QUESTION ONE
Qisya, a final-year law student, received a letter from her university to attend a disciplinary
proceeding to answer a charge for posting seditious contents on Facebook about their Vice-
Chancellor. Qisya requested for details from the University’s clerk to identify which
posts were considered seditious. The clerk’s reply was that she should know since
she was the one posting the contents. 1.
On the day of the proceeding, the Disciplinary Board also mentioned that she has to
answer another charge regarding her involvement with the Communist Party of
Malaya. Qisya insisted that the proceeding be postponed as she was not informed of
this charge and was not able to prepare her defence. The University Disciplinary Board
rejected her request giving the covid-19 pandemic and the Movement Controlled Order as
their excuses for not being able to postpone it.
Qisya’s request to cross-examine the University’s witnesses was also rejected as it
was nearly 5 p.m. and the office would be closed soon. 4.
At the end of the proceeding, Qisya was found guilty of both charges and suspended from
her studies. She is terribly dissatisfied with the decision as she knows that she had been
refrained of her legal rights.
Advise Qisya.
INTRODUCTION:
Principle of Natural justice:
Natural justice is a procedural safeguard against improper exercise of power by a
public body where concern given to the affected person the right to defence himself.
The minimum standard required by law for administrators to fulfil before making their
decisions.
It will be a judicial review by superior court usually the High Court, on the decision
made by the administrators.
ISSUE:
Whether Qisya may challenge the decision made by University Disciplinary Board?
RULE OF LAW:
1. Non-disclosure of information and evidence:
All information, evidences or materials to be used in the hearing by the panel must be
disclosed to the accused.
The panel of hearing cannot make a decision that is merely based on the documents
which are not relevant to the hearing or not disclosed to the accused beforehand,
that contents element of surprise in the hearing.
In the case of Subry Hamid v. Husaini, the plaintiff, Lance Corporal of the Royal
Malaysian Police Force, appealed to the Court of Appeal, argued that he did not
know that the Disciplinary Committee had made its past record of the decision. The
court ruled that the appeal was permitted and that the dismissal was invalid.
2. Insufficient time
The accused has the right to have sufficient time in order to prepare his/her defence
and answer the case during a hearing.
If the accused is given insufficient time, the decision made by the panel of a hearing
may be invalid due to infringes the principle of natural justice.
The more serious the case, the more time should be given to accused.
In the case of Phang Moh Shin v. Commissioner of Police, the plaintiff has been
accused of corruption. He was informed of the charge against him just before the
hearing began. The plaintiff requested a postponement in order to prepare his
defence but was refused. He was dismissed after the trial and later brought the case
to the court to challenge his dismissal.
3. Cross examining the witness
The authority should give the accused an opportunity to rebut the material against
him by cross examining the administrator’s witness.
Otherwise, any decision made by the panel is void.
In the case of Ceylon University v. Fernando, the respondent challenged the
decision of the University against him, arguing that he had not been given the
opportunity to cross-examine those testified against him. The court held that it could
not propose it as such because it did not ask the university to cross-examine the
witnesses. The fact that the University failed to provide unsolicited witnesses could
not be regarded as a breach of natural justice.
This ground is not compulsory for the quasi judicial proceeding unless it is serious
matter.
APPLICATION:
By applying the case of Subry Hamid v. Husaini, the case was similar to Qisya’s
situation as she may challenges the decision made by University Disciplinary Board.
It is because, Qisya requested for details from the University’s clerk to identify which
posts were considered seditious contents on Facebook about their Vice-Chancellor.
However, the clerk’s reply that Qisya is the one who should know since she was the
one posting the contents. It can be seen that it was not relevant to the hearing
because the panel need to disclosed to the accused beforehand. Thus, the decision
made by University Disciplinary Board may be invalid due to non-disclosure of
information and evidence.
By applying the case of Phang Moh Shin v. Commissioner of Police, the case was
similar to Qisya’s situation as she may challenges the decision made by University
Disciplinary Board. It is because, on the day of the proceeding, Qisya not aware that
the Disciplinary Board was mentioned that she has to answer another charge
regarding her involvement with the Communist Party of Malaya. She insisted that the
proceedings need to be postponed but it has been rejected by the Board. Qisya did
not gain her right in having sufficient time to prepare her defence and answer the
case during the hearing since the Board giving the covid-19 pandemic and the
Movement Controlled Order as their excuses for not being able to postpone it. Thus,
the decision made by University Disciplinary Board may be invalid due to insufficient
time.
By applying the case of Ceylon University v. Fernando, Qisya may be not
challenges the decision where his request to cross-examine the University’s
witnesses and also was rejected as it was nearly 5 p.m. which the office would be
closed soon. The fact that Qisya failed to tender the witnesses unasked could not be
regarded as a breach of natural justice. This is because it is not compulsory for the
quasi judicial proceeding unless the case is serious matter. So, it led to no violation
against the Rules of Natural Justice.
CONCLUSION:
Yes, Qisya may challenge the decision made by University Disciplinary Board under
Rule of Natural Justice.
Under Section 6 of the Mobile Food Truck Act 2020 (Fictitious), the Mobile Food Truck
Committee for every local authority is given discretionary power to regulate and administer
matters pertaining to issuing, renewal and revoking permits for a mobile food truck in their
vicinity. Section 6(3) of the Act further provides that in granting the permits, the Committee
may impose such reasonable conditions as it deems necessary to protect the public health,
safety and general welfare from excessive noises, traffic, unhealthy odours and any
detrimental effects.
