Rape is the act of a man forcing a woman to have sexual intercourse with him, against her will. In the minds of the public, rape is also associated with violence, fear and intimidation[1]. Sexual intercourse according to Halsbury's Law of Malaysia is penetration of penis into the vagina. A slight penetration is also considered as rape. In the case of R v. Miller which the late Prof. Ahmad Ibrahim extracted the definition of rape as unlawful carnal knowledge of a woman without her consent by force, fear or fraud[2]. According to section 375 of the penal code, a man is said to commit rape when he has sexual intercourse with a women against the woman's will, without her consent, misconception and having sexual intercourse with a woman under 16 years old. [3] In order to establish the offence of rape, there are two elements that should be established; actus reus and mens rea. Actus reus in rape under explanation in section 375 of the penal code is penetration. However, just because a women is not bruised, bleeding and terribly distressed does not mean she has not been raped. The law says that " in proving a charge of rape it is not necessary to prove that what might otherwise appear to have been consent was in reality merely a submission induced by force, the fear of force or fraud, but merely that the victim did not consent." There does not have to be violence, merely lack of consent or recklessness on the part of the rapist as to whether the woman consented or not[4]. The question now that should be look at is whether the sexual intercourse or penetration in the offence of rape should be amended to reflect the various offences now occurring that invade a woman's modesty. After further analyzing and reading at certain cases and other law sources, we completely disagree that the actus reus in the offence of rape should be amended. The arguments are presented as follow. There are various offences that can invade a woman's modesty. There are sexual assault, attempt to do unlawful intercourse, flashing and other unlawful or illicit intercourse which are against the order of nature. Different offences have different actus reus. In the offence of rape under section 375, the actus reus is only sexual intercourse and no other. The question then will arise is whether the actus reus is sufficient enough. One can argue that even though without penetration, a woman can suffer mentally impact as same as other woman that had been raped. Like say, if a man tried to rape a woman and had fulfill all the elements in rape except the actus reus that is sexual intercourse, he should not be liable for the offence of rape. This man may act violently against the woman and against her modesty but his act is not rape. Although it seems that this section is against the right of a woman, to amend the actus reus in the offence of rape may actually cause overlapping with other sexual offences that are provided in the penal code. In the offence of sexual offences stated in section 354 of the penal code, any assault or criminal force to a person with intent to outrage modesty, shall be punished with imprisonment for a term which may extent to 10 years, or with fine, or whipping, or with any two or such punishments. In order to establish the sexual assault, the actus reus of the act is that there must be physical gesture which may cause the victim to feel reasonable apprehension that sexual offence will be committed, this was well mentioned in the case of Public Prosecutor v. Basar[5]. If the scope of section 375 is widen and include sexual assault as amounting to rape, then it would be difficult for the court to assess the offence committed. In Section 366, the act of kidnapping or abducting a woman in order that she may be forced or seduced to illicit intercourse has covered the actus reus which will invade a women modesty. In the case of Lim Baba v Public Prosecutor[6], the appellant was convicted under section 366 for abducting a woman to have illicit intercourse. This section has definitely covered the act of kidnapping or abducting woman which will lead to outraging the modesty of women. Section 511 has also covered punishment for any attempt to rape, therefore if any amendment to be made to section 375 then it will contradict with section 511.This is well covered in the case of Public Prosecutor. v. Zainal Abidin Bin Ismail & Ors[7] ,which illustrated the offence of attempt to rape where the learned judge stated that the acts which he took preparatory to the offence, namely by lying on top of the girl,with his expressed intention of having inter course are sufficient in law to constitute an attempt to rape[8]. By the virtue Section 509 of Penal Code, it is stated whoever, intending to insult the modesty of the woman by words, gesture or exhibit any objects shall be punished with imprisonment for the term which may extend to five years or fine or both. This section has already covered any acts done which intending to insult the modesty of any woman, thus justify the arguments we laid above.
