LAW506
ADMINISTRATIVE LAW
NATURAL JUSTICE, TRIBUNALS AND OMBUDSMAN
NATURAL JUSTICE
NATURAL JUSTICE
A procedural safeguard against improper exercise of power by a
public authority. This is to ensure that the administration
exercises its powers properly in giving a person a chance to be
heard and only after taking into account all relevant factors.
Persons against whom action is proposed ought to be given an
opportunity to defend themselves.
TWO COMPONENTS OF NATURAL JUSTICE:
1.
2.
The rule of hearing (audi alteram partem), and
The rule against bias (nemo judex in sua causa).
Rule of Hearing
(Audi Alteram Partem):
Syed Othman J in Wong Kwai v President Town Council, Johore Bahru: Failure to observe
the rule before a tribunal makes a decision, would cause a decision to lose its judicial
character.
Singapore Court of Appeal in Management Corporation Strata Title Plan v Lee Tat
Development Pte Ltd: A breach of the rule is a procedural wrong as it denies the wronged
party ‘a full, fair and impartial hearing’.
ELEMENTS:
● Notice
● Hearing
● Reasonable and Fair Hearing
NOTICE
Rule of Hearing
(Audi Alteram Partem)
●
BEFORE ADJUDICATORY PROCEEDINGS ARE UNDERWAY, THE
PARTY CONCERNED SHOULD BE GIVEN NOTICE OF THE CASE
AGAINST HIM.
Notice to bear meaning: Ground on which action taken in
clear specific and unambiguous terms.
Perkayuan OKS No 2 v Kelantan State Economic Development Corp:
If a notice is unspecific, ambiguous and vague, it will be rendered inadequate.
Situations where a notice has been held to be vague:
State of Uttar Pradesh v Salig Ram Sharma: Where a charge sheet was
served on an employee containing allegations of fraud without mentioning any particulars
Sinha Govindji v Deputy Controller of Imports: A notice mentioning several general
grounds for cancelling an import licence without specifying the particular ground on which
proposed action was to be taken.
NOTICE
Rule of Hearing
(Audi Alteram Partem)
●
BEFORE ADJUDICATORY PROCEEDINGS ARE UNDERWAY, THE
PARTY CONCERNED SHOULD BE GIVEN NOTICE OF THE CASE
AGAINST HIM.
Lack of notice can be cured if affected person knew of the
charges.
It is a question of fact whether absence of proper notice has actually prejudiced the
individual or not.
Lim Ko v Board of Architects: The court rejected the petitioner’s complaint that he
was not given a detailed notice as he was sufficiently aware of the nature of his
alleged misconduct.
Chong Kok Lim v Yong Su Hian: The Federal Court quashed the decision made
where no notice whatsoever was given to the respondent of the allegations or the
resolution to expel.
NOTICE
Rule of Hearing
(Audi Alteram Partem)
●
BEFORE ADJUDICATORY PROCEEDINGS ARE UNDERWAY, THE
PARTY CONCERNED SHOULD BE GIVEN NOTICE OF THE CASE
AGAINST HIM.
Must give reasonable opportunity to respond/comply with
requirements.
Sufficient time must be given to the concerned person to prepare a defence and file
objections.
Phang Moh Shin v Commissioner of Police: The plaintiff was informed of the charge
against him immediately before the hearing began.
Held: The court quashed the proceedings on the ground of insufficient notice. Even if the
plaintiff was aware of the subject matter, differs from knowing the precise charge against
him and the penalty to which he could be liable on conviction.
NOTICE
Rule of Hearing
(Audi Alteram Partem)
●
BEFORE ADJUDICATORY PROCEEDINGS ARE UNDERWAY, THE
PARTY CONCERNED SHOULD BE GIVEN NOTICE OF THE CASE
AGAINST HIM.
Statue may prescribe notice as pre-condition of action.
Whether failure to comply with the prescribed form of notice vitiates the proceedings or
not depends on whether the court regards the statutory form as mandatory or directory.
