QUESTION 1

ISSUE

The issue in this case is whether Kamaruddin can challenge the decision of the
Disciplinary Board in court under the rules of Natural Justice.

LAW

Natural justice principles or standards are concerned with procedural fairness

and ensuring that a fair judgement is reached by an impartial decision maker. RNJ is a
procedural safeguard against a public body's misuse of authority, which protects
people's rights and increases public confidence in the process. Power can be limited
procedurally on the basis that if people are forced to act in a certain way, they will
usually do the right thing and make the correct decision. The rule of Fair Hearing and
the rule against Bias are two components of RNJ. In this case, however, it is linked to
the rule of Fair Hearing.
The right to be heard and taken seriously is enshrined in the norm of fair hearing.
They have the right to say what they want about any matter that affects them, and their
views should be taken into account. The rule is intended to give the party a fair hearing
and the opportunity to defend himself before an administrative decision is made. There
are three elements of rule of Fair Hearing:
1) Notice
2) Hearing
3) Reasoned Decision
All three elements must be fulfilled in in order to Kamaruddin to challenge the
decision of Disciplinary Board in court.
APPLICATION
NOTICE

The right to a hearing is based on the requirement of notice. Prior to the

proceeding, it must be served or given. A person authorised to carry out the
contemplated proceeding must provide a notification. Adequate notice is required. To
accomplish these goals, the notice should include information about the hearing's time,
place, and character, as well as the statutory or other authority that the hearing is held
under and the legal and factual issues that will be examined.
In this case, Kamaruddin asked why was he needed to appear before
Disciplinary Board, but the officer-in-charge declined to explain. Disciplinary Board gave
and inadequate notice to Kamaruddin. A notification that isn't adequate isn't a proper
notice, and any action taken as a result of it would be null and void.
The first element is fulfilled.

HEARING

According to RNJ, a quasi-judicial administrative body should not issue a

decision against a party without giving him a reasonable opportunity to respond to the
allegations against him and present his own case. During an oral hearing, the
adjudicator is required to provide the affected individual with the opportunity to present
any relevant evidence in favour of his case as well as to refute any evidence presented
against him. As a result, the individual who has been harmed should be able to call
witnesses to testify on his behalf.
In this case, Kamaruddin requested to call the witnesses to testify, but the
proceeding panel turned down Kamaruddin request. An adjudicatory body's refusal to
allow material witnesses to testify on behalf of the parties to a dispute may be construed
as a denial of NJ.
The second element is fulfilled.
REASONED DECISION

Administrative authorities are not required to provide justifications for their

decisions. A court may require the giving of reasons as a matter of fairness and
transparency. Alternatively, where the obligation to provide justification for a decision is
imposed by law.
In this case, Disciplinary Board must give reason for their decision if they are
exercising quasi-judicial function. An extra component of the concept of fairness can be
a reasoned judgement. But the disciplinary board still refuse to give reason to
Kamaruddin even reason for decision is imposed by law.
The third element is fulfilled.

CONCLUSION

In conclusion, the Disciplinary Board violate all 3 elements in Rule of Natural

Justice. My advice to Kamaruddin is he can challenge back Disciplinary Board back to
win the case.
QUESTION 3

ISSUE

The issue of the case is whether parties on Kampung Apar can challenge Datuk
Awang’s decision.

LAW

Discretionary power defined as the ability of the administrative authority to select

between alternative courses of action. The administrative authority with discretionary
power has a number of options to choose from, and he utilises his best judgement to
make his decision. In this case, Datuk Awang indicate Ultra Vires. UV stands for
"beyond the power." When power is granted to an administrative body, the document
granting the power may include restrictions or constraints on how the power is used.
The administrator's activity is U.V. if it goes beyond the constraints or limitations. There
are 3 grounds for judicial review which are, Procedural Ultra Vires, Substantive Ultra
Vires and Extended Ultra Vires. This case, however, linked to extended Ultra Vires.
Extended Ultra Vires is divided by 2 section which are Abuse of DP and non-
exercise of DP. However, this case is sided to abuse of DP. There are 5 elements in
abuse of dp which:
1) Mala Fide/ Bad Faith
2) Improper Purpose
3) Irrelevant Consideration
4) Leaving out Relevant Consideration
5) Unreasonableness
All these 5 element should be fulfilled in order parties of Kampung Apar can bring
this case to challenge Datuk Awang in the court.
APPLICATION
MALA FIDE/ BAD FAITH

