FACULTY IF ADMINISTRATIVE SCIENCE AND POLICY STUDIES

BACHELOR OF ADMINISTRATIVE SCIENCE

SEMESTER OCTOBER 2021 – MARCH 2022

LAW507
ADMINISTRATIVE LAW FOR PUBLIC AUTHORITIES
GROUP-N4AM2283K
PROBLEM CASE STUDY-CASE NO.1

GROUP MEMBERS:
NO NAME MATRICULATION NO
1 RAIHANA NAJIHAH BINTI A. RAZAK 2021855856
2 NURUL AFIQAH BINTI ABU KASIM 2021864304
3 SYAFIQA NUR SYUHADA BINTI ZAKARIA 2021474484
4 NUR HIDAYAH BINTI AZIH 2021464662
CASE NO 1
Ikhmal was a police officer for the past ten years. Evidently, he was very much dedicated
with his work. Recently, he received a notice from the disciplinary board and he was asked to
attend a disciplinary proceeding indicating that he had been negligent and incompetent in his
work. Ikhmal was unclear about the charge made against him and requested to be furnished
with the details of the allegation he was charged with, but it was turned down. Furthermore,
he was also requested for an extension of time so that he would be able to prepare for his
defence. However, his request was again denied by the Board.

During the hearing session, Ikhmal was informed that the that Department has received
several reports complaining about his poor performance while on duty. Based on this
allegation, Ikhmal requested to be represented by a counsel. The hearing was chaired by En.
Danial, his senior officer, where both of them are not in good terms. Ikhmal requested En.
Danial to be replaced with another panel. However, his application was rejected as En. Danial
has a good reputation in the Department.

At the end of the hearing, the committee decided that the allegations made against him were
proven. He was dismissed from the service with one month’s notice. He was also surprised to
know that the committee has reached the decision after considering his past record.

Ikhmal was not happy and dissatisfied with the decision of the committee and now wishes to
challenge the validity of the disciplinary proceeding. Advise Ikhmal whether he may
challenge the decision or not. Answer with reference to general principles of administrative
law and relevant, illustrative cases.

(25
marks)

(b) State any TWO (2) rationales of the principles or rules of natural justice (RNJ).

(5
marks)
ANSWER

ISSUE 1

The first issue in this case is whether Ikhmal can take a legal action against on the
Disciplinary Board for the validity of the proceeding of principle of natural justice on the
ground of charge under notice?

LAW

The definition of the principle or rules of natural justice (hereinafter RNJ) is concerned with
procedural fairness and ensure a fair decision is reached by an objective decision maker.
Rules of natural justice is a procedural safeguard against improper exercise of power by a
public body, protects the right of individuals or person and enhances public confidence in the
process. Then, restrictions of power can be achieved procedurally on the theory which is if
people are compelled to act in the right way. Generally, they may do the right thing and come
to the right decision. The RNJ concerns with giving the affected person the right of hearing
whereby the accused 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 his interpretation of the law. The wrong decisions are arrived at mostly in
ignorance of full facts.

In the element rules of natural justice there is consist two basic elements which are, the
principle of Audi Alteram Partem and Nemo Judex in causa sua. To determine whether
the administrator has made a valid decision. Hence, these elements must be observed, if not
the decision can be challenged in the courts of law for procedural ultra vires. There are two
elements of rules of natural justice which are right to be heard and rules against bias. The
element of right to be heard is under principle of the Audi Alteram Partem whereby this
element of natural justice requires the public body to give a fair hearing to the accused and
also it consists of two smaller elements namely which are notice and hearing. Then, there are
two elements of notice that can observed by giving the accused are charge and time. Charge
under notice is the allegation or charge should be known by the accused. Also, charge must
be complete and adequate. Otherwise, it can lead to invalid decision and the accused might
not be able to make a defence. For example, misconduct, negligent, absent from work,
corruption etc. Referring to the case State of Uttar Pradesh v Salig Ram Sharma A.I.R.
1960, the case that a charge-sheet served on an employee (against whom a disciplinary action
was proposed to be taken) containing allegations of fraud without mentioning any particulars

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thereof was not a valid notice as it was not clear and specific. Meanwhile, time is element of
notice that should be observed by the administrator whereby time not only the notice served
to the accused must include a complete and clear charge or allegation and also time must give
sufficient time to the accused in order to prepare for the defence.

