1.0 INTRODUCTION
In
Administrative Law, there are two types of common law remedies, namely private
law remedies and public law remedies. In Malaysia, Certiorari falls under the
public law remedies.
Certiorari
derived from a Latin word that can be defined as a quashing order. It is a retrospective order that brings a
decision made by the authority before the court and prays that such decision to
be quashed. Besides that, certiorari is a principle means of invoking judicial
review over tribunal and can be regarded as a quasi-judicial body that governs
the right of other person.
In
this assignment, we will be discussing on the case of Yazid Bin Samsuddin & Ors v
Datuk Bandar Kuala Lumpur. Briefly, this case will examine on the uses
of certiorari as requested by the applicants to quash the decisions of the
Disciplinary Board Bandar Kuala Lumpur, which had accordingly imposed
punishments on them by included a reduction in salary for three years.
DETAILS OF THE
CASE
Journal: Legal Network Series
(LNS)
Case: Yazid Bin Samsuddin & Ors v Datuk Bandar Kuala Lumpur.
Parties &
counsels:
For
the applicants : 1. Yazid Bin Samsudin
2. M/s K Palaniandy & Associates Public
Prosecutor
For
the respondent : 1. Thangaraj Balasundram & Nalani Murugiah
2. M/sThangaraj & Associates.
Judge Panel: Mohd Ariff Md Yusof
Reported by: Noorin Badaruddin
Judgment Date: 26 January 2010
2.0 FACTS OF THE CASE
This case stemmed when the Dewan
Bandaraya Kuala Lumpur (DBKL) conducted a promotion exercise in August 2003.
Conflict happened many junior officers had been promoted while the senior
officers who were better qualified were not promoted. The Applicants were
amongst those were not promoted despite serving for DBKL for quite long.
The Applicants wrote a letter to
the then Datuk Bandar, Datuk Hj. Mohmad Shaid bin Mohd Taufek in which they
complained about the conflict in the promotion exercise. Upon receiving the
letter, the Datuk Bandar revoked the promotion because the promotion exercise
was conducted without complying with the JPA’s service circular. The case rests
there.
However, on 26th of May 2004, Dato’
Ruslin, who was at that time the Chairman of the Promotions Board of DBKL, made
a complaint to the Deputy- Director General of DBKL alleging that the letter of
complaint from the Applicants could tarnish his image. On the next day, Datuk Ruslin once again
raised this issue, this time at the DBKL’s head of department meeting,
requesting for an investigation for the case. On 29 of July 2004, Dato’ Ruslin
wrote another letter to the Deputy Director-General requesting the
investigation to be hasten.
Following
this letter, the Deputy Director of the Human Resource Department, Encik
Mohammad Saibani was appointed to carry out the investigation. He concluded in
his report that the Applicants had committed misconduct by writing the letter
which questioned the integrity of the decision by the DBKL Administration.
Encik
Mohammad Saibani then wrote an ‘aduan rasmi’ letter to the disciplinary board
of DBKL to start a lawsuit against the Applicants. It is significant to note
that the show cause letters were sent nearly 2 years after the letter of
complaint was sent to the Datuk Bandar. It is also significant to note Dato’
Ruslin was appointed the Datuk Bandar Kuala Lumpur on 14.12.2004.
Soon
after his appointment as at the Bandar, Dato’ Ruslin appointed the Independent
Disciplinary Board on 17th January 2005. The Board included the Deputy
Secretary-General of the Ministry of Federal Territories, the Deputy
Director-General of DBKL and an Officer of the Disciplinary Section of the JPA.
However, this letter of appointment and delegation of power to the First
Disciplinary Board was revoked by Dato’ Ruslin on 18th July 2005. A new
Independent Disciplinary Board was appointed and it consisted of the Director
General of DBKL (Dato’ Salleh), the Deputy Director-General of DBKL (Encik
Zulkifli) and a Head of Department of the DBKL (Encik Mohd Najib). It was very
clear all three members of the Second Board were officers of DBKL and therefore
answerable to Dato’ Ruslin, unlike the members of the revoked First Board.
