Natural Justice by fikriz89

LAW 309 THE RULES OF NATURAL JUSTICE (NJ) PREPARED BY :-

MUHAMMAD FIKRI BIN OTHMAN MUHAMMAD FIKRI BIN OTHMAN - FUU

OUTLINE Introduction  Effect of NonCompliance  When Can NJ Be Claimed?  Development 



Components of NJ  Audi Alteram Partem ○ Notice ○ Hearing ○ Reasoned Decision  Nemo Judax in Causa

Sua

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INTRODUCTION What Is Natural Justice?

- Procedure used to safeguard the citizen against improper exercise of power by public authority - A fair administrative procedure to be followed by the administrative body in arriving at a right decision.

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Introductionâ&#x20AC;Ś

NJ is confined to the idea of fair hearing procedure.

NJ represents the idea that (1) a person is entitled to a hearing; and (2) the hearing must be a fair hearing.

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Introductionâ&#x20AC;Ś ď&#x201A;&#x17E;

The objectives of natural justice (the necessity for the right to be heard):to allow the affected person to give his side of the story to enable the decision making authority to determine a matter on a more informed basis. to secure justice (i.e to prevent miscarriage of justice) to ensure fairness and impartiality through governing the manner of arriving at the decisions by the judicial process to avoid erroneous conclusions to promote confidence in the fairness of administrative process. MUHAMMAD FIKRI BIN OTHMAN - FUU

EFFECT OF NON-COMPLIANCE/ BREACH OF NJ If a person or a body exercising judicial or quasi-judicial function fails to observe the rules of natural justice

Then, there is an error of law rendering an order or a decision of a decision making authority as ultra vires

i.e natural justice has been denied to the applicant and the authority has acted ultra vires

Hence, the decision made will be quashed by the court. MUHAMMAD FIKRI BIN OTHMAN - FUU

Effect… 

 

When a decision maker failed to observe NJ in making an order, the order will be treated as a VOID or VOIDABLE ORDER. A voidable order – the order is valid at its inception and remains valid until set aside by the court Durayappah v Fernando – the Minister’s order was attacked for denial of NJ and was voidable and not a nullity A void order – the order is null and void ab initio Ridge v Baldwin – HOL held that the order of the watch committee dismissing the Chief Constable was null and void. MUHAMMAD FIKRI BIN OTHMAN - FUU

WHEN CAN NJ BE CLAIMED? ď&#x201A;&#x17E;

ď&#x201A;&#x17E;

If the right of hearing is specifically conferred by the constitution or statute, the right of hearing is not considered as part of NJ but a requirement under the constitution or statutory provisions.

Art 135(2), Federal Constitution No member of any service specified in paragraphs (b) to (h) of Art. 132(1) shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard Sec. 6(1) & Sec 6(2) , the Industrial Co-ordination Act The Minister may in his discretion revoke a licence of a manufacturer, but before doing so, the Minister may call upon the manufacturer to show within such period as may be prescribed due cause why his licence should not be revoked. MUHAMMAD FIKRI BIN OTHMAN - FUU

Development of Principle of NJ 

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NJ is not to be applied to person or administrative bodies performing a legislative function. Nor does it applicable to administrative bodies exercising administrative function – Position up to 1960 NJ is applicable to judicial and quasi-judicial bodies. Eg- Small Claims Court, Disciplinary Tribunal of University, Club etc.

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Development… In 1964 based on the case of Ridge v Baldwin court held that the duty to observe the rules of NJ can be imposed on decision-making bodies exercising quasijudicial functions and administrative functions.  2 principles established from the case:

The decision makers must observe the rules of NJ when they exercise their power in making the decision which affect the rights of an individual

If the statute is silent as regards procedures to be followed, the duty to observe the rules of NJ arises by implication from the nature of the power conferred

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Ridge v Baldwin [1964] A.C. 40. Fact : The law allowed the Committee to “dismiss, any constable whom they think negligent in the discharge of his duty...” Ridge, a Chief Constable of Brighton, had been charged with conspiracy to obstruct the course of justice but he was acquitted by the court. In respect of corruption charges, evidence was not adduced. The committee dismissed him after 33 years without him being afforded a hearing before the committee. He challenged the order of dismissal on the ground that the committee failed to observe NJ where he was not allowed to know the full case against him.  Held : (House of Lords) The termination was ultra vires on the ground that the applicant’s right to be heard had not been honoured. His dismissal was declared to be null and void. The courts can imply NJ even if NJ is not expressly stated in the statute. An officer cannot be lawfully dismissed without first telling him what is alleged against him and hearing his defence. 

