LAW NOTES : Administrative Law - Summary Notes for Natural Justice & Its Main Components (Audi Alteram Partem & Nemo Judex In Causa Sua)

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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.

ü  CASES :

ü  COOPER v WANDSWORTH(WW)

·         FOC : 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 indi. right, thus, NJ arised.

4.       NJ can be denied by statute :

·         Expressly denied –

ü  CASES :

      SUGUMAR BALAKRISHNAN v PENGUATKUASA N.SABAH

      FOC : App had been revoked entry permit and denied right to be heard.

      PRINCIPLE : Sec.59 of the Imigration Act expressly denied the Right To Be Heard (RTH). This is equivalent to denial of NJ.

·         Impliedly denied –

ü  CASES :

ü  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.

5.       NJ is sometimes pre-decisional & post-decisional.

ü  CASES :

      MANEKA GANDHI v UNION OF INDIA

      FOC : 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.

6.       NJ is flexible

ü  CASES :

      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

      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.

      COMPONENTS

1.        AUDI ALTERAM PARTEM – Right to be heard

2.       NEMO JUDEX IN CAUSA SUA – Rule against bias.

      WEAKNESSES

1.        It originate from common law, and can be absolutely deniable by the statute.

2.       Consisting only 2 main components – not flexible.

      CONSEQUENCE IF THE ADMIN BODY DENY NJ  /  ABSENT OF NJ

1.        Individual can challenge the admin. body decision.

2.       Remedy available are certiorari/declaration.

      IMPORTANCE OF NJ

1.        Towards admin body :

              i.            To make them know the fact better before deriving into the decision

            ii.            Helps admin to achieve a fair decision

           iii.            To avoid from making any mistake

          iv.            Helps admin to make a proper record.

2.       Towards individual :

              i.            To honour the important right of an indi.

            ii.            To stop the admin from abuse their power and affecting the indi. right.

      DEVELOPMENT IN ENGLAND

[ADMIN BODY HAVE 2 MAIN FUNCTIONS]

1)       QUASI JUDICIAL

ü  EG : License of Ali had been revoked as there is food problem, NJ is needed.

2)     ADMINISTRATIVE FUNCTION

ü  EG : Law had been enacted, it had been breached by Ali, NO NJ is needed.

·         PHASES OF DEVELOPMENT

1.       WIDE

ü  COOPER v WANDSWORTH

      *Build a house – don’t give 7 days notice – LK give notice & demolished the building. – purely Admin matters, but at this era, court more bias upon indi. interest. NJ MUST BE GIVEN IN ‘ANY MATTER’ WHICH IS AFFECTED BY ADMIN BODY ACTION.

ü  BOARD OF EDU. V RICE

      NJ must be given when the admin body decided on any matter.

2.      NARROW

ü  NAKKUDA ALI v JAYARATNE

      F : The indi in this case had been revoked his license by the admin body.

      H : If before this, the revocation of license was said to be Quasi Judicial matter, but in this case, the judge said its purely admin function and shall not be served with NJ. Court had given 2 reasons on why there shall be no NJ in this case :

                       i.            Don’t agree with Cooper’s case. The judge opted that NJ only could be served when the admin body touch on the judicial matter. And whether the NJ should existed or not, statute should be referred back. If statute silent, no NJ.  *This is vs NJ’s principle, where it only can existed if the statute is silent about it.

                      ii.            NJ must not applicable in the case of granting / revocation of license as its considered as merely as ‘privileges’ and not a ‘right’. As for that, no NJ should be served for ‘privileges’ matters. (Right – NJ yes)

ü  EX PARTE PARKER

      F : The indi is a taxi –license holder. Due to the discipline prob., the license was revoked.

      H : As its revocation of license and a discipline matters, no NJ.

ü  EX PARTE FRY

      F : A fire-fighter had been dismissed due to the discipline prob.

      H : No NJ as it was a discipline matters.

3.      WIDE

ü  RIDGE v BALDWIN

      F : Constable had been dismissed. Here, the judge had criticized the Nakkuda Ali’s judgment.

      H : NJ must be served if the indi right was affected by admin body, thus draw a very fine line between Quasi Judicial & Admin Function.

4.     FAIRNESS

ü  RE K(H) AN INFANT

      F : A Pakistan man wanted to bring his son into England, and the immigration law said the age of the person must be 16 y.o. and above. The son looks very big which caused the officer to stop him from passing through the immigration gate, although the dad alleged that the son’s age was only 15 and 1//2 years. The issue is whether RTH – right to be heard should be given.

      H : There court held that the fine line between Quasi Jud. & Admin Func. should be abolished. As in this case, although its not Q. Jud. matter, but Admin body (the imm. officer) should give chance for the dad to prove the son age. PRINCIPLE : Administrative that is fair & just only existed if the Admin body acted FAIRLY , and this include to serve the indi with RTH.

