FACULTY OF ADMINISTRATIVE SCIENCE AND POLICY STUDIES

DIPLOMA IN PUBLIC ADMINISTRATION (AM110)

LAW309 ADMINISTRATIVE LAW

GROUP ASSIGNMENT

GROUP: 1

PREPARED BY:

AM1105A

AMISHA LYANA BINTI ABDUL RAZAK 2019563643

NUR RAHWANI BINTI MOHD YUSRI AZHAR 2019150535

NUR SYUHADA BINTI BADRUL IKHSAN 2019529721

NUR ARIFFA HIPNI 2019782373

NUR AFIFAH BINTI ABDUL RAZAK 2019197221

PREPARED FOR:

MISS IZYAN FARHANA ZULKARNAIN (LAW309)

DATE OF SUBMISSION:

19th MAY 2021

QUESTION 1

Molly, a clerk in the Government Printers Department, was asked to appear before the
Department’s Disciplinary Board to answer a disciplinary charge of misconduct. She was
alleged to have been involved in direct sale activities during office hours. A notice of hearing
was given to her two days before the hearing. She asked for a postponement to allow her to
prepare for her defense properly and appoint a lawyer, but this was rejected by the Disciplinary
Board.

During the hearing, she was given a copy of the investigation report. She requested to cross-
examine a key member of the investigation committee to know more about the evidence, but
the request was once again rejected. Mr. Mail who was the investigation officer in Molly’s case
was also one of the panel members.

At the end of the hearing, the Disciplinary Board has come to a conclusion that Molly was not
only guilty of the charge but also of being irresponsible as evidenced by her past service record.
Board decided to dismiss her from office. Molly was dissatisfied with the decision and the
manner in which the Disciplinary Board conducted the entire proceedings since she was not
informed about her past record being used in the present case.

Applying the natural justice principles, advise Molly.

ISSUE

Whether Molly can take action towards Disciplinary Board on the grounds of breached of
natural justice.

Whether Molly can challenge the decision made by Disciplinary Board against her on the
grounds of breached of natural justice.

Whether notice received by Molly is adequate or sufficient in time?

Whether Molly has the right for representation or right to counsel?

Whether Molly is allowed to cross examine or not?

Whether there is a personal bias against Molly or not?

Whether Molly has the right for the exception of disclosure of evidence or not?
INTRODUCTION

Natural justice is a procedure used to safeguard the citizen against improper exercise of
power by public authority. A fair administrative body in arriving at a right decision. Natural
justice is confined to the idea of fair hearing procedure. Natural justice represents the idea that
a person is entitled to a hearing and the hearing must be a fair hearing. There are two
components of natural justice namely Audi Alteram Partem also known as Rule of fair hearing
and Nemo Judex in Causa Sua known as Rule against bias. There are few objectives of Natural
justice. It is to allow the affected person to give his side of the story, to enable the decision-
making authority to determine a matter on a more informed basis, to secure justice which is to
prevent miscarriage of justice and to ensure fairness an impartiality through governing the
manner of arriving at the decisions by the judicial process. The effect of non-compliance or
breach of natural justice if the decision maker failed to observe natural justice is the order will
be considered as void or voidable order.
ISSUE 1

Whether notice received by Molly is adequate or sufficient in time?

LAW + APPLICATION

Firstly, in this case, under the Rule of fair hearing in the element of notice, the notice
must be adequate or sufficient in time. The purpose of adequate notice is to enable sufficient
time and reasonable opportunity to be given to the affected person to prepare his defence. It is
also depends on the facts of each case. If a statute has laid down a time limit, then the statutory
time limit applies. In the case of R v Thames Magistrate Court: Ex parte Polemis [1974] 1
WLJ 1371 where a Greek master of a vessel was served at 10.30 am with a summons for
discharging oil in contravention of the law. The hearing was set at 2.00 pm the same day,
adjournment was granted until 4.00 pm and further adjournment was refused. He was fined
£5000. Later, certiorari was granted by the Court. The Court held by Lord Widgery CJ says,
the Greek master was not given sufficient amount of time to be able to prepare for his case.
Natural justice was violated because the vessel master was not given an opportunity to take oil
samples, to look for witnesses or to prepare his supporting evidence even though adjournment
was granted. So, he could not represent his case accordingly which shows that his natural
justice was violated. Another case is the case of Phang Moh Shi v Commissioner of Police
[1967] M.L.J 186 where the plaintiff challenged his dismissal from the police force for breach
of natural justice. He was informed of the charged for the first time just before the hearing. A
copy of the charge was never given to him. The postponement requested by the plaintiff to
prepare his defence was not granted. The court held and they quashed the proceedings in which
the dismissal was unlawful because of insufficient notice of the charge against him and no
opportunity to defend himself.