Further, Dato’ Salleh and Encik Zulkifli were officers promoted personally by
Dato’ Ruslin after his appointment as Datuk Bandar.
Later
on, the Applicants received a show cause letter in which they pleaded not
guilty. On 25th August 2005, the disciplinary proceeding begun. Both Applicants
pleaded not guilty. The board adjourned the hearing and the applicants were
given time to collect evidence and identify their witnesses.
On
the second hearing, the Applicants with their lawyer requested the charges to
be dropped because there was confusion on the identity of the real complainant.
The Disciplinary Board decided to continue the hearing and called Encik
Mohammad Saibani whom it claimed to be the complainant as the first witness.
The Applicant’s lawyer applied for an adjournment to prepare Encik Mohammad
Saibani’s cross-examination in view of the change in the person of the real
complainant. The hearing was adjourned.
On
the third day of the hearing, the Applicants claimed that the real complainant
was Dato’ Ruslin and not Encik Mohammad Saibani, and that the appointment of
the Second Disciplinary Board was void for bias and prejudice. The Second Board
remained firm in this position to regard Encik Mohammad Saibani as the real
complainant and proposed to continue with the Disciplinary Enquiry Proceedings.
Then, the Applicants and their lawyer left the hearing.
The
hearing continued with 7 witnesses being called to testify the case. The board
decided that the Applicant was guilty of all the charges against them beyond
reasonable doubt. Punishments were then imposed on them, including warning,
reprimand, a fine of three days salary; and demotion to 3 salary points for 3
years. Datuk Ruslin, the real complainant, was not called as a witness.
The
Applicants applied for certiorari in the High Court of Malaya at Kuala Lumpur.
There, it was decided that Dato’ Ruslin is the real complainant as he had been
actively pushing for the Disciplinary Proceedings to be conducted, and took
more than an active interest in it. The Second Disciplinary Board was not
independent since Dato’ Ruslin appointed officers who were bound to him.it was
further decided that the failure to call Dato’ Ruslin as a witness was a denial
of right of the Applicants to question the real complainant. Therefore, the
judicial review application for certiorari to issue to quash the decision of
the Disciplinary Board was allowed.
3.0 INDENTIFY THE ISSUES
i.
Whether the breach of natural justice
and bias existed for the decision of the
Disciplinary Board of Bandar Raya, Kuala Lumpur against the
appellant?
ii.
Whether certiorari can be granted by the court?
4.0
LAW APPLICABLE IN THIS CASE
Referred cases
First case referred by the court is B Surinder Singh Kanda v. The Government of
Malaysia [1962] 1 LNS 14; [1952] 2 MLJ 169.
The fact of case is that
Officer Surinder Singh Kanda was supplied with a report of the board of
inquiry. The question arose whether the hearing by adjudicating officer was
vitiated by Insp. Kanda not being given any opportunity of correcting or
contradicting the report, which the court held if the right to be heard is to
be a real right which is worth anything, it must carry with it a right in the
accused person to know the case which is made against him. He must know what
evidence has been given and what statements have been made affecting him: and
then he must be given a fair opportunity to correct or contradict them during
the hearing.
To apply to instant case, the Applicants challenged the decision of the
Disciplinary Board as offending first and foremost the twin principles of
impartiality and fairness, expressed in the maxims nemo judex in causa
sua and audi alteram partem. Therefore he is to be given a fair opportunity
during the hearing.
The next referred case is Council of Civil Service Unions v. Minister for the Civil Service [1985]
A.C. 374 also known as GCHQ case. It
is a English case in 1984 where the British
government under Margaret Thatcher decided that employees of the Government Communications Headquarters(GCHQ) would not be allowed to join any trade union for national
security reasons. This was enforced through an Order in Council, an exercise of the Royal Prerogative. The Council of Civil Service Unions chose to bring this matter to
court through judicial review, first to the High Court of Justice, which ruled the Order in Council was invalid. The case then went to
the Court of Appeal, which decided that the national security issues trumped any problems
of propriety.
