ADMINISTRATIVE LAW

(LAW506)

ASSIGNMENT 1

PREPARED BY:
AMIR ZAHIN BIN AZHAM
2016769285

FOR:
PROFESSOR ROHANI BT SAHAK
ASSIGNMENT 1

Nora works as a lecturer at the Selangor Government University. In her leisure time, she had
been actively involved in the theatre activities. During her performance held on 3rd July 2019
at the Budaya Baru theatre, she was dressed in such a way that had been regarded as
obscene and in breach of the rules of proper dressing according to the University dress
code.

Nora was given a 24-hour notice to attend a disciplinary proceeding held by the university.
Disciplinary Board scheduled on the 1st August 2019. No clear charge was stated in the
notice for the proceeding. Even though she was unclear of the real reasons for the
proceedings, she attended the proceeding as scheduled.

During the proceeding, the charges were orally read to her as follows:

a) Conduct unbecoming of the lecturer of the University

b) Being improperly dressed while acting on stage; and

c) Performing in the theatre activity without the university’s permission.

Nora requested for the postponement of the proceedings for her to produce witnesses to
rebut the allegations made against her and to engage a counsel to assist her in the
proceedings.

Nevertheless, her request was strongly objected by Jalil, who is one of the members in the
Disciplinary Board- Jalil too was the person who lodged the report to the University Board
complaining on the improper dress attire worn by Nora during her performance on 3 rd July
2019.

Since the objection raised by Jalil was accepted by the board, the proceedings continued. At
the end of the proceeding, Nora was suspended for three years from the date of the
proceedings. Nora was not satisfied with the University Disciplinary Board and would like to
challenge the decision. Nora’s request to the board to produce the reports and findings of
the investigation was rejected on the grounds of private and confidential.

In the light of the facts above, advise Nora.

20 marks
 The issue here is whether Nora was given proper notice to the hearing of her
misconduct.

Before adjudicatory proceedings are underway, the party concerned should be given
notice of the case against him or her. The right of hearing becomes illusory if a party has no
knowledge of the allegations to meet. A notice must inform the individual of the issues
involved. In R v Paddington, the tribunal’s decision was quashed because it was held that it
was wrong for it to take into account a matter which no notice had been given to the landlord
and who had no opportunity of dealing with it.

In order for a notice to bear meaning, it should state the grounds on which action is
proposed to be taken in clear, specific and unambiguous terms. In Perkayuan OKS No 2 v
Kelantan State Economic Development Corp, it was held that if a notice is unspecific,
ambiguous and vague, it will be rendered inadequate.

The notice must give a reasonable opportunity to comply with its requirements.
Sufficient time must be given to the concerned person to prepare a defence and file
objections. In Phang Moh Shin v Commissioner of Police, the plaintiff was informed of the
charge against him immediately before the hearing began. 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.

In Nora’s case, she was only given a 24 hour notice which is very insufficient time for
her to respond to any allegations made against her. She does not have reasonable
opportunity to prepare any counter arguments and evidence to support her innocence. Her
notice also does not state the issues on why she was called upon. It was only informed to
her orally during the proceeding. Therefore the notice is not clear and unambiguous.

The second issue is whether Nora was given opportunity to defend herself.

In Ridge v Baldwin Lord Morris emphasised that before someone is condemned,

that person must be given an opportunity to defend his own self. An adjudicatory body
should not make a decision against a party without affording that party an effective
opportunity of adequately meeting the allegations against him and of presenting his own
case.

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. It is necessary that the authority should not rely on
any material against a person without informing him of it. -If, without disclosing any evidence
to the party, the authority takes materials into consideration, and decides the matter against
the party, the decision would be vitiated, as it amounts to a denial of a real and effective
opportunity to the party to meet the case against him. Lord Denning in B Surinder Singh
Kanda v The Government of the Federation of Malaya states that the wronged party
"must know what evidence have 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.

The duty to provide a reasoned decision acts as a safeguard against arbitrary and
unfair decisions. The opinion of the British Courts is that natural justice does not oblige
tribunals to give reasons for their decisions. However, exceptions have been formed, thus
imposing an obligation on adjudicatory bodies to provide reasons under certain
circumstances such as when a person’s right of appeal would be frustrated in the absence
reasons given by the concerned body, where there may exist a legitimate expectation that
the deciding authority will give reasons for its decisions, where reasons ought to be given
when the decision adversely affects a vital interest and where reasons should be given
when a decision appears to be irrational on its face. In Rohana Ariffin v University Sains
Malaysia, it was held that 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.

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. Refusal to
receive evidence of the affected person amounts to a breach of natural justice. In the case of
Malayawata Steel v Union of Malayawata Steel Workers, 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.

In Nora’s case, she was denied to obtain the reports and findings of the investigation.
This is against the principles laid out in B Surinder Singh Kanda v The Government of the
Federation of Malaya. She was also not given the reason for the decision of her suspension
which is against what is held in Rohana Ariffin v University Sains Malaysia. By refusing to
postpone the hearing, the board refuses Nora the oppostunity produce evidence to support
their case and to rebut evidence against them. This is against the principles laid down in
Malayawata Steel v Union of Malayawata Steel Workers.
 The third issue is whether Nora was given a fair trial.

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. Nemo judex in
sua causa which means no person shall be a judge in their own cause. In 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. Even
a small pecuniary interest may disqualify a person from adjudicating upon a controversy.
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 states that the nature of the interest is such that public confidence in the
administration of justice requires that the decision should not stand.

In Nora’s case, Jalil was a member of the Disciplinary Board that hears Nora’s
proceeding. Being the one who actually lodged the report against Nora, Jalil should not have
taken part in deciding whether Nora must be suspended as this robs Nora of the opportunity
to have a fair trial.

In conclusion, Nora was not given sufficient information in her notice. The notice was
also given Nora an unreasonable time before the hearing to prepare her defence. With the
lack of information regarding the grounds for her disciplinary hearing and also the lack of
time to prepare, it was impossible for Nora to defend herself against the allegation. Nora was
also wrongfully denied to obtain the report for the decision of her suspension. Nora was also
given an unfair trial as Jalil, the one who reported her, was also on the Disciplinary Board
that decides her suspension. Nora may take action against the Disciplinary Board.