Applying to the current situation, Department’s Disciplinary Board notified Molly

her hearing would be conducted in 2 days’ time. Molly asked for more a postponement so that
she has more time to prepare for her defence however it was rejected by the Disciplinary Board.
In this case, the notice must be adequate or sufficient in time which means that Molly should
be given sufficient time to properly prepare for her case. However, Molly’s request for
postponement of her hearing was rejected by the Disciplinary Board and so she did not have
enough time to properly prepare for her defence. Thus, the natural justice was violated because
Molly was not given sufficient time and opportunity to prepare for her case.
ISSUE 2

Whether Molly has the right for representation or right to counsel?

LAW + APPLICATION

Another principle of Rule of hearing is hearing. It states that Under natural justice, the
affected person must be given a chance of fair hearing to defend himself. In this case, it is the
representation or right to counsel. Section 3 of the Interpretation Acts 1948 and 1967 defined
an “advocate” as a person who is entitled to practice as an advocate or as solicitor under the
law in force in any part of Malaysia”. The general rule in this matter is that the right to be
represented by counsel cannot be claimed under the principle of natural justice. In the case of
Enderby Town Football Club v The Football Association [1971] 1 All ER 215 where the
situation is The Football Association Ltd controlled association football, while county
associations were affiliated to it. Enderby Town FC were fined by the county association, and
they appealed to the FA. They claimed they should be represented by a solicitor and counsel,
but the FA rejected this under rule 38 (b) of their association. Enderby FA claimed that rule 38
was contrary to natural justice. The court held that the right to counsel is not an absolute right
to the affected person. It is the Court’s discretion whether to allow a lawyer to appear before
the tribunal. In this case, the legal representation was not allowed as there was a ruling saying
that legal representation would not be allowed. Another case that involved with representation
or right to counsel is the case of Doreswamy v Public Service Com. [1971] 2 MLJ 127 where
the Public Services Disciplinary Board Regulations 1967 allows an aggrieved person to appeal
to an Appeal Board and such appeal must be made in writing. An officer dismissed from service
submitted an appeal through his solicitor. Appeal Board rejected the appeal. The court held that
when a person has a statutory right of appeal and the regulation are silent on the right to an
assistance of counsel, he cannot be deprived of such right of assistance. However, the Court
recognised that the right to counsel can be restricted either by express words in the Statute or
by necessary implication. However, there are exceptions to this general rule. It states that right
to legal representation will be part of natural justice if it expressly stated in the law, complicated
question of law and fact arise, the affected person is not in a position to represent himself or
the affected person is facing serious charges. This exception of the general rule was seen in the
case of Pett v Greyhound Racing Association [1968] where the Court held that Natural
justice required that a lawyer should represent the Plaintiff as he was facing a serious charge
concerning his reputation and livelihood. Another case under this exception is the case of
Federal Hotel Sdn Bhd v National Union Hotel, Bar and Restaurant Workers [1983] 1
MLJ175 where the Federal Court characterised it as a gross violation of fundamental principles
of natural justice when the Industrial Court refuse permission to the appellant’s counsel to act
on his behalf and appeal and address the court.

Applying to the current situation, Molly requested to appoint a lawyer to represent

her in the hearing however the Discipline Board also rejected this request. In this case, Molly
is facing a serious charge because the charge could affect her reputation and livelihood. It will
also affect her career as a clerk in the Government Printers Department. Natural justice required
that a lawyer should represent the plaintiff if she is facing a serious charge. The Disciplinary
Board’s action in rejecting Molly’s right to appoint a lawyer to act on her behalf in this case
has certainly violated the principles of Natural Justice. Thus, Molly have a right to legal
representation since she is facing serious charges.
ISSUE 3

Whether Molly is allowed to cross-examine or not?

