Natural Justice and Procedural Fairness

1.0 NATURAL JUSTICE

1.1 Characteristics:
1) Procedural control as opposed to substantive control.
-Jackson J in Shaughnessy v US
‘Procedural fairness and regularity are of the indispensable essence of
liberty. Severe substantive laws can be endured if they are fairly and
impartially applied’.

2) Only arises if the statute is silent

-If a statute provides for a right to be heard, it is a statutory right to be
heard. If provided by the Constitution, constitutional right to be heard.
Cooper v Wandsworth Board of Works
Held: ‘The justice of common law will supply the omission of the
legislature’.

3) NJ can be denied by statutes

-Right to be heard may be denied if the statute expressly provides for
it.
-There is no lacuna in the statutes if NJ is denied
-Exp: S.59 of Immigration Act 1959/63
Furnell v Whangerai High School Board
Held:
(i) When a statute provides for an organized procedure but the
right to be heard is not inclusive, then the court must construe to
the fact that the intention of Parliament is to deny the right to be
heard.

4) NJ is predecisional
-NJ comes before a decision is made
Maneka Gandhi(SC)
Held:
(i) The concept of natural justice can be post-decisional only if
there is a valid reason as to why it cannot be provided before a
decision is made. Then the court will make the right to be heard
a compulsory requirement.

5) It is a flexible concept
Mak Sik Kwong(No.2)
Held:
Rule of NJ is not rigid, absolute or unbending. It can vary in the context
of their application.

Importance of NJ to Admin Law:

To admin body:
1) To determine the relevant facts before a decision is made.
2) To achieve a fair decision
3) To prevent the administrative body from making mistakes.
 4) To aid the administrative body in keeping a complete and
comprehensive report.

To individual:
1) An important right to the individual to challenge and influence the
decision.
2) Protects the individual right from administrative action.
3) Prevents the admin body from abuse of power.

1.2 Development of NJ
1.2.1 Britain
-In England, NJ must apply in such decisions but not purely-administrative
decisions. The phases of judicial thinking are as follows:

1) Broad Interpretation
Cooper v Wandsworth Board of Works
Facts:
-According to the statute, no one could put up a house in London without
giving 7 days notice to the local board of works of his intention to build a
house.
Held:
(i) The board was acting judicially as it had to determine the offence
and apportion punishment as well as the remedy, thus, hearing is
required.

Board of Education v Rice

Held:
(i) NJ must be applied in all circumstances. A fair hearing must be
given when an official was deciding a controversy.
(ii) ‘Fair hearing’ is a ‘duty lying upon everyone who decides anything’.

2) Narrow Interpretation
Nakkuda Ali v Jayaretne (PC)
(i) No one has a legal right to a license, it is a privilege and not a right.
(ii) Disagreed with Cooper and Rice, NJ can only apply if there is a
judicial proceeding.

Ex Parte Parker (followed by ex parte fry)

Facts:
-The statute provided for revocation of a taxi-cab license by the Commissioner
of Police ‘If he is satisfied that the licensee is not fit to hold a license’.

Held:
The Commissioner was exercising a ‘disciplinary authority’ and in such
matters no hearing is required.

3) Broad Interpretation 2
Ridge v Baldwin
Facts:
-The watch committee is empowered by the statutes to dismiss constables
whom they think negligent in discharge of his duty.

Held:
(i) Under the relevant law, the officer can only be dismissed on certain
grounds viz negligence and unfitness.
(ii) Whenever in the exercise of power a decision is made which affects
the legal rights of an individual to his detriment, NJ must be
observed.

4) Fairness
Re K(H) An Infant
Facts:
-A Pakistani settled in England brought his son whom he declared to be of 15
½ years of age. The Immigration officer did not accept the evidence as to his
age.

Held:
(i) It was not a question whether he should act judicially or not, but
being required to act fairly.
(ii) Good administration and an honest or bona fide decision must
require not merely impartiality but to act fairly. The immigration
officer must give the man an opportunity to prove that the boy is 16
years old.

