NATURAL JUSTICE AND PROCEDURAL
FAIRNESS
3
NATURAL JUSTICE CHARACTERISTICS
1. NJ is in referring to procedural control, and not substantive control.
2. NJ is a ‘creation’ by the common law court.
3. NJ only existing if the statute silent on it.
COOPER v WANDSWORTH(WW)
Cooper who wanted to build a house is actually on duty to give 7 days notice to WW, but failed to do so. The
‘Lembaga Kerjaraya’ (LK) had decided to demolish such house and had given notice to Cooper.
PRINCIPLE : Act of LK is only quasi judicial, affecting the individual. right, thus, NJ arised.
NJ can be denied by statute :Expressly denied –
SUGUMAR BALAKRISHNAN v PENGUATKUASA N.SABAH
App had been revoked entry permit and denied right to be heard.
PRINCIPLE : Sec.59 of the Immigration Act expressly denied the Right To Be Heard (RTH). This is equivalent to denial of NJ. Impliedly denied –
FURNELL v WHANAREI HIGH SCHOOL BOARDS (NZ)
PRINCIPLE : Court held that when statute contains a specific & detailed procedure, and this statute is silent of the RTH, court here will decides that its an intention of the parliament to denied the RTH, equivalent to NO NJ.
NJ is sometimes pre-decisional & post-decisional.
MANEKA GANDHI v UNION OF INDIA
The lady in this case had been stop from going out the country, and her passport was immediately taken by the authority.
PRINCIPLE : NJ supposedly given before the decision made (pre-dec.), but in certain circumstances where de.
Had been made (the passport was taken back), ‘justice & fairness’ must be given after the dec. Made. NJ is flexible
MAK SIK KWONG
PRINCIPLE : NJ is not rigid, absolute / unbending. Its only varies in term of their context of application.
RAJA ABDUL MALEK V SETIAUSAHA SPP
The indi had been dismissed due to the allegation, and it was added with ‘and others’, which formed vagueness. No explanation / notice served for that ‘and others’. Court dismiss the allegation upon the indi as no notice served to explain ‘and others’ allegation.
PRINCIPLE : NJ should be given its administrative in nature. (General rule is that NJ shall only exist if its quasi judicial matters.)
LLOYD v MCMAHON
PRINCIPLE : So called NJ rules are not engraved on the tablet of stone. (What this mean is that, NJ rules shall not be static, it must be interpreted lively).
SK KAPPOR v JAGMOHAN
PRINCIPLE : In the situation where a quick situation must be taken by the administrator, minimal NJ must be served upon the victim to create justice situation.
SWADESHI COTTON v UNION OF INDIA
PRINCIPLE : In urgency, NJ is very flexible concept and the competing claims of hurry & hearing always can be reconciled.
IMPORTANCE OF NJ 1. Towards admin body :
• To make them know the fact better before deriving into the decision
• Helps admin to achieve a fair decision
• To avoid from making any mistake
• Helps admin to make a proper record.
2. Towards individual:
• To honour the important right of an individual.
• To stop the admin from abuse their power and affecting the individual. right.
Natural Justice (NJ) is a common law concept created and used by the courts to grant the right to explain to a person when an administrative authority makes a decision or takes an action which has the potential of affecting his rights or interest.
the concept of fairness (which means acting fairly) has been used by the court to widen the scope of the right to be heard.
case that applied the concept of fairness is RE K(H)- an infant CHARACTERISTICS OF NATURAL JUSTICE
1. A flexible concept and may vary according to the circumstances and subject matter of each case - tahap pemakaian kes bergantung pada fakta kes.
