FACULTY:

FACULTY OF ADMINISTRATIVE SCIENCE AND POLICY STUDIES

TASK:

PROBLEM CASE STUDY (QUESTION NO.1)

COURSE CODE:

ADMINISTRATIVE LAW FOR PUBLIC

AUTHORITIES

(LAW507)
PROGRAMME CODE:

AM228

LECTURER’S NAME:

MADAM NORASHIKIN BINTI SHARIFUDDIN

PREPARED BY:

NAME MATRIC NUMBER

MUHAMMAD SYAKIR IMAN BIN MOHD 2022868482

SAIFUL BAHRI

NAJMI SYUZAIRI BIN MOHD AMIR 2022819602

MUHAMMAD HAKIMI BIN OTHMAN 2022859428

NIK MUHAMMAD NAIM SYAHMI BIN NIK 2022819808

MOHD NAJIUB

MUHAMMAD ATHIF WAJDI BIN MOHD 2022819786

RIZAL

QUESTION (1):
 Shahrul is a second-year student at the University of Seremban. On 6 th April 2022, he
received a letter from the Academic Office to attend a disciplinary proceeding for illegally taking
notes in the examination hall. He was required to present himself on 8th April 2022. Shahrul
requested that he should be given more time to prepare his case, but his request was rejected.

At the hearing, the chairman read out the charge to Shahrul as follows:

“That you Shahrul Bin Shahri; NRIC No. 990101-01-5001, a second-year student of the
program Bachelor of Administration Policy, whilst having an Administrative Law examination
conducted yourself in a manner which in the opinion of the Disciplinary Committee is
dishonorable and that you have committed an offense under rule 20(1) (a) of the Education
Regulations 1990 and punishable under rule 25 of the aforesaid Regulations”.

Shahrul asked for the report of the investigation in detail, but the members of the
committee maintain that the report was confidential. His request to bring along his friend to give
evidence on his behalf was rejected. The hearing was conducted by a Disciplinary Committee
chaired by Ahmad his Academic Adviser. They had not been on good terms with each other
because Ahmad accused Shahrul of stealing when Shahrul rented Ahmad’s house last year. At
the end of the hearing, the committee decided that the allegations against Shahrul were proven.
Shahrul was fine and suspended for one semester. Shahrul, who is dissatisfied with the decision
wishes to challenge the decision by the committee.
ISSUE (1): Sufficient time

The first issue, in this case, is whether Shahrul can challenge the validity of Audi alteram
partem, which means the right to be heard by the element of a notice on the ground of time.

LAW (1):

As is common knowledge, the rights to be heard under the Rules of Natural Justice can
be divided into two types notice and hearing. We shall concentrate on the notice specifically on
the basis of time based on the circumstances of our case. Before accusing someone and taking
legal action, the administrator must also take time into consideration. In addition, the accuser
must provide a notice that contains a full and accurate charge or allegation. Then, the accuser
must be given enough time to respond. This is due to the fact that the purpose of giving the
accused person time is to ensure that the accused person has enough time to gather evidence and
prepare a defence. However, it is against the principles of natural justice where it can be
challenged if the accused individual shows up in court and sits through the hearing session
without providing him or her time to reflect on an accusation against him. This is so that the
accused individual might have enough time to present a defence in accordance with the
principles of natural justice. Because each case is granted its own amount of time, the accused
individual must be allowed enough time depending on the circumstances of their case. In other
words, the more serious the case and the accused person have been charged, the more time
needed to give to the defendant to defend him or herself.

. This principle is illustrated by the case of Phang Moh Shin v. Commissioner of Police
[1967] 2 MLJ 186. Corruption was charged against the plaintiff. Just before the hearing started,
he was made aware of the accusation. The plaintiff asked for a delay so he could plan his case,
but it was denied. After the trial, he was fired, and he later filed a lawsuit to have his firing
overturned. According to the ruling, the firing was illegal since he didn't have enough notice of
the accusation leveled against him. Other than that is, Che Hong Yee v Timbalan Menteri
Keselamatan Dalam Negeri, Malaysia & Ors [2008] 7MLJ 642. The court ruled that it was
invalid for a notice to be missed that would have allowed the plaintiff to address the Deputy
Minister. This is due to the fact that failing to do so considered a violation and went against the
fundamental principles of natural justice. This occurred as a result of the plaintiff receiving such
an order and a notice to do so only after the period had passed. As a result, there hasn't been
enough time, and the plaintiff can now dispute his arrest and detention in court because the order
was invalid.