Following that,
1) The distinction between Quasi-judicial and purely administrative
decision becomes extremely fine.
2) There is also no more distinction between privilege and right.
3) An aggrieved party must be given the right to be heard even if it is a
disciplinary action. (R v Senate of University of Aston)
4) Fairness concept extends to investigation process (Re Pergamam
Case)
Facts: Inspectors were appointed for the purpose of inquiry upon the
affairs of a company.
Held:
Although it was not a judicial proceeding and there was no decision to
be made, the report leads to serious consequences. Thus, NJ must be
observed to ensure that the inquiry is fair.

5) Legitimate Expectation
-Goes beyond ‘right’ or ‘interest’, includes expectation which goes
beyond an enforceable legal right, provided that it has some
reasonable basis.
-For reasonable basis/ground, it could be either:

A. Promise made by administrative body

Re Liverpool Taxi Owner’s Association

Facts:
 -An undertaking was given to the Liverpool Taxi Owners’ Association
that it would not increase the number of taxi licences without giving an
opportunity to the association to make representations.

Held:
(i) The interest the applicant and other bodies were affected, must
act fairly.
(ii) The corporation had given an undertaking to that effect to that
association and the corporation could not break the undertaking
at will.

B. Regular Practice

CCSU v Minister for Civil Service

Facts:
-Minister has power to change service conditions.
-The employees had no legal right to prior consultation but there had
been a well-established and invariable practice of prior consultation
with trade union.
HoL:
(i) Before issuing an instruction making an important change in the
service conditions of civil servants, Minister was bound to act
fairly which involved consultation with employees’ trade union.
(ii) However, as the concerned employees were working in the
intelligence department and so considerations of national
security supersede their legitimate expectation.

1.2.2 India
-Till 1970, by and large, NJ was linked with the concept of QJ.

Maneka Gandhi
Held:
(i) The court destroyed the distinction of QJ and administrative.
(ii) NJ is a great ‘humanising principle’ intended to invest law with
fairness and to secure justice, the soul of NJ is ‘fairplay in action’
which is important in both proceedings.

1.2.3 Malaysia

1) Broad Interpretation
Wong Kwai v President Town Council, Johor Bahru
(i) Under the provision, the admin can choose to require the person to
alter the building or demolish.
(ii) It was administrative power but the situation could be remedied and
demolishment order should only be made as a last resort. Natural
justice must be observed.
2) Fairness Concept
Ketua Pengarah Kastam v Ho Kwan Seng
Facts:
-The respondent was granted permission under S.90(1) of Customs Act 1967
to work as a forwarding agent to transact business. He was convicted of 2
offences and punished with a fine. Appealed to HC.
-Meanwhile, before the case was decided, his registration for the forwarding
agency was cancelled.

Held: (FC)
(i) Followed Ridge v Baldwin. Emphasised that the rule requiring a
fair hearing ‘is of central importance because it can used to
construe a whole code of administrative procedural rights’.
(ii) Abolished the distinction between QJ and administrative. NJ is rule
of universal application and must be applied in all cases when a
person’s interest is affected due to administrative body’s action.

3) After 1977
Fadzil bin Mohammad Noor v UTM
Facts:
Lecturer was dismissed on ground of his absence without leave.

Held: (FC,per Raja Azlan Shah)

(i) Referring to Malloch, NJ may be extended to employment
relationships as ‘there may be essential procedural requirements to
be observed and the failure to observe would result in a dismissal
being declared void’.

4) Legitimate Expectation
John Peter Berthelsen v D-G of Immigration
Facts:
-Applicant was a journalist of Asian Wallstreet, got a permit to work in
Malaysia.
-His permit however, was cancelled two months before the expiry of the
permit.
Held:
(i) Referred to Schmidt and Ng Yuen Shiu, had a legitimate
expectation to be entitled to remain in the country for a stipulated
time.
(ii) Any action to curtail that expectation would in law attract the
application of NJ.

Dr Amir Hussein v USM

Facts:
-Dean of a faculty was not reappointed after his 2 years tenure lapsed.

Held:
(i) There was no promise by USM and it was not a regular practice to
reappoint a dean. Thus, NJ cannot be applied.
1.3 Principles of NJ
1.3.1 Audi Alterem Partem
Components:
(1) NOTICE
-Basic norm of NJ to enable the party concerned to adequately defend
himself.