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Development in Malaysia Ketua Pengarah Kastam v Ho Kwan Seng [1977] MLJ 152 Fact : Respondent was granted permission, under the Customs Act 1967, to work as a forwarding agent. He was convicted of two offences and fined. The registration of his forwarding agency was cancelled because of his conviction.  Federal Court : NJ was applicable in the matter of cancellation of the agency even though the statute in the question made no provision for the same. The rule of NJ that no man may be condemned unheard should apply to every case where an individual is adversely affected by an administrative action, no matter whether it is labelled ‘judicial’, ‘quasi judicial’, or ‘administrative’, or whether or not the enabling statute makes provision for the hearing. 

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COMPONENTS OF NJ

Audi Alteram Partem @ The Rule of Fair Hearing

No one is to be condemned unheard

Nemo Judex in Causa Sua @ The Rule Against Bias

No one is to be a judge in his own cause

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AUDI ALTERAM PARTEM @ THE RULE OF FAIR HEARING

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THE RULE OF FAIR HEARING A party whose rights, property, or legitimate expectations may be affected by an administrative adjudication has the right to be heard; Audi Alteram Partem The rule aim at providing the party with an opportunity for a fair hearing before an administrative decision is reached. MUHAMMAD FIKRI BIN OTHMAN - FUU

Rule of Fair Hearing… 

There are common areas where the rules of Fair Hearing are relevant: Licensing cases • withdrawal or revocation of existing benefit; refusal to grant a licence. Employment • dismissal Membership of professional bodies • termination of membership Students • dismissal on disciplinary matters; exclusion from academia program. Members of public services: • dismissal and rank reduction MUHAMMAD FIKRI BIN OTHMAN - FUU

Elements Of Rule of Fair Hearing

ELEMENTS

Forms of Hearing Notice

Disclosure of Evidence

Hearing

Receiving of Defend

Reasoned Decision

Cross Examination Representation

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Notice 

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Notice is a vital requirement of the right of hearing. Must be served/given before the proceeding. The means of serving notice - Personal service - Postal service – posting notice to the party’s last known address. - Substituted service A notice must be issued by a person authorized to carry out the intended action. MUHAMMAD FIKRI BIN OTHMAN - FUU

Noticeâ&#x20AC;Ś Purpose of giving notice

to allow a party to make representations on his own behalf

to allow a party to appear at any possible hearing of inquiry is held

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to enable a party to effectively prepare his case and to answer the case against him

Noticeâ&#x20AC;Ś ď&#x201A;&#x17E;

Notice must be adequate. To satisfy these purpose, the notice should include:

a statement of the time, place and nature of the hearing the statutory or other authority under which the hearing is held the legal and factual issues which will be discussed MUHAMMAD FIKRI BIN OTHMAN - FUU

Noticeâ&#x20AC;Ś ď&#x201A;&#x17E;

The notice of proceeding should:-

be formulated with sufficient precision to inform the affected person as to what he is required to do. (the grounds on which action is to be taken should be mentioned clearly) provide a party a sufficient indications of the issues as will enable him to prepare a case. i.e the notice should describe the offence briefly.

state clearly the grounds on which action is to be taken i.e nature of the accusations @ particulars of offence alleged @ the charge MUHAMMAD FIKRI BIN OTHMAN - FUU

Notice… 

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The administrative authority cannot specify one charge and then proceed under another or proceed to hear other charges of which a party has received no notice, unless an adjournment is granted to enable the party to prepare his defence. A charge should not be worded so that a party is found guilty no matter which way he pleads – the charge is a ‘trap charge’ – Sloan v General Medical Council [1970] 1 WLJ 1130 The grounds which action to be taken must be clear, specific and unambiguous. The grounds for the proceedings must be communicated in writing. MUHAMMAD FIKRI BIN OTHMAN - FUU

Notice… Dixon v Commonwealth, [1981] 3 ALR 289 

Perkayuan OKS (No 2) Sdn Bhd v Kelantan SEDC [1955] 1 MLJ 401

Ct : A person must  Ct : The particulars set know the charges that out in the notice cannot he had to answer and he be vague or too should be informed of generalized. It must be the nature and content sufficiently explicit as to of material which is enable him to being considered understand the case against him.

against him.