2. it is a standard procedure which is basic and the most minimum which cannot be reduced anymore 3. NJ is pre-decisional
- nj mesti diberikan sebelum pihak berkuasa ambil tindakan, post decisional is accepted COOPER V WANDSWORTH BOARD OF WORKS
- right to be hearing will only arise when a public authority exercises a power which has the potential of affecting the rights or interests of a person
- nj is a rule which is of universal application (boleh guna dalam semua kes)
- silence of statutes does not mean that she said right in common law is or may be denied because only in such a situation will a right to fair hearing impliedly arise as the justice of the common law will supply the omission of the legislature
4. LEGITIMATE EXPECTATION
- a legitimate expectation to be heard before an administrative decision is made may arise in certain situations
- legitimate expectation or reasonable expectation may arise either from ‘an express promise’ given on behalf of a public authority or form he existence of a ‘regular practice’ which the claimant can reasonably expect to continue
AG HONG KONG V NG YUEN SHIU
a legitimate expectation arises because there was an official express promise made (deportation of immigrants)
CCSU- Legitimate expectation arises as there has been a previous regular practice) consultation before terms of service are change
JOHN PETER BERTHELSEN V DIRECTOR GENERAL OF IMMIGRATION - first case in Malaysia where legitimate expectation is invoked - cancelled of work permit before its expiry date
DR AMIR HUSSEIN BHAARUDDIN V USM - reappointment as dean in a university 5. RIGHT TO BE HEARD UNDER STATUTE
- a statutory right to be heard (not accurate to use the term natural justice) MALLOCH V ABERDEEN CORP
right to be heard guaranteed by the constitution- art 135 (2)
RAJA ABDUL MALEK MUZAFFAR SHAH V SETIAUSAHA SURUHANJAA PERKHIDMATAN POLIS (penjawat awam yg diilucutkan jawatan kena diberi peluang didengar yg munasabah)
6. FAIR HEARING
WONG KWAI V PRESIDENT, TOWN COUNCIL OF JOHOR BAHARU – forfeiture of property
Wong Kwai v. President, Town Council, Johore Baru.[9] It was decided in the case that before passing an order of demolition of a building which had been constructed in contravention of the bye-laws of the Town Council, it was necessary to observe the rule of audi alteram partem. Referring to the case of Local Government Board v. Arlidge,[10] Justice Syed Othman observed, "There are many authorities who require a tribunal which is given a discretionary power as in this case, to exercise that power judicially. This means that before the tribunal can make a decision, the rule of audi alteram partem must be observed. The principles underlying this rule provide minimum safeguards for justice. If the tribunal fails to observe them a decision loses its judicial character".
FADZIL MOHD NOOR V UTM – dismissal from service
2 essential elements of NJ:
1) That of hearing both sides ("AUDI ALTERAM PARTEM“) 2) A. The rule against bias (NEMO JUDEX IN CAUSA SUA) AUDI ALTERAM PARTEM
- has certain components of elements. generally, whether or not each of those components apply or to what extent each of those components apply in each case depends on the circumstances an d subject matter of every case
Definition
“no one should be condemned, punished, or deprived of his life or property in any judicial proceeding, unless he had an opportunity of being heard.”
Latin phrase meaning “Hear the other side”
No man shall be condemned unheard.
One of the core principle of natural justice.
It is most often used to refer to the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.
A person cannot be declared guilty without giving him a chance to defend himself and argue for himself.
(RIGHT TO BE HEARD, NO MAN SHALL BE CONDEMNED UNHEARD)
Hear the other party or
No one should be condemned unheard or
Rule of fair hearing
COMPONENTS OF AUDI ALTERAM PARTEM 1. RIGHT TO NOTICE
The concerned party must be given sufficient notice on the case against him, to ensure that the concerned party is given sufficient and reasonable opportunity to examine the case against him and make sufficient preparations to defend himself.
PHANG MOH SHIN V COMMISIONER OF POLICE
F : The indi in this case had been dismissed from the police force, and only been given notice of charges on the of trial, which caused him to be un-prepared for his trial. H : Notice shall be given in a reasonable time period.
Held: notice does not mean just any kind of notice. it means an adequate notice regards the details of the case against the party. NJ requires that a person be given adequate notice of the case against him clearly setting out the particulars of the alleged offences so that he may have a fair opportunity of answering the same. any proceeding taken against a person without adequate notice him infringed NJ and is thus invalid. there is no invariable standard of adequacy of notice. it varies from case to case depending on facts. it is for the courts to decide whether in the context of the facts of a case, notice served on the concerned person was adequate or not.
ISAAC PAUL RATNAM V LAW SOCIETY OF SINGAPORE- STATUTORY REQUIREMENT TO GIVE NOTICE.