The authority's discretionary power should be employed with the best of

intentions. The practise of a discretionary act must not be motivated by malice or a
corrupt motivation, as this might lead to abuse of authority. The example for Mala Fide
is the discretionary act is motivated by personal anger toward the individual who has
been harmed. The discretionary act will benefit the concerned authorities or their
relatives/friends. The authority wields his power for his own personal or political gain.
In this case, Instead of Slim Darby, a reputable palm oil firm with an outstanding
track record, he directed the Superintendent of Land & Survey to give a provisional
lease for an oil palm plantation to his wife's new company, Big 6 Sdn Bhd. This show
that Datuk Awang do that only to gain benefit to his relative behind the exercise of
discretionary act.
First element is fulfilled.

IMPROPER PURPOSE

When the goal of a policy is clearly stated in the Act, an authority may not
exercise its discretionary power for a contrary purpose. If an Act gives a power to an
authority for one purpose, it cannot be used for another.
In this case, FB Sdn Bhd was granted a wood extraction licence on territory
occupied by the indigenous people of Kampung Apar, who had had native customary
rights to the property for decades. this does not indicate any reasonable purpose nor
does it provide benefits to the indigenous population. this only disturbs the indigenous
people in the Kampung Apar area and reduces the timber resources in the settlement
area
Second element is fulfilled.
IRRELEVANT CONSIDERATION

The public authority must guarantee that its decisions are not influenced by
irrelevant factors when exercising discretionary power. If the statute specifies the
relevant criteria that must be considered while exercising a specific power, the court's
role is to determine whether relevant factors have been applied and irrelevant
considerations have been ignored.
In this case, despite his reservations, he granted a mining licence to Geo Mining
Sdn Bhd at the request of the Minister of Mining and Science. The licence was awarded
over the same land that the Kampung Apar residents occupied. It shows that he
influences by irrelevant factors when exercising discretionary power.
Third element is fulfilled.

LEAVING OUT RELEVANT CONSIDERATION

The pertinent factor was not taken into account. Relevant considerations are
those that must be taken into account when doing DP. An administrative authority's
decision will be invalid if it ignores pertinent considerations while using its discretionary
power. An authority must examine the issues that a statute expressly or implicitly
mandates.
In this case, KST Sdn Bhd has been granted a wood extraction licence to log
over an area that is home to a variety of endangered animals and is rich in flora and
fauna. This will cause variety of endangered animals destroy and the animal will not
have home to live. This will also affect the animals as their homes have been destroyed
and they have no place to shelter and continue their lives. this will also cause many
animals such as tigers to become extinct.
Fourth element is fulfilled.
UNREASONABLENESS

Unreasonableness refers to an action or decision that no reasonable or rational

person could have made. It can be used as a basis for judicial review when a decision
maker makes a decision that no reasonable person would make.
Sum up of this case, everything that Datuk Awang decide is really unreasonable.
As the Minister of Land and Natural Resources, he should give reasonable decision and
give benefit others, not only for him and his crony. when he Issued a timber extraction
license to FB Sdn Bhd over an area occupied by the indigenous people of Kampung
Apar, there is no reasonable reason for his action to do so.
Fifth element is fulfilled.

CONCLUSION

To conclude this case, parties of Kampung Apar can challenge Datuk Awang
under extended Ultra Vires in the court because all the element above is fulfilled and
can be bring to the court to against him.