LAW + APPLICATION

Still under hearing, is the cross examination. The affected person has the right to cross-
examine the witnesses and to rebut the case. But this right will not be a part of natural justice
if the hearing proceeding is not done orally. The objective of cross-examination is to elicit
information concerning facts in issue or relevant to the issue and to cast doubt upon accuracy
of the evidence-in-chief given against the party seeking cross-examination. Cross-examination
can be used as a mean of securing information. The right to cross-examine a witness should be
conferred where appropriate, as a component of the right to defend oneself. Cross-examination
needs to be allowed if its denial in all circumstances of the case would render the decision an
unfair one. According to the case of Phang Moh Shin v Commissioner of Police [1967] 2
MLJ 186 where Phang Moh Shin was not given an opportunity to cross-examine all
prosecution witnesses and it amounts to denial of natural justice. Another case is regarding
New India Assurance Company Ltd., v Nusli Neville Wadia & Anr, AIR 2008 SC 876, this
Court considered a case under the Public Premises (Eviction of Unauthorized Occupants) Act,
1971 and held as follows, “If some facts are to be proved by the landlord, indisputably the
occupant should get an opportunity to cross-examine. The witness who intends to prove the
said fact has the right to cross-examine the witness. This may not be provided by under the
statute, but it being a part of the principle of natural justice should be held to be indefeasible
right. In view of the above, we are of the considered opinion that the right of cross-examination
is an integral part of the principles of natural justice.” The next case is Rajiv Arora v Union
of India & Ors, AIR 2009 SC 1100 where the court held that “Effective cross-examination
could have been done as regards the correctness or otherwise of the report, if the contents of
them were proved. The principles analogous to the provisions of the Indian Evidence Act as
also the principles of natural justice demand that the maker of the report should be examined,
save and except in cases where the facts are admitted, or the witnesses are not available for
cross-examination or similar situation. The High Court in its impugned judgment proceeded to
consider the issue on a technical plea, namely, no prejudice has been caused to the appellant
by such non-examination. If the basic principles of law have not been complied with or there
has been a gross violation of the principles of natural justice, the High Court should have
exercised its jurisdiction of judicial review.” The next case involving cross examination is Pett
v Greyhound Racing Association Ltd. [1968], where Lord Denning mentioned that “it is not
every man who has the ability to defend himself on his own. He cannot bring out the points in
his own favour or the weaknesses in the other side. He may be tongue-tied or nervous, confused
or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every
day. A magistrate says to a man: “You can ask any questions you like”, whereupon the man
immediately starts to make a speech.” Last but not least, likewise, it was stated in Bushell v
Secretary of State [1980] for the Environment that “there is a massive body of accepted
decisions establishing that natural justice requires that a party be given an opportunity of
challenging by cross-examination witnesses called by other parties on relevant issues.” It
therefore stands to reason that a proper hearing includes a fair opportunity for the individual to
correct anything prejudicial to his view, especially if the opposing party has had the opportunity
of cross-examination. Conversely, from a more pragmatic standpoint, it can be said that the
true question in every case is whether the absence of cross-examination renders the decision
unfair in all the circumstances.

Applying to the current situation, during the hearing Molly requested to cross-
examine a key member of the investigation committee to know more about the evidence but
the request was once again rejected. In an oral hearing, the affected person has the right to
cross-examine the witnesses and to rebut the case. So, Molly has the right to cross-examine the
member of the investigation committee for the purpose of wanting to know more about the
evidence that is used against her in this case so she can defend herself. However, as her request
to cross-examine the key member of the investigation committee was denied, it amounts to
denial of natural justice.
ISSUE 4

Whether there is a personal bias against Molly or not?

LAW + APPLICATION

Next, under the Rule against bias, this case is regarding personal bias. Personal bias is
the tendency of the adjudicator to be in favor of or against one of the parties to the proceedings
before him. Whenever a decision maker becomes personally involved with one of the parties,
there arises the suspicion that a determination may not be reached exclusively on the merits of
the case as discussed at the hearing. The test is “whether there is a real likelihood of bias or not
in the facts of the case” instead of “whether there was actual prejudice to the petitioner or not’’
As such, the Court will not look into the facts of the case, but whether there is a possibility that
personal bias might happen. The effect of personal bias is adjudicator is disqualified from
adjudicating the case where there is a real likelihood that a hearing will not be fair. Based on
the case of A.K. Kraipak v Union of India AIR (1970) SC 150 where a Selection Board was
formed by the Central Government to select employee of the state service to the Indian Forest
Service. Acting Chief Conservator of Forest was one of the candidates, while at the same time
he was a member of the Selection Board. The court held that the appointment of the
Commissioner to inquire the merit of the scheme could result in suspicion that justice might
not be done. As such, the order was quashed. Besides that, in the case of Metropolitan
Properties Co. v Lannon [1968] ALL ER 304 where a block of flats belongs to a company
for example the Metropolitan F.G.C. Limited under Freshwater Group of Companies.
Freshwater Group proposed to increase the rents of the flats and the tenants applied to register
a “fair rent”. So, the Rent Officer fixed amount which he thought were fair rents. Later, the
matter reached the Rent Assessment Committee in which Mr. John Lannon, a solicitor, was
also the Chairman of Rent Assessment Committee. Lannon lived with his father who was a
tenant in a flat owned by Avenue Properties Ltd., an associate company belonging to the same
group as the company which was now the party in the matter before Lannon. Lannon had
assisted his father and other tenants to fix a “fair rent” of their flats. Decision of the Rent
Assessment Committee was challenged on the ground of Lannon’s bias. The Court of Appeal
held that they quashed the decision of the Rent Assessment Committee on the ground of real
likelihood of bias. The last case is regarding Hannam v Bradford City Council [1970] 2 AII
ER 691 where the school governors terminated the employment of a teacher. School was
maintained by the City Council Sub-Committee of the council met to hold an inquiry to
determine the decision made by the governor on the dismissal of the teacher, 3 of the 10
members of the sub-committee were governors of the school but they never attended the
meeting which made the decision to dismiss the teacher. The court held that although there was
no bias and the decision was made in good faith and honest, the decision of the Council could
not stand because “a reasonable man would say that a real danger of bias existed in the
situation.”