5.      OTHERS

i.        DIFF. BETWEEN ‘RIGHT’ & ‘PRIVILEGES’ SET ASIDE.

ü  R v GAMING BOARD

      Although the license was only privileges, but admin body must act ‘fairly’. FAIRLY = RTH.

ü  R v HULL PRISON

      F : One of the prisoner had been promise that if he had a good behaviour, he will be freed early. Later there was a big fight, and the officer incharge withdrawn the promise made as he said its only a type of ‘privileges’.

      H : ‘Privilege’ or not is irrelevant. NJ must be served.

ii.        NJ MUST BE GIVEN EVEN IN DISCIPLINE MATTERS.

ü  GLYNN v KEELE UNIVERSITY

      F : A student had roaming around the campus naked.

      H : NJ / RTH must be given.

ü  R v SENATE OF UNIVERSITY OF ASTON

      F : A student had been dismissed as he had re-seat for examination.

      H : RTH/NJ must be served.

iii.        NJ MUST BE INCLUDED EVEN IN ADMIN BODY’S ACTION THAT SOLELY ABOUT INVESTIGATION.

ü  RE PERGAMON PRESS

      NJ must be given although its only an administrative investigation.

RIGHT –change to- PRIVILEGES –change to- LEGITIMATE EXPECTATION

ü  SCHMIDT v SECRETARY FOR STATE OF HOME AFFAIRS

      F : Foreign worker came to England to work and been given the working pass of 1 year. This permit was counted as privilege, but the period during 1 MAC year– 1 MAC next year, its only their ‘expectation’ to work and stay in England.

      H : If the Immig. Officer would like to revoke the permit, RTH must be served as there was a presence of ‘LEGITIMATE EXPECTATION’.

ELEMENTS FOR LEG. EXPECTATION (LE)

1.        LE given by admin body must valid in the eyes of the law.

2.       There must be “REASONABLE GROUND”  for the LE.

         i.            ‘PROMISE’ made by the Admin Body.

a)     Towards individual :

ü  RE LIVERPOOL TAXI OWNER ASSOCIATON

      Coop. had promised to an indi that they will only released 300 taxi license. So the LE here was that, there should be not more than 300 taxi license released by the admin body. Later they breached.

      H : NJ must be given when the admin body wanted to increased the taxi license’s no.

b)     Towards public

ü  AG OF HONGKONG v NG YUEN SHIU

      F : A group of Chinese had ran away to HK, and British govt had made promise saying that to those who surrender, they will be served an indi RTH, but the British don’t do as they promise.

      H : RTH must be given in this case by the British to the Chinese.

       ii.            ‘REGULAR PRACTISE’

ü  CCSU v MINISTER FOR CIVIL SERVICES

      F : Home Minister was empowered to amend the condition of the govt/civil services for the civil servant. The statute gives no RTH for any amendment of the condition. But as in regular practise, prior to any amendment, Minister will 1^st confers to the Trade Union to discuss the matters.

      H : The regular practise is equivalent to the LE. LE must be served with RTH.

DEVELOPMENT IN INDIA

ü  MANEKA GANDHI v UNION OF INDIA

      In this case, the court had abolished the fine line between the Q. Jud & Adm. Func. NJ must be served in any matters related. “Arbitrariness & equality is sworn enemies”

DEVELOPMENT IN MALAYSIA

1.    BEFORE 1977–WIDE INTERPRETATION

ü  WONG KWAI v PRESIDENT TOWN COUNCIL JB

      The principle & the FOC is the same with the Cooper’s case. *7 days notice & demolished.

2.    1977 – CHANGING TO FIARNESS CONCEPT

ü  KETUA PENGARAH v HO KWAN SENG

      F : HKS got license to export goods, but later it was revoked.

      HC dec. : Follow the Nakkuda Ali’s case – NO NJ is statute silent.

      FC dec. : Court make it compulsory for the NJ to be served in every admin function, irrespective of the function is Q. Jud. / Adm. Func. But in this case, no RTH as :

              i.            Appeal was not challenged

            ii.            Counsel never demand for RTH

           iii.            Written representation was suffice

          iv.            The Sr. office & the Comptroller, both had re-considered the matter.

3.    AFTER 1977

ü  FADZIL MOHD NOOR v UTM

      F : Lecturer had been dismissed without RTH.

      HC dec. : NJ/RTH shall not be served.

      FC dec : NJ should be given. Here, for private sector (contractual relationship), NJ must be served. Public sector (master-servant relationship), no need for NJ.

ü  S. KULASINGAM

      F : The indi’s land had been acquired by govt.

      H : No RTH, only adequate compensation, as referring to FC, Art. 13(2).

