LAW NOTES : Administrative Law - Summary Notes for Procedural Fairness & Development after the Tan Tek Seng's Case

Sharing the notes  [2014]

"There is always a room for the readers to excite themselves with

 'CORRECTION' & 'CREATIVITY'".

HISTORY OF PROCEDURAL FAIRNESS (PF)

ü  ROHANA ARIFIN v USM

      H : PF was existed, but had never being co-relate to FC. PF used here was merely common law in concept.

ü  RAJA ABDUL MALEK v S/U SPP

      GSR – Same principle as in the case of Rohana.

ü  TAN TEK SENG v SURUHANJAYA PERKHIDMATAN PENDIDIKAN - 1966

      H : Art. 5 & 8 was read and applied together which had formed the PF concept which crosses-relate to FC. The significance of this judgment was :

              i.            Effect of Art.135(2)(a) of FC – once proven guilty for criminal offence, no RTH is available for the indi.

            ii.            PF concept formed – Art.5(1) & Art.8(1) laid down.

           iii.            Proportionality’s concept upon the punishment.

          iv.            Relief was moulded.

      Issue :

1.        RTH : Art.135(2) – RTH must be given upon the dismissal/reduction of rand of the public servant + Proviso (a) – No RTH if it was ‘proven’ that the accused commits criminal offence, BUT if ‘conviction’, RTH still available. As in TTS case, no RTH.

2.       Is court permitted to revise the ‘punishment’ imposed?

§  Ans : PF concept – as per Art.5(1) of FC, ‘Right to life/personal liberty … save in accordance of law; does involved the PROCEDURAL LAW’ + Art.8(1) of FC, ‘Equality is meant to be ‘FAIRNESS, = PROCEDURAL FAIRNESS.

§  Art.5(1) of FC : “LAW” = GSR refused to follow the case of Karam Singh (1969) which only include substantive law, as he opted that in 1969, FC was still too infant in nature. He then referred to the case of Ong Ah Chuan & the case of S. KULASINGAM, where ‘law’ = substantive + procedural law.

§  Art.8(1) of FC : “Equality” must be given wide interpretation. GSR had referred to the case of Maneka Gandhi, in Art. 14 of India Consti., which in pari material with Art.8(1) of FC, ‘Equality’ guarantee ‘Fairness’ + ‘Reasonableness concept’.

§  But later, in the case of Hong Leong Equipment, Art.8(1) of FC received its 4 exceptions :

                                 i.            Security of State

                               ii.            Public protection

                              iii.            Public interests

                             iv.            Acquisition of land – Art. 13 of FC

§  GSR also added that, we shall not used PF as in the common law sense as we have a ‘DYNAMIC COSNTITUTION’.

§  WHY WE REFER Art.5(1) & Art.8(1) of FC in TTS :

v  Right affected [Art.5(1)] + [Art.8(1)]

v  TTS was ‘justly’ dismissed – Art.135(2)(a).

v  Ratio – Punishment (Fair + Equal) imposed = Substantive Fairness

v Obiter dicta – Guarantee of PF in every case.

DEVELOPMENT AFTER TTS’s CASE

·         There are basically 2 aspects of development of TTS’s case.

·         1^ST ASPECT : When To Claim PF?

ü  TTS

      H : Art.5(1) “Life” had broadly interpreted as not mere existence but includes clean environment, life, equality, livelihood, personal liberty & right to gain income.

      Weaknesses : Only focus on the above 6 circumstances.

      Suggestion : Used Art.8(1) as it cover everything.

ü  SUGUMAR BALAKRISHNAN v PENGUATKUASA N. SABAH

      COA : GSR referred only to Art.8(1). Here he stressed that Art.8(1) requested for the DUTY TO ACT ‘FAIRLY’. He also added that PF can be claimed whenever the right of an indi had been infringed (very wide approach).

      FC :

1)       Not agree with COA in following TTS on wide interpretation of ‘personal liberty’. The court referred to the case of Loh Wai Kong to interpret ‘personal liberty’, which included the right to body / life / etc. (But in TTS, court interpreted ‘life’ NOT ‘personal liberty’).

2)     What had been guarantee under Art.5(1) can always be challenged. (GSR in the COA had never said this Art can’t be challenged, he said it CAN be challenged but via a FAIR PROCEDURE).

3)     Disagree with substantive fairness as common law never used it. (But why we have to refer to Common Law concept when WE HAVE OUR FC).