APPLICATION (1):

In this case, Shahrul was found guilty because he was accused in the examination hall. So
Shahrul was called to defend himself. However, Shahrul was not given enough time to defend
himself. Based on the second element of notice which is sufficient time, Shahrul as the accused
is entitled to have sufficient time to prepare a defense so that he can answer the case during the
trial. So, the parties involved should give enough time to Shahrul before the hearing process. The
problem that Shahrul is facing is the same as in the case of Phang Moh Shin v. Commissioner
of Police [1967] 2 MLJ 186. The plaintiff was not given enough time to defend himself.

CONCLUSION (1):

In conclusion, Ahmad’s decision can be challenged by Shahrul towards the validity of

Audi alteram partem which is the right to be heard where the decision becomes invalid and void
because of the insufficient time that has given to him for defending himself.
ISSUE (2): Disclosure of all information.

The second issue, in this case, is whether Shahrul can challenge the validity of Audi
alteram partem means the right to be heard under the element of notice on the ground of charge
and to know if it is complete or not.

LAW (2):

Right to be heard means that every person has the right to be heard, thus when a charge is
brought against them, they must be given the chance to defend themselves. Right to be heard
consists of notice and hearing. Before a hearing may further start, the accused must get a notice.
It includes a charge brought against the defendant. If the administrator fails to serve the accused
with a notice or serves the notice but gives the accused inadequate time to prepare for trial, this
breaches the norms of natural justice.

The public authority must follow certain procedures throughout the hearing otherwise,
the public authority will be guilty of breaking the principles of natural justice, and any decisions
made as a result will be null and void. The public authority shall fulfill four requirements, one of
them is the disclosure of information.

The accused must be given access to all information, resources, and evidence that the
panel intends to use during the hearing. There must not be a surprise element in the hearing,
which means that the panel of hearing cannot rely its decision only on materials that are
irrelevant to the hearing or that were not previously provided to the accused. The case of
Shamsiah Ahmad Sham v. Public Service Commissioner (1990) 1 SCR 92 serves as an
example of this approach. The plaintiff, a printing department employee, challenged the
defendant's decision to dismiss her after considering her previous behavior during a disciplinary
action. Because the decision did not adhere to the first requirement of a fair hearing, it was
determined that it violated the principles of natural justice.

Next case is Subry Hamid v. Husaini {2006} 4 CLJ 50. A lance corporal with the
Royal Malaysian Police filed an appeal with the court of appeals seeking his discharge for
misbehaviour. He said that he was unaware that his prior conduct was taken into consideration
when the disciplinary committee made its conclusion. The dismissal was therefore void and the
appeal was accepted.

Furthermore, in the case of Jerald Allen Gomez v Shencourt Sdn Bhd {2006} 1 CJ 88.
The appellant counsel was accused of acting negligently and overcharging by the respondent, a
property developer, who also filed a complaint. A Disciplinary Committee was established, and
after finding the appellant guilty, it punished him RM3, 000. The appellant claimed that despite
his request, he was not given access to the investigation tribunal's notes that the disciplinary
committee utilized to make its decision. This led to an appeal to the High Court. The
Disciplinary Committee's decision was made using information that the appellant was not aware
of and had requested, so there was certainly a violation of natural justice. This was an example
when the arbitrator had looked at the evidence in secret from the appellant.

APPLICATION (2):

In this case, Shahrul requested a detailed report about the problem to the Disciplinary
Committee. But the Disciplinary Committee refused to provide the document because they said
that the report was private and confidential, even though he had a right to know as stated under
one of the elements of the hearing which is the disclosure of all information. All information,
evidence, or material to be used in the trial by the panel must be disclosed to the accused and
there must be no element of surprise in the trial. Therefore, the Disciplinary Committee must
provide a detailed report as requested by Shahrul. This situation is similar to the case of Jerald
Allen Gomez v Shercourt Sdn Bhd [2006] 1 CLJ 88 where appellant reported portered by the
Disciplinary Committee.

CONCLUSION (2):

Therefore, the charges that have been mentioned by the committee can be invalid and
become void because the committee did not give Shahrul the details of his charge that can help
him to prepare for his defense due to the charge is incomplete and inadequate.
ISSUE (3):

LAW (3): Acceptance of evidence

Any relevant information, including witness statements, that is provided by the accused for his
defense must be considered by the hearing panel. The hearing panel cannot deny or reject an
accused's request for a hearing postponement in order to call his witness since doing so would
violate both the accused's rights and the principles of natural justice.

