PRINCIPLES OF ADMINISTRATIVE LAW (LAW 309)

WRITTEN TEST (INDIVIDUAL)

PREPARED BY :

NAME : NUR IZZATI BINTI MOHD ASRI

FACULTY AND PROGRAMME : FACULTY OF ADMINISTRATIVE SCIENCE
AND POLICY STUDIES / AM110
SEMESTER :5
ASSIGNMENT NUMBER :2

PREPARED FOR :

LIZIANA KAMARUL ZAMAN

SUBMISSION DATE :

27 JUNE 2020
QUESTION 2.

ISSUES.

1. Whether Zain is given enough time to prepare his defence or not?

2. Whether Zain can be represent by lawyer or any representative or
not?
3. Whether charge given to Zain is adequate and complete or not.
4. Whether rule panel of disciplinary board are personal bias to Zain or
not?

PRINCIPLE.
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 and concerned with procedural
fairness and ensure a fair decision. 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.

APPLICATION.

1ST Issue (Time)

LAW
The element of notice that must be observed by the administrator is
time where not only the notice served to the accused must include a
complete and clear charge. The notice must also give sufficient time to
be accused to prepare his or her defence.
APPLICATION
The Disciplinary Board did not given enough time for Zain to prepare a
proper defence for himself. Zain asked for postponement to allow him
prepare his defence properly. Unfortunately, his requests were rejected
by Disciplinary Board. 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.

CASES
To support the above argument is the case of 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 postponed 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.

Next, the case of Re Liverpool Taxi Owners’ Association (1972) . In

this case, the association was sent a letter to show cause concerning an
issue of fresh taxi licenses, which it received on the last day where the
Association was allowed to appeal. The notice was held to be
inadequate because the Association was not given the opportunity to
defend themselves properly.

2ND Issues (lawyer)

LAW
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.

APPLICATION
Zain wish to be represented by his lawyer, should have been permitted
because that could help him to defend him appropriately.
Unfortunately, his requests were rejected by Disciplinary Board.
CASES
To support the above argument is the case of 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 rules of natural
justice.

Next, the case of Britania Brands (Malaysia) Sdn Bhd v Ketua

Pengarah Buruh Malaysia, the court quashed the defendant’s decisions
in refusing to grant legal representation to be applicant. The applicant
has requested for an adjournment of the hearing so that he could be
represented by a counsel but it was refused by the defendant.

3rd Issues (charge)

LAW
The accused must know his/her charge because from the charge, he/she
will be able to know the case made against him/her. If no charge is
given, the accused is unable to make a defence at all and this can lead
to an invalid decision made by the administrator. Example of a charge
are misconduct, negligent, absent from work and corruption.

APPLICATION
The Disciplinary Board give the charge that are not complete and
adequate. Zain was informed that he was going to be tried for
additional charges during the hearing that are regularly absent without
leave and inefficiency at work. 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.

CASES
To support the above argument is the case of Maradana Mosque
Trustee v Mahmud (1967). 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.

Next, the case of R v Paddington & St Marylebone Rent Tribunal

(1949). 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.

4th Issues (personal bias)

LAW
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 likelihood
of bias and this ascertained with reference to the right minded person.

APPLICATION
In the cases of Zain, he asked for postponement to allow him prepare
his defence properly and to appoint a counsel. Unfortunately, both his
requests were rejected. At the end of the hearing, the Disciplinary
Board has come to a conclusion that Zain was guilty for the charges and
decided to dismiss him from office.

CASES
To support the above argument is the case of Metropolitan Properties
Co v Lannon [1968]. Tenants of a flat applied for a reduction of rent
and application was considered by a Civil Committee whose chairman
was the son of one of the tenants. When the rent was reduced, the
decision was challenged as having personal bias. The court held that,
there are was a real likelihood of bias in the decision maker. Even if he
impartial but if a right minded person thinks that there was a real
likelihood of bias on his part.
Next, the case of Dato’ Kanalingam Vellupilai v Majlis Peguam &
Anor [2004]. 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 attendance 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 biased decision because some of the people who decided in the
Disciplinary Board meeting were members of the Bar Council.

CONCLUSION.
In a nutshell, the Disciplinary Board did not given enough time for
Zain to prepare a proper defence for himself. Plus, Zain wish to be
represented by his lawyer but his requests were rejected by
Disciplinary Board. Moreover, Zain was informed that he was going to
be tried for additional charges during the hearing. Thus, Disciplinary
Board has come to a conclusion that Zain was guilty for the charges and
decided to dismiss him from office. Zain had been advised to bring his
cases to high court for judicial review.