The issues that can be raised from
this question are:-
1)
Whether
charge on Encik Pupus adequate and complete or not.
2)
Whether
disciplinary board should accept the evidence and relevant material or not.
3)
Whether
disciplinary board should allow Encik Pupus to cross examine Nur Qumar or not.
4)
Whether
rule panel of disciplinary board are personal bias to Encik Pupus or not.
The principle that can be used to
solve this problem is the rules of natural justice. This rule is a procedural
safeguard against improper exercise of power by a public body. It can be used
to determine whether the administrator has actually complied with legal
procedure before taking action or making any decision against someone. Rule of
natural justice concern with ‘’process’’ that is used by administrator in
making decision against an individual and it can be classified into two which
are audi alteram partem and nemo judex in causa sua. In order to determine
whether the administrator has made a valid decision, these two elements must be
observed; if not decision can be challenged in court of law. Audi alteram
partem means right of hearing or heard divide to two categories which are
hearing and notice. Hearing classified
to rebuttal, acceptance and disclosure while notice classified to charge and
time. Plus, nemo judex in causa sua means rules against bias that divide to
three categories which are pecuniary bias, personal bias and policy bias.
In answering first issue, it can be
gathered from the facts of the problem that the accused must
know his/her charge/allegation because he/she will able to know the cases that
against him. If no charge is given , the accused is unable to make a defense at
all and it will lead to an invalid decision made by the administration . For
example of the cases in PP v Ottario
Quattrocchi. The charge must be complete and adequate. If there is more
than one charge the accused must be informed of all the charge made against
him/ her. If not , whether decision made may be invalid because the accused is
tried without proper defense i.e he/she is not aware of other charge made
against him/her and is unable to prepare for defense
By referring
based the guideline of charge/allegation , Encik Pupus must attend a hearing in three days’ an allegation
that he was exercising harassment against Nur Qurma. But , Encik Pupus did not
give enough information that charge against him. It make Encik Pupus not have
enough defense for himself from the charge.
To support the
argument is the cases of Maradana Mosque
Trustee v Mahmud and R v Paddington & St Marylebone Rent Tribunal
Thus, the charge against him is invalid because the accused did not give
enough information that charge against him and it make Encik Pupus not prepare
for defense him from the charge
and it also make the charge is slander to Encik
Pupus.
In answering second issue, it can be
gathered from the facts of the problem that Encik Pupus
was given 3 day to prepare for the hearing. He does unreasonable time for the
case conducted by the MAITU Disciplinary Board because he was accused
harassment against Nur Qurma. On top of that, the punishment given to him was
serious which is suspended from work for month.
Supposedly,
MAITU disciplinary board should give him more time to prepare himself as the
punishment given to him is serious. The time given to an accused depends on the
seriousness of the case. It is against RNJ to call upon the alleged person to
show cause immediately without giving him time to consider the charge against
him.
The
cases to support the above argument are Re Liverpool Taxi Owners' Association (1972)
2 ALL ER 589 and Che Hong Yee v Timbalan Menteri Keselamatan Dalam Negeri,
Malaysia & Ors (2008) 7 MLJ 642.
In answering third issue, it can be
gathered from the facts of the problem that
whether there is a breach of elements three of reasonable hearing or
not, reference will also be made to the elements of reasonable hearing. In this
respect, the third element says the adjudicator should give the party concerned
an opportunity to rebut the material against him. What this means is that the
administrator must allow the accused to be represented by a lawyer if that can
help him/her to defend his/her case properly. To apply the law into the facts
of the question, Encik Pupus's wish to be represented by his colleagues Ustazah
Misha and and Encik Tersipu, should have been permitted because that could help
him to defend him appropriately. Ustazah Misha and Encik Tersipu, as Encik
Pupus's colleagues, could have represented Encik Pupus well because he would
have legal knowledge on the matters regarding Encik Pupus's case such as his
behaviors, record and witness because they are at the place at that time.
The
cases to support the above arguments are Nik Mohd Salleh Nik Mat v Timb. Ketua Polis
Pahang & Anor [2006] and Britania Brands (Malaysia) Sdn Bhd v Ketua
Pengarah Buruh Malaysia [2009].
In
answering the fourth issue, it can be gathered from the fact of the problem
either the judicial process has personal bias or not. The personal bias can be
a positive or negative one between the adjudicator and the appellant. If the
decision is made in a biased way, the action taken will be avoid and considered
unenforceable. So for the case that faced Encik Pupus, he got know that Nur
Qurma filed the complaint to another officer to get back to him because he did
not entertain her as much as he did to other female staff. In case, the officer
that got complaint from Nur Qurma was the panel in the Maitu Disciplinary
Board. So, for Encik Pupus cases we can see that the panel has personal
relationship with Nur Qurma.
To
support the above argument are cases of Metropolitan Properties Co v Lennon and
Mohamad Ezam Mohd Nor & Ors v Inspector General of Police.
Thus,
the action taken to Encik Pupus will be void and considered unenforceable
because of personal bias that have in that action.
The conclusion is the decision made by
the local authority is invalid because charge on Encik Pupus not adequate and
clear, disciplinary board must accept evidences include statements made by
witnesses like Misha and Encik Tersipu, disciplinary board should allow Encik
Pupus to cross examine Nur Qumar to determine whether she speak truth or lie
about information of cases and panel board has personal bias on Enci Pupus
because he has personal relationship with appellant so the decision became
invalid . Thus, Encik Pupus advised to bring the case to the court.
SALEHUDDIN AL- AYUBI (MAM 110 4A)
1.
MUHD. HAIRUDDIN BIN BAKRIN
2.
MOHD. SHAFIQ BIN SHAFEE
3.
MOHD. MUZAMMIR BIN SALIM
4.
MUHD. AMIN BIN AMIR
5.
ZULAMIRUL AIMAN BIN ZULKIFLI
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