APPLICATION

Applying the above principles to this current problem, it is stated that Ikhmal was unclear
about the charge that has been made against him where he only received notice from
Disciplinary Board to attend a disciplinary proceeding because Ikhmal was being accused
that he had been negligent and incompetence toward his work as police officer. But when
Ikhmal was requested to be furnished with details of the allegation he was charged with, but
it has been turned down. The case of State of Uttar Pradesh v Salig Ram Sharma A.I.R. 1960
can be applied into this case whereby allegations of fraud was made without mentioning any
particular. The same situation had happened to Ikhmal’s case. Referring to the case of State
of Uttar Pradesh v Salig Ram Sharma A.I.R. 1960, the notice is considered invalid as no
particular was mentioned in the allegation. Hence, Ikhmal can take a legal action against on
the Disciplinary Board for the validity of the proceeding of principle of natural justice on the
ground of charge under notice.

CONCLUSION

In conclusion, Ikhmal has a right to challenge the Disciplinary Board decision by element of
charge under notice.

ISSUE 2

The second issue in this case is whether Ikhmal can take legal actions against the Disciplinary
Board for the validity of the proceeding the principles rules of natural justice on the ground of
notice under time?

LAW

The notice under time is the elements of the notice that must be observed by the administrator
is time where not only the notice served to the accused must include a complete and clear the
charge. This is the notice must provide sufficient time to the accused to prepare his/her
defence. The RNJ cannot alleged person to show cause immediately without giving him/her
time to consider the charges against him/her. The sufficient time is depending on each

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individual case and more serious the case is, the more time should be given to the accused. In
the case of Phang Moh Sin v Commissioner of Police [1967] 2MLJ 186. The plaintiff in
this case this case was accused of the 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 and the
court held that the dismissal was void on the ground of insufficient notice given to him of the
charge made against him.

APPLICATION

Applying the above principles to this current problem, condition stipulated under notice of
time which is the case Ikhmal, Ikhmal requested for an extension of time so that he would be
able to prepare his defence but his request was denied by the Board. The accused person need
to be given time to defend and prepare he defense. The decision on the case Phang Moh
Shin v Commissioner of Police [1967] 2MLJ 186 can be applied in here because the
investigating officer informed of the charges against him for the first time before the hearing
and the plaintiff asked an adjournment to prepare his defense but was denied. It same in the
case of Ikhmal that the one of the charges unable to prepare her defense because of
insufficient time.

CONCLUSION

In conclusion, Ikhmal has a right to challenge the Disciplinary Board decision by notice
under time.

ISSUE 3

The third issue is, whether Ikhmal can take legal actions against the Disciplinary Board for
the validity of the proceeding of the principles of natural justice on the ground of personal
bias?

LAW

One facet of the concept of natural justice is the principle of nemo judex. The maxim nemo
judex in causa sua literally means that persons should not be judges in their own cause. This
maxim means that an adjudicator must be impartial. The principle that bias disqualifies
someone from acting as an adjudicator flows from these two fundamental propositions which
are a person should not be a judge in his or her own cause and the justice must not only be

3
done but be seen to be done. There are three type of rules against bias which is pecuniary
bias, personal bias, and policy bias.

Whereby, in this case, it involves the personal bias. Personal bias may arise in the
adjudicator being against, or in favour of, one party to the dispute in many varied
circumstances. For example, relationship, friendship, or business dealing with, or hostility or
animosity to a party, may disqualify an official from acting as an adjudicator in the dispute.
The test of personal bias on the part of the decision-maker is not whether there was actual
prejudice against the petitioner. The courts do not go into all detailed facts of a case to see
whether the petitioner has been actually prejudiced or not. If actual bias is proved in the
adjudicating body. The test has been whether there is a ‘real likelihood’ of bias on the facts of
a case and this has to ascertain with reference to ‘right minded person’.

We can refer to the case, Metropolitan Properties Co v Lannon. The court was held, He
should not have sat. It was accepted that he had had no pecuniary interest himself, and had
acted scrupulously. It was a question of whether there was any appearance of bias. Lord
Denning MR considered the test for apparent bias, and said: ‘The court looks at the
impression which would be given to other people. Even if he was as impartial as could be,
nevertheless if right-minded persons would think that, in the circumstances, there was a real
likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot
stand.’