The thrust of this case rested on breach of the rules against bias and
fair procedure, leading to an unreasonable decision in the Wednesbury sense, or
"irrationality" in the more current nomenclature.
Therefore, in corresponse to the instant case, the impartiality of the
hearing of the accused by the disciplinary body proves to be in breach of the
rules against bias and fair procedure and it is an unreasonable decision to the
case.
The court follows the principle laid down in the case of Lembaga Jurutera Malaysia v. Leong Pui Kun
[2008] 6 CLJ 93; [2009] 2 MLJ 36 in coming up with a verdict to
quash the decision already made where:
"The proceeding is not a court proceeding, nor for that matter a
proceeding akin to it. Some flexibility must therefore be accorded to the
application of strict rules of procedure and evidence. Substance should, in
this context, override form. Thus, the Appellant is entitled to conduct the
hearing... in whatever way it deems appropriate provided the method of
proceedings it adopts is not in breach of any specific provision of the Act and
does not result in a denial of natural justice to the engineer involved. In
considering whether there is any denial of natural justice, the court is to
look at the form and the substance of the hearing conducted... to see whether
in any substantial respect there could be said to be a denial of natural
justice, but the appellant's proceedings must not be looked at as would the
proceedings of a court of law."
Other cases involved in proving the test of bias are the case of Dato' Tan
Heng Chew v. Tan Kim Hor [2006] 2 AMR 549 ;Government of
Malaysia & Anor v. Jagdish Singh [1987] CLJ 110 (Rep); [1978] 2 MLJ 185; Majlis Perbandaran Pulau Pinang v. Syarikat
Berkerjasama-sama Serbaguna Sungai Gelugor [1999] 3 CLJ 65; [1999] 3 MLJ
1 and also Mohamed Ezam bin Mohd Nor & Ors v. Ketua
Polis Negara [2001] 4 CLJ 701; [2002] 1 MLJ 321
Referred legislation
The accused was punished with reduction in
salary for three years with regards to the City Hall of Kuala Lumpur
Officers (Conduct and Discipline) Rules 1989, Rule 25(17).
Besides, Section 16(4) and 17 of The Local
Government Act 1976 are the authorities claimed by Datuk Bandar in
exercising his discretion towards the accused misconduct.
Section 16(4) of Local Government
Act 1976 which provides:
•
The Commissioner of the City of Kuala Lumpur in the case of the Federal
Territory, or the Mayor or President or his representative who shall be a
Councillor, the Secretary and one other Councillor in the case of other local
authorities, may appoint such persons to the offices shown on the list so
approved and may reduce in rank or dismiss such persons from office and may
appoint others in their stead:
•
Provided that the reduction in rank or dismissal from office of any Head
of Department or his Deputy shall not take effect until such reduction in rank
or dismissal has been confirmed by the State Authority:
•
Provided further that no officer or employee shall be reduced in rank or
dismissed without being given a reasonable opportunity of being heard.
Section 17 of Local Government Act 1976 which provides:
•
A local authority may, with the approval of the State Authority, from
time to time make rules for the purpose of maintaining good conduct and
discipline among officers and employees, and may impose any punishment upon any
such officer or employee who is guilty of misconduct or breach of duty in the
exercise of his official functions:
•
Provided that no punishment shall be imposed on any Head of Department
or his Deputy without the prior approval of the State Authority.
Other source referred to in this case is De Smith, Woolf and Jowell, Judicial
Review of Administrative Action (5th Ed.), p.379 which had discussed that a serious procedural
impropriety was established, particularly in respect of the nemo judex
in causa sua principle, in the sense that "a person adjudicating should be
disinterested and unbiased". In
instant case, the member of the newly established Disciplinary Board of
Bandaraya Kuala Lumpur is answerable to
Datuk Bandar since two of them are personally appointed into the Disciplinary
Board to deal with the case. Therefore, their decision will tend to be biased
and in denial to the principle of natural justice.
