AM110

FACULTY OF ADMINISTRATIVE SCIENCE AND POLICY STUDY

LAW 309
ADMINISTRATIVE LAW

QUESTION:

RULES OF NATURAL JUSTICE

(PAST SEMESTER MARCH 2014, PART B QUESTION 2)

PREPARED BY:

NURALIAH HANYPAH BINTI MAHADI 2016581301

MAIZATUL NAJWA BINTI OSMAN 2016170941

SHARIZA BINTI ABDUL SHUKOR 2016335683

MASTURAH BINTI ZAKARIAH 2016783441

GROUP: AM1104B

PREPARED FOR:

MADAM AZLINA BINTI MOHD HUSSAIN

DATE OF SUBMISSION: 29 OCTOBER 2018

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QUESTION

Shasha, an executive officer in the Government Fisheries Department, was asked to appear

before the Department’s Disciplinary Board to answer a disciplinary charge. She was alleged

to have been involved in taking out some office property. A notice of hearing was given to her

one day before the hearing. She requested for a postponement to allow her to prepare her

defence and appoint a lawyer. However, her request was rejected by the Disciplinary Board.

During the hearing she was tried for an additional charge for deliberately being absent from

work without applying for annual leave or medical certificate. She denied the new charge and

asked for postponement of the hearing and disclosure of information about her new case.

Unfortunately, both her requests were rejected.

At the end of the hearing, the Disciplinary Board has come to a conclusion that Shasha was

guilty for both charges. The Board decided to dismiss her from office. Shasha was

dissatisfied with the decision and the manner in which the Disciplinary Board conducted the

proceedings.

Advise Shasha.

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 The issues are whether Shasha have the right to be heard and could take actions

against the Department Disciplinary Board to defend herself.

Right to be heard is the one of elements in Rules Natural of Justice (RNJ). Rules

Natural of Justices is a procedural safeguard against improper exercise of power by a public

body. RNJ concerns with the ‘process’ that is used by the administrator in making decisions

against the individual. It is important because RNJ is the minimum of standards required by

the law for administrators to fulfil before making their decisions and RNJ also concerns with

giving the affected person the right of hearing where he or she can bring to the notice of the

decision maker his side of the story any relevant facts, circumstances and information in his

possession, anything that has a bearing on the case and also his interpretation of the law.

Right to be heard is elements of natural justices requires the public body to give a fair hearing

to the accused and it consists of two similar elements which namely notice and hearing.

The notice is an important element of Audi Alteram Partem where the person accused

or alleged person can have a reasonable opportunity to defend himself properly. To show how

important of notice it is, in an Article 27 of Federation Constitution under Articles 24, 25 and

26 of the Malaysian Federal constitution, the federal Government has power to deprive a

Malaysian citizenship under certain circumstances. Before the Federal Government makes

any such order against a person, the government has to give him notice in the prescribes form

informing him on the ground on which it is proposed to make the order and the person’s right

to have the case referred to an inquiry committee. The notice can be observed by giving the

accused which is by charge or allegation and time.

In charge or Allegation, the accused must know her charge because from the charge

she or he can able to know the case made against him or her. If no charge is given, the

accused is unable to make a defence at all and this can lead to an invalid decision made by

the administrator. For examples of a charge is misconduct, negligent, absent from work,

corruption and more.

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 We can see this charge in case of Lim Ko v Board of Architects. The courts

rejections the petitioner’s complaint that he was not given sufficiently detailed notification of

the charges against him by the Board as it was satisfied, on the facts, that he was sufficiently

aware of the nature of the acts of misconduct alleged.

In addition case, R v Paddington & Marybone Rent Tribunal. The Tribunal hearing

a matter reduced the rent on the ground that the ceilings of the flats were to low and not up to

modern standard. But this question never arose at any stage of the proceedings and the

landlords was taken by surprise as he never got any chance of dealing with the matter. The

court quashed the Tribunal’s decision because it was wrong for it to take into account a matter

of which no notice had been give to the landlord and who had no opportunity of dealing with it

Also, in case of Fairmount Investment v Secretary of State for the Environment.