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Notice… If an action is taken on several grounds against the affected person, all the grounds should be informed to him. Maradana Mosque Trustees v Badi-ud-din Mahmud 

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Fact : The government took over the school on 2 grounds (failed to pay salaries of teachers and unable to manage the school), but the manager was asked to explain only one ground (failure to pay salaries). The managers had no notice of other grounds, which influenced government’s decision. Held : Privy Council The decision to take over the school was quashed – the managers were not given notice of one ground i.e not adequate notice. The Minister was acting in quasi-judicial capacity and was bound observe the rule of NJ. MUHAMMAD FIKRI BIN OTHMAN - FUU

Notice… Othman Bin Ali v Telekom Malaysia Berhad [2004] 3 AMR 227 

The appellant was dismissed on the ground that he had been absent from work but the court decided it was not the real reason for his dismissal. He was dismissed for something he was not “charged with” in the first place (failure to improve himself after he had been given the opportunity by his employer) and in respect of which he was not given an opportunity to give explanation. The court decided that there was a breach of NJ. MUHAMMAD FIKRI BIN OTHMAN - FUU

Notice… An inadequate notice is not a proper notice and the proceeding based on such a notice would be void / invalid = infringe NJ

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Chong Kok Lim & Ors v Yong Su Hian [1977] 2 MLJ The Federal Court quashed the decision (the association’s member was expelled) because no notice at all was given to the respondent of the allegations against him or the resolution to expel him. MUHAMMAD FIKRI BIN OTHMAN - FUU

Notice… Notice must be adequate/sufficient in time. Purpose of Adequate Notice

give sufficient time and reasonable opportunity to the affected person to prepare his defence. What is “adequate”?

Depends on the facts of each case. If a statute has laid down a time limit then the statutory time limit applies MUHAMMAD FIKRI BIN OTHMAN - FUU

Notice… R v Thames Magistrate Court : Ex parte Polemis [1974] 1 WLJ 1371 

Fact : A Greek master of a vessel was served at 10.30 am with a summons for discharging oil in contravention of the law. The hearing was set at 2.00 pm the same day, adjournment was granted until 4.00 pm and further adjournment was refused. He was fined £5000. Later certiorari was granted by the court.

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Held : Lord Widgery CJ The mere allocation of time was no value if the party was not able to present his case in the fullest sense. Natural justice was violated because the vessel master was not given an opportunity to take oil samples, to look for witnesses, or to prepare his supporting evidence even though adjournment was granted.

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Notice… Phang Moh Shin v Commissioner of Police [1967] M.L.J. 186  Fact: Plaintiff challenged his dismissal from the Police Force for breach of NJ. He was informed of the charge for the first time just before the hearing. A copy of the charge was never given to him. The postponement requested by the plaintiff to prepare his defence was not granted.  Held : The court quashed the proceedings i.e the dismissal was unlawful – insufficient notice of the charge against him – no opportunity to defend himself. MUHAMMAD FIKRI BIN OTHMAN - FUU

Hearing Lord Morris in Ridge v Baldwin â&#x20AC;&#x153;the essential requirements of NJ at least include that before someone is condemned he is to have an opportunity of defending himselfâ&#x20AC;?

Under Natural Justice, adjudicatory body should not make a decision adverse to a party without affording him an effective opportunity of adequately meeting the allegation against him and presenting his own case.