Isaac Paul Ratnam v The Law Society -the Appellant is a lawyer in Singapore, charged with abetment by instigation for fraudulently removing/concealing the property under s. 424 of PC -On behalf of his client, he wrote to Kumaran (the Gen Manager of Germini’s brach office in KL) instructing him to remove dishonestly the 5 cars & other movable properties belonging to the Co. -the letter was sent by hand by a 3rd party for personal delivery -whether communication was complete in Spore or not at all? -the Lawsoc got into the picture to struck off the role of the Appellant for breach of ethics & misconduct HELD: -the Accused was convicted INSPECTOR GEERAL OF POLICE V ALAN NOOR BIN KAMAT
sc: where a disciplinary authority intends to impose the punishment of dismissal or reduction in rank, then the notice given to the concerned person must bring his attention to the contemplated punishment so as to make him appreciate the gravity of the situation and thus enable him to give a satisfactory explanation as best he can. a notice should mention the charges as well as the proposed punishment so that he has an opportunity to make representations on both.
Place, time and date of hearing and the officer conducting the hearing must be intimated to the parties. Further, the allegations against them should be made known to them, so that they can answer the same.
Right to present case and lead evidence.
2. HEARING
A. ORAL HEARING – akn dipanggil utk bersemuka (Is not mandatory in everything) - oral hearing is not a must in every case. it depends on the circumstances of each case TRAVANCORE RAYANS V UNION OF INDIA
in a situation which involves complex questions and technical laws, or where it involves difficult factual questions, or where evidence needs t be taken, oral hearing should be held.
PETT V GREYHOUND RACING ASSOCIATION
whether an oral hearing was to be given or not depended on the nature of the inquiry, here the appellant was facing serious charge affecting his reputation and livelihood. in a case such as this fairness requires an oral gearing to be given.
B. WRITTEN REPRESENTATION –via represent C. CONSULTATION – RUNDINGAN
D. INTERVIEW E. DIALOUGUE
3. DISCLOSURE OF EVIDENCE/MATERIALS
- all relevant materials/evidence used by the adjudicator in making decision against the concerned party has to be presented to the concerned party so that he has an opportunity to review, explain and deny the said evidence.
- Each evidence used by ad-judicature (PEMBICARA KES TERSEBUT/ ADMIN BODY) must be given to party related.
SURINDER SINGH KANDA v GOVT OF FED OF M’SIA
Police had been dismissed and a board had been appointed to investigate him. However, no report served to him from that investigation, although he had requested for it. The report only served to the ad-judicature only.Kanda won in this case.
EXCEPTIONS FOR KANDA’S CASE:
i. LIM KO v BOARD OF ARCHITECTS
If party doesn’t not request for such evidence, there is no duty to serve it to the party.
ii. SAMBASIVAM v PSC
If no evidence / report serves to the ad-judicature, there is no need to give such info to the party related.
ROHANA ARIFIN v USM
2 lecturers had been dismissed due to disciplinary prob. They had requested the university to serve them a doct of details on their dismissal. University had never served such doct to them. Dec. of dismissal was held as not valid.
4. RIGHT TO COUNSEL
- no general right to be representation
- adjudicatory body has discretion to determine whether legal representation is allowed.
- It’s not a compulsory right / upon the discretionary of ad-judicature.
ENDERBY TOWN FOOTBALL CLUB V THE FOOTBALL ASSOCIATION
Lord denning: whether a lawyer should appear or not before a tribunal was a matter for its discretion. the party concerned has 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 rigid norms or not allowing legal representation in any case. the tribunal must be ready in a proper case to allow legal representation.
if one party is permitted to be represented by a counsel, the same right must be given to the other arty.
FEDERAL HOTEL SDN BHD V NATIONAL UNION OF HOTEL BAR AND RESTAURANT WORKERS
H: A breach of NJ occurs when an adjudicatory body allows one side to be represented by a lawyer but denies the same to the other side. in such a situation, legal representation no longer remains a privilege but becomes a right
5. RIGHT TO CROSS-EXAMINATION
no general right to cross examine
depends on circumstances and as such the adjudicator has the discretion
in india, cross examination is allowed in disciplinary proceedings against employees (private) and public servants (gov)
Only existed if oral hearing is given.
Not a compulsory right / given based on discretionary.
