Natural Justice in Malaysia
Natural justice is a very crucial principle that must be observed and applied in any organized and civilized legal system including Malaysia. The extents of case-law in Malaysia regarding the rights of hearing are still general, broad and loose. This is because it is a procedural safeguard against improper exercise of power by a public authority in a democratic system. Under the principles of natural justice a person having a charge against him or her, either criminal or disciplinary, can claim the right of fair hearing as stipulated in the case of Local Government Board v Arlidge, whereby the judge observed that before a tribunal can make a decision, the rule of audi alteram partem must be considered. Further, in the process of a hearing, safeguard against bias of the presiding tribunal is provided. However, there are variations with regard to the extent of the observation of this principle by the institutions. Hence, the variation of these guidelines and procedures both in terms of their forms and implementation, can be a source of violations of natural justice as there is no fixed formal standard against which they can be measured. The principles underlying this rule accommodate fewer safeguards for justice. Thus when a tribunal fails to consider them, a decision shall fall.
A significant case on the right to a hearing is upheld by the decision of the Federal Court in Ketua Pengarah Kastam v Ho Kwan Seng. This case can be regarded as a landmark case in Malaysian Administrative Law. The question that arose in this particular case was that whether the cancellation of the forwarding agency's registration is a quasi-judicial act that natural justice will become applicable? Natural Justice did not apply according to the decision of the High Court but the Federal Court then overruled the decision and upheld that natural justice was applicable for the matter of cancellation of the agency despite the fact that there is no provision governed in the statute. The court emphasized that the rule requiring a fair hearing is very crucial because it can be used to display the whole idea of an administrative procedural rights in accordance with the famous landmark case of Ridge v Baldwin. Court also cited the relevant principles stating that the rule of natural justice must be that no man shall be condemned unheard. This should apply to case where an individual is adversely affected by an administrative action be it 'judicial', 'quasi-judicial' or 'administrative' or whether or not the existing statute provide provision for hearing.
However so, it is still observed that this principle carries a wide or broad principle regarding the application of natural justice to administrative proceedings. Expression like 'every case' which are used in a judgment appears to make the right of a hearing as a principle of a universal application in administrative proceedings affecting an individual either in adverse or in potential. Yet, this is still viewed as too broad prima facie because there may be circumstances when the courts feel hearing is not necessary even though a person may be affected by an administrative action. This are specified when some action has to be made in an emergency such that a hearing may be excluded when it would obstruct prompt action, especially action of a preventive or remedial type. For example, circumstances of summary action for public security or public order maintenance, detention of security suspects during wartime or infringement with property rights for interest of public health and safety. There are rare or exceptional cases whereby court may hold natural justice if it is not called for.
In the case of Nakkuda Ali v Jayaratne, for matter involving cancellation of licences, the Federal Court decided that hearing should be improper when a privilege is withdrawn. The Federal Court view in this case has leaved a deep and significant impact on the development of the right to a hearing in Malaysian Administrative Law and also has widely expanded the spectrum of natural justice. Now, the well established rule is that before a licence is cancelled, it should be given a hearing. Besides that, as stipulated in the case of Malloch v Aberdeen Corporation, the words 'without assigning any reason' do not exclude a hearing.
Apart from that, in matters pertaining to dismissal of employment, it is proper to refer to the case of Fadzil bin Mohamed Noor v Universiti Teknologi Malaysia. In that case, the fact was that the University dismissed an assistant lecturer on the ground of absence without leave, the lecturer was dissatisfied and challenged his dismissal. The application succeeded in appeal to the Federal Court where Raja Azlan Shah CJ referred to the prior case of Ridge v Baldwin stating that, in a pure master and servant case, dismissal was governed by the law of contract and therefore no right to a hearing shall be given. In other words, the principles of administrative law including natural justice have no part to play for a pure master-servant case. Therefore, in this case, the University must follow natural justice before dismissing a member of its own academic staff. The same proposition would seem to apply in regards to dismissal of a worker by any other statutory body.
In another matter, it has been judicially ruled that the function of the Minister referring an industrial dispute to the Industrial Court for adjudication is administrative in nature. This means that it is not required for the Minister to give hearing to the parties concerned before deciding whether or not to address an industrial dispute to the Industrial Court for adjudication. For example in the case of Merdeka University Bhd v Government of Malaysia, court established that an administrative authority must act not only reasonably but also fairly. It was held that the government of Malaysia's refusal for a dialogue as requested by the plaintiff did not amount to acting unjustly because all relevant materials were before the Minister to enable him to obtain a fair and reasonable decision. There are two steps in making of an order. In the light of Section 2(1) of the Restricted Residence Act 1933, Minister can make an order for detention or arrest to the person concerned after making inquiry which may be deemed necessary. An order may be made if the Minister thinks that there are reasonable grounds to believe that any person is required to reside in any particular country, but the right to be heard is invisible in this stage. Under Section 2(2) of the same Act, order for restricted residence is the second stage that comes after the detention. If it is deemed necessary by the Minister to make further inquiry, he may do so as provided by the provision.