As a conclusion, it can be concluded that section 375 should not be amended as it will overlapped with other section. Furthermore if other offence is inserted in the same category of rape, it will be difficult or the court to asses the offences thus will prejudiced the disputing parties and the system of justice. [1] George P Raven, The Criminologist, 1993 pg 66. [2] [1986] 2 MLJ lv. [3] See Mohd Majid (1977) 1 MLJ 121 [4] George P Raven, The Criminologist, pg 68. [5] [1965] 1 MLJ 75 [6] [1962] 1 MLJ 201 [7] [1987] 2 MLJ 741 [8] Ibid, p. 748 -ahmadgeronimo-
APPLICATION OF THE NATURAL JUSTICE PRINCIPLES INSTUDENT'S TRIBUNALS IN MALAYSIA
- SERIES 2 -
The Tribunal
Traditionally, disputes between individuals or between the state and the individual belong to courts. For this purpose, there exists a well-regulated hierarchical judicial system. Today, the courts have lost their monopoly of adjudicating as they are sharing it with administrative bodies. This can be seen when a number of bodies, which includes tribunals, have been established outside the judicial system to decide on the questions of fact as well as law. They determine various claims, controversies and disputes. The basic reason for the emergence of these tribunals is an expansion in the functions and responsibilities of administration. As tribunals are clearly judicial in nature, their crucial function is to find the facts and to apply the law in the resolution of disputes. According to M.P. Jain, a tribunal is a body set up by legislation to adjudicate upon disputes in a specific area and which enjoys a degree of autonomy. Furthermore, tribunals are effectively an alternative procedure to the court system for enforcement of legal rights. Normally, tribunals are constituted by an Act of Parliament. However, sometimes the power to constitute a tribunal may be delegated by the Act to a minister. However, in such cases the Act will make it clear that a tribunal is intended. From the definition given, one can find that a tribunal is an important mode in settling disputes outside the court system and such a tribunal seems to be the best form for handling disputes outside the court system. This is because enforcement of one’s rights through the court is expensive, time consuming, formal and for many ordinary people, stressful. In other words, tribunals enable an ordinary man to obtain a cheap, fair and impartial hearing when he is affected by administrative action. There are various types of tribunals, such as Medical Appeal Tribunals, Mental Health Review Tribunals, Pensions Appeal Tribunals and Rent Tribunals. Tribunals enjoy some element of separation and independence from the administration and come very near the model of a court. It means that tribunals exercise an independent jurisdiction as they decide particular cases by applying rules and regulations and sometimes by using their own discretion. This is to ensure that they are in no way subject to administrative interference as to how they decide any particular case. A tribunal has also emerged as a control mechanism over the administration. Therefore, it is fundamental that the members of tribunals are independent persons and not civil servants. Furthermore, the decisions of most tribunals are in truth judicial rather than administrative. This means that they have to find the facts and then apply the legal rules to them in an impartial way. In reviewing the operation of tribunals, the Committee on Administrative and Enquiries (the Franks Committee) 1957 recommended that their operation should be based upon principles of openness, fairness and impartiality. These principles were to be achieved by, inter alia, tribunal hearings being held normally in public, allowing legal representation, requiring that decisions be reasoned and given in writing and providing rights of appeal. These recommendations are made because it is crucial that tribunals act according to the principles of natural justice. Although tribunals seem to have the advantage of settling disputes outside the court system, there are also some disadvantages in the tribunal system. In few tribunals, legal representation is not permitted. Besides that, sometimes there is no right of appeal. The reason behind this is that procedural rules for tribunals vary according to the nature of the tribunal. The procedure to be followed will be contained within the relevant statute or regulations made under the statute. However, a person appearing before the tribunal may seek judicial review on the grounds of error of law, violation of the principles of natural justice or excess of jurisdiction. The denial of natural justice in tribunal proceedings can arise when there is a failure to observe any of its rules or principles. Hence in the case of Malloch v. Aberdeen Corp, the court decided that a failure to observe the rules of natural justice would invalidate any administrative action or proceeding taken thereunder. This case shows that it is vital for the principles of natural justice to be applied in arriving at any decisions either in courts or