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Hearingâ&#x20AC;¦ Forms of Hearing Oral Hearing

Written Representation

Dialogue

Interview

Consultation

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Forms of Hearing… 

 

No fixed hearing procedure to be followed. It varies from situation to situation ie- can use any forms of hearing. It also depends on the statute in question. Eg – Under the Statutory Bodies (Discipline & Surcharge) Act 2000 (Act 605)  Regulation 37(2) – the committee has been given

discretion to allow the officer to be present in persons or to require him to make written submissions.  Regulations 37(1)(b), 37(3), 37(5) – the right to an oral hearing is to be given to the officer MUHAMMAD FIKRI BIN OTHMAN - FUU

Forms of Hearing… Oral hearing is not regarded as compulsory part of NJ  Reason : Oral hearing is too slow and costly

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Local Government Board v Arlidge (1915) A.C. 120 Fact : The borough council prohibited the use of a house for human habitation until it is rendered fit for that purpose. The matter went on appeal up to the House of Lords. The Respondent argued that he had not been heard orally by the Board. House of Lords : The Board was not bound to conduct the hearing orally. Respondent had been given the right to be heard. MUHAMMAD FIKRI BIN OTHMAN - FUU

Forms of Hearing… AG v Lee Keng Kee. affected person must make use of the opportunity afforded to him. If he refuses to be present or to make representations, he cannot complaint later that NJ was breached

Ketua Pengarah Kastam v Ho Kwan Seng

 The

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Fed Ct : Representation in writing met the test of fair hearing and it was not necessarily an oral hearing. An oral hearing in every case would result in the breakdown of the administration because such a hearing is too slow, too technical and too costly.

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Forms of Hearing… Najar Singh v Government of Malaysia 

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Fact : A police officer challenged his dismissal on the ground that he was entitled to an oral hearing, which had not been given to him. Federal Court : Hearing does not necessarily mean an oral hearing. He never demanded an oral hearing. Had he demanded and not been given, he would have a stronger case. Privy Council – Dismissed the appeal. No denial of NJ in the absence of oral hearing to him. He was given an opportunity to make an explanation in writing. MUHAMMAD FIKRI BIN OTHMAN - FUU

Forms of Hearing… 

An oral hearing could be claimed as part of NJ under the following circumstances: i. complex and technical legal questions involved ii. complicated questions of fact involved. iii. the seriousness of the charge – will affect the reputation & livelihood of the affected person

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Forms of Hearingâ&#x20AC;Ś Travancore Rayons v Union of India AIR 1971 SC 862 Fact : The issue to be decided by the court in this case is whether the product of the company was subject to an exercise duty. The company argued that the product was not dutiable. The Government of India rejected the companyâ&#x20AC;&#x2122;s contention without giving it an oral hearing. Court : where the cases are complex and difficult questions are raised oral hearing should be given so that there will a better administration and satisfactory disposal of the issue.

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Forms of Hearingâ&#x20AC;Ś Pett v Greyhound Racing Association Fact: a licensed greyhound trainer was accused of administering drugs to a racing dog. Lord Denning : the enquiry initiated by the Association into the conduct of the appellant was not in accordance with NJ. The enquiry might have resulted in the revocation or suspension of his trainerâ&#x20AC;&#x2122;s license. Hence, it should be done orally because he was facing a serious charge affecting his reputation and livelihood. In such a case, fairness may require an oral hearing. MUHAMMAD FIKRI BIN OTHMAN - FUU

Hearing… Disclosure Of Evidence 

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All evidence relied upon by the public authority must be disclosed to the affected person i.e all incriminating evidence available to the committee must be made available to the affected person. The affected person must know what evidence, has been given and what statements have been made affecting him. Under the principle of NJ, all evidence, written or oral, that implicates the affected person must be made known to him automatically. Purpose – give him an opportunity to comment, criticise, explain or rebut the matter i.e to defend himself. MUHAMMAD FIKRI BIN OTHMAN - FUU

Disclosure of Evidence… Exceptions to the rule requiring disclosure of evidence a) 



the doctrine of ‘public interest privilege’ Materials, the disclosure of which would be detrimental to the public interest, may be withheld from the accused. E.g. In some drug trafficking or other serious wrongs, the name of the informers should not be disclosed.

a document is protected under the Official Secret Acts or has been declared by the authority to be ‘sulit or ‘terhad’

