QUESTION 1:

MAIN ISSUE:

Whether Melissa can take action against the Department’s Disciplinary Board on the
ground of violation of the rules of natural justice.

INTRODUCTION:

Natural justice is a procedure used to safeguard the citizen against improper exercise
of power by public authority with a fair administrative procedure to be followed by the
administrative body in arriving at the right decision. So basically, the public authority must
follow a fair and proper procedure to make a right decision. Natural justice is confined to the
idea of fair hearing procedure. There are two main point of natural justice which is a person
is entitled to a hearing and the hearing must be a fair hearing.

The objectives of natural justice are to allow the affected person to give his side of
the story which means that the affected person shall be given the right of fair hearing to
defend himself. Besides that, to enable the decision-making authority to determine a matter
on a more informed basis whereby the public authority cannot take action on his own. Other
than that, to secure justice, to ensure fairness and impartiality through governing the manner
of arriving at the decisions by the judicial process, to avoid any wrong conclusions, and to
promote confidence in the fairness of administrative process so that the public will believe
more on our legal system.

There are two components of natural justice. The first components are Audi Alteram
Partem or rule of fair hearing which means no one is to be condemned unheard. The second
components are Nemo Judex in Causa Sua or rule against bias which means that no one is to
be a judge in his own cause. Otherwise, any judgement given will be bias and conflict of
interest.

FIRST ISSUE: Inadequate notice

Notice is a vital requirement of the right of hearing. It must be given to a party

concerned before the proceeding. A person must know the charges that he has to answer,
and he should be informed of the nature and content of the material which is being
considered against him (Dixon v Commonwealth) [1981]. A notice is given to the person
so that he can prepared whatever necessary and relevant for his case. The particular stated in
the notice of proceeding should be adequate so that the affected person may be effectively
prepare their case and answer the case of the opponent, make their representation, and
appear at the hearing. Besides that, the sufficient notice should consist of an action against
the person and sufficient time to make his defence. In Mahadevan v Anandrajan [1947]
case, the Federal court observed that the rules of natural justice did not require that the
student should have been given adequate notice of his impending expulsion. What the rules
of natural justice required was that the nature of the accusations, as opposed to the
punishment which could be inflicted upon him if those acquisitions were proved to be true.

APPLICATION:

In Melissa’s case, she was asked to appear before the Department’s Disciplinary
Board to answer a disciplinary charge of professional misconduct whereby she was alleged
to have been involved in direct sale activities during office hours. The notice failed to
mention the details of the dates and times Melissa was doing the direct sale activities. Refer
to Mahadevan v Anandrajan and Perkayan OKS No 2 Sdn Bhd v Kelantan State
Economic Development Corporation, the natural justice requires that a person be given
adequate notice of the case against him clearly setting out the particulars of the alleged
offence so that he may have an opportunity of answering the same. Any proceeding taken
against a person without adequate notice to him infringes natural justice thus invalid.

SECOND ISSUE: The time permitted to answer the charge is insufficient and right to
adjournment

Sufficient time must be given to the concerned before hearing. The purpose is to give
reasonable opportunity to the affected person to prepare his defence adequately. It is
depending on the facts of each case. If a Statute has laid down a time limit, the Statutory
time limit applies. In the case of Phang Moh Sin v Commissioner of Police the court
found that the notice was insufficient as the inquiry officer informed the plaintiff of the
charge against him for the first time just before the commencement of the hearing and when
the plaintiff asked for an adjournment to prepare his defence it has been refused by
authority. The court held that will quashed the proceedings whereby the dismissal was
unlawful in term of insufficient notice of the charge against him and no opportunity to
defend himself.

APPLICATION:

In the case study, Melissa was only given notice of hearing three days before the
hearing. The notice is insufficient because she was not given sufficient time which is only
given three days and it not enough for her to prepare her defence and she also was not
allowed to postpone her case because has been rejected by the Disciplinary Board.
Therefore, the notice was invalid because Melissa’s has the right to prepared her defence
and appoint lawyer in order to have a fair hearing but been rejected by the Disciplinary
Board without any reason.

