3. Definition of administrative tribunal
• Administrative tribunal is a body created under
statute (written law), outside the ordinary court
system, to resolve disputes.
• A tribunal exercises quasi-judicial power i.e.
adjudicating power.
4. Characteristics of administrative tribunal
• A body outside the formal court system
• Hear complaints on specific matters
• Created by statute (written law)
• Independent body
• Subject to the principle of “natural justice”
• Hear evidence, make finding of fact and apply policies
• Its decision can be reviewed by superior courts in
limited circumstances
• Not bound by rigid procedures and rules of evidence
5. Reasons for creating administrative tribunals
• To reduce caseload of the courts: The courts are burdened with cases
on criminal and civil nature. Tribunals are established to allow
adjudication of specific matters to take place out of the formal court
system.
• Need for special tribunal to solve specific and technical issue: Some
issues are not suitable to be decided by court (e.g. fixing rent or tax,
compensation for land acquisition etc). The tribunal members have
expertise in the field of e.g. tax evaluation, housing town planning etc.
• Procedures in tribunal are simpler than the courts: Tribunals are not
subject to stricter, formal and technical procedures like courts.
Tribunals usually handle smaller cases which lead to speedy
resolution.
• Cheaper and faster resolution of dispute than courts: Bringing cases
to tribunals is much cheaper than the cost of litigation in courts.
6. Differences: administrative tribunal vs. court
Administrative tribunal Court
Under Executive branch of
government
Under Judicial branch of the
government
Need not follow strict
procedures & rules of evidence
Must follow strict procedures
& rules of evidence
More quickly, cheaper and less
formal
Takes time, more expensive,
very formal
Can decide on case flexibly Bound by doctrine of judicial
precedent
7. Examples of administrative tribunals in
Malaysia
1. Tribunal for Consumer Claims
2. Tribunal for Homebuyer Claims
3. Industrial Court
4. Special Commissioners of
Income Tax
5. Customs Appeal Tribunal
6. Planning Appeal Board
8. 1. Tribunal for Consumer Claims
• Tribunal for Consumer Claims (TCC) is created
under Consumer Protection Act 1999.
• Purpose of TCC – Hear and determine claims
lodged by consumers against traders.
• Who is a consumer?
– a person who buys goods and services for his
personal use or for domestic or household
purpose.
9. 1. Tribunal for Consumer Claims
• Limitations of TCC:
– Claim not more than RM25,000
– Claim can only be made by a consumer
– Claim must be filed within 3 years of dispute
– Lawyer/ legal representation is not allowed
10. 1. Tribunal for Consumer Claims
• TCC cannot hear the following claims:
– Personal injury/ death
– Recovery of land/ any interest on land
– Trade secret, goodwill and intellectual property
– Entitlement under will/ distribution of property
11. 1. Tribunal for Consumer Claims
• Composition of the TCC:
– a Chairman and a Deputy Chairman from among
members of the Judicial and Legal Service and
– not less than 5 members having legal or judicial
experience.
12. 1. Procedures in TCC
1. Filing procedures:
a. Consumer file a petition (Form 1) & serve to the
trader within 14 days
b. The trader may contact the consumer for
settlement.
c. If there is no settlement, trader must file
statement of defence (Form 2) & serve to the
consumer within 14 days.
d. If there is counter claim, the consumer must file
statement of counter-claim (Form 3) & serve to the
trader.
13. 1. Procedures in TCC
2. Hearing procedures:
a. The Tribunal serve notice of hearing (Form 4) to
consumer & trader stating date, time & place of hearing,
not less than 14 days before hearing.
b. Lawyer is not allowed during hearing.
c. Where the trader is a company/ firm, it may be
represented by a full time employee.
d. Claim will be heard by a President sitting alone.
e. Both parties may adduce evidence, bring witnesses &
documents.
f. The President will attempt settlement/ make award
(decision).
g. Award is final and cannot be appealed.
14. 2. Tribunal for Homebuyer Claims
• Purpose of THC – To hear and adjudicate
homebuyer’s claims against developer.
• Created under the Section 16B of the Housing
Development (Control and Licensing) Act 1966.
15. 2. Composition of Tribunal for Homebuyer
Claims
• Chairman and Deputy Chairman
• Not less than 5 other members of the judicial and
legal services.