(i) Time
Phang Mok Shin v Commissioner of Police
Facts:
-Inquiry officer informed just before the commencement of the
hearing. He was also not given a copy of the charge.

(ii) Sufficient and Reasonable Notice

Raja Abdul Malek Muzaffar Shah v Setiausaha SPP
Facts:
-Police was given an opportunity to write representation.
However, he was dismissed based on the reasons in his letter
and ‘other conditions’.

Held:
-It is necessary that ALL grounds on which the action is
proposed to be taken must be communicated to the person.

Chong Kok Lin v Yong Su Hian

-Notice was given at all.

(2) DISCLOSURE OF EVIDENCE

-A person should be able to comment, criticize, explain and rebut the
same.

B Surinder Singh Kanda v Government of Malaysia

-Kanda was not given a copy regarding a severe condemnation, but it
was not given to him for correction and contradiction of the report.

Rohana v USM
-Dismissed lecturers asked for information and documents in the
possession of the disciplinary authority but it was refused on ground
that some documents were confidential.
-She was not able to put up an adequate defense.

Exceptions to disclosure of evidence:

1. If the individual does not request for it
Lim Ko v Board of Architects
-A file was produced at the hearing by the witness but the appellant
made no demands to examine it.

2. The evidence was not given to the adjudicator

Sambasivam v PSC
 -A copy of complaint from the Head of Department of labour had not
been shown to the board of inquiry, thus, it could not have influence
them while they were investigating.

(3) HEARING
-Emphasied in Ridge v Baldwin, ‘the essential requirements of NJ at
least include that before some one is condemned he is to have an
opportunity of defending himself.
-Adjudicator must hear both sides.
-2 types of hearing: Written representation and oral hearing.

(i) Oral Hearing

-More effective but expensive, time-consuming and dilatory from
the perspective of the administration

Britain
Pett v Greyhound Racing Association
-Whether an oral hearing should be afforded depends on the
seriousness of the charge. Since his reputation and livehood are
affected, it has to be given.

Pett II
-Overruled Pett I, and held that this is not a general right, but a
discretion of the adjudicator.

India
Travancore Rayons v Union of India
-If in appropriate cases where complex and difficult questions
are raised, personal hearing must be given, as it would conduce
to better administration and more satisfactory disposal of the
grievance of the citizen.

-Right to oral hearing is not compulsory, but must be given in

situations:
1) Case involves complex issues.
2) Case involves technical legal issue.
3) The facts of the case are complicated.

Malaysia
Ketua Pengarah Kastam v Ho Kwan Seng
-Insistence of oral hearing in every case would result in the
breakdown of the administration because the hearing is too
slow, technical and costly.
-Not mandatory.

Najar Singh v Government of Malaysia

-Police officer while in preventive detention received a notice.
He wrote a written reply but he was dismissed.
FC:
 -A hearing does not necessarily mean an oral hearing and all
that the dismissing authority ‘had to do was to give a fair
opportunity to the plaintiff to his view’
PC:
-Public officer cannot request oral hearing as of right.
-Oral hearing is not required as part of natural justice.

Ghazi bin Mohd Sawi

-Charge sheet was served to the dismissed policeman but no
oral hearing was afforded.
FC:
(i) According to Najar Singh and Zainal bin Hashim, oral
hearing is not an essential element of natural justice.
(ii) The disciplinary authority has assiduously followed the
relevant service regulations which have legislative effect
and no words can be added to them.

Raja Abdul Malek Muzaffar

-Under Art 135(2) of the FC, it is silent that the dismissal of a
civil servant on whether oral hearing should be given.
-Oral hearing is not a necessary element in right to be heard but
the failure or refusal to afford such a hearing does not mean that
the decision is harmless from attack.

Utra Badi
-A sample of urine was taken of plaintiff was tested positive for
morphine. The plaintiff gave his written representation but not
given oral hearing.