The Secretary of State made a compulsory purchase order. Prior for that, an inspector had

held a local public inquiry. In his report, the inspector referred to reasons for recommending

acquisition which had never been mentioned at the inquiry and which the respondents got no

opportunity to contradict or explain. The court held that the respondents were substantially

prejudiced by the failure of the inspector to give them an opportunity to deal with these matters

and the purchase order was quashed. Moreover, it is wrong to charge a person under a

provision carrying a minor punishment, but to punish that person under another provision

warranting a more severe punishment without notice having been given.

In the applications for Shasha’s case, during the hearing she was tried for an additional

charge for deliberately being absent from work without applying for annual leave or medical

certificate. She need to be informed clearly why she being accused guilty. She did not know

the charge that will be take under her and it unfair because in a basic element in natural justice

is that before adjudicatory proceedings are underway, the party concerned should be given

notice the case against her. The decision made was invalid.

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 The other elements of notice that must be observed by the administrator is time where

not only the notice served to be accused must include a complete and clear charge, the notice

must also give sufficient time to the accused to prepare her or his defence. It is against the

RNJ to call upon the alleged person to show cause immediately without giving him or her time

to consider the charges against him or her.

This case can refer to case of Phang Moh Shin v Commissioner of police. This is

a Singapore case. The is about the plaintiff in this case was accused of corruption and he was

called for a hearing but was told of the charge against him just before the hearing commenced.

When the plaintiff requested that his hearing be postponed so that he could prepare for his

defence, it was refused. He was dismissed after the trial and he later bought the case to the

court to challenge his dismissal. The court held that the dismissal was void on the ground of

insufficient notice given to him of the charge made against him. This element can also be

referred to case of Re Liverpool Taxi Owners’ Association. A letter was sent to the

application to show cause by return post against the issue of fresh taxi licences. The notice

was held to be inadequate. It is contrary to natural justice to call upon a person to show cause

immediately and to permit no time to consider the charges.

The application for Shasha’s cases she did not be given with enough time to defend

herself. She was given that notice of hearing one day before the hearing. All the accusations

against her were not give enough time to do something that provides that she was not guilty.

Supposedly, sufficiently time must be given to the concerned person to prepare a defence and

file objections. Only one day’s notice may be quite insufficient and unreasonable. There a lot

of thing to prepare before defend herself. The decision should be void.

Next, hearing. The hearing is one of requirement of notice is fulfilled by the

administrator it is essential to determine whether the administrator has conduct a hearing for

the accused. There is no specific of fixed hearing procedure that must be followed by the

administrator, it can be one of the followings, inter alia, oral, written, representation,

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consultation, interview, dialogue and others. Whether the hearing should be conducted orally

or in writing depends on facts of each case. Even if the accused has been given a hearing,

the administrator should make sure that the hearing carried out has fulfilled some reasonable

elements in conducting a hearing whether is the procedure before the hearing or during the

hearing, the elements is the disclosure of all information, evidence or material which the

authority wishes to use against the individual concerned in arriving at its decision. There must

not be any element of surprises in the hearing.

In case of Shamsiah Ahmad Sham v public Service Commissioner, the plaintiff

who worked in a printing department challenged the decisions of the defendant who dismissed

her after taking into account her past record when a disciplinary action was taken against her.

It was held that the decision was against the RNJ because it did not comply with the first

elements of a fair hearing. Another case that can be refer to this element is B Surinder Singh

Kanda v The Government of the Federation of Malaya. The Commissioner of Police first

appointed a Board of Inquiry to make a preliminary inquiry against Kanda. After considering

the Board’s report, the Commissioner appointed an adjudicating officer to hold a formal inquiry

into charges against him. As a result of the former’s findings, Kanda was dismissed from

service. The adjudicating officer had been given a copy of the report of the Board which

contained a severe condemnation of Kanda, but Kanda was not given a copy of it, and he had

no opportunity of correcting or contracting it. The Privy Council held that the proceedings of

the adjudicating officer were vitiated and that Kanda had been dismissed without being given

a reasonable opportunity of being heard. It was not correct to let the adjudicating officer have

a copy of the report without giving a copy of it to Kanda so that he would be able to correct or

contradict the statement in it. The order of dismissal was void.

In addition case, Abraham v Law society of Singapore. A committee inquired into a

complaint against the applicant advocate. After giving him an oral hearing, the committee

reported to the Law Society of Singapore that penalty should be imposed on him. The Law

Society sent a notice asking him if he wished to be heard before penalty was imposed. He

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expressed his desire to be heard and asked for a copy of the inquiry report. This was refused.