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Disclosure of Evidence… The adjudicator must not take into considerations evidence not raised in the hearing or evidence which the affected person not allowed to rebut. Phang Moh Shin v Comm. of Police [1967] 2 MLJ 186  Fact : The inquiry officers was having the files (services sheet, personal record, investigation paper & papers relating his conduct) never disclosed to PMS during the inquiry.  Held : There was a breach of NJ. The dismissal order was quashed because he was not given an opportunity to explain the contents of the documents. MUHAMMAD FIKRI BIN OTHMAN - FUU

Disclosure of Evidence… Surinder Singh Kanda v The Govt. of the Federation of Malaya 

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Fact : A copy of the report of the Board of Inquiry, (contained grave allegations against SSK), was given to the adjudicating officer by the Commissioner of Police but not to SSK. It was this report that caused the Commissioner to institute a disciplinary proceeding against SSK and to appoint a person to enquire into SSK’s conduct and to report to him. He had no opportunity to correct or contradict the report. Held: SSK’s dismissal was void – a reasonable opportunity of being heard was not given to him. There was a breach of NJ because the adjudicating officer was given the report containing allegations against SSK without his knowledge. MUHAMMAD FIKRI BIN OTHMAN - FUU

Disclosure of Evidenceâ&#x20AC;Ś The administrative authority should not take into account the past conduct or records of service of the affected person unless he was informed about the matters. Raja Abdul Malek v S/U Suruhanjaya Pasukan Polis [1995] 1 MLJ 311 ď&#x201A;&#x17E; Held : The court quashed the dismissal order because the disciplinary authority took into account some matter outside the charge without informing him. He was not given an opportunity or to rebut or give comment on the matters. MUHAMMAD FIKRI BIN OTHMAN - FUU

Disclosure of Evidence…

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Shamsiah Ahmad Sham v PSC [1990] 3 MLJ 364 Fact : Shamsiah was dismissed for negligence. The disciplinary authority took into account her past record and she was not asked to explain. Supreme Court : The dismissal order was quashed. She should have been given an opportunity of stating her case regarding her past conduct because the dismissal of a public servant was a serious matter. MUHAMMAD FIKRI BIN OTHMAN - FUU

Hearing…

Receiving of Defend/Rights to Produce Evidence 

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In oral hearing, adjudicator is obligated to give the affected person an opportunity to produce necessary evidence to support his case and to rebut evidence against him. Refusal to accept evidence from affected person – amounts to breach of NJ. Hence, the affected person should be allowed to bring witness to testify on their behalf. BUT he cannot bring as many witnesses as he likes and thus prolong the proceedings. Can only produce necessary and relevant evidence. It is for the authority to decide whether the evidence is necessary and relevant or not. MUHAMMAD FIKRI BIN OTHMAN - FUU

Receiving of Defend… Malayawata Steel Bhd v Union of Malayawata Steel Workers (1978) 1 MLJ 87 

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Facts : Company challenge an award of the Industrial Court on the ground of breach of NJ as the company was denied an opportunity to call witness. High Court : there was a denial of NJ by the Industrial Court when it did not allow the applicant to call its essential witnesses to adduce evidence at the hearing and was therefore denied a reasonable opportunity of presenting its case. The award of the Industrial Court was quashed. This case confirms that failure on the part of an adjudicatory body to permit material witnesses to testify on behalf of either of the parties to a dispute may amount to denial of NJ. MUHAMMAD FIKRI BIN OTHMAN - FUU

Receiving of Defend… Re Application by the Union Omnibus Co. Sdn Bhd  Facts : Industrial Court heard the matters for several days between 2/10/75 – 17/8/76. It later announced that it would make an award. Applicant alleged at that stage that the Industrial Court had not yet heard the applicant’s case.  High Court : Industrial Court had gotten all the evidence which was necessary and it stopped the hearing only when it found no purpose in continuing to hear more witnesses. There was no breach of NJ.

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Receiving of Defend… Rights to call or not to call witnesses = discretionary power of the authority.  BUT must be exercised reasonably, in good faith and on proper grounds.  “Sometimes, if justice is to be done, adjournment are essential” – Priddle v Fisher & Sons (1978) QB 823. 