tribunals. As has been put forward by Lord Denning in the case of Pett v. Greyhound Racing Association Ltd., "when a man's reputation or livelihood is at stake, he not only has a right to speak with his own mouth but also has a right to speak by counsel or solicitor." This view is further supported by M.P. Jain when he opines that the denial of legal representation may amount to the denial of natural justice. In Malaysia, the court had the opportunity to consider this issue in the case of Doresamy v. Public Services Commission where the question on the right to legal representation was indirectly raised. The decision in this case was that since the rules did not specifically prohibit a person's right to legal representation, the appellant was entitled to submit his appeal through his solicitor. In specific, reference to the first principles of natural justice, audi alteram partem, in Great Eastern Life Assurance Bhd. v. Kesatuan Sekerja Kebangsaan Pekerja-Pekerja Perdagangan, the Industrial Court has recognized the employee's right to be heard before his dismissal by stipulating the rule that the accused must be given sufficient opportunity not only to know the case against him but also to answer it. Moreover, just like the Courts of Law, tribunals should also make a decision in good faith. It was decided in the case of Anisminic Ltd. v. Foreign Compensation Commission that a tribunal could commit a jurisdictional error by giving a decision in bad faith, making a decision which it had no power to make, failing to comply with natural justice, misconstruing the provisions giving it the power to act so that it failed to deal with the question remitted to it, refusing to take into account something which it was required to and taking into account something it had no right to. The significance of the decision, therefore, is that an authority that sits in the tribunal should not fail to comply with the principles of natural justice by acting in such a way that it is not supposed to. This is because every legal power must have legal limits, otherwise there is dictatorship and where it is wrongly exercised, it becomes the duty of the courts to intervene. Further, the decision also requires that the discretion granted to the relevant authorities to impose restrictions, terms and conditions as they may deem fit or necessary in their decisions must not be exercised beyond their express substantive limits. Notwithstanding the above position, English judges appear to adopt an ambivalent view on the issue of natural justice in tribunals. Tucker L.J. expressed the view in the case of Russell v. Duke of Norfolk, in the following terms. "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth." Instead, Harman J. in the case of Byrne v. Kinematograph Renters Society Ltd. stated his opinion on the requirements of natural justice as follows. "First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case and thirdly, of course, that the tribunal should act in good faith. I do not think that there really is anything more." Since the interpretations on the requirements of natural justice vary from one person to another even among judges, therefore, there will be differences in the implementation of the principles of natural justice depending on the situations of each case. Such was the case in Ganasan a/l Marimuthu v. Public Services Commission & Anor, where the court decided that a fair hearing does not mean that there must be an opportunity to be heard orally by the officer in person or by his lawyer at the disciplinary authority stage. It is only at the committee of inquiry stage that an oral hearing and with it the desirability or otherwise of legal representation can be considered. In Malaysia, the number of literature that deal with the issue on the denial of natural justice in courts as well as in tribunals, including students' tribunals is rather limited. The only literature that deals directly with the issue of natural justice in students' tribunals is one by Gan Ching Chuan There, the author highlighted the issue regarding students who appeared before a students' tribunal not being given adequate time to prepare his defence to the charge proffered against him. This issue arose in virtue of Rule 46 of the University of Malaya (Disciplines of Students) Rules 1975 which only states that the disciplinary authority should specify the date and time of the hearing but it is silent as to whether the disciplinary authority should also stipulate a sufficient time period in the notice during which the student to be disciplined can prepare his defence. In the author's view, therefore, the failure to accord such an opportunity to a student brought before the students' tribunal may be treated as a breach of the rules of natural justice or fairness. The case of Phang Moh Shin v. Commissioner of Police appears to lend support to the proposition that it is against natural justice to afford no opportunity to an affected person to consider the charges against him and to prepare his defence accordingly. Furthermore, Gan Ching Chuan