THIRD ISSUE - Disclosure of evidence to the affected person and past record as evidence

It is a duty imposed by the law on the Adjudicating Authority to disclose evidence to

be used against the affected person. The affected person must know what evidence, has been
given and what statements have been made affecting him. The purpose is to comment,
explain or rebut the matter. In case, Surinder Singh Kanda v The Government of The
Federation of Malaya, it was held that there was a breach of natural justice as a copy of the
report of the Board of Inquiry (contained grave allegation against Kanda) was given to the
adjudicating officer by the Commissioner of Police but not to Kanda. It was this report that
caused the Commissioner to institute disciplinary proceedings against Kanda and to appoint
a person to enquire into Kanda’s conduct and to report to him. He had no opportunity to
correct or contradict the report. It was held that Kanda’s dismissal was void because a
reasonable opportunity of being heard was not given to him. There was a breach of natural
justice because adjudicating officer was given the report containing allegations against SSK
without his knowledge.

APPLICATION:
 In Melissa’s case, there was a denial of natural justice when the evidence or
materials to be used against her specifically highlighted Melissa’s past service record and
referred it to several occasions a reprimand letter was issued to her for being absent without
leave before finally deciding her case whereby the administrative authority should not take
into account the past conduct or records of the affected person unless was informed about
the matters.

FOURTH ISSUE: Right of the affected person to cross-examine witnesses & to rebut the
case

Cross-examination can be used as means of securing information. The affected

person has the right to cross-examine the witnesses and to rebut the case. Cross-examination
needs to be allowed if its denial in all circumstances of the case would render the decision an
unfair one. However, this cross-examination can only be done during the oral hearing. There
are two objectives of cross-examination which is to draw out information concerning facts in
issue and to cast doubt upon accuracy of the evidence-in-chief given against the party
seeking cross-examination. In the case, Phang Moh shin v Commissioner of Police [1967]
2 MLJ 186 whereby Phang Moh shin was not given an opportunity to cross-examine all
prosecution witnesses and it amounts to denial of natural justice.

APPLICATION:

In this case study, Melissa has requested for the cross examination to cross-examine
a key member of the investigation committee to know the relevance of that report with the
charge but has been rejected without any reason. The cross-examine that has been requested
by Melissa was denial which can make the decision become unfair. Generally, Melissa has
the right to cross-examine the key member of the investigation committee and rebut her
case. In this case, the hearing was conducted orally, so she was supposed to be given the
right to cross examine the key member of the investigation committee to defend herself. For
example, in the case of Phang Moh Shin v Commissioner of Police [1967] 2 MLJ 186,
Phang Moh Shin was not given an opportunity to cross examine all prosecution witnesses
and it amounts to denial of natural justice.
CONCLUSION:

In conclusion, I would advise Melissa to take action against Department’s

Disciplinary Board on the ground of breach of natural justice on the grounds of inadequate
notice, time permitted to answer the charge is insufficient and right to adjournment,
disclosure of evidence to affected person and past record, right of the affected person to
cross-examine witnesses & to rebut the case as evidence.
QUESTION 2:

INTRODUCTION:

Subsidiary legislation means a legislation made by the Administrator in pursuance of

the power delegated to it by the legislature. In section 3 of the Interpretation Acts 1948
and 1967, Subsidiary Legislation can be defined as any proclamation, rule, regulation,
order, notification, by-law, or other lawful authority and having legislative effect. In section
25 Interpretation Acts, Subsidiary Legislation shall be deemed to be made under the Act
under which it has been made. The importance of Subsidiary Legislation is to ensure that the
government is able to function effectively and decided in the case of S Kulasingam & Anor
v Commissioner of Lands, Federal Territory & Ors [1982] 1 MLJ 204 where the Federal
Court held that “there is nothing to prevent Parliament from delegating power to legislate on
minor and administrative matters and for that very reason we have in addition to statutes
innumerable subordinate or Subsidiary Legislation having force of law. Without this
subordinate or Subsidiary Legislation, the Government machinery will not be able to
function effectively”. So basically, in this case the government is authorized to take the land
from the plaintiff. By the doctrine of ultra vires, any Subsidiary Legislation may be declared
void under following ground which is Procedural ultra vires, Substantive ultra vires, and
Extended ultra vires.