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Hearing… Cross Examination The affected person has the right to cross-examine the witnesses and to rebut the case.  But this right will not be part of Natural Justice if the hearing proceeding is not done orally.  The object of cross-examination: 

to elicit information concerning facts in issue or relevant to the issue

to cast doubt upon accuracy of the evidencein-chief given against the party seeking crossexamination. MUHAMMAD FIKRI BIN OTHMAN - FUU

Cross Examination … Cross-examination can be used as a mean of securing information.  The right to cross-examine witness should be conferred where appropriate as a component of the right to defend oneself.  Cross-examination need to be allowed if its denial in all circumstances of the case would render the decision an unfair one. 

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Cross Examination … Phang Moh Shin v Comm. of Police [1967] 2 MLJ 186  Phang Moh Shin was not given an opportunity to cross-examine all prosecution witness and it amounts to denial of NJ.

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Hearing… Representation/Right to Counsel 

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An advocate is defined in s. 3 of the Interpretation Acts 1948 and 1967 as a person who is entitled to practice as an advocate or as solicitor under the law in force in any part of Malaysia. The words “counsel” “advocate” and “legal practitioner” are used interchangeably. General rule – right to be represented by counsel cannot be claimed under the principle of NJ

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Representation… Enderby Town Football Club v The Football Association [1971] 1 All ER 215 

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Held : the Right to counsel is not an absolute right to the affected person. Court’s discretion whether to allow a lawyer to appear before the tribunal. (In this case the legal representation was not allowed as there was a ruling saying that legal representation would not be allowed)

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Representation… 

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Doreswamy v Public Service Com. [1971] 2 MLJ 127 Fact : Public Services Disciplinary Board Regulations 1967 allows an aggrieved person to appeal to an Appeal Board and such appeal must be made in writing. An officer dismissed from service submit an appeal through his solicitor. Appeal Board rejected the appeal. Held : When a person has a statutory right of appeal and the regulation are silent on the right to an assistance of counsel, he cannot be deprived of such right of assistance. However, the court recognised that the right to counsel can be restricted either by express words in the statute or by necessary implication. MUHAMMAD FIKRI BIN OTHMAN - FUU

Representation… 

Reasons for non-availability of right to be represented:Cost of Proceeding

Control of Proceedings

Practical if Oral Sessions

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Representation… 

Exceptions to general rule – right to legal representation will be part of NJ if : expressly stated in the law complicated question of law and fact arise the affected person is not in a position to represent himself the affected person is facing serious charges MUHAMMAD FIKRI BIN OTHMAN - FUU

Representation… 

Pett v Greyhound Racing Association [1968] Held : NJ required that a lawyer should represent the plaintiff as he was facing a serious charge concerning his reputation and livelihood.

Federal Hotel Sdn Bhd v National Union of Hotel, Bar and Restaurant Workers [1983] 1 MLJ175  Federal Court : characterised it as “a gross violation of fundamental principles of NJ when the Industrial Court refuse permission to the appellant’s counsel to act on his behalf and appear and address the court. MUHAMMAD FIKRI BIN OTHMAN - FUU

Reasoned Decision There is no general duty on the part of the adjudicator (administrative authorities) to provide reasons for his decision.  Exceptions where a court may require the giving of reasons as matter of fairness and openness: 

where the duty to provide reason is imposed by law

where personal liberty is involved

where ‘legitimate expectation’ may give rise to the need for reasons

where the absence of reasons can frustrate the plaintiff’s appeal rights MUHAMMAD FIKRI BIN OTHMAN - FUU

Reasoned Decision… Pemungut Hasil Tanah, Daerah Barat Daya, PP v Kam Gin Paik [1983] 2 MLJ 392  Federal Court : the land Collector need not give reasons for compensation paid to the landowner whose land has been acquired by the government. Rohana bt Ariffin v USM [1989] 1 MLJ 487  High Court : the administrator must give reason for their decision if they are exercising quasi-judicial function. A reasoned decision can be an additional constituent of the concept of fairness. Neither the disciplinary authority nor the University Council gave reasons for their decision and the applicants are entitled to succeed on this ground. MUHAMMAD FIKRI BIN OTHMAN - FUU

