ESSAY ON RULES OF NATURAL JUSTICE

The issues that can be raised from this question are:-

1)    Whether Aniya is given enough time to prepare his defence or not?

2)    Whether Aniya can be represent by lawyer or any representative or not.

3)    Whether notice given to Aniya is adequate and complete or not.

4)    Whether rule panel of disciplinary board are personal bias to Aniya 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 for the first issue, it can be gathered from the fact that The Staff Disciplinary Board of Suka Naya not give Aniya time for prepare a proper defence for himself. The notice that given to Aniya was just before his hearing was scheduled to be held. In following of the rule of natural justice, the action taken will be void and considered unenforceable if they not give enough time to the plaintiff. The time given by the administration to the individual must be enough depends on the case; it can be said the more serious the case, the more time will be given.

           The cases to support this argument are Phang Moh Sin v Commissioner of Police (1967) 2MLJ 186.In this cases, the plaintiff just got told of her charge just before the hearing. When the plaintiff ask for the postpone to make him prepared for defence, it was refused. So that cases was considered invalid because the plaintiffs not given even enough time to prepare. For other cases is Re Liverpool Taxi Owners’ Association (1972) 2 All ER 589.In this case, the Association just received a letter on the last day before they could appeal. So this case was considered invalid because the Association was not given opportunity to defence themselves.

So for the cases that just faced by Aniya, it can be considered invalid because he no given a time for himself to prepared.

            In answering the second issue, whether there is breach of the right to rebut or not. The adjudicator should give the party concerned an opportunity to rebut the material against him/her. 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, Aniya wish to be represented by his lawyer, should have been permitted because that could him to defend him appropriately. But his requests were rejected. Aniya's lawyer could have represented Aniya well because he/she would have legal knowledge on the matters regarding Aniya's case such as procedures or cross-examining the witness.

           The cases to support the above argument are Nik Mohd Salleh Nik Mat v Timb. Ketua Polis Pahang & Anor. In this case, the court was satisfied that the plaintiff was given sufficient opportunity to be represented by an officer of the Police Force in his trial but he did not take such an opportunity which led no violation of the RNJ. Other case is Britannia Brands (Malaysia) Sdn Bhd v Ketua Pengarah Buruh Malaysia. In this case, the court quashed the defendant's decision in refusing to grant legal representation to the applicant. The applicant had requested for an adjournment of the hearing so that he could be represented by a counsel but it was refused by the defendant.

         Thus, Aniya can get the opportunity to rebut the material against him. Aniya can be represented by a lawyer because it can help him to defend his case properly.

        For the third issue that is Aniya given charge complete and adequate or not, in this case Staff Disciplinary Board give charge to Aniya that he leaked information of a raid by the authority on entertainment premises in Suka Joget but the charge was given that not complete and adequate because during the proceeding, the Board had taken into account Aniya's past record of coming late to the office but this was not made known to him. If there is more than one charge, the accused must be informed of all the charges made against her. If not, whatever decision made may be invalid because the accused is tried without proper defence. So, Aniya is not aware of other charges made against her and is unable to prepare for defence.

            The cases to support the above argument are Maradana Mosque Trustee v Mahmud (1967) 1 AC 13.This case about manager of a school and they were called upon by the Minister concerned to explain why the salaries of the teachers in the school were not paid on time. When they went to explain, the government took over the school based on another reason which was informed to the managers. The managers brought the cases to the court on the ground that they were not told about the second charge before the hearing took place. So this case was invalid because the managers were not given adequate charge.

          Second case to support the above argument are R v Paddington & St Marylebone Rent Tribunal (1949) 1 KB 666.This cases about rent tribunal and the landlord. The rent tribunal reduced the rent on the ground that the ceilings of the flats were too low and not up the modern standard. The revoked the decision of the rent tribunal because the landlord was not told of the ceilings issue before the hearing and matter did not arise at any stage of the proceedings making the landlord unable to answer to any questions relating to that matter.

             In answering the fourth issues, whether the panel of staff disciplinary board (Kasoomat) had personal bias on Aniya or not. Personal bias is when the adjudicator has a relationship with the person being tried either as a relative, friend, business partner etc. The relationship can be a positive one example friend and relatives or negative one example is enemies and rivals. To determine whether there is personal bias or not, the test to apply is whether there is a likehood of bias and this ascertained with reference to the right minded person.

In the cases of Aniga, Aniya was noticed that Kasoomat, his ex-finance was one of the panels in the hearing. The relationship between Aniya and Kasoomat can be negative one because it can be rival to Aniya in  the hearing. The cases can be seen personal bias if Kasoomat is likehood bias to Aniya.

To support the above argument is Metropolitan Properties Co v Lannon [1968] 3 All ER 304. Tenants of a flat applied for a reducton of rent and application was considered by a Civil Commitee whose chairman was the son of one of the tenants. When the rent was reduced, the desicion was challenged as having personal bias. The court held that , there are was a real likehood of bias in the desion maker. Even if he impartial but if a right minded person thinks that there was areal likehood of bias on his par.

      

           Another cases is  Dato’ Kanalingan Vellupilai v Majlis Peguam & Anor [2004] 5 CLJ 505. Two compliant were lodged the plaintiff by the Bar Council and he was going to be tried in a tribunal. The plaintiff wished to have a copy of the attendencee sheet of members who attended the Disciplinary Board meeting that decided to establish the Inquiry Tribunal and he also requested to see minutes of said meeting but both document were refused to him. The plaintiff was brought the cases to the High Court on the basis that the composition of the Tribunal might lead to a bleased desicion because some of the people who decided in the Disciplinary Board meeting were members of the Bar Council.

         It was held that the Inquiry Tribunal’s composition was not legal because the Bar Council as the complinant sat s one of the members in the Disciplinary Board meeting.

         In a nutshell, Aniya don’t given enough time to prepare for a good defence because the notice arrived in shortly before his hearing and Aniyas’ right to be represented by lawyer or any representative had been denied. Plus, Aniya had been questionnaire about another charge in his hearing that do not listed in the notice, due that he cannot prepare a defence for a sudden accusation that make any decision that taken can be invalid. Morever, one of the panels of Staff Disciplinary Board (Kassomat) had a negative relationship with Aniya lead to personal bias in decision making. Thus, Aniya had been advised to bring his cases to high court for judicial review.