COA: (Referred to Travancore)

By referring to Raja Abdul Malek Muzaffar Shah, GSR
extended the notion that in certain situations, oral hearing must
be given subject to:
1) Subject matter of the case
2) Facts that arise in the case
3) Nature of the decision taken against the individual
4) Important factual question that cannot be satisfactorily
resolved based on written representation.
5) Evidence from admin and written representation of individual
contradict each other.
FC: (Referred to Najar Singh, Ghazi and Zainal)
(i) Art 135(2) did not state that oral hearing must be given,
as the provision stated that reasonable opportunity of
being heard. Written representation is reasonable and
sufficient.
(ii) The issue had already been settle in local cases, thus it is
not required to follow Indian case.

(4) RIGHT TO COUNSEL

 -When complicated questions of law and facts arise, and where
elaborate evidence is produced, the non-appearance of a lawyer may
lead to injustice.

Britain
Pett I
-Lord Denning: A person should be represented when he faces a
serious charge concerning his reputation and livelihood.
-This was on the principle that that every person who is sui juris has a
right to appoint an agent for any purpose whatever. And there is no
reason why the agent cannot be a lawyer.

Pett II
-Right to counsel is at the discretion of the adjudicator and not a
general right.

Ex P Tarrant
-Criterias to be considered:
1) Seriousness of the charge and potential penalty
2) Any points of law are likely to arise
3) The capacity of a particular prisoner to present his own case
4) Procedural difficulties
5) The need for reasonable speed
6) The need for fairness as between prisoners and prison officers.

Malaysia
Doreswamy v PSC
-The considerations requiring assistance of counsel in the ordinary
courts are just as persuasive in proceedings before disciplinary
tribunals. This is especially so when a person’s regulation and
livelihood are in jeopardy.
-However, may be restricted either expressly in statues or by legal
necessary implication.

Federal Hotel v National Union of Hotel

-While the respondent was represented by a lawyer, the Industrial
Court refused permission to the appellant’s counsel to act on his behalf
and appear and address the court on substantive issues.
-FC: ‘Gross violation of the fundamental principles of NJ’. In such a
case, legal representation no longer remains a privilege, but a right.

(5) RIGHT TO CROSS EXAMINATION

-One of the most efficacious methods of establishing truth and
exposing falsehoods, but it may cause delay in disposal of cases.

Britain
Ceylon University v Fernando
PC: Objection would have been more formidable of he had asked to be
allowed to question the essential witnesses and his request and had
been refused.
 Errignton v Wilson
-Failure to allow corss-examination was necessarily unfair having
regard to the circumstances of the case and the extent to which
prejudice might have resulted.

Malaysia
Pemungut Hasil Tanah v Kam Gim Paik
-While holding inquiry into the value of lands acquired, the collector
refused the request of the owner to call the government value for cross
examine.
-FC: It was not a violation of the owner’s basic right and therefore not
an infringement of NJ.

Leong Kum Fatt v AG

-Even where cross-examination of witnesses is allowed, the authority
may refuse to permit unnecessary cross-examination of a witness.

(6) RIGHT TO REASON DECISION

-Transperancy in administration system-safeguards against arbitrary
and unfair decisions being given by adjudicatory bodies.
-Decision-making bodies apply to their mind the facts and
circumstances of the matters and do not act in a mechanical manner.
-Less difficulty for individuals to challenge the decision.

Britain
Padfiled v Minister of Agriculture and Fisheries
HOL: There is no duty for admin body to give reason decision. But if
admin body does not give reason, may make an adverse inference that
they do not have good reason in the decision and therefore the court
will quash the decision.

Breen v AEU
-Lord Denning: Giving of reason decision is the foundation of good
administration.
-Franks Committee was set up to consider whether RD should be
given. As a result, S.12 of Tribunals and Enquiries, which make it
compulsory for the administrative body to give RD subject to:
1) It does not involve national security
2) If the individual requests for RD
3) Only the tribunals listed in 1st schedule of the Act.
-For tribunals not listed, Padfield inference applies.

India
Travancore v Union of India
-Compulsory to give RD, its an obligation.

