This was the second question for our recent Administrative Law test. The first part can be accessed here. Similar to the previous question, I received an eight out of 10 marks. The answers are pasted as-is without any edits.
Question
Explain Delegatus Non Potest Delegare and its rules in sub-delegation of powers.
(10 marks)
Answer
The Federal Constitution vests the authority to legislate onto Parliament and the Dewan Undangan Negeri. These legislatures, in turn, enact statutes to authorise the Federal and State Executive to administer those statutes. Some of these statutes are technical in nature which requires one to have the necessary experience and knowledge to make the right evaluation and come to the appropriate decision. Besides technicality of the subject matter, the administrator at the Federal level needs to attend to matters concerning the federation as a whole. Where some departments may have a restricted scope, the sheer volume of others like the National Registration Department can be overwhelming for one or a selected few to handle. Bearing in mind the complexity of this, the question arises: can one who has been delegated with authority by the legislature further sub-delegate such task?
Delegatus non potest delegare is a maxim which means “delegation cannot be made by a delegate”. What the maxim means is that where the law authorises an officer to exercise certain administrative powers, the officer cannot further delegate the task entrusted onto the office. It is incumbent upon that officer to exercise such power and functions.
Subject to law, a Minister may delegate certain tasks and functions to a committee. In Allingham v Minister of Agriculture and Fisheries[1], the Minister did just that. The Court accepted the act of the Minister who delegated his power to a committee. When the committee further sub-delegated that power to an officer, the Court found this to be invalid in law. When the Committee was tasked by the Minister to make a decision, it was the committee that needs to exercise such power. On the basis of delegatus non potest delegare, it was not able to assign the task to someone else.
Similarly, when the Act vested the authority to terminate the employment of a registered dock labourer to the National Dock Labour Board, dismissal done by any other persons – even from within the organisation, like its disciplinary committee – cannot stand in law[2].
The position in the United Kingdom on delegatus non potest delegare is adapted in Malaysia.
Where a statute provides that a dismissal is to be done by a certain officer, that officer must exercise that dismissal. In Fadzil bin Mohamed Noor v. Universiti Teknologi Malaysia[3], the Court found the appellant’s dismissal was “ultra vires, illegal, and void”. In the case, the appellant was dismissed by the University Council after taking in consideration of the recommendation of the institution’s Disciplinary Committee. The Act, the Court found, only authorises dismissal – and other disciplinary functions – to be done by the university’s Disciplinary Committee. This led to the appeal being allowed by the Court.
The same approach was adopted in Datuk TP Murugasu v Wong Hung Hung[4]. The Football Association of Malaysia’s Executive Committee summoned the football player when it held an enquiry into certain allegations against him. During the hearing, the charges were proven, and it imposed penalty on the respondent. The Court dismissed the association’s football on the grounds that the Executive Committee acted beyond its authority. According to the association’s constitution, disciplinary matters fell under the purview of the Disciplinary Committee.
Based on these two cases, one can deduce from the reasoning that when a statute or instrument such as an association’s constitution has stipulated whom is to discharge the duty, that person or body will be responsible to discharge such duties. It cannot assign the function to another.
Stepping away from disciplinary matters, governing and administrating a country or state may be more complex. Several enforcement agencies and departments can come under the oversight of one Minister.
Often Parliament authorises a Minister or an officer to discharge certain functions or duties by way of an Act of Parliament. Based on the requirements and procedures laid in that statute, the Minister or officer will have to act accordingly including approving or rejecting an application. Broadly speaking, they cannot assign the function to another person or officer to act on their behalf.
There is an exception to this: where sub-delegation is authorised by “expressed words or necessary implication”. If the statute, or any other prevailing statute, allows such delegation, therefore it will be permissible. This is often because the administration of a modern state makes it nearly impossible to function without such decentralised or devolved power. For example, operational decisions at the state level could be delegated to the appropriate State Director as the statute may prescribe. The Director General of that department may not need to personally be involved in such activities. Bear in mind 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[5].
How can the Courts balance the requirement of the law and the dynamic needs of administrating a modern state?
During World War II, the United Kingdom implemented drastic measures in support of the war effort. In one instance, the Commissioners of Works requisitioned a factory under the provisions of the Defence (General) Regulations 1939, reg 51(1). Carltona Ltd, the owner of the factory, initiated action challenging the validity of the order of the Commissioners of Works in requisitioning the premises. The Court of Appeal[6] held that when the British Parliament has committed to the executive the discretion of deciding that when an order for the requisition of premises should be made under that regulation and with that discretion, if bona fide exercised, no court could interfere.