4.    LEG. EXPECT. IN MALAYSIA

ü  JOHN PETER BETHERLSEN v DIRECTOR GEN. of IMMIGRATION

      F : The indi in this case was a Journalist for the Asian Wall Street Journal, and had been given permit to work in M’sia. But his permit was revoked 2 months before the expiry date.

      H : NJ shall be given.

ü  DR. AMIR HUSSEIN v USM

      F : The indi had been a dean for 2 years, and after 2 years, a new candidate had been given that position. He had received no renewal for another 2 years job. He claimed that his LE as dean had been breached.

      H : No NJ, LE was not valid.

ü  DR.CHANDRA MUZAFAR v UM

      F : The indi in this case had been invited from Penang to be a lecturer in UM. He was also promised to be the Head of one of the Faculty in UM. He later had been dismissed as he involved in one of the political issue.

      H : NJ must be served.

COMPONENT OF NJ : AUDI ALTERAM PARTEM – AAP

1.   NOTICE

i.            Time :

ü  PHANG MOH SHIN v COMMISSIONER 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.

ii.            CHARGE/GROUND

ü  RAJA ABDUL MALEKv SETIAUSAHA SPP

      F : 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’.

      H : Court dismiss the allegation upon the indi as no notice served to explain ‘and others’ allegation.

2.    DISCLOSURE OF EVIDENCE

ü  Every each evidence used by ad-judicature (PEMBICARA KES TERSEBUT/ ADMIN BODY) must be given to party related.

ü  SURINDER SINGH KANDA v GOVT OF FED OF M’SIA

      F : 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.

      H : Kanda won in this case.

      EXCEPTIONS FOR KANDA’S CASE :

                i.            LIM KO v BOARD OF ARCHITECTS

      If party doesn’t not requested for such evidence, there is no duty to serve it to the party.

                  ii.            SAMBASIVAM v PSC

      If no evidence / report serve to the ad-judicature, there is no need to give such info to the party related.

ü  ROHANA ARIFIN v USM

      F : 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.

      H : Dec. of dismissal was held as not valid.

3.    HEARING

i.            WRITTEN REPRESENTATION

ü  HO KWAN SENG

      H : Written representation is a compulsory ingredient in trial before the court.

ii.            ORAL HEARING

·         Consists of 3 types :

1)       Temu-bual

2)     Rundingan / discussion / negotiation

3)     Temuduga / interview

·         ENGLAND

ü  CASE PETT 1

      Lord Denning : If livelihood, reputation affected, oral hearing is a must.

·         INDIA

ü  TRAVANCORE RAYONS

      Oral hearing must be given if :

1)       Case involved a complex qs.

2)     Case involved a technical Law-QS

3)     Case involved a complex FOC.

·         MALAYSIA

ü  ISSUE : Art.135(2) of FC – Served a room for a civil servant who had been reduced / dismiss from it rank with oral hearing. However, if they fall in the proviso of Art.135(2)(a), no oral hearing shall be served.

ü  HO KWAN SENG

      Follow dec. in PETT 1 – England.

ü  NAJAR SINGH

      No oral hearing shall be served as per Art.135(2) of FC.

ü  RAJA ABDUL MALEK v S/U SPP

      GSR : Oral hearing is not compulsory in nature, BUT may be given depending on ‘CERTAIN SITUATION’. What is that ‘CERTAIN SITUATION’? * UTRA BADI’s case

ü  UTRABADI v LEMBAGA TATATERTIB

      F : The indi had been dismissed due to drug allegation, and urine test had been conducted to confirm such allegation. The right of written representation had been served to him.

      H :

      COA - Here, GSR had give the scope of ‘CERTAIN SITUATION’ =

              i.            Subject matter

            ii.            Material facts

           iii.            Decision manners – does it affect livelihood?

          iv.            Written representation – Do not served complex prob.

           v.            Evidence from admin body & written representation is contradicting each other.

ü  FC – No oral hearing shall be given, followed the Najar’s case. Art. 135(2) of FC is not a compulsory to be followed, & gen. order also silent about it. The law also clear in this case and shall not be qs-ed.

ü  CHAI KOK CHOI v KETUA POLIS NEGARA

      H : No oral hearing if the accused had pleaded guilty before the court.

ü  PSC M’SIA v VICKNESWARY

      H : No oral hearing if its never requested.

ü  ANG SENG WAN

      I : Oral hearing under Sec.26(4) of the gen. order 1980.

      H : COA – Oral hearing exist because :

              i.            Accused had wrote ‘exculpatory’ to answer all 4 charges.

            ii.            No respond received from the admin body

           iii.            No denial on the ‘exculpatory’.

          iv.            Doct. related not given to the accused.