FIRST ISSUE:

Whether rule 1 is reasonable or not. The court can declare subsidiary legislation as
invalid on the ground of unreasonable. The principle of unreasonableness was stated in
Kruse v Johnson. The by-laws were unreasonable if they were found to be partial and
unequal in their operation as between classes, manifestly unjust, disclosed bad faith,
involved such oppressive or gratuitous interference with the rights of those subjects no
justification in the minds of reasonable man. In the case Arlidge v Islington Corporation, a
bye law made by the government requiring the landlord of a lodging house to clean the
house three times a year and imposed penalty for breach of by law was held to be invalid on
the ground of unreasonable as it imposed an absolute duty on every landlord to cause the
premises to be clean without regard to the position in which the landlord might be.

In this case study, Lakut Municipal Council has imposed rule 1 that all buildings in
Lakut town must be painted with Lakut corporate color that is brown whereby it is
unreasonable for the community to followed those rules as the rules were not published in
the Warta Kerajaan. Abu as the owner of the factory on his land at Lakut town has the right
to paint using other colors.

SECOND ISSUE:

Whether rule 2 declared invalid based on other ground of arbitrariness.

McEldowney v. Forde summarized that Subsidiary Legislation can be declared invalid on
the grounds of vagueness, ambiguity, arbitrariness, uncertainty, and bad faith . These may be
render as Subsidiary Legislation void either as a separate ground of invalidity or as an aspect
of unreasonableness.

In this case study, Lakut Municipal Council has imposed rule 2 which is future
planning approval would only be granted for the construction of business centres. They
should not arbitrarily make such decisions by enforcing rules that go beyond the limits,
beyond the power and has no right to do so.

THIRD ISSUE:

Whether the Subsidiary Legislation inconsistent with parent act be declared

void under doctrine of substantive ultra vires. Substantive ultra vires refers to the scope,
extend and range of power conferred by the statute to make Subsidiary Legislation. Doctrine
of Substantive Ultra vires is based on the principle that the legislative power belongs to the
parliament. No other bodies or agencies have the power to legislate unless if it is conferred
by Parliament to do so. In a simple word, subsidiary legislation must be reading the scope
given by the parliament. By the doctrine of substantive ultra vires, any Subsidiary
Legislation may be declared void under three ground which is Parents Act Unconstitutional,
Subsidiary Legislation Unconstitutional and Subsidiary Legislation is inconsistent with the
Parent Act. Any Subsidiary Legislation which is inconsistent with an Act of Parliament
(including an Act under which the Subsidiary Legislation is made) shall be void to the extent
of inconsistency under Section 23(1). Under Section 87(d), no Subsidiary Legislation made
under any Act of Parliament shall be inconsistent with any Act of Parliament and no
Subsidiary Legislation made under a State Enactment shall be inconsistent with any Act of
Parliament or State Enactment. So basically, Subsidiary Legislation made in consistent with
the Parents act will be considered as void and not valid. For example, in the case Ghazali v
PP. Where the applicant’s license was revoked because he allowed a Chinese man to drive
his taxi. The court held that Board acted Ultra Vires in imposing the said condition as it has
no power to do so.

In the cases study, Rule 3 stated that in approving any development, priority will be
given to applications made by Bumiputera developers which means that Non Bumiputera
will not get to make any development, so it was not inconsistent with the parent act.

FOURTH ISSUE:

Whether the Subsidiary Legislation be declared void under doctrine of

Extended ultra vires on the ground of exclusion of courts’ power. Subsidiary Legislation
cannot exclude the jurisdiction of the courts unless it is clearly worded in the statue. There
also should not be any provision in the Subsidiary Legislation which stop the citizen from
coming to the court to settle their dispute. In the case of Chester v Bateson, fact of the
case, under the regulation the property owners are prohibited to eject tenants from their
house if they were employed in work connected with their war material and to bring this
matter to court without the consent of the minister. The court decided that the regulation that
forbid the property owner from having access to court without the consent of minister was
invalid.

In the case study, in Rule 4 it was stated that the decision of the Municipal Council
in approving any development may not be questioned in any court and supposedly the
Municipal Council has no right to do so because Abu and other developer has the right to
bring this case to the court. So, in this case, it was invalid because exclusion to access of
court only can be imposed by direct enactment of legislation not the Municipal council. The
Municipal Council has no right at all to do so.
CONCLUSION:

In conclusion, Abu can challenge the validity of the rules made by the Lakut
Municipal Council by the doctrine of ultra vires on the grounds of unreasonableness, other
ground, substantive ultra vires inconsistent with parent act and exclusion of courts’ power.