Privy Council in Isaac Paul Ratnam v Law Society of Singapore: A statutory provision
prescribing the giving of a notice was a mandatory provision, and if it was not observed, any
inquiry held would be a nullity.
HEARING
Rule of Hearing
(Audi Alteram Partem)
●
Within court’s discretion
to decide whether the
procedure adopted in a
specific situation accords
with natural justice or
not.
LORD MORRIS IN RIDGE V BALDWIN EMPHASISED THAT
BEFORE SOMEONE IS CONDEMNED, THAT PERSON MUST
BE GIVEN AN OPPORTUNITY TO DEFEND HIS OWN SELF.
VARIOUS FORMS OF HEARING
Oral hearing, written representation, consultation, interview, or dialogue
between the decision-maker authority and the affected person.
Federal Court in Sarawak Electricity Supply Corporation v Wong Ah Suan: Where the
relevant statute does not prescribe any special form of hearing, as long as an adequate
opportunity is given to an affected party to make any relevant statement he may want to make or
to answer any statement to that his prejudice, no particular form of procedure needs to be
followed. In that case, the court held that the conclusion of the Governor-in Council was
inevitable as there was nothing that the licensee could add that would be able to change the
decision made. However, on appeal to the Privy Council, their Lordships was of the view
that it would be impossible, on the facts of the case, to know what the Governor-in-Council
would have decided if the licensee had been given opportunity to develop orally or in
writing his full case.
HEARING
Rule of Hearing
(Audi Alteram Partem)
●
LORD MORRIS IN RIDGE V BALDWIN EMPHASISED THAT
BEFORE SOMEONE IS CONDEMNED, THAT PERSON MUST
BE GIVEN AN OPPORTUNITY TO DEFEND HIS OWN SELF.
ORAL HEARING NOT REGARDED AS ESSENTIAL
Written representations or an explanation may be regarded as sufficient
compliance with natural justice
Taylor LJ in R v Army Board of Defence Council; ex parte Anderson: There is
no rule that fairness always requires an oral hearing.
Travancore Rayons v Union of India: Where the government rejected the
contentions of the company without giving an oral hearing, the court criticised
the procedure of disposing of the appeal as the matter raised complex
questions
HEARING
Rule of Hearing
(Audi Alteram Partem)
●
LORD MORRIS IN RIDGE V BALDWIN EMPHASISED THAT
BEFORE SOMEONE IS CONDEMNED, THAT PERSON MUST
BE GIVEN AN OPPORTUNITY TO DEFEND HIS OWN SELF.
ORAL HEARING WAS DENIED
Where an oral hearing was denied upon request or was not requested.
Lloyd v McMahon: The auditor’s decision cannot be challenged on the ground
that oral hearing was not given, as none of the councilors asked for an oral
hearing even though they could do so. A clear ground for complaint of
unfairness would only arise if the councilors had asked to be heard orally and
the auditor had refused.
HEARING
Rule of Hearing
(Audi Alteram Partem)
●
LORD MORRIS IN RIDGE V BALDWIN EMPHASISED THAT
BEFORE SOMEONE IS CONDEMNED, THAT PERSON MUST
BE GIVEN AN OPPORTUNITY TO DEFEND HIS OWN SELF.
ORAL HEARING WAS DENIED
Where the absence of an oral hearing would or would not cause greater
harm to the plaintiff
Raja Abdul Malek v Setiausaha Suruhanjaya Pasukan Polis: where the
plaintiff was denied an oral hearing, the Court of Appeal held that it did not
amount to a breach of procedural fairness, as the absence of an oral hearing
did not occasion any prejudice to the plaintiff and he suffered no substantial
detriment in consequence of such deprivation.
HEARING
Rule of Hearing
(Audi Alteram Partem)
●
LORD MORRIS IN RIDGE V BALDWIN EMPHASISED THAT
BEFORE SOMEONE IS CONDEMNED, THAT PERSON MUST
BE GIVEN AN OPPORTUNITY TO DEFEND HIS OWN SELF.