16. 2. Limitations of Tribunal for Homebuyer Claims
• Only for dispute between a homebuyer & licensed
developer under sale and purchase agreement (SPA)
• Claim that does not exceed RM50,000
• Brought by home buyer not later than 12 months
from:
– date of the issuance of the certificate of
completion and compliance (CCC)
– the expiry date of the defects liability period
– the date of the termination of the SPA
17. 2. Procedures for Homebuyer Claims
1. Filing procedures:
a. The homebuyer lodge a claim (Form 1) and serve to the
developer within 14 days.
b. The developer lodge a defence (Form 2) and serve to the
homebuyer within 14 days.
c. The homebuyer may lodge a counter-claim (Form 3) and
serve to the developer within 14 days.
18. 2. Procedures for Homebuyer Claims
2. Hearing procedures:
a. The Tribunal will issue a notice (Form 4) stating the
date, place and time of the hearing on both parties,
in not less than 14 days before the date of the
hearing.
b. Lawyer is not allowed during hearing.
c. Claim will be heard by a President sitting alone.
d. Both parties may adduce evidence, bring witnesses &
documents.
e. The President will make award (decision).
f. Award is final and cannot be appealed.
19. Types of Homebuyer Claims
1. Technical claim 2. Non-technical claim
-Damages for non-compliance
to specification
-Damages for defective
workmanship
-Compensation for adjustment
in land area
-Omission of work
-Defects, shrinkage or other
faults to the building
-Incomplete or non-availability
of common facilities
-Liquidated Ascertained
Damages (LAD)
-Compensation for late
delivery
-Late delivery of common
facilities
-Deposit refund
-Refund of Late Interest
Charges
20. 3. Industrial Court
• Industrial Court is not a court.
• It is an administrative tribunal
with statutory powers.
• Industrial Court is provided
under the Industrial Relations Act
1967.
• Purpose – hear dispute
between:
– Employer and employee
– Employer and trade unions
21. Functions of the Industrial Court
• Determine disputes between
employer and employee; and
employer and trade union.
• Adjudicate collective bargaining
• Create harmonious industrial
environment
• Promote social justice
• Grant cognizance to collective
bargaining jointly deposited by
employer and employees
22. Types of claims in the Industrial Court
• Unfair labour practice
• Unfair dismissal
• Trade dispute between
employer and employee
• Trade dispute between
employer and trade union
• Dispute on collective
agreement
23. Royal Inquiry/ Public Inquiry
• Inquiry of matter of public importance means an
inquiry that is conducted when the YDPA thinks
that it is of public importance and welfare to
investigate a specific issue.
• Law - Commissions of Enquiry Act 1950 (Revised
1973).
24. Royal Inquiry/ Public Inquiry
• Matters of public importance include:
– the conduct of any federal officer;
– the conduct or management of any department of
the public service of Malaysia;
– the conduct or management of any public
institution which is not solely maintained by
State funds; or
– any other matter in which in the opinion of
the Yang di-Pertuan Agong, be for the public
welfare.
25. Royal Inquiry/ Public Inquiry
• Purposes of public inquiry:
– To investigate a specific issue
– To regain public trust on the government
– To ensure matters are investigated by
independent body
– To promote good governance & accountability
– To improve public service
26. Royal Inquiry/ Public Inquiry
• Procedures of public inquiry:
1. Yang di-Pertuan Agong instructs the establishment of a
Commission of Inquiry.
2. YDPA appoints the members of the Commission (usually
retired judges/ civil servants)
3. The Commission conducts proceedings – Commission has
power to summon & examine witnesses and examine
documents
4. Findings of Commission – Commission will report its findings
and recommendations
5. The government may adopt or reject the Commission’s
recommendations
27. Royal Inquiry/ Public Inquiry
• Examples of public inquiry:
Inquiry Year Purpose
Royal Commission of
Inquiry for Police Reform
2004 To inquire into:
•High incidence of crime
•Public perception on corruption among
police
•Abuse of human rights by police
Royal Commission of
Inquiry on illegal
immigrants in Sabah
2012 To inquire into:
• Problems related to illegal immigration in
Sabah
• Whether the granting of blue IC in Sabah
according to laws & SOPs
28. Other Administrative Tribunals
• Special Commissioners of Income Tax: If taxpayers
receive a notice of assessment and disagree with it,
they are allowed to make an appeal.
• Customs Appeal Tribunal: Any person dissatisfied
with the decision of the Director General of Customs
can appeal to the Tribunal.
• Planning Appeal Board: Any person whose the
applications for planning permission were rejected
by the local planning authority can appeal to the
Board.
29. Advantages of administrative tribunals
• Expediency: administrative agencies are better than ordinary
courts in disposing cases timely.