Malaysia
Rohana v USM
HC:
 -Although general principle is that administrative bodies do not have to
give RD, there are certain circumstances where fairness requires RD.
However, those situations in Travancore does not apply in Malaysia.
FC:
-If the decision affects the livelihood of an individual, RD must be given.

Hong Leong Equipment v Liew Fook Chuan

-Based on Art 5(1) and 8(1) of the FC, the Minister, when refusing to
refer representations in the exercise of his discretion, is reasonably
expected to give reasons for his decision.
-If the Minister fails to court to conclude that he had no good reasons
for making the decision he did.
-All cases where a fundamental liberty guaranteed by the FC is
adversely affected in consequence of a decision taken by a public
decision maker, RD must be given.

(7) RIGHT TO MITIGATION

IGP v Alan Noor
-If the show cause letter had included the propose punishment, no
necessity to give another opportunity of being heard before the
punishment is imposed.

Shamsuddin Mohd Said v Pegawai Hospital Bahagia Ulu Kinta

-Public servants do not have a right in plea in mitigation.

Utra Badi
-Plaintiff, a hospital attendant, was tested positive for morphine.
-The charge was made under GO26 of Public Officers (Conduct and
Discipline)which contained two alternative punishments against him,
either to dismiss him or to reduce in rank.
-Appeal rejected, Plaintiff was not given a right to mitigate.

HC:
-It would be unjust to deny him a right to mitigate, as the punishment
itself involves a separate decision making process.
-Right to be heard in mitigation is implicitly encompassed in GO23 of
the regulation and Art135(2) of FC.
COA:
-Disciplinary action involves 2 stages:
1) PSC makes a decision as to whether the officer had committed a
misconduct.
2) PSC decides on an appropriate punishment to be imposed.
-RTBH must be given as both stages are different proceedings and 2
separate rights to be heard must be given
-IGP v Alan Noor is only obiter, procedural fairness under Art 5 and 8
were not raised.
FC:
-A public officer does not have a right in mitigation so long as the
officer knows the punishment about to be imposed.
 -Followed Shamsuddin, Alan Noor, that the disciplinary proceeding
does not involve 2 stages.
-Plea in mitigation concept only exists in court proceedings and not in
decision made by PSC.
-Referred to GO and stated that it is silent on right to plea in mitigation,
cannot be implied.

1.3.2 Rule against Bias/ Nemo Judex In Causa Sua

-Prohibits adjudicatory authority from acting partially in resolving a dispute.
-Propounded by 2 rules:
(1) That a man should not be a judge in his own cause
(2) Justice must not only be done but be seen to be done

A. Pecuniary Bias
Dimes v Grand Junction Canal
Facts:
-Lord Chancellor who was a shareholder in the company heard the
case and gave the desired relief to the company.

Held:
(i) No one could suppose that the Lord Chancellor was in the
remotest degree influenced in his decision by his interest in the
company, but as long as there was a little pecuniary interest, the
qualification is automatically cancelled.
(ii) No test is needed to prove such bias.

B. Personal Bias
-May arise due to a particular form of personal relationship between the
adjudicator and one of the parties to the dispute. (Family ties,
friendship, business association with or hostility towards one of the
parties)
-In a group decision, even if one of the adjudicators is partial, the
validity of the decision is affected.

Tests
England
1st Phase
Reasonable Suspicion(Too flexible)

2nd Phase
Real Likelihood of Bias
Metropolitan Properties Co v Lannon
(i) There was a ‘real likelihood of bias’. The court does not look at
the mind of the judge to see if he did in fact favour one side at
the expense of the other.
(ii) The court looks at the impression which would be given to
people, depending on right-minded people in the circumstances.

Hannan v Bradford Corporation

(i) Justice must be rooted in public confidence.
 3rd Phase: Real Danger of bias
R v Gough
Held:
(i) The court may ascertained relevant circumstances from the
evidence which may not be available to any ordinary observer.
(Laid down primarily in the context of a jury trial in a criminal
case)

Malaysia (Same as England)

1st Phase: Reasonable suspicion
2nd Phase: Real Likelihood
Rohana bte Ariffin v USM(followed Metropolitan)
Facts:
-The Registrar who made a complaint for disciplinary action against a
lecturer sat in the tribunal during the proceeding.

