| Sunday, November 27, 2005
| APPLICATION OF THE NATURAL JUSTICE PRINCIPLES INSTUDENT'S TRIBUNALS IN MALAYSIA
|- SERIES 2 -
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.
|posted by Q-KHALIFA @ 12:26 AM