NEMO JUDEX IN CAUSA SUA @ THE RULE AGAINST BIAS

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THE RULE AGAINST BIAS Nemo Judex In Cuasa Sua = a man should not be a judge in his own cause.  NJ’s requirement that the opportunity to be heard includes the opportunity to be heard by an independent and impartial decision maker/ adjudicator.  Therefore, an adjudicator @ judge @ decision maker should:

be impartial and neutral

be in a position to apply his mind objectively to the dispute before him

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The Rule Against Bias… 

The rule against bias flows from the following principles: -

(a) No one should be a judge in his own cause (b) Justice should not only be done but must be seen to be done.  

Hence, one should not be a judge if he himself involved in the dispute @ if he has some interest on the matter. Not necessary to prove that the decision is influenced by bias but it is sufficient if there is reasonable suspicion about the judge’s fairness. MUHAMMAD FIKRI BIN OTHMAN - FUU

The Rule Against Bias… 

In R v Susexx JJ ex p. McCarthy [1924] 1 KB 256, taking the view that a reasonable suspicion of bias was enough to amount to breach of the rule, Lord Hewart CJ said: ‘. . . it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.’

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It is difficult to prove the state of mind of a person. Therefore, what the courts see is whether there is reasonable ground for believing that the deciding factor was likely to have been biased. MUHAMMAD FIKRI BIN OTHMAN - FUU

The Rule Against Bias… 

Three types of bias:-

/ y r a l i a n ci u c an e P in ias F B

Personal Bias

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Po l

ic y

Bi as

Pecuniary/Financial Bias Occurs when the decision maker has a direct financial interest in the subject matter and the outcome of the proceeding.  Effect = No matter how small the interest is, the adjudicator is disqualified from acting as an adjudicator.  In order to disqualify the party from hearing the case, it must be shown that: 

the decision maker stand to gain or lose personality as a result of his decision the person interested in the outcome of the decision is the decision maker’s brother, cousin, wife or son MUHAMMAD FIKRI BIN OTHMAN - FUU

Financial Bias… Dimes v Grand Junction Canal Co (1852) 10 ER 301  A public limited company filed a case against a landowner involving the interest of the company. On three occasions the Lord Chancellor who was a shareholders in the company heard the case and gave desired relief to the company. Dimes subsequently discovered that Lord Chancellor held shares in the company.  House of Lords : the decision of Lord Chancellor was quashed. It was a breach of natural justice, even though no one would seriously think that the Lord Chancellor’s judgement had been influenced by his interest in the company while making his decision. It is necessary for the maxim “no one is to be a judge in his own cause” to be held. The appearance of bias was enough . MUHAMMAD FIKRI BIN OTHMAN - FUU

Financial Bias… R v Camborne JJ ex.p. Pearce [1954] 2 All ER 850  Slade J, said: “It is of course clear that any direct pecuniary or proprietary interest in the subjectmatter of the proceeding, however small, operates an automatic disqualification. In such a case, the law assumes bias”

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R v Rand (1866) LR 1 QB 230 Blackburn J, said : “There is no doubt that any direct pecuniary interest, however small . . . does disqualify a person from acting as a judge in the matter . . .” MUHAMMAD FIKRI BIN OTHMAN - FUU

Financial Bias… R v Gaisford [1892] 1 QB 381,  AL Smith J said: “.. the fact that a man has even the slightest pecuniary interest operates to disqualify him from adjudicating upon a case..” 

Therefore, the affected person/aggrieved party need not go on to prove a real likelihood of bias.

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Personal Bias 

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Personal bias is the tendency of the adjudicator to be in favour of or against one of the parties to the proceedings before him. Whenever a decision maker becomes personally involved with one of the parties, there arises the suspicion that a determination may not be reached exclusively on the merits of the case as discussed at the hearing. The test is “whether there is a real likelihood of bias or not in the facts of the case” instead of whether there was actual prejudice to the petitioner or not. Hence, the court will not look into the facts of the case, but whether there is a possibility that personal bias might happen. MUHAMMAD FIKRI BIN OTHMAN - FUU

Personal Biasâ&#x20AC;Ś ď&#x201A;&#x17E; Personal or non-pecuniary bias may operate

in many ways:-

family or personal relationship, friendship of the adjudicator with any of the parties to the proceedings

the adjudicator has business dealing in the matter

Personal hostility or animosity between the decision maker and a party or his counsel may create an impression that justice is not seen to be done.