Applying to the current situation, the investigating officer in Molly’s case, Encik
Mail was also one of the panel members. This may lead to the decisions for this case made
unjustly with bias tendencies as he is also one of the panel members. Therefore, the decisions
made by him renders suspicions of personal bias and could result in an unfair hearing and lead
to suspicion that Molly’s justice was violated.
ISSUE 5

Whether Molly has the right for the exception of disclosure of evidence or not?

LAW + APPLICATION

Finally, under the Rule of fair hearing in the element of hearing, it is regarding
disclosure of evidence. All evidence relied upon by the public authority must be disclosed to
the affected person for example all incriminating evidence available to the Committee must be
made available to the affected person. The affected person must know what evidence has been
given and what statements have been made affecting him. Under the principle of natural justice,
all evidence such as written or oral that implicates the affected person must be made known to
him automatically. The purpose is to give him an opportunity to comment, criticise, explain or
rebut the matter that is to defend himself. However, there are exception to the rule requiring
disclosure of evidence. Materials, the disclosure of which would be detrimental to the public
interest may be withheld from the accused. In this case, the exception is the administrative
authority should not take into account the past conduct or records of service of the affected
person unless he was informed about the matters. According to the case of Raja Abdul Malek
v S/U Suruhanjaya Pasukan Polis [1995] 1 MLJ 311 where the court quashed the dismissal
order because the disciplinary authority took into account some matter outside the charge
without informing him. He was not given an opportunity or to rebut or give comment on the
matters. Besides that, in the case of Shamsiah Ahmad Sham v PSC [1990] 3 MLJ 364 where
Shamsiah was dismissed for negligence. The disciplinary authority took into account her past
record and she was not asked to explain. The dismissal order was quashed. She should have
been given an opportunity of stating her case regarding her past conduct because the dismissal
of a public servant was a serious matter.

Applying to the current situation, the Disciplinary Board concluded that Molly was
not only guilty of the charge but also of being irresponsible as evidenced by her past service
record. This then led to the Board deciding to dismiss her from office. In this case, Molly had
no knowledge that her past service records would be used against her in this hearing. This
proves that the Disciplinary Board had used her past records as an evidence against her without
her knowledge which goes against the principles of natural justice. This can be seen in under
the principle of natural justice, all evidence whether it be in written or oral that implicates the
affected person must be made known to him automatically. Therefore, the Disciplinary Board
clearly conducted an unfair hearing proceeding and Molly’s natural justice was breached as
she was not given the opportunity to explain or defend herself.
CONCLUSION

In conclusion, the Department's Disciplinary Board action towards Molly has breached
of natural justice. This is because the Department does not conduct a fair hearing regarding her
charge on allegedly to have been involved in direct sale activities during office hours. Not only
the Department does not give an adequate amount of time for her to prepare in defending herself
properly, the cross examination she requested was also rejected. It is also suspected that there's
personal bias when conducting the hearing since Encik Mail who was the investigation officer
in her case was also one of the panel members. The disclosure of evidence used was also not
informed. Thus, Molly can take action to challenge the decision made by the Department’s
Disciplinary Board.
REFERENCES

Wikipedia contributors. (2015, January 4). Enderby Town Football Club Ltd v The Football
Association Ltd. Wikipedia. https://en.wikipedia.org/wiki/Enderby_Town_Football_
Club_Ltd_v_The_Football_Association_Ltd

CHEN, S. (2008). Natural Justice: A Case for Uniform Rigour. Ink.Library. Retrieved from
https://ink.library.smu.edu.sg/cgi/viewcontent.cgi?article=1927&context=sol_researc
h

Indian Kanoon. (2008). Natural Justice Cross Examination. Indiankanoon.Org.

https://indiankanoon.org/docfragment/162455222/?formInput=natural%20justice%20
cross%20examination

Izyan Farhana Zulkarnain, (2021). LAW309 Chapter 3 Rules of Natural Justice, UiTM
Samarahan II, PowerPoint Slides.