in the same article, also highlighted the issue on the right of a student to pre-hearing. This is because the Students' Rules are silent as to the right of a student to pre-hearing, discovery of relevant information or documents or evidence in the possession of the disciplinary authority, which can be prejudicial to the student and would be used against him in the hearing before the disciplinary authority. Such a view was expressed in light of the High Court decision in Rohana bte Ariffin and Anor v. USM, where it was held that it would be a breach of procedural fairness to deny pre-hearing discovery as a defendant is generally entitled to evidence that might assist his case. Further, any refusal to accord pre-hearing to a defendant would tantamount to denying a person's guaranteed right to make representations. Since natural justice has evolved into a flexible doctrine that seeks to ensure procedural fairness in administrative decision making, therefore, the procedures in courts as well as tribunals have to be conducted properly and accordingly so as to ensure fairness and justice in the judgment of the various types of cases appearing before courts and tribunals, including students' tribunal. While the above mentioned author highlights the issues regarding sufficiency of notice and absence of rights to pre-hearing in students' tribunal, this study attempts at exploring further weaknesses and inadequacies in the procedures of the Tribunal, although limited to UiTM's Student Tribunal, in the way that they violate or undermine the principles of natural justice. Additionally, the study will recommend measures and steps to rectify those weaknesses and inadequacies. -ahmadgeronimo-
Leviathan adalah makhluk berkuasa absolut, raksasa adikuasa yang diabadikan oleh Thomas Hobbes di dalam bukunya yang bertajuk sama dengan mahluk itu. Hobbes menghasilkan karya tersebut sewaktu berlaku pertelingkahan di antara Parlimen dan Raja Charles I, dan beliau memilih bersama kuasa monarki, kuasa menindas! Bagi Hobbes mungkin lebih baik bersama hantu yang dikenali daripada hantu yang tidak dikenali. Hobbes mahukan jawapan praktikal terhadap masalah perebutan kuasa. Bagi beliau manusia ini senantiasa berada di dalam keadaan yang ribut, terhimpit di dalam keadaan kesunyian,miskin, kekejaman dan penindasan serta yang paling dahsyat, hayat yang pendek! Dan beliau memang melalui keadaan perit itu, kesempitan hidup kerana peperangan, hidup hanya untuk hidup, malah lahirnya ke duniapun tidak cukup umur.
Tapi Hobbesian bukan tidak dikritik, idea beliau diserang oleh manusia yang tidak pernah keluar dari radius 40 batu bandarnya yang bernama Kognisberg, Jerman. Nama besar itu adalah Immanuel Kant.Melalui karyanya Perpetual Peace, Kant mengkritik bahawa pemerintahan raksasa yang merampas, memanipulasi dan menipu untuk mendapat keabsahan pemerintahan tidak mempunyai kekuatan moral. Mereka hanya akan menjadi lelucon apabila tua kerepot, raksasa yang sayup-sayup hayatnya nanti akan dikejar habis tak bertulang dimakan dubuk-dubuk oportunis, itu seharusnya menjadi nasib mereka dan mungkin yang lebih parah mati tidak berkubur! tidak bernisan! Insan yang bernama Kant juga menggesa dengan satu pertanyaan yang menggugah akal budi manusia di dalam satu makalah yang bertajuk Was Ist Aufkalrung? (apa itu pencerahan).Beliau mengatakan manusia yang tercerah itu manusia yang keluar dari ketidakmatangan yang dicipta sendiri, sedangkan ketidakmatangan adalah ketidakmampuan menggunakan akal-fikir serta harus dengan bantuan orang lain . Mereka ini bukan mempunyai kurang daya-fikir tetapi tidak berani untuk menggunakannya, ubat untuk mereka bagi Kant adalah Sapere Aude! Beranilah berfikir tanpa bantuan orang lain!
Lalu untuk orang yang masih takut akan raksasa berkuasa absolut, yang kuasa saktinya menggerunkan, memukau dan lebih-lebih lagi, kononnya, kebijaksanaan makhluk pandai menyamar ini tak terjangkau walau kita berhimpun seramai manapun, tetaplah yang bodoh itu rakyat yang terbanyak, umpama bodoh itu inalienable rights kita, hah! Jadi apa keputusan kita? Berdiam? Tanpa kita sedari yang menghadiahi kekuatan tersebut adalah kita, oleh kerana itu sedarlah! Selagi kita tidak mampu keluar dari ketidakmatangan yang ditempa sendiri selagi itulah kita tidak tercerah, selagi itulah kita tidak mampu membuat perubahan walau untuk diri kita sendiri. Boleh saja sesetengah golongan mendakwa keabsahan otoriti mereka turun dari langit, keturunan yang mulia lagi tidak tercela,ataupun sebagaimana Hobbes, hayat yang terseksa dan pendek, oleh itu harus saja ada adikuasa untuk memerintah jagat ini agar tidak ribut, tapi manusia di Eropah sudah kena biasan Pencerahan, Tiada lagi dan tidak mahu lagi tirani, kesan tirani samaada dari kanan atau kiri sama saja, dan hayat yang pendek serta kejam bukan alasan kukuh untuk kuku besi, tanya saja pada Salvador Dali pelukis asal Catalan itu, alasan seperti itu hanya membuatkan beliau lebih produktif walaupun berahi beliau kepada Gala membuatkannya menghasilkan karya besar seperti The Great Mastubator dan The Girl at The Window.