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Personal Bias… Effect

the adjudicator is disqualified from adjudicating the case where there is a real likelihood that a hearing will not be fair.

AK Kraipak v Union of India AIR 1470 SC 150  Fact : A Selection Board was formed to select employee of state service to the Indian Forest Service. The Acting Chief Conservator of Forest was one of the candidates and he was a member of the Selection Board.  Held : The appointment of Commissioner to inquire the merit of the scheme could result in suspicion that justice might not be done. The order was quashed. MUHAMMAD FIKRI BIN OTHMAN - FUU

Personal Bias…

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Metropolitan Properties Co. v. Lannon (1968) ALL ER 304 Fact : A block of flats belonging to a company. The tenant in a flat applied to fix a fair rent. The matter reached the rent assessment committee of which Lannon, a solicitor, was the chairman. Lannon lived with his father who was a tenant in a flat owned by a company, an associate company belonging to the same group as the company which was now the party in the matter before Lannon. Lannon had assisted his father and other tenants to fix a fair rent of their flat. Decision of assessment committee was challenged on the ground of Lannon’s bias. COA : quashed the decision of the rent assessment committee on the ground of real likelihood of bias. MUHAMMAD FIKRI BIN OTHMAN - FUU

Personal Bias…

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Hannam v. Bradford City Council 1970 2 All ER 691 Fact : School governors terminated the employment of a teacher. The school was maintained by the City Council. Sub-committee of the Council met to hold an inquiry to determine the decision made by the governor on the dismissal of the teacher. 3 of the 10 members of the subcommittee were governors of the school but they never attended the meeting which made the decision to dismiss the teacher. Court : although there was no bias and the decision was made in good faith and honest, the decision of the Council could not stand because “a reasonable man would say that a real danger of bias existed in the situation”. MUHAMMAD FIKRI BIN OTHMAN - FUU

Policy Bias ď&#x201A;&#x17E;

ď&#x201A;&#x17E;

When an administrator who is involved in a policy making and later participated in a decision making process in respect of the controversy or dispute between an individual and his department pertaining to the policy in issue, he may have a policy bias towards his department. In modern administration process where hearing functions is handled by administrator, difficult to separate the administrator from policy bias. Hence, unavoidable.

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Policy Biasâ&#x20AC;Ś Appoint autonomous tribunals or appoint independent hearing officer who is not involve in the policy making

How Howtotoresolve? resolve?

Is it implemented? Is it practical? In practice, not really implemented. Court : ordinarily, mere policy bias does not disentitled an official from hearing the dispute (where the policy may be an issue or the department may be a party) MUHAMMAD FIKRI BIN OTHMAN - FUU

Policy Biasâ&#x20AC;Ś Reaso n

if an official is to be disqualified, the whole system of quasi judiciary will collapse.

Hence, if an official follows NJ and give full consideration on the issue involved â&#x20AC;&#x201C; then proceeding is not vitiated merely because he is connected with the department.

BUT If an official has shown an abnormal desire to uphold or implement the policy in question

He will be considered to have close his mind to the issue arising before him and no longer fit to sit as an adjudicator MUHAMMAD FIKRI BIN OTHMAN - FUU

Then, an official will become disqualified to hear the dispute 76

Policy Bias… Gullapalli N Rao V Andra Pradash State Road Transport Corp [AIR 1959 SC 308] 

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Fact : department of transport drew a scheme for nationalisation of certain bus routes. Under the relevant law, before government could finalise the scheme, it was necessary for the government to hear any objection against the scheme. Supreme Ct: Secretary of Transport Department was disqualified to hear objections against the proposed policy as he was an integral part if the department concerned and therefore, was too much involved in the making of the policy in question and hence, he could not have an open mind in hearing objections against the scheme. MUHAMMAD FIKRI BIN OTHMAN - FUU

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