6. RIGHT TO REASONED DECISION (RD):
still not accepted as a mandatory part of NJ under the common law This right should be given to:
i. Show transparency
ii. Admin body will be more careful while making decision.
iii. If it is not given, indi will find it hard to find any ground to appeal ROAHANA ARRIFIN V USM
hc: there are cer The indi had been dismissed due to the allegation, and it was added with ‘and others’, which formed vagueness. No explanation / notice served for that ‘and others’. Court dismiss the allegation upon the individual as no notice served to explain ‘and others’ allegation in cases where reasons for decision should be given particularly when there is a right of appeal in this case, the hc noted the following factors in favour of a reasoned decision the applicants livelihood was at stake free speech, interaction with students, exercise of
intellectual discourse are to be encouraged ina university environment the giving of reasons in this case will serve as a guide to other lecturers there was a right to appeal against the decision of the disciplinary authority
right to reasoned decision as part of procedural fairness HONG LEONG EQUIMENT SDN BHD V LIEW FOOK CHUAN
The ca also treated giving of reasons as a part of procedural fairness but confined it to all cases where a fundamental liberty guaranteed by the constitution is adversely affected in consequences of a decision taken by a public decision maker
7. RIGHT TO PLEA IN MITIGATION
no general right to plea in mitigation/second opportunity of being heard
ULTRA BADI PERUMAL V LEMBAGA TATATERTIB PERKHIDMATAN AWAM, HOSPITAL BESAR Pulau Pinang Exception to the audi alteram partem rule
1. statutory provision expressly denying natural justice 2. matters concerning national security
3. immediate action must be taken by the authority,
PRINCIPLE OF NATURAL JUSTICE
NEMO JUDEX IN CAUSA SUA (RULE AGAINST BIAS)
the rule against bias prohibits the adjudicatory authority from acting partially in resolving a dispute
this rule disallows an adjudicator who has the tendency to be biased
a decision made by a biased authority may be challenged and nullified
No one should be made a judge in his own cause or THE RULE AGAINST BIAS
The rule against bias requires the adjudicator to be neutral between the disputing parties and appear to be above board. This principle is based on two requirements: I. No man should be a judge in his own cause ("nemo judex in cause sua“) and all Justice must not only be done, but manifestly and indubitably be seen to be done
THE RULE AGAINST BIAS HAS 2 MAIN FEATURES:
1. the administrator exercising adjudicatory powers must have not have any personel or proprietary interest in the outcome of the proceedings.
2. There must be a real likelihood of bias. Real likelihood of bias is a subjective term which means either actual bias or a reasonable suspicion of bias. – difficult to prove the state of mind of person.
Therefore, the courts see is whether there is a reasonable ground for believing that the deciding factor was likely to have been biased
TYPES OF BIAS Pecuniary bias
• Any financial interest howsoever small it may be is bound to vitiate the administrative action. – kecenderungan kewangan
• a pecuniary interest, however small, disqualifies a person from acting as a judge. in such case, the adjudicator is conclusively deemed to be biased. (even kecil, still disqualified)
• “actual bias” need not be proven, prohibition on this bias seems to be absolute DIMES V GRAND JUNCTION CANAL
• Personel bias - It arises out of the personal or professional relationship of friendship or hostility between the authority and the parties. It’s the human nature that we try to give favourable decision to our friends or relatives, whereas use the same as a weapon against the enemies.
• It may arise due to a particular form of personel relationship between the adjudicator and one of the parties to the dispute.
• these relationships may exist due to family ties, friendship, business association with, or hostility towards, one of the parties to the dispute.
• the said relationship may be in favour of, or against the interest of a party.
• the “real likelihood of bias” test through the eyes of reasonable people.
METROPOLITAN PROPERTIES V LANNON
the courts look at the impression which would be given to other people. even if he was as impartial as he 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.
GOVINDARAJ V PRESIDENT, mic
• the court adopted the real likelihood of bias: test.
• suspension of party membership, president of the party chaired the committee meeting hearing the appeal against suspension.
ROHANA ARIFFIN V USM
-Disciplinary proceeding, the complainants were present during the deliberations of the disciplinary authority
• policy bias- kecenderungan bias
-where a policy which is made and executed by a particular gov department raises a dispute between the said gov and another party whose rights and interest are affected by the implementations of the said policy and the dispute is brought for adjudication before officers from the same department exceptions to the rule against bias.
a) Necessity – Maleb bin su v pp
b) statutory exception – mohd zainal abdidinn v dato seri dr mahathir mohammad c) waiver- govindaraj v president, mic
- condition must be fulfilled
- individu itu tau bahawa pihak berkuasa akan buat keputusan itu bias and boleh disqualified.