The Court of Appeal recognised that functions given to ministers are multifarious that no minister could personally attend to them. It would be almost impossible for the minister to direct his mind to the matter of private property requisition happening across the country at the time. Therefore, the duties imposed upon ministers and the authority granted unto them are exercised under the authority of the ministers by the responsible officers of that department. As far as the constitution is concerned, the officer’s decisions are the decisions of the Minister. The Minister is still responsible and must answer in Parliament for the actions of the officials acting under his authority. It would be practical that only experienced and senior officials would be entrusted to act under the Minister’s authority. In Carltona, the function was exercised by the Assistant Secretary, a position the Court noted as “a high official of the Ministry”.
This case gave rise to the Carltona Principle.
The Carltona principle was applied by the Court of Appeal in Metropolitan Borough and Town Clerk of Lewisham v Roberts[7]. Among the observations in the case is that the principle applies to administrative act and not legislative act. Jenkins J was also of the opinion that the Minister’s general delegation by way of circular is suffice for the appropriate administrators to act on. The learned judge also stated that “there was no reason why [such] function could not be performed through the appropriate departmental official.”
Malaysia recognises that the complexity of modern administration could result in a backlog when strict adherence to the maxim is applied. The Delegation of Powers Act 1956 was enacted by Parliament to prescribe how delegation may be done.
s. 5, Delegation of Powers Act 1956, authorises a Minister to delegate powers granted by an act unto him to another person described by name or office. This sub-delegation is limited by the provisions of s. 11 and requires the Minister to publish the delegation in the Gazette. S. 6 allows a Minister’s or Chief Minister’s subordinate to perform administrative functions at the direction of the Minister or Chief Minister.
Often a Minister’s or Chief Minister’s officers may act proactively. S. 7, Delegation of Powers Act 1956, allows the Minister or Chief Minister to ratify these acts, orders, and directions where it was done in good faith. The Act also allows the Yang di-Pertuan Agong (s. 4), the Rulers (s. 8), and Chief Ministers (s. 9) provided that these delegations name the person or office to discharge such powers.
However, not all powers are delegable. s. 11 imposes a limit that was mentioned in Metropolitan Borough and Town Clerk of Lewisham v Roberts[8]: the delegatable authority does not include the power to make regulations. This is incumbent on the Minister or prescribed office holder to apply their mind to the decision.
In M. Ratnavale v The Government of the Federation of Malaya[9], the High Court held that the requirement to publish notification of delegation in the Gazette has mandatory and “imperative nature”. The act of delegation is deemed only to be complete as soon as the instrument of delegation is contained in a notification published in the Gazette.
Can a Federal Minister delegate powers to a State Chief Minister? The Federal Court, in Assa Singh v Mentri Besar, Johore[10], held that such delegation is valid provided it adhered to the requirements of the statute (Restricted Residence Enactment and Delegation of Powers Ordinance, 1956). As such, the Menteri Besar can validly exercise the powers and duties authorised to the Minister by s. 2 of the Enactment.
The Attorney General of Malaysia is – by virtue of Art. 145(3), Federal Constitution, and s. 376, Criminal Procedure Code – the Public Prosecutor in Malaysia. Can a Deputy Public Prosecutor sign a certificate or consent for the prosecution? The Court did not see any merit on a complaint by the counsel for the defendant lamenting the certificate or consent was signed by the Deputy Public Prosecutor instead of the Public Prosecutor himself.
The Courts have distinguished some decision from the Carltona principle.
One such case is E Gopal & Anor v Awang bin Mona[11]. The Court ruled that the ratio decidendi was not applicable because s. 4(1), Emergency (Public Order and Prevention of Crime) Ordinance 1969 requires the Minister himself to make a detention order – even though that judgement comes from recommendations and findings of a subordinate officer. The authority is followed by the requirement that the “Minister be satisfied” before such order can be issued.
In summary, a delegated authority cannot be sub-delegated save in accordance with law. The authority to make regulations must be exercised by the office that was authorised by the parent Act. Notification of sub-delegation must be published in the Gazette for the act of the delegation to be completed.
[1] [1948] 1 All ER 780
[2] Vine v National Dock Labour Board [1975] AC 488
[3] [1981] 2 MLJ 196
[4] [1988] 1 MLJ 291
[5] Re: Letter of Request from the Court of New South Wales for the Prosecution of Peter Bazos (Deposition Proceedings) [1989] 3 MLJ 409
[6] Carltona Ltd. V. Commissioners of Works and Others [1943] 2 ALL ER 560
[7] [1949] 2 KB 608
[8] [1949] 2 KB 608
[9] [1963] 1 MLJ 393
[10] [1969] 2 MLJ 30
[11] [1978] 2 MLJ 251