Section 85 (3) of the Legal Profession Act provided that before the Council made an order

against an advocate for payment of a penalty, it was required to give him or her a reasonable

opportunity to be heard. The question was whether under section 86 (3) the giving of the

inquiriy report formed part of the reasonable opportunity of being heard.

Also, in case of Phang Moh Shin v Commissioner of Police. The inquiry officer had

before him the entire file of the plaintiff against whom he was holding an inquiry. The file

contained the plaintiff's service sheet, personal record as well as investigation papers relating

to the complaint in question. The inquiry officer also had certain miscellaneuos files containing

complaints about the plaintiff's behaviour and conduct relating to matters entirely unconnected

with the charge against him. The inquiry officer took these material into account in arriving at

his decision and making his recommendations, but the content of these documents were never

disclosed to the plaintiff at any time during the inquiry. Although these materials were

prejudicial to the plaintiff, he was never given an opportunity to answer or explain. The court

held the inquiry to be defective.

The applications in case of Shasha, she denied the new charge and disclosure of

information about her new case. The decision by Department Disciplinary Board can be

rejected because she gets a surprise which is her new charge during her hearing. According

to this element there must not be any surprises in the hearing. She also should be given the

right and chance to disclosure the information. If not given, it is considered as highly unfair

and the decision should be vitiated.

Other elements in hearing is the authority should give the party concerned an

opportunity to rebut the material against him. This can be done in to be represented by a

lawyer or the right to counsel. The question of legal representation at oral hearing Is

important.

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 In case of Britania Brands (Malaysia) Sdn Bhd b Ketua Pengarah Buruh Malaysia,

the court quashed the defendant’s decisions in refusing to grant legal representation to be

applicant. The applicant has requested for an adjournment of the hearing so that he could be

represented by a counsel but it was refused by the defendant.

In additional case, Pett v Greyhound Racing Association Ltd. The question arose

whether the plaintiff should be represented by a lawyer as he was facing a serious charge

concerning his reputation and livelihood. At such an inquiry, he was entitled not to appear

himself but also to appoint an agent to act for him. This was on the ground that what a person

could do himself or herself, he or she could get done through an agent. Every person who is

sui juris has a right to appoint an agent for any purpose whatever. There was no reason why

an agent could not be a lawyer.

Also, can be referred in case of Enderby Town Football Club v The Football

Association. Discussing legal representation, Lord Denning ruled that whether a lawyer

should appear or not before a tribunal was a matter of its direction. The party concerned had

no absolute right to be legally represented. However, the tribunal must exercise its discretion

properly and it must not fetter its discretion by adopting a right norm of not allowing a legal

representation. The tribunal must be ready in a proper case to allow legal representation.

Legal representation was refused because there was a rule saying that legal representation

was not allowed. Also, the court ruled that complicated legal points could be brought before

the court for decision where legal representation would allowed.

Furthermore, in case of Mundell v Mellor. An early Singapore case. An accident

occurred causing loss of life arising out of operation of machinery at a soap factory. An inquiry

was scheduled by the Chief Inspector of Machinery. A partner in the firm, who was the

consulting engineer in charge of the factory, was summoned to give evidence. If a finding in

adverse to him was made he would be prejudiced and could then be prosecuted on criminal

charges. He engaged an advocate to represent him. The Chief Inspector refused the advocate

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the right of audience on the ground that the tribunal had no power to allow it. The plaintiff

brought a motion for mandamus to enforce a right of representation. On appeal, the court held

that 'every man ... who has a right to be heard has a right at common law to appear or be

heard through an agent in the absence of any express provision restriction or taking away thay

right.

In Shasha’s case she requests to give postponement to prepare her defence and

appoint a lawyer. Supposedly, Shasha should be given more time to appoint a lawyer to

defend her. It unreasonable and show appearance of injustice because there is lack of legal

representation that may be unable to protect her in dealing with difficult question of fact or law

especially when complicated question arise. The elaborate evidence is also need to be

produced and she also not be given to produce or find evidence to defence herself. The

decision made was void.

In a nutshell, the decision that Disciplinary Board made was invalid. Shasha can

challenged the decision that was made by the Disciplinary Board to her.