ORAL HEARING WAS DENIED
When an interview between the decision-maker and the party affected
may be regarded as sufficient
Mahadevan v Anandarajan: Where the principal interviewed the student
alone and decided to expel the student after hearing his explanations and
excuses for his misconducts.
The course adopted by the principal was held to be fair.
REASONABLE
& FAIR HEARING
Rule of Hearing
(Audi Alteram Partem)
●
A REASONABLE AND FAIR HEARING COMPRISES OF
THE DISCLOSURE OF MATERIALS, THE RIGHT TO
RECEIVE EVIDENCE, THE RIGHT TO COUNSEL AND A
REASONED DECISION.
DISCLOSURE OF MATERIALS
All materials relied upon by an adjudicating authority for giving its decision against a
person should be brought to that person’s notice and that he should be given an
opportunity to comment, criticise, explain or rebut it.
Lord Denning in B Surinder Singh Kanda v The Government of the Federation of
Malaya: The wronged party “must know what evidence has been given and what
statements have been made affecting him. The judge or adjudicator must not hear
evidence or receive representations from one side behind the back of the other.”
Raja Abdul Malek v Setiausaha Suruhanjaya Pasukan Polis: Where a dismissal
order was quashed on the ground that the disciplinary authority took into
consideration materials, besides the charges communicated, without disclosing
them.
REASONABLE
& FAIR HEARING
Rule of Hearing
(Audi Alteram Partem)
●
A REASONABLE AND FAIR HEARING COMPRISES OF
THE DISCLOSURE OF MATERIALS, THE RIGHT TO
RECEIVE EVIDENCE, THE RIGHT TO COUNSEL AND A
REASONED DECISION.
REASONED DECISION
The duty to provide a reasoned decision acts as a safeguard against
arbitrary and unfair decisions.
Rohana Ariffin v University Sains Malaysia: There may be circumstances when a
reasoned decision may be appropriate. - A reasoned decision can be an additional
constituent of the concept of fairness, and as the plaintiff cannot appeal without
knowing the grounds of decision, the court ruled that the grounds of decision must
be stated.
Reasons should be adequate otherwise a party has no way of knowing
whether all that party’s submissions or arguments have been taken into
account.
REASONABLE
& FAIR HEARING
Rule of Hearing
(Audi Alteram Partem)
●
A REASONABLE AND FAIR HEARING COMPRISES OF
THE DISCLOSURE OF MATERIALS, THE RIGHT TO
RECEIVE EVIDENCE, THE RIGHT TO COUNSEL AND A
REASONED DECISION.
RIGHT TO RECEIVE EVIDENCE
Refusal to receive evidence of the affected person
amounts to a breach of natural justice.
An adjudicating authority is obliged to give the persons concerned an
opportunity to produce evidence to support their case and to rebut
evidence against them.
Only evidence which the authority renders necessary and relevant should
be produced. - such discretion by the authority must be exercised
reasonably, in good faith and on proper grounds.
REASONABLE
& FAIR HEARING
Rule of Hearing
(Audi Alteram Partem)
●
A REASONABLE AND FAIR HEARING COMPRISES OF
THE DISCLOSURE OF MATERIALS, THE RIGHT TO
RECEIVE EVIDENCE, THE RIGHT TO COUNSEL AND A
REASONED DECISION.
RIGHT TO RECEIVE EVIDENCE
Parties should be permitted to bring material witnesses.
Malayawata Steel v Union of Malayawata Steel Workers: Where the company was
denied an opportunity to call witnesses, the court held that there was a denial of
natural justice by the Industrial Court as it did not allow the applicant to call its
essential witnesses to adduce evidence at the hearing.
REASONABLE
& FAIR HEARING
Rule of Hearing
(Audi Alteram Partem)
●
A REASONABLE AND FAIR HEARING COMPRISES OF
THE DISCLOSURE OF MATERIALS, THE RIGHT TO
RECEIVE EVIDENCE, THE RIGHT TO COUNSEL AND A
REASONED DECISION.