- individu tau diaada hak untuk cabar, tp tak cabar
PROCEDURAL FAIRNESS
from NJ to the concept of procedural fairness
TAN TEK SENG V SURUHANJAYA PERKHIDMTAN PENDIDIKKAN
Pendidikan & Another [1996] 1 MLJ 261 was a case heard in the Court of Appeal of Malaysia. The case concerned the allegedly wrongful dismissal of Tan Tek Seng, a senior assistant of a primary school. In ruling in his favour, the Court of Appeal held that Articles 5 and 8 of the Constitution, which protect personal liberty and equality under the law, must be read with a liberal and not literal approach. In his judgment, Gopal Sri Ram held: should, when discharging their duties as interpreters of the supreme law, adopt a liberal approach in order to implement the true intention of the framers of the Federal Constitution. Such an objective may only be achieved if the expression 'life' in art 5(1) is given a broad and
liberal meaning. ... [Article 5(1) means] all those facets that are an integral part of life itself and those matters which go to form the quality of life.
HONG LEONG EQUIOMENT SDN BHD V LIEW FOOK CHUAN Art 5(1): law”- substantive/procedural
art 8(1) : equal- equality/fairness
*if got this three, any situation the result is void.
• Subject-matter bias - The situations where the deciding officer is directly or indirectly in the subject matter of the case.
• Departmental bias - The problem of departmental bias is something which is inherent in the administrative process, and if it is not effectively checked, it may negate the very concept of fairness in the administrative proceeding.
• Pre-conceived notion bias - Bias arising out of preconceived notions is a very delicate problem of administrative law.
• Bias on account of obstinacy - The word Obstinacy implies unreasonable and unwavering persistence and the deciding officer would not take ‘no’ for an answer. This new category of bias was discovered in a situation where a judge of the Calcutta High Court upheld his own judgment while sitting in appeal against his own judgment.
The Rule of Hearing Both Sides, This rule is expressed through 2 maxims:
i. Hear the other side and
ii. No man should be condemned unheard (give opportunity to be heard) HEAR THE OTHER SIDE
• The adjudicator (judge) must act in good faith and fairly listen to both sides, for that is the duty of the adjudicator who decides anything. They can obtain information in any way they think best. They must always give opportunity to those who are parties in the controversy for correcting any relevant statement.
• Any proceedings commenced must with prior notices to the parties in order to avoid vitiate the resulting decision. Therefore, the person should be given adequate notice of the proceedings so that they may be able to:
a.Effectively prepare their case and to answer the case of the opponent.
b.Make their representations and c.Appear at the hearing.
OPPORTUNITY TO BE HEARD
• The parties involve must have a reasonable opportunity of being heard in their defence.
• 3 requirements of fair or reasonable opportunity:
o The adjudicator should receive all the relevant material, which a party wishes to produce in support of its case.
o The evidence of the opponent, whether oral or documentary, should be taken in his presence. each party should have the opportunity of rebutting the evidence of the other by cross- examination or explanation.
CONCLUSION
The rules of NJ are not inflexible principles – flexibility is allowed however, they may vary in their content in the circumstances of each case and in their ambit in the context of their application.
For example:
The concept of fair hearing, particularly, varies significantly in different contexts such as whether it is a sophisticated full-fledged hearing or a brief and minimal one; hearing prior to the decision or post decisional hearing. i.e. depending on the circumstances of each particular case, this rule, in its application is flexible enough to range from minimum to rigorous standards
Flexibility of the rules of NJ is emphasized it should be noted that their fundamental importance should be stressed.
CASE: TANJONG JAGA VS. MINISTER OF LABOR (1987) 1MLJ33.
Tanjong Jaga argued that it was a nightclub and as such the NU of HB&R workers not the competent union to represent its workers. It challenged the unilateral decision of the Registrar to the contrary, complaining that he failed to give an opportunity to be heard on this contention. • The Supreme Court held that the Registrar in this case was satisfied that the major business of the nightclub was in the operation of the bar – S.C. Judge Abdool Cadeer – ‘allowing a hearing to the night club would not have wide any difference’. There is the emerging concept of fairness, which is larger in context than the rules of natural justice.
