evaluation by the lecturer, I received 8 out of 10 marks. The answer script was copied and pasted as-is from the script submitted. No edits were made to maintain the integrity of the answer.

Question:

The Tourism Act 2018 (TA 2018) (fictitious) empowers the Minister to deal with tourism in Malaysia. Recently, Lana, an owner of a tourist agency applied for permission to promote her agency in Morocco. The law required her to apply together with a yearly financial statement to the Minister. However, she submitted only the application to the Minister. Several reminders had been sent to her by the Ministry on the matter but there were no responses from her. The Minister then decided to reject the application and requested his senior officer to convey to her his rejection. Then, the senior officer sent the notice of the rejection to her. She argued that the notice of rejection was not valid. Discuss.

(10 marks)

Answer:

The issue is whether the notice of rejection conveyed by the Minister to Lana through his senior officer was valid.

In the current scenario, Parliament enacted the Tourism Act 2018 which authorises the Minister to deal with tourism Malaysia. The Act imposes a duty on tourism players in Malaysia to submit an application to the Minister. The law also requires the applicant to submit their yearly financial statement together with that application. From the onset, the exercise of this function does not involve regulatory powers. It is strictly administrative in nature: the processing of Lana’s application.

The concept of sub-delegation of power is seen when one authorised by law transfers or transmits that authority to another. In practice, a senior official would delegate their powers to a subordinate. In this case, the Minister directed his senior officer to communicate to Lana the notice of the rejection. The Minister still made the decision to reject based on Lana’s failure to furnish the required documents despite reminders from Ministry officials.

The general rule is that where Parliament delegated an authority or duty to an officer through the enactment of a law, that delegate is responsible to discharge such duty or perform such function. This is captured in the maxim delegatus non potest delegare.

In Fadzil bin Mohamed Noor v. Universiti Teknologi Malaysia[1], the Court found the decision of the University Council as ultra vires, illegal, and void. The act stipulated that disciplinary matters affecting personnel of the university shall be handled by a disciplinary committee acting on behalf of the University Council. When the University Council – though acting on the recommendation of the disciplinary committee – sacked the lecturer, it acted beyond its authority as the statute explicitly identified who shall have the power to mete out such penalties.

Turning to football, the court maintained the same position in Datuk TP Murugasu v Wong Hung Hung[2]. The court ruled in favour of the footballer as the executive committee of the Football Association of Malaysia encroached into the functions of the disciplinary committee. FAM’s constitution authorises the latter to look into disciplinary matters and – after finding charges are proven – mete out the necessary penalties.

Governing a country – in principle – is similar to running an organisation like a university or sports association. However, the workload would be different. In the scenario, the Tourism Act 2018 would require the Minister to approve or reject applications from all tourism players. The Malaysian Association of Tour and Travel Association (MATTA) records about 3,100 registered members. This means the Minister must process at least 3,000 applications made under the Tourism Act 2018 on top of discharging other duties imposed by other statutes.

There are instances where Ministers have been known to delegate these functions to subordinates. Allingham v Minister of Agriculture and Fisheries[3]is one such case where the Minister delegated his powers to a committee. The committee later sub-delegated the decision-making to an officer. The Court ruled that this was invalid in law. It relied on the maxim delegatus non potest delegare. The committee was not able to assign the task to someone else.

In the landmark case of Carltona Ltd. V. Commissioners of Works and Others[4], the British Court of Appeal recognises that in a modern state, it is almost impossible that one person personally exercises the requisition of properties needed in the war effort. Thus, delegating the function to a senior ministry official is appropriate. This delegation does not negate or diminish the Minister’s responsibility or accountability to Parliament.

This principle in Carltona was later applied by the Court of Appeal in the case of Metropolitan Borough and Town Clerk of Lewisham v Roberts[5].

s. 6, Delegation of Powers Act 1956, stipulates that a Minister may direct his subordinates to act on his behalf and in his name to discharge non-regulatory functions and duties. To paraphrase the decision in the Metropolitan Borough and Town Clerk of Lewisham v Roberts[6], this relates to an administrative function and not legislative function.

We should note at this point that the court does not blindly apply the Carltona Principle. In Singapore, the Court made a remark that administrative efficiency or convenience alone is not a valid reason in law for a Minister or decisionmaker authorised by law to further delegate such power[7].

The court’s ruling in E Gopal & Anor v Awang bin Mona[8] requires the Minister is to exercise his personal judgement and be satisfied when issuing an order against an individual under s. 4(1), Emergency (Public Order and Prevention of Crime) Ordinance 1969. It cannot be delegated to anyone else.

One could draw from these rules that where functions are purely administrative, it could be delegated. On the other hand, duties and functions that are impliedly or expressed requiring the Minister to apply his mind and actively exercise cannot be delegated to another. Among those examples are issuing of regulations and orders.

Does the Tourism Act 2018 imply that the Minister must participate from start to the communication? At the moment, we can only speculate. The Court must be satisfied that the act compels the Minister to actively put his mind to the task. In the scenario, the Minister made the decision to reject Lana’s application. Until this point, one can argue that the Minister has discharge his duties and functions in the spirit of the act.

The events that could cast doubt is the last-mile communication when the Minister’s senior officer conveyed the Minister’s notice of rejection to Lana. If Lana had not taken into account the reminder from the Ministry officials, she could have assumed that the senior officer and the bureaucrats did all the processing work without the participation of the Minister.

Even if that was so, the Delegation of Powers Act 1956 allows the Minister to delegate those functions after publishing a notification instrument in the Gazette. However, that seems unnecessary as in this scenario, the Minister waited for the documents before rejecting. The decision remained with the Minister.

In the same vein, the Delegation of Powers Act 1956 also allows the Minister to direct his subordinate to perform or discharge certain functions on his behalf and in his name. That is what the Minister’s senior officer did – he merely conveyed the notice of rejection to Lana who failed to furnish the annual financial report as required by the statute and despite reminders from Ministry officials.

In conclusion, the Minister and his senior official acted in accordance with the spirit of the Tourism Act 2018. The Court will examine whether these actions were in compliance with the specific provisions in the act. Lana, who failed to meet the requirements imposed by the said act, did not provide what was needed for the Minister to make a complete decision.


[1] [1981] 2 MLJ 196

[2] [1988] 1 MLJ 291

[3] [1948] 1 All ER 780

[4] [1943] 2 ALL ER 560

[5] [1949] 2 KB 608

[6] [1949] 2 KB 608

[7] Re: Letter of Request from the Court of New South Wales for the Prosecution of Peter Bazos (Deposition Proceedings) [1989] 3 MLJ 409

[8] [1978] 2 MLJ 251

Author: Aldric

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