RIGHT TO COUNSEL
A lack of legal representation may lead to the appearance of injustice.
Doresamy v Public Services Commission: A right of representation can be restricted
either by express words in a statute or by necessary implication. Where a person has a
statutory right of appeal and the regulations are silent of the right to the assistance of
counsel, he cannot then be deprived of such right.
Federal Hotel v National Union of Hotel, Bar & Restaurant Workers: Federal Court
held it was a gross violation of natural justice when the Industrial Court refused
permission to the appellant’s counsel to act on his behalf.
Teng Chang Khim v Suruhanjaya Pilihanraya, Malaysia: The Court will not interfere if
a party waive their rights to counsel as it is at their discretion to do.
Rule Against Bias
(Nemo Judex in Sua Causa):
If the judge is biased, or if there is any factor which may influence
the judge to improperly favour one party over the other, the
proceedings will be vitiated.
TYPES OF BIAS:
● Pecuniary Bias
● Personal Bias
● Policy Bias
Rule against bias
(Nemo judex in sua
causa)
PECUNIARY
BIAS
NO PERSON SHALL BE A JUDGE IN THEIR OWN
CAUSE.
Pecuniary Bias in the ambit of Administrative Law deals with any operative
prejudice that the authority may have against an individual which vitiates
the latter’s interests.
Dimes v Grand Junction Canal: A public limited company filed a case against a
landowner in a matter largely involving the interests of the company. The Lord
Chancellor who was a shareholder in the company heard the case and gave the
desired relief to the company. The decision was quashed by the House of Lords
because of his pecuniary interest in the company.
Where an adjudicator has a pecuniary interest in the subject-matter of the
dispute, the adjudicator becomes disqualified without the need to prove that
there was actual bias.
Lord Goff in R v Gough: The nature of the interest is such that public confidence in the
administration of justice requires that the decision should not stand.
Rule against bias
(Nemo judex in sua
causa)
PERSONAL
BIAS
ARISES WHEN THE ADJUDICATOR HAS
PERSONAL BIAS THAT IS EITHER AGAINST OR
IN FAVOUR OF PARTIES IN DISPUTE
Examples of personal bias: Relationship, friendship, business dealings,
hostility etc. The test is whether there is a real likelihood of personal bias on
the facts of the case, which has to be ascertained with reference to right
minded persons.
A mere allegation of
bias would not suffice.
It is sufficient if
reasonable people
were to think there
was bias.
Metropolitan Properties v Lannon: The court looks at the impression which would be
given to other people. Even if the judge was as impartial as could be, if right minded
persons would think that in the circumstances there was a real likelihood of bias on his
part, then he should not sit. And if he does sit, his decision cannot stand.
Yong Vui Kong v Attorney General: Any attempt to disqualify a judge must be based
on credible grounds and not be motivated by any extraneous purpose.
Rohana Ariffin v USM: The decision was quashed by the Court on the ground of bias.
Although the Registrar did not discuss the case with the authority, he was present
with the members of the authority during the deliberations.
Rule against bias
(Nemo judex in sua
causa)
POLICY BIAS
AN OFFICIAL MAY BE DISQUALIFIED IF HE
PERSONALLY IDENTIFIES TOO MUCH WITH THE
MAKING OF THE POLICY.
An official is not disentitled from acting as an adjudicator in a dispute in
which either the departmental policy may be an issue or the department may
be a party merely because he is in the administration.
Alkaff & Co v The Governor-in-Council: Where the Commissioner, as a member of
the Trust, approved the schemes, and was then appointed to inquire into the merits of
those schemes; the court quashed the orders (of the appointment) accordingly and
held that it is irrelevant that the Commissioner conducted his inquiries fairly and
impartially.
TRIBUNAL
TRIBUNAL
●
●
●
●
An Administrative Tribunal is a person or group of people
tasked with hearing and deciding disputes to bind the parties.
The administrative tribunal is a government-created
institution that is not part of the judicial system.
