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.

ESSAY ON RULES OF NATURAL JUSTICE

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.

ESSAY ON DOCTORINE OF ULTRA VIRES

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

1)      Whether rule 1 is reasonable or not.

2)      Whether rule 2 ouster clauses or not.

3)      Whether rule 3 is financial levy or not.

4)      Whether rule 4 has retrospective effects.

The principle that can be used to solve this problem is the doctrine of ultra vires. This doctrine is one way how courts review decisions made by public bodies. It can be used to determine whether the subsidiary legislation made by public bodies is valid or not. Ultra vires means beyond the power and it can be classified into three which are procedural, substantive and extended ultra vires. Furthermore, procedure in making subsidiary legislative can be classified as mandatory and directory. Mandatory means SL must need consultation with specific body, opportunity for affected persons to file for objections and pre-publication of draft rules. Directory means public bodies need not follow the procedure; non-compliance with the procedure will not make the SL invalid. Besides that, substantive can be refers as scope, extent and range of power conferred by the statue to make SL. It can be classified as parent act ultra vires the federal constitution, SL ultra vires the federal constitution and SL ultra vires the parent act. Extend ultra vires also can be classified as retrospective effect, financial levy, outer clauses and reasonable. 

In answering first issue, it can be gathered from the facts of the problem that all published printed material shall have at least 70% of local content. Sections 2 of the Publication Act 2005 empower the home minister to make rule for the purpose of controlling. The principle that can be used to solve this problem is unreasonableness under extended ultra vires.

This is the situation where one can challenge the validity of the SL on the ground that is unreasonable. As stated by Chief Judge in case of Kruse v Johnson [1898] 2 QB 91 as a guideline. The general rule is that section 2 of the act empowers the home minister to make rule for the purpose of controlling the contents of the printed materials. It is the task of the court to decide whether the rule is an unreasonable or not. The rule is unreasonable because from the parent act, home minister have authority to make rule for the purpose of controlling the contents of the printed material.

To support above argument are cases of Arlidge v Islington Corporation and AIR India v Nergesh Mirza AIR.

Thus, the subsidiary legislation made by the local authority is ultra vires and invalid because rule 1 is unreasonable because it was manifestly unjust as the foreign news only included for 30% in published material. It indicates ignorance of government towards foreign news globally.

In answering second issue, it can be gathered from the facts of the problem that rule 2 says no printed on entertainment shall be published without the consent of the minister and his decision shall be final and conclusive. The principle that can solve this dispute is ouster clause. The ouster clause means a public body or an administrator must make sure that the subsidiary legislation passed must not exclude the court from making any judicial review. Example the subsidiary legislation must not contain any provision which does not allow any interference from the court, except if the Parent Act under which the subsidiary legislation is made has expressly allowed the exclusion of the court.

Generally, the jurisdiction of the courts should be allowed because if any party is not satisfied with the decision made or action taken by the public body, there will not be enough platform for him/her to challenge.

So that I think that this rule is ouster clause. This is because in that rule says ‘his decision shall be final and conclusive’ so every decision that had made by them cannot prefer to the court and it also does not allowed any interference from the court. Moreover, we can bring this case into the court because Parent Act does not says that any SL pass can have an exclusion of courts clause

To support the above argument are the cases of Chester v Bateson (1920) and Petaling Tin Bhd v Lee Kian Chan (1994).

As doing so, this subsidiary legislation that made by the parliament is ultra vires and invalid because rule 2 is ouster clause. Association is thus advised to bring the case to the court for judicial review.

In answering third issue, it can be gathered from the facts of the problem that rule 3, that Malaysian publishers’ association must pay a fee of 5% to make sure all printed material that was sold in the market. The principle that can be used in this problem is financial levy under extended ultra vires. This principle show that financial levy cannot be imposed through administrative legislation under the general power to make regulation except when parent act specially and expressly confers power for that purpose .A general grant of power  to make regulation does not warrant imposition has a financial levy through legislation. Thus, the court has a task to determine whether the charge imposed is actually financial levy or not. If it is, its validity depends on availability of express provision in the parent act to charge as such.

The general rule is that administrative bodies like local authorities cannot impose any charge or payment in the bye laws passed by them except if the parent act allows them to do so. It is the task of the courts to decide whether the charge is levy or not. The 5% fee that Malaysian publishers’ association must pay to the local authority can be regarded as levy since it is formed as tax. In addition, there is no express provision in parent act which permits the imposition of such charge to Malaysia publishers’ association in the bye laws made by local authorities.

To support the above argument are cases of AG v Wilts United dairies and MP Pillay v PP.

Thus, the subsidiary legislation made by the local authority is financial levy and Malaysian publishers’ association does not need to pay fee 5% as they regarded as tax.

 

In answering fourth issue, it can be gathered from the facts of the problem that rule 4 indicating that rules are applicable to all printed material that was published since 2005. The principle that can be used to settle the dispute is extended ultra vires which has retrospective effects. This is a situation where the SL has a backdated effect like the enforcement of the SL starts on a date way before it is passed. As a general rule, all SLs that have retrospective effect are not valid. However, we must first determine whether this retrospective effect is valid. It is only valid when there is an express provision or by necessary implication in the parent act to do so and the effect of the regulation cannot be earlier than the date of commencement of the parent act.

Since the rule 4 is applicable since 2005, it does not beyond the date of commencement Publication Act 2005. It clearly passes the first principle but in Publication Act 2005, there are no provision that allow any SL to pass with retrospective effects and automatically the SL against the second principle.

To support the above argument are cases of Attorney General v Cold Storage (Singapore) State and Kerajaan Malaysia v Wong Pot Heng.

Thus, the rule 4 is invalid as there is no provision on that Publication Act to have retrospective effect even though it does not beyond the date of commencement Publication Act 2005.

The conclusion is the SL made by the local authority is ultra vires and invalid because rule 1 is unreasonable, rule 2 is ouster clause, rule 3 is financial levy and rule 4 has retrospective effect. Thus, the Malaysian Publishers’ Association advised to bring the case to the court for judicial review.