ü  YUSOF SUDIN

      H : Oral hearing must be given due to –

                  i.            It was requested & denial upon the charges had been done in written form

             ii.            No respond from the other party.

4.    RIGHT TO COUNSEL

·         Its not a compulsory right / upon the discretionary of ad-judicature.

·         ENGLAND

ü  PETT 1

      H : If you had given one party right to counsel, the other party must received the same benefit.

·         MALAYSIA

ü  FED. HOTEL v NUHBRW

      H : Same as above – Pett 1 principle.

5.    RIGHT TO CROSS-EXAMINATION

·         Only existed if oral hearing is given.

·         Not a compulsory right / given based on discretionary.

6.       RIGHT TO REASONED DECISION (RD)

·         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.

·         INDIA

ü  TRAVANCORE RAYONS

      H : RD must be given.

·         USA

ü  Sec.557(c) of Administrative Proceeding Act 1946 stated clearly that RD must be given.

·         ENGLAND

ü  PADFIELD v MINISTER OF AGRICULTURE

      H : Had formed a doctrine of ‘Padfield inference’

                       i.            Its not compulsory for RD to be given, BUT

                      ii.            Without RD, court will assumed the decision made is without a good/valid reason, and this kind of decision is open for the void’s declaration.

ü  BREEN v AEU

      H : Sec.12 of Tribunal & Inquiries Act 1958 stated that RD must be given if :

                         i.            Security (country) not affected

                        ii.            Was demanded

                      iii.            Duty upon the tribunal as stated in schedule 1,

      And even if its not fits the above option, Padfield inference can always be used.

      “RD = FOUNDATION OF A GOOD ADMINISTRATIVE”

·         MALAYSIA

ü  LEVEL 1 – NO RD

ü  LEVEL 2 – ON PROCESS OF CHANGING

ü  ROHANA ARIFIN v USM

      HC : No RD, and the principle in Travancore is way too flexible.

      FC :  RD existed as :

                       i.            Livelihood affected

                      ii.            Free speech is encouraged in university environment

                    iii.            Needed for ground to appeal

ü  SANJIV OBEROI v MINISTER OF LABOUR

      SUP. CT : No RD, as Se.c20(3) of the Industrial Act give wide power for the Minister to give decision, without having to include RD. This section give power to minister to decide whether or not the case should be referred to the Industrial Court.

ü  LEVEL 3

ü  HONG LEONG EQUIPMENT

      H : DecAs the indi had been dismissed and his livelihood was affected, RD must be given.

COMPONENT OF NJ : NEMO JUDEX IN CAUSA SUA – NJCS

·        NJCS – No man should be the judge of his own cause / rule vs bias.

·        R v SUSSEX JUSTICES – “Justice must not only done, but must seen to be done.”

·        There are 3 types of bias :

1)      PECUNIARY – No test

ü  DIMES v GRAND JUNCTION CANAL

    F : Ad-judicature had pecuniary bias upon the co. related.

    H : Decision made was not valid.

2)    PERSONAL – Have test

Ø Refer to the special relationship- fam. / friend / business partner / enemy.

Ø Even in one collective dec., if one of the person had a personal bias, the dec. is void.

Ø LEVEL 1 of TEST – ‘REASONABLE SUSPICION’

Ø LEVEL 2 of TEST – “REAL LIKELIHOOD BIAS”

ü  METROPOLITAN PROP v LANNON

      Lord Denning : the ‘reasonable suspicion’ test was too loose, came up with real likelihood bias-test.

·        2 degree :

                      i.            Reasonable man eyes

                    ii.            Intention – ‘possibility’ BUT in Application, - ‘probability’

ü  ROHANA ARIFIN v USM

    Registrar of USM who bring charges sat there – bias.

ü  GOVINDARAJ v PRESIDENT OF MIC

      F : Vice Pres. had been suspended by the Presid. He brought up the complaint to the central committee who was lead by the President that done the dismissal – bias.

iii.            LEVEL 3 of TEST – ‘REAL DANGER OF BIAS’

ü  R v GOUGH

      Lord Golf : Between the ‘suspicion’ & ‘probability’, there should be filled with something. In the eyes of court, if reasonable man’s test was given priority, perception of public can be better.

3)     POLICY – Have test

·         If the officer involved in the ‘department’ making policy, - no bias.

·         If the policy involved in the ‘making policy porcess’ itself – bias.

Ø  EXCEPTIONS UPON THE RULE VS BIAS

i.            If the is no one else can be ‘ad-judicature’.

ii.            Statute says so.

iii.            Setting aside : 2 conditions :

§  Indi knows the ad-judicature was not qualified.

§  Indi knows he had right to argue/counter-argue, but he kept quite.

Done By :

AMERA MOHD YUSOF

FACULTY OF LAW , UM