Held:
The registrar did not discuss the case with the members of the
disciplinary authority nor did he take part in the deliberations, but the
fact that he was present, there was a real likelihood of bias.

Govindraj v President, MIC

Facts:
-The President of the party sat in the appeal committee suspending the
Vice President of his membership.

Held:
The President had in effect acted as the accuser, judge, jury and
executioner in his own cause.

3rd Phase: Real danger of bias

C. Policy Bias
-The one who makes the policy of a department is the adjudicator.
-If he comes from the department of the decision making, he is not
barred, he must be the one who makes the decision.

Franklin v Minister of Town and Country Planning

Facts:
-Under the New Towns Act 1946, the Minister may confirm the order
designating the new town after a local public inquiry.
-He was jeered and he replied ‘it’s no good jeering—it is going to be
done’.

Held:
HC: As he was the one who upheld the policy, there was bias in the
inquiry.
CoA: The Minister followed the statute, so no bias.
HoL: The Minister’s function was administrative in nature and
prescribed by the Act, thus, no bias.

Alkaff v The Governor-in-Council

Facts:
-The Commissioner of Lands was an ex-officio member of the
Singapore Improvement Trust.
-The Trust approved certain backlane schemes. Under the law, an
inquiry was to be held before the Governor-in-Council.

Held:
As the Commissioner was a member of the Trust who brought up the
schemes, this could result in a suspicion that justice was not done. An
inquiry is also a quasi-judicial capacity. Decision quashed.

2.1 Procedural Fairness

-A universal concept, which includes the concept of
NJ(AAP+NJICS), RD and plea in mitigation.
-The position of PF in Malaysia branches from the Constitution.

Rohana v USM
-No linkage between PF and the Constitution.

Raja Abdul Malek

-Followed Common Law position of fairness.

Tan Tek Seng

-Propounded PF from the Federal Constitution
(i) Art 135(2)
(ii) Procedural Fairness (Art 5+8)
(iii) Proportionality
(iv) Relief

1st issue: Does TTS possess a right to be heard?

Art 135(2) read together with exception(a) does not permit TTS to
have a right to be heard as a criminal charge has been proven.

2nd issue: Whether the court may review on the punishment

imposed?
-We follow the written constitution which is a living document.
-Art 5->Right to life and personal liberty save in accordance with law
Art 8-> Equality before the law

1) ‘Law’
-Under Art 5(1), the word law refers to both substantive and
procedural law.
-Karam Singh was decided when the Constitution was still at its
infancy.
 -Referred to Ong Ah Chuan and Kulaisingam, in which ‘law’
also includes procedural law.

2) ‘Equality’
-Must be given a broad and liberal interpretation.
-Referred to Maneka Gandhi and EP Royappah:
1) Art 14 of the Indian Constitution-Equality guarantees fairness
2) Reasonableness concept is part of ‘equality’.

Thus, as ‘law’ in Art 5 includes procedural law, and equality

under Art 8 guarantees fairness, procedural fairness is present
in the Constitution with a combination of Art 5 and 8.

2.2 When must PF be given?

1. PF applies when a fundamental liberty under Art 5(1) is

affected. ‘Life’ extends to any matter on the quality of life for
example right to a clean environment and for a rightful
employment.
2. However, PF is only limited to a deprivation of right to life
under Art 5.

Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah

COA:
-PF and NJ are different concepts, PF is wider than NJ, PF has
a higher standing as it originates from the Constitution.
-PF is not confined to fundamental rights under Art 5 but also
applies to all circumstances.
- Referred to Art 8 which covers both procedural fairness and
substantive fairness. As long as any right of an individual is
affected, hence, RD must be given.
-However, RD may be given before a decision is made or after
the decision is challenged in court.
FC:
-Personal liberty should not be widened under Art 5. (Referred
of Gov of Malaysia v Loh Wai Kong).
-Fundamental liberty under Art 5(1) is not absolute. It can be
superseded by an Act of Parliament.
-Substantive fairness cannot be applied in Malaysia from the
interpretation of the Constitution.

PF also extends to plea in mitigation. (Refer above)