APPLICATION OF THE NATURAL JUSTICE PRINCIPLES IN STUDENT'S TRIBUNALS IN MALAYSIA
Series 1:
Natural justice is a very crucial principle that must be observed and applied in any organized and civilized legal system. 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 her or him, either criminal or disciplinary, can claim the right of fair hearing (audi alteram partem). Further, in the process of a hearing, he or she is safeguarded against bias of the presiding tribunal. The application of the principles of natural justice covers proceeding before Courts of Law and Tribunals, Boards and Inquiries. However, there are variations with regard to the extent of the observation of this principle by these institutions. This is because the procedures and guidelines governing these institutions vary as they perform different functions. Additionally, the implementation of the guidelines and procedures contributes to further variation in the application of the principles in these 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. For example, procedures in students' tribunals usually do not allow a lawyer to represent the student appearing before the tribunal, whereas in the Courts of Law a different rule applies, where this institution allows lawyers to represent those facing a charge or a claim. For purpose of this article, the focus will be on UiTM's Student Tribunal.
The thesis of the article is that the guidelines and procedures adopted by UiTM's Student Tribunal differ from those practised by the Courts of Law, thereby resulting in the different treatment of the principles of natural justice (the right of fair hearing (audi alteram partem) and rules or safeguard against bias (nemo judex in re sua)) by the former which falls short of the standard observed by the latter. The potential variations can be seen from the right of legal representation, the contents of the notice being served, the composition of members in the tribunal and the right to pre-hearing discovery of relevant evidence.
1.0) The Rules of Natural Justice
Natural justice has two main components, which are the rule of hearing or audi alteram partem[1] and the rule against bias or nemo judex in causa sua.[2]
These two rules may be expressed in two words, which are fairness and impartiality.[3] This position is supported in the internet-based dictionary that states that natural justice is a term used to refer to situations where audi alteram partem and nemo judex in causa sua apply.[4]
Moreover, according to William Wade, in administrative law, natural justice is a well-defined concept which comprises two fundamental rules of fair procedure: that a man may not be a judge in his own cause; and that a man’s defence must always be fairly heard.[5] Therefore, we can summarize that the principle of natural justice is derived from these rules of audi alteram partem and nemo judex in causa sua.
1.1) Audi Alteram Partem
The audi alteram partem rule, or the rule requiring fair hearing, is of central importance and can be used to construe a whole code of administrative procedural rights.[6] In Sarawak Electricity Supply Corporation v. Wong Ah Suan,[7] the court emphasizes that if a person were to be deprived of any of their rights, the rule of audi alteram partem must be strictly observed. Therefore, it is fundamental to fair procedure that both sides should be heard.[8] The application of the rule in Malaysia can be illustrated in Wong Kwai v. President, Town Council, Johore Baru.[9] It was decided in the case that before passing an order of demolition of a building which had been constructed in contravention of the bye-laws of the Town Council, it was necessary to observe the rule of audi alteram partem. Referring to the case of Local Government Board v. Arlidge,[10] Justice Syed Othman observed, "There are many authorities who require a tribunal which is given a discretionary power as in this case, to exercise that power judicially. This means that before the tribunal can make a decision, the rule of audi alteram partem must be observed. The principles underlying this rule provide minimum safeguards for justice. If the tribunal fails to observe them a decision loses its judicial character".[11] The British courts had linked natural justice not only with the concept of judicial function, but also with the concept of quasi-judicial activity and were liberal in conceding natural justice to a person affected by an action of the administration. This phase in judicial thinking is denoted by Cooper v. Wandsworth Board of Works.[12] According to the statutory provision involved in this case, no one could put up a house in London without giving seven days' notice to the local Board of Works of his intention to build a house. In default of such a notice, the Board had power to demolish the house. The plaintiff built his house without giving the notice as required and, accordingly, his house was demolished. In the literal terms of the statute, the Board could be said to be acting within its powers, but the court considered the question whether a person could be deprived of his property without being given an opportunity of being heard. The Board argued that while it conceded that the principle of hearing applied to judicial proceedings, in ordering the demolition it did not, however, perform judicial act.
