legal issues
Friday, November 25, 2005
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.

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.

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.

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".

[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,
posted by Q-KHALIFA @ 12:33 AM  
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Ahmadgeronimo,Eekmal Ahmad(studying in Bachelor of Legal Studies(BLS) at UiTM.

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