The court held that at this second stage the concerned person shall be given a right to be heard as illustrated in the case of Cheow Siong Chin v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia. In determining this right, the court looks into the language of Article 5(1) stating that no person shall be deprived of their personal liberty save in accordance with the law. Article 160 of the Federal Constitution defined 'Law' as including 'the common law in so far as it is in operation in the Federation. Therefore, the court in its judgment said that the right to be heard is a principle of common law and the virtue of Section 5(1) clearly upholds the concept of audi alteram partem that no one should be condemned unheard. Nonetheless, there is misunderstanding of the concept of natural justice in the case of Andrew v Superintendent of Pudu Prison Kuala Lumpur. The court in that case ruled that the appellant are denied of his right to be heard implied or otherwise before the order of detention was issued but it was held in several cases that natural justice can be implied even if a statute is silent unless it is clearly excluded expressly or impliedly.
Next, in matters pertaining to any acquisition of land by the Malaysian Government must be in accordance with the Land Acquisition Act 1960. By virtue of Section 12 of the said Act, the Land Administrator must make a full inquiry into the value of land acquired but it is silent on the right of hearing for the person whose land is proposed to be acquired. The judgment in Kam Gin Paik v Pemungut Hasil Tanah, Daerah Barat Daya Penang, seems to accept indirectly that a landowner whose land is being acquired has a right to be heard. This simply means that the respondent may give material or any relevant fact to the matter in question and the Administrator is bound to consider all those materials to assess compensation. In addressing the similar scope of law, question arose as to whether a landowner can claim any right to raise objections to the proposed acquisition of his property under the Land Acquisition Act 1960. The answer is again vague as there is no definite provision to assist this issue. Therefore, any pre-acquisition hearing could be derived only from general principles of law such as the concept of natural justice or Article 13 of the Federal Constitution. The right of hearing specifically on matters of compensation as provided under Land Acquisition Act 1960 is not sufficient according to the case of S Kulasingam v Commissioner of Lands, Federal Territory.
Furthermore, there are doctrine of 'legitimate expectation' that has been applied in the case such as Berthelsen v Director General of Immigration and also recently used in several more cases in answering the right of hearing to an affected person. The doctrine of legitimate expectation belongs to the domain of public law and is intended to give relief to the people when they are not able to justify their claims on the basis of law in the strict sense of the term though they had suffered a civil consequence because their legitimate expectation had been violated. To illustrate this doctrine, it is proper to refer to the case of Lee Freddie v Majlis Perbandaran Petaling Jaya (MPPJ). In this case, there was an empty area of land in a residential area which the residents have been enjoying as recreational area for years. Without consulting the residents, the MPPJ granted permission for a construction of multi-storeyed building. Court in this case held that the residents have a legitimate expectation to be notified of the construction and to have their objections heard by the MPPJ before permission was granted.
Similarly, the concept of natural justice is applicable to certain aspects of the relationship between a society and its members. There are conditions in which natural justice may take place in this kind of relationship provided that the committee of the club must not be biased in deciding the suspension of a member for misconduct, that the member must be informed of his alleged wrong and that he must be given an opportunity to be heard in defence. However, this is subjected to the rule of the club itself, whether or not it gives unfettered power to the court. If the rules of a club excluded natural justice when taking a disciplinary action against its members, court will have absolute power to render the rules invalid on the grounds of breach of public policy. This intention of the court may be viewed as expanding the scope of natural justice rather than confining it.
In order to expel or suspend a member of a trade union, a political party or a private sector employee on the grounds of misconduct, natural justice is also required in such circumstances. But, it must be noted that 'the rules of natural justice vary in content and ambit according to the circumstances and context' as pointed out in the case of Abdul Salam bin Husin v Majlis Angkatan Tentera. For any cases submitted, it is crucial to prove clearly that the right of hearing has been deprived in order to uphold natural justice. Again, it is reminded constantly by the judges in many cases that the function of 'the rules of natural justice is basically to ensure fairness and impartiality'.