APPLICATION

In this case, Ikhmal case was headed by En.Danial which is his senior officer. But, they are
not in a good relationship. Ikhmal requested to change En.Danial with another panel because
he worried that En.Daniel will not carrying out his duties honestly and sincerely, that’s why
he want to change the panel. However, his application was rejected as En.Danial has a good
reputation in the department. From here, we can see that the personal bias was clearly shown
by the disciplinary board towards defendant which is Ikhmal.

CONCLUSION

In conclusion, Ikhmal has a right to challenge the Disciplinary Board decision by element
personal bias.

ISSUE 4

4
The fourth issue in this case is whether Ikhmal can take a legal action against on the
Discipinary Board on the ground rule of natural justice its disclosure of material or not.

LAW

Disclosure of the material means the disclosure of all information, evidence, or material
which the authority wishes to use against the individual concerned in arriving the decision.
There must not be any element of surprise in the hearing. This is because of the right to know
the materials on which the authorities will make decisions that are part of the right to defend
themselves. If without disclosing the evidence to the party, the authorities will consider
matters and decides the matter against the party then the decision made is void because it is
very unfair. Refer to the Subry Hamid v Husaini Tan Sri Ikhwan & Anor (2006). In this case,
the plaintiff a Lance Corporal in the Royal Malaysian Police Force until his dismissal due to
misconduct, appealed to the Court of Appeal after his action challenging the dismissal failed
before the High Court. Other than that, he contended that he did know that the disciplinary
committee was taking his past record when making decision. The Court of Appeal allowed
his appeal and held that his dismissal was void.

APPLICATION

Applying the above principles to this current problem, condition stipulated that disclosure all
information and use his past record to make a decision is void. This is because, during or
before or end the hearing must not be any element of suprise in the hearing. Refer to the case
Ikhmal, Ikhmal was surprised to know the committee has reached the decision after
considering the past record. In the decision the case of Subry Hamid v Husaini Tan Sri
Ikhwan & Anor (2006) can be applied here because the disciplinary committee was taking his
past record to make a decision without their knowledge.

CONCLUSION

In conclusion, Ikhmal has a right to challenge the Disciplinary Board by element of

disclosure of material.

5
(b) State any TWO (2) rationales of the principles or rules of natural justice (RNJ).

The definition of rules of natural justice is procedural safeguard against improper exercise of
power by public bodies, protect the right of individual and enhance public confidence in the
process. The principles or rules of natural justice concerned with the procedural fairness and
ensure a fair decision. There consists two rationales of the principles or rules of natural
justice which are audi alteram partem and nemo judex in causa sua.

However, the audi alteram partem is right to be heard. It is requiring to the public body that
give a fair hearing the accused. There have two smaller elements such as notice and hearing.
The notice is about person that accused or alleged person can have a reasonable opportunity
to defence himself properly. Under notice that can be observed by giving the accused such as
charge and time. For the charge is important to stating the charge is clearly for the accused to
be able to prepare for the defence. Next, for the time is notice must provide sufficient time to
the accused to prepare his or her defence. Furthermore, hearing is notice fulfilled by the
public authority, it is essential to determine whether he has conducted a hearing for the
accused. Under hearing provide three elements such as disclosure, acceptance and rebuttal.
Firstly, disclosure is public authority must provide all information, evidence, material to the
accused. Secondly, acceptance is the authority must accept the evidence and on that hearing
day this accused must bring witness but authority refuse. Lastly, rebuttal is at the hearing
accused party must have an opportunity to the cross examine the administrators. The
administrators must bring witness, so that accused party can ask questions, it is can be
represented by lawyer.

Besides that, nemo judex in causa sua is rules against bias. This is the judge must be
impartial and neutral. There have two important maxims that underline the principle which
are a man should not be a judge in his own cause and justice must not only be done but must
be seen to be done. Therefore, there have three types of the bias such as pecuniary bias,
personal bias and policy bias. The pecuniary bias is about the authority has a monetary
interest in the case being decided. Then, for the personal bias is that happened when the
adjudicator has a relationship with the person being tried such as relative, friend, business
partner and others. The policy bias is when a person sits in a panel where the policy that he

6
formulates is in issue. The principle is of great importance, it is to ensure hearing or
consideration of a matter by unbiased and impartial authority.