This principle illustrated in the case of Malayawata Steel Bhd v. Union of Malayawata Steel
Workers {1978} 1 J 87. The plaintiff filed the lawsuit in order to appeal the Industrial Court's
ruling, which was made without giving the plaintiff the chance to present crucial witnesses. As a
result, by rejecting their evidence, the industrial court violated the plaintiff's right to a fair
hearing.

Another case is Re Application by the Union Omnibus Co. Sdn Bhd. {1997} 2 MLJ 260. This
case relates to a public body's right to reject receiving unnecessary evidence. Between October 2,
1975, and August 17, 1976, the industrial court held numerous days of hearings on the subject.
The appellant argued that they had not been heard by the Industrial court when it made its
decision to grant an award. As a result, The Industrial Court received the required evidence and
decided it had no use to continue hearing from additional witnesses.

APPLICATION (3):

The third issue is whether Shahrul can challenge the decision of the Disciplinary Committee in
court with Natural Justice under the ground of the rule of hearing which is right to produce
evidence. In the case Shahrul v Disciplinary Committee of University, Shahrul asked to bring his
friend along to testify on his behalf. But he was denied the chance to present his proof. This
similar with the cases of Malayawata Steel Bhd v Union of Malayawata Steel Workers
(1978), Shahrul has the right to appeal this decision because he was denied the chance to present
the required evidence to prove his case and refute the evidence used against him. Shahrul should
be allowed to bring along his friend to testify on his behalf.

CONCLUSION (3):
ISSUE (4): There are elements of bias in the hearing proceeding

The third issue, in this case, is whether Shahrul can challenge the decision made by
Ahmad, the Disciplinary Committee that might have any possibilities or elements of Nemo judex
in causa sua which is the personal bias in the hearing proceeding.

LAW (4)

Nemo judex in re sua rules against bias state that a person cannot judge over their case. In other
words, the individual assigned to serve as the judge in a particular proceeding must always be
neutral and impartial. The need for integrity and neutrality among judges would affect their
decisions. Judges who exhibit prejudice or any other element that might affect their decision-
making would be unreasonable and would have an impact on the outcome of the proceedings.
Financial prejudice, policy bias, and personal bias are the three categories of bias.

The meaning of these three types of prejudice may differ. A person who has a specific pecuniary
interest that is related to financial or monetary interests and will disqualify him or her from
serving as a judge is said to have a pecuniary bias. The involvement of government policies,
which might occur during their execution and result in a decision made by an administrator
acting as an adjudicator, is referred to as policy bias. The third sort of bias, personal bias, is the
most relevant in this case. A judge who is personally biased either in favour of or against
someone is said to be acting with personal bias. Personal bias can occur when there is a
relationship between the defendant and the adjudicators, such as a friendship, an enemy, a family
relationship, or commercial dealings, which would make the person unsuitable to serve as a
judge or adjudicator for the proceedings. In fact, it makes no difference whether the connection
is favourable or unfavourable as long as the accused individual is familiar with the judges or
panelists, which amounts to personal bias.

One of the case is Metropolitan Properties Co v Lannon. In this instance, a tenant of an

apartment asked for a reduction in rent, but it turned out that the committee's head is the son of
one of the apartment residents. Due to the presence of a family link, there is a chance of
prejudice in the right-minded person. Because of this, the court decided that the committee's
chairman, the tenant's son, should not preside as a judge because his decision is invalid.

While in the case of AK Kraipak v Union of India. The Chief Inspector of Forest was one of
the candidates for selection on the Indian Forest Service's board for personnel selection.
However, some unsuccessful candidates believe the choice or decision made is unfair and unjust
because the decision-maker would probably be biassed if they were a chief who already held a
significant position. The existence of a relationship with a higher authority will lead the right-
minded person to believe that it is biassed in some way. The court decided that the selections
would be overturned because they were influenced by the bias of one person who had more
power than the others.

APPLICATION (4)

In this case, there was personal bias because a Disciplinary Commitwas tee chaired by Ahmad,
his Academic Adviser. Shahrul and Ahmad had not on the good terms with the weachaech other because
Ahmad accused Shahrul of stealing when Shahrul rented Ahmad’s house last year. This bias happens
when one of the panels of hearing has either a positive or negative relationship with the person being tried
either as a relative, friend, enemy, r, rival and so on. Because of the complainant, Shahrul was fine and
suspended for one semester. This case was the same as the case of Metropolitan Properties Co. v.
Lannon [1968] 3 All ER 304 when the chairman was the son of one of the tenants.

CONCLUSION (4)

As has been shown above, the decision made by Ahmad is void and can be challenged by
Shahrul where the personal bias itself towards him is contrary to the rules of natural justice.