Ø  EXCEPTION

ü  HONG LEONG EQUIPMENT v LIEW FOOK CHUAN

      H : Art.8(1) of FC received its 4 exceptions :

                              v.            Security of State

                             vi.            Public protection

                           vii.            Public interests

                          viii.            Acquisition of land – Art. 13 of FC

Ø  2^ND ASPECT – What To Be Claimed Under PF?

ü  TTS

      H : This case did discussed about PF, but had never discussed what can be claimed under it.

ü  SUGUMAR BALAKRISHNAN

      COA : PF = NJ + RD + PLEA OF MITIGATION

      FC : Art.5(1) can be challenged.

ü  HONG LEONG EQUIPMENT

      H : RD must be given in PF. TTS’s case was followed. Don’t followed case of Chan Meng & Sanjiv.

      COA – Sec.59 of Immigration Act denied the right to be heard : CRITICISM – Statute vs FC (right to be heard must be given* Art.8)? But GSR can’t declared this Act as void as the counsel had never brought the issue up before the court.

      Admin body was given choice to decide when to give RD. It can be “at the time when the dec. is being made” OR “after the dec. had been challenged in court”. (CRITICISM – NOT FAIR TO HAVE RD AFTER CASE BRING INTO THE COURT.)

      FC’s ISSUE –

                       i.            Does the admin body have duty under Sec.65 of the Act to give RD.

v  The section give power to the State Authority to order the K. Pengarah to revoke the Sugumar’s entry permit. This section never give duty to the K. Pengarah to give RD.

v  Case referred to : MARTA STEFAN

H : General practise in law is that RD must be given but, this is not compulsory as it depend on the FOC.

                      ii.            Does the court have power to learn the reasons given by the K. Pengarah in the proceeding?

v  No.

                    iii.            Does the right to gain income affected in this case?

v  Yes, but right to gain income as per Fed. Court is not within the definition of ‘life’ in Art.5(1)

ü  MPPP v SG. GELUGOR

      F : Coop. wanted to build house, and they had been given 1 year permit + conditions + right to renew such permit. After 1 year had past, they had renewed and served with a new set of conditions before their renewal can be accepted. This new condition was that the house developer must make the house’s price cheaper. The developer had already sold 80% of the houses to the client, and this new cond. will make them loss their profit.

      H : FC Edgar Joseph – refer to his own judgment in the case of ROHANA [where he actually can affirmed decision in TTS / COA-SUGUMAR]

                       i.            RD is not compulsory – depend on FOC.

                      ii.            In this case, RD had to be given.

                    iii.            PF’s concept was widern as to includes ‘plea in mitigation’ to the civil servant – Art.135(2) of FC.

CASES AFTER

ü  IGP v ALAN NOOR - 1988

      H : No plea in mitigation.

ü  UTRABADI - 1998

      HC : Plea in mitigation must existed.

ü  SAMSUDIN MOHD SAAD - 1999

      H : No plea in mitigation, followed decision in Alan Noor as it was regarded as Ratio Decidendi.

ü  UTRABADI - 2000

      COA : GSR said that disciplinary action upon the civil servant involved 2 levels :

         i.            1^st – MISCONDUCT

§  No Misconduct (Not guilty) – Charge is not correct.

§  There is Misconduct – RTH must be given.

v  2^nd – Is the punishment is appropriate?

v  Here the ‘plea in mitigation’ must be given.

       ii.            Alan Noor decision was only obiter dicta.

      iii.            No discussion of PF – Art.5(1) & 8(1)

     iv.            Reputation is also one of the definition in ‘right to live’, and its infringement is equivalent to the breach vs Art.5(1) of FC.

ü  YAP JACK KEET

      HC : Refused to follow Utra Badi.

ü  UTRABADI

      FC :

              i.            Agree with Alan Noor & Samsudin & Yap’s cases.

            ii.            Alan Noor decision was said to be ratio decidendi.

           iii.            Not RTH in Plea in Mitigation if officer (civil servant) aware on its punishment. Art.135(2) – redude/ dismissal = no plea in mitigation.

          iv.            Disciplinary action doesn’t involved any 2 level.

           v.            Plea in mitigation only existed in cases in court.

          vi.            General order also silent on this issue.

        vii.            Suggestion : the accused have the access to plea in mitigation BEFORE derived into decision (aware Art.135(2))

v  CRITIQUE :

Ø  HOW TO DEFEND YOURSELF AS NOT GUILTY but AT THE SAME TIME TO PLEA IN MITGATION?

Ø  PLEA IN MITIGATION IS ONLY EXISTED WHEN YOU HAD BEEN PROVEN GUILTY, AND YOU WANT TO REDUCE YOUR SENTENCES.

Done By :

AMERA MOHD YUSOF

FACULTY OF LAW , UM