The court, however, ruled that the principle of hearing applied to various exercises of power of demolition as it carried with it enormous consequences since a house of any value could be demolished. This power was opened to abuse and so hearing was essential. The court thereby ruled that the Board was acting judicially as it had to determine the offence and apportion punishment as well as the remedy and, therefore, hearing of the plaintiff was essential. Accordingly, the court awarded damages to the plaintiff for the injury done to his building as the Board had no power to act without giving him a hearing. The principle was laid down that when an authority is by law invested with the power to affect the property of a person, it is bound to give him a hearing before it proceeds to affect his property.
In another case that came before the Malaysian Federal Court, the court was similarly asked to consider the question whether the rule of audi alteram partem was to be followed by the administrative authority passing an order to demolish a building. It was decided in the case that the magistrate should have given a hearing before passing the demolition order.[13]
The above court's decisions clearly indicate that the right of hearing gives some protection to the affected person against action of the administration and it also helps the administration in reaching the right decisions which is bound in turn to enhance the credibility of the administration in the public eye.[14]
1.2) Nemo Judex In Causa Sua
This Latin maxim means that no man can be a judge in his own cause. Therefore, a person cannot act as a judge in a case in which he is one of the parties, and any direct pecuniary interest, however small he might have in the subject matter, will disqualify him.[15] Putting it in another way, no matter how small the pecuniary interest a person has in the case, it will disqualify him from adjudicating upon it.[16] A person with such an interest is conclusively presumed to be biased, and the courts will not inquire into whether or not he actually was.[17] An interest other than of pecuniary nature may also invalidate a decision.[18] This means that personal bias[19] and policy bias[20] that the person adjudicating has in the issue disputed will also invalidate his decision. As Lord Goff has observed recently in R v. Gough,[21] "the nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand." This means that when an adjudicator has, for instance, a pecuniary interest in the subject matter of the dispute, then he becomes disqualified without the need to prove that there was an actual bias or a real likelihood of bias in the facts of the specific case.
This rule against bias is clearly consistent with the characteristics and requirements of a judicial function[22] as can be seen in R v. Altrincham Justices, ex p Pennington.[23] This case concerns a magistrate, who was also a member of the county education committee. Consequently, she had an active connection with the victims of an offence committed against the county council when short supplies of vegetables were delivered to two of its schools. The farmer in question had also supplied vegetables to a school of which the magistrate was a governor. Overall, therefore, the magistrate's interests were sufficient to disqualify her from hearing the criminal charges. It can be concluded from the case that the rule against bias applies where there is some direct interest in the matter to be adjudicated and where there is some reasonable suspicion, appearance or likelihood of bias.[24] Another example of the application of the rule can be seen in the case of Dimes v. Grand Junction Canal,[25] 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, however, quashed by the House of Lords because of the Lord Chancellor's pecuniary interest in the company. Lord Campbell in his opinion emphasized, "While no one could suppose that the Lord Chancellor was in the remotest degree influenced in his decision by his interest in the company, nevertheless, it was necessary that the maxim no one is to be a judge in his own cause be held sacred."
The recent development in this area of the law show that courts have started invoking the concept of 'fairness' or 'fair procedure' or 'procedural fairness'[26] instead of 'natural justice' in administrative proceedings.[27] The notion of procedural fairness incorporates certain guidelines to be followed in administrative proceedings. The guidelines are that a person accused of a crime, or at risk of some form of loss, should be given adequate notice about the proceedings (including any charges). Moreover, a person making a decision should declare any personal interest they may have in the proceedings. Besides that, a person who makes a decision should be unbiased and act in good faith. These requirements thus make clear that proceedings have to be conducted in a fair manner, in tandem with the legal maxim, nemo judex in causa.