• Cheaper: Administrative adjudication is cheaper than court
adjudication
• Convenient: Administrative adjudication is more convenient
and accessible to individuals compared to ordinary courts.
• Flexibility: The process of adjudication in administrative
agencies is flexible and informal than courts.
• Special skills & knowledge: Adjudicators have special skill
and expertise related to the complicated dispute they
adjudicate.
30. Disadvantages of administrative tribunals
• Lack or little legal background: Many members of the
panel have no legal background, hence have no legal
expertise.
• Bias/ partiality: Members of panel are also employees of
administrative agencies/ local authorities.
• Violation of separation of power: Administrative agencies
take over judicial power from court
• No judicial precedent: Decision/ outcome can be
unpredictable because there is no judicial precedent to
follow.
31. Can decision/ award by tribunal be challenged
in court?
• Although in many statutory provisions, the awards of the
tribunal is considered final and binding on the parties,
resource to court may be still be made on several grounds:
– Failure of natural justice e.g. right to be heard not accorded.
– No reason given for its decision. In Seraimas Bina case, the High
Court struck down an Award of the Tribunal on the grounds that
the “award was illegally made” as “no supporting grounds were
given”.
– Illegality, irrationality, procedural impropriety and proportionality
(Case: Syarikat Kenderaan Melayu Kelantan Bhd).
• Challenge to the tribunal award is made via judicial review
application. All procedural requirements and time limit
placed on judicial review application thus apply.
32. Can decision/ award by tribunal be challenged
in court?
• Despite the ouster clause (i.e. the decision is final and binding),
courts often give narrow interpretation to the ouster clause.
• In R. Ramachandran v. The Industrial Court of Malaysia [1997] 1
MLJ 45, the Federal Court decided that when a decision of a public
decision maker or statutory tribunal is challenged on the grounds
of irrationality or illegality, the supervisory court is entitled to
review the procedural aspects as well as the substance or merits of
the decision.
• However, the courts are slow to interfere into Tribunal’s findings of
facts. The judicial review court is not permitted to interfere with
the findings of facts of the Tribunal unless such findings are
unsupported by evidence and/or are tainted by the established
grounds of challenge in judicial reviews (see Kompobina Holding
Sdn. Bhd.).
33. Franks Committee on Tribunals
• In 1957, the Franks Committee was appointed in the UK to make
an in-depth inquiry into the composition and working of the
tribunal system.
• It made a number of suggestions to improve the system. Some of
them were codified in the Tribunals and Inquiries Act 1958 (now
replaced by the Tribunals and Inquiries Act 1992).
• The Franks Report of 1957 was issued by a British committee of
inquiry chaired by Sir Oliver Franks in respect of growing concerns
as to the range and diversity of tribunals, uncertainty about the
procedures they followed and worry over lack of cohesion and
supervision.
34. Proposals of the Franks Committee
• Characteristics of tribunals:
– Openness: The publicity of proceedings and reasoned decisions
– Fairness: Adoption of clear procedures that enable parties to represent their
cases fully
– Impartiality: Freedom of the tribunals from the influence of the concerned
department
• Relationship between tribunals and administration: The Committee disagreed
that tribunals to be part of the machinery of the administration/ government
department. It proposed for tribunals to be put under the watch of the
Parliament to maintain its freedom and independence.
• Constitution of the tribunals: The Committee disagreed with the appointment of
tribunal members by the Ministers. It proposed for the tribunal chairman to be
chosen by the Lord Chancellor, normally having legal qualifications for trial and
mandatory for appellate tribunals. Rest of members to be chosen by the Council
of Tribunals.
35. Proposals of the Franks Committee (cont’d)
• Procedure of tribunals: The Council of Tribunals should direct the particular
procedure in each case, with the aim of combining order with an informal
atmosphere. Citizens should have a prior knowledge of the right to apply to
participate and public knowledge of the proceedings unless the content is of
sensitive nature, with legal representation normally allowed. Tribunals
empowered to take evidence under oath, subpoena witnesses and award
remedies. Decisions should give full reasons and a copy sent to all parties. Final
appellate tribunal to publish its decision for lower tribunals.
• Appeals from tribunal decisions: Appeal in the first instance should be to an
appellate tribunal, but never to a minister unless the First Instance tribunal is
highly competent. Common law remedies of Certiorari (direction to send records),
mandamus (mandatory order) and writ of prohibition (abstain a court where it
lacks competence) should never be restricted. Also the report recommended that
a Councils of Tribunals be formed to perform their respective role.