Jimmy, a young entrepreneur, decided to start his mobile food truck business in the
Seri Aman City Council vicinity. He applied for a permit from the Mobile Food Truck
Committee of Seri Aman City Council (the Committee). However, the Committee
rejected his application after considering Jimmy’s plan to serve western foods. The
Committee has imposed a condition that the mobile food truck trader should only
serve the traditional foods.
Kamal made an application to the Committee to renew his food truck permit as it is about to
expire in 5 days. However, the Committee had imposed a condition that Kamal must
paint his food truck red before the renewal is approved.
Ah Kiong, operated his mobile food truck in the vicinity for almost two years. Last week he
received a letter from the Committee revoking his permit. He was informed that the
revocation order came from the Yang Dipertua Seri Aman City Council after receiving
many complaints about the unhealthy odours that came from his food truck.
Jimmy, Kamal and Ah Kiong were not satisfied with the Committee’s decisions. They wished
to challenge the decisions. Advise them.
INTRODUCTION:
A discretionary power can be defined as a power, which is exercisable in its
discretion by the concerned authority.
An official of whom discretionary power is vested has a range of options at his
disposal and he exercised a measure of personal judgement in making the choice.
The officer has power to make choices between various courses of action.
The discretionary nature of power is denoted by the use of such expressions as if it is
necessary, if it is reasonable, if it is satisfied and if it of the opinion to do so.
ISSUE:
Whether Jimmy, Kamal and Ah Kiong can challenged the decision made by Committee of
Seri Aman City Council?
RULE OF LAW:
1. Substantive ultra vires
In exercising their discretion, an authority must not exceed the power granted by the
parent statue. Authority must confine itself within the ambit and scope of and not
exceed the powers conferred by the law. If the authority moves out of the bounds laid
down by the parent statue, a decision is ultra vires and invalid.
In the case of Fadzil B. Mohammed Noor v UTM, the university authority may act
only in accordance with the powers conferred on it by law. The decision taken is ultra
vires, as it goes beyond the limits prescribed by the statue.
2. Unreasonableness.
The unreasonableness test is not what the court believes is "reasonable” or
“unreasonable", but there is something so irrational that it is inconsistent with
reason or logic or opinion that this decision might not have been made by any
fair or logical individual.
In the case of Backhouse v Lambeth London Borough Council, In fact, the
act of authority increasing rent charges from 17 pounds to 18,000 pounds per
week was unreasonable. The decision is therefore invalid.
3. Acting Under Dictation
It is a situation where a decision-making body improperly allows itself to be directed
by another person or body when making a decision. It is said that the decision taken
by the authority is made through the influence of another party or when another party
directly takes a decision.
In the case of P. Patto v Chief Police of Perak, in fact, when the Chief Police Officer
denied his application for a license to host a solidarity dinner and lion dance, the
plaintiff brought the case before the court. The request was made by OCPD, which
then forwarded the request to CPO without dealing with the request itself. The court
held that the denial was unconstitutional because the legislation made it worse for
OCPD to issue the license and if the OCPD chose not to grant the license, CPO was
the appeal authority.
APPLICATION
By applying the case of Fadzil B. Mohammed Noor v UTM, the case was similar to
Jimmy’s situation as he may challenged the decision made by Committee of Seri
Aman City Council. It is because his application for the permits has been rejected by
the Committee due to his plan to serve western foods. The Committee’d decision
was believe to acted beyond the power given to imposed a condition that the mobile
food truck trader should only serve the traditional foods, whereby they only given
discretionary power to regulate and administer matters pertaining to issuing, renewal
and revoking permits for a mobile food truck in their vicinity according to Section 6 of
the Mobile Food Truck Act 2020. The Committee must confine himself within the
ambit and scope which not exceed the powers given by the Parent Act. Hence, the
decision made by Committee of Seri Aman City Council may be invalid due to
substantive ultra vires.
By applying the case of Backhouse v Lambeth London Borough Council, the
case was similar to Kamal’s situation as he may challenges the decision made by
Committee of Seri Aman City Council. It is because, Kamal made a request to the
Committee that his food truck permit be extended as it is about to expire in 5 days.
The Committee, however, put a condition on Kamal to paint his food truck red before
approving the renewal. The decision is said to be inconsistent with logic that no
sensible person could have come to that decision as a condition to paint food truck
before process of renewal. Hence, the decision made by Committee of Seri Aman
City Council may be invalid due to unreasonableness.
By applying the case of P. Patto v Chief Police of Perak, the case was similar to Ah
Kiong’s situation as he may challenges the decision made by Committee of Seri
Aman City Council. It is because he received a letter from the Committee last week
which revoked his permit. He was informed that the order of revocation had come
from the Yang Dipertua Seri Aman City Council, after receiving a lot of complaints
about the odors of his food truck. This situation define that Committee improperly
allows himself to decide something because of influence of public that allow himself
to decide on behalf another party in making a decision. Thus, Committee, in whom
the law confides the discretion, must function himself and exercise his own power
without decide on other behalf. Hence, the decision made by Committee of Seri
Aman City Council may be invalid due to acting under dictation.
CONCLUSION
Yes, Jimmy, Kamal and Ah Kiong may challenged the decision made by Committee of Seri
Aman City Council.