Under the rule of nemo judex in causa sua, a person should act in good faith. In law, good faith (in Latin, bona fides) is the mental and moral state of being honest, even if objectively unfounded, conviction as to the truth or falsehood of a proposition or body of opinion, or as to the rectitude or depravity of a line of conduct.[28]
Using Islamic civilization as an illustration of the universal recognition of the principle, one discovers that the Holy Quran itself contains a number of references to judges, the importance of equity and the danger of attempting to influence judgments. Surah Al-Nissa, line 58, enjoins that one should judge equitably, while Surah Al-Ma'idah, line 8, cautions judges not to be influenced by enmity or other subjective feelings in making their judgments. Above of all, Surah Al-Baqarah, line 188, warns Muslims that it is wrong to tempt judges with bribes which may affect their independent judgment.[29] In the light of the above, it can be concluded that it is a well established and a recognized principle in any developed and civilized legal system that judges should be fair in arriving at their judgments. In other words, they should not have any interest in the particular case they are presiding and that they should not be biased. Tun Dr. Mahathir once said, “However wise the judges are, as ordinary human beings, they have feelings which can influence their thinking and their stand. It is not impossible that an interpretation is made not independently but because certain values and beliefs belong to, and influence, the interpreters of the law concerned".[30] [1] The rule that no one is to be condemned unheard. [2] No one may be a judge in his own cause. [3] M.P. Jain, Administrative Law of Malaysia and Singapore, (Butterworths Asia Kuala Lumpur 1989), 289. [4] "Dictionary", 12th Feb 2005, http://www.fifthdistrictcourt/dictionary/dict-qr.htm [5] William Wade & Christopher Forsyth, Administrative Law, (Clarendon Press Great Britain 1994), 464. [6] Raja Azlan Shah FJ in Ketua Pengarah Kastam v. Ho Kwan Seng [1977] 2 MLJ 152. [7] [1980] 1 MLJ 65. [8] H.W.R. Wade & C.F. Forsyth, Administrative Law, (Clarendon Press London 2000), 469. [9] [1970] 2MLJ 164. [10] [1915] AC 120. [11] M.P. Jain, Administrative Law of Malaysia and Singapore, (Butterworths Asia Kuala Lumpur 1997), 232. [12] (1863) 14 CBNS 180; 143 ER 414. [13] Chief Building Surveyor v. Makhanlall & Company [1969] 2 MLJ 118. [14] M.P. Jain, Administrative Law of Malaysia and Singapore, (Butterworths Asia Kuala Lumpur 1997), 227. [15] David Foulkes, Introduction to Administrative Law, (Butterworths London 1972), 142. [16] The principle has been applied in Kumkum Prakasham v. State of Gujerat AIR 1990 Guj 12. [17] Supra n. 39. [18] Ibid. [19] Personal bias may arise in the adjudicator against, or in favour of, one party to the dispute before him under many varied circumstances. [20] Policy bias may arise when an administrator acts in an adjudicatory capacity, to decide a controversy between an individual and his department as he may have an 'official' or 'policy' bias towards his department. [21] [1993] 2 All ER 726. [22] Neil Hawke & Neil Parpworth, Introduction to Administrative Law, (Cavendish Publishing Ltd United Kingdom 1996), 165. [23] [1975] 2 All ER 78. [24] Supra n. 46 at 166. [25] (1852) 3 HLC 759. [26] This term has been used by Gopal Sri Ram, JCA, in Raja Abdul Malek Muzaffar Shah v. Suruhanjaya Pasukan Polis [1995] 1 MLJ 311. [27] M.P. Jain, Administrative Law of Malaysia and Singapore, (Butterworths Asia Kuala Lumpur 1997), 229-230. [28] Ibid. [29] The Holy Quran. [30] "May Day for Justice", 29th August 2005, http://www.freeanwar.net/news/Vacuum.html. -ahmadgeronimo-