The purpose of the tribunal is to settle disputes between
private citizens and government departments.
In Malaysia, there are three types of tribunals which are
Industrial Court, Income Tax Commissioner and Public
Inquiries.
INDUSTRIAL COURT
●
●
●
●
The Industrial Relations Act of 1957 established this special
court.
This special court is responsible for resolving disputes
between employers and/or their associations and employees
and/or their trade unions.
For the procedures of the industrial court, it starts when a
dispute happens.
However, if the mediation fails, then the case will be referred
to the Industrial Court upon recommendation of the Director
General.
INCOME TAX COMMISSIONER
●
●
●
●
The Commissioner of Income Tax was formed in 1967 under
the Income Tax Act.
It is made up of at least three commissioners.
The Commissioner's job is to hear appeals from taxpayers who
are unhappy with the Director General of Inland Revenue's
income tax assessment (DGIR).
As for the working flow, it starts with the people who are
unsatisfied with their tax evaluation making appeal towards
the Commissioner and it will be examine by the Chief Director.
INCOME TAX COMMISSIONER (cont)
●
●
If the taxpayer is still unhappy with the decision after
appealing to the Chief Director but receiving no response, the
matter will be reviewed by the Income Tax Commissioner
(ITC).
Under certain circumstances, a taxpayer may also file a judicial
review application at the High Court to challenge a tax
assessment.
PUBLIC INQUIRIES
●
●
●
●
The Commission of Inquiry Act of 1950 is the statute that
allows them to be constituted.
The purpose of this tribunal is to find evidence of what actually
happens in a certain case and to collect evidence and facts
before making a decision.
As for the procedure, the Commissioner has the power to take
necessary statements and question witnesses.
All statement given in the inquiry has full privilege and the
person who gave the details is to not be brought up to the
court for the given statement.
● The tribunals in Malaysia are established to
help people with their disputes.
● As we can see using tribunal makes the dispute
more informal and makes it easier for parties
to give evidence and testify.
● At the same time tribunals are separate body
which is free from executive acquires freedom
almost the same as the courts.
OMBUDSMAN
ORIGIN
1809- Swedish Parliament established Justitieombudsman
Objectives :
To effectively control the activities of, and prevent abuses
by, public officials
To redress individual grievances arising out of
maladministration
ADVANTAGES
● Access to departmental files
● No court fees; no lawyer need
● Does not involve much publicity
● Proceedings are not formalised & routinised
ELEMENTS
● A nominee of the legislature
● Not a partisan
● Independent of Parliament
● Support from the legislature
● Preventive - Improving the quality of
administration
ELEMENTS
● Removal of individual grievances
● Removing the crisis of confidence between
the administration and the public
● Deal with many facets of administrative
action
MALAYSIA
●
Dropped the idea of setting up an Ombudsman and set up Public
Complaints Bureau
●
Objectives:
1.
2.
to bring about a closer rapport between the government &
the public;
to establish a channel, enabling the public to put forward
their complaints in connection with government
administration (or service), or complaints on federal
administrative action deemed unjust.
Public Complaints
Bureau
FUNCTIONS & RESPONSIBILITIES OF
THE BUREAU
●
To receive public complaints
●
To investigate public complaints
●
To report the outcome of the investigations & make the
recommendations
●
To forward the decisions of the Permanent Committee on Public
Complaints
●
To monitor the corrective actions
●
Submit feedback to the the Permanent Committee on Public
Complaints
Public Complaints
Bureau
CRITERIA OF THE BUREAU
● Does not owe its existence to any statue
● Part of the Executive
● Lacks the autonomy and independence of the
Ombudsman
● No access to Parliament & does not send its reports
to Parliament
● Cannot be regarded as efficacious as an Ombudsman
OTHER SIMILAR BODIES
● Malaysian Anti-Corruption Commission
(MACC)
To investigate & prosecute corruption in the public &
private sector.
● Enforcement Agency Integrity Commission
To receive complaints of misconducts from the
public against enforcement officers/ law
enforcement agencies
END