5.0 DECISION OF THE COURT
In this application for judicial
review, the Applicants prayed for an order
of certiorari to quash the decision
of the Disciplinary Board
of Bandar Raya, Kuala Lumpur dated 29th
March 2006 which found them in breach
of disciplinary rules,
and accordingly imposed
punishments on them, which
included a reduction
in salary for
three years. The grounds in
support were basically failure of natural justice in the decision-making
process.
In the trial, the Court agreed with
the Applicants thus allowed the application for the substantive relief of certiorari
to quash the decision of the Datuk Bandar Kuala Lumpur, together with enclosure
1 with costs of RM5,000.00 to be paid by the Respondent to the Applicants.
The
Summary Grounds in
the Statement under
Order 53, rule
3(2) enumerated the basis of the challenge which is the true
decision-maker, Dato’ Haji Ruslin bin Hj. Hasan was a judge in his own cause. In
consequence, the rules of natural justice were violated as justice was not seen
to be done and right of free speech and expression. Also, their right of employment
were violated. The court believed that although it is said that Dato’ Ruslin
ought to have exercised his discretion, the Board further acted contrary to
procedural fairness in refusing to
call the said
Dato’ Ruslin as
a witness on
behalf of the management.
In the findings, the trial judge
mentioned that the evidence disclosed a serious violation of the rules of
natural justice. Firstly, Dato’ Ruslin is the real complainant. The court
believes that he had actively pushing for the Disciplinary Proceedings to be
conducted as took more than an active interest in it. Secondly, the Second
Disciplinary Board was said to be not independent because Dato’ Ruslin
appointed officers who were bound to him. Lastly, the failure to call Dato’
Ruslin as witness by the Respondents proved on the denial of right of the Applicants
to question the real complainant.
Furthermore, on the facts of this
present judicial review application, a serious procedural impropriety was
established, particularly in respect
of the nemo judex
in causa sua principle, in the sense
that “a person adjudicating should
be disinterested and
unbiased”. Thus, the judicial review application for certiorari to issue
to quash the decision of the Disciplinary Board was allowed.
6.0
ANALYSIS
Based
on facts of the case, we are in opinion that the High Court has made a right
decision for quashing the judgement of Independent Disciplinary Board. It must
be noted that for an authority to make any decision, they shall apply for
natural justice and fairness. Denial of these principles will render the
decision as ultra vires and nullity. Natural justice is basically means
procedural safeguards against improper exercised by the authority. It also is
used in order to avoid abuse of power by the tribunal or authority during
decision-making process and in another word, to put a person in a right
position.
Natural justice comprises two types
of principle which includes audi alteram partem and nemo judex in causa sua.
Audi alteram partem means a person has right to be heard and defend himself.
This includes giving sufficient notice, knowing the ground of case, having
right to bring witness and to give evidence. Meanwhile for nemo judex in causa
sua, it gives a meaning that a person adjudicating should be disinterested and
unbiased. In other word, it is rules against bias. This principle involves
pecuniary bias, policy bias and also personal bias whereby policy bias is a
doctrine where the one who makes the policy cannot be the one who hears the
challenge. For pecuniary interest, it involves monetary interest and for
personal bias means a judge cannot have any personal interest with any parties
of the case. All of these must be followed since the judge shall be neutral.
Under this case, there is clearly
has been a breach of natural justice for right of hearing under audi alteram
partem principle. It can be seen when the authority failed to call the said
Dato’ Ruslin as witness. This shows denial of right of applicants to question
the real complainant when there was some confusion about the real complainant.
There is also a breach to natural justice when the judge was being bias when
making the decision and it would be considered under personal bias. Personal
bias is hard to prove. However, it can be clearly seen when the said Dato’
Ruslin, who was the complainant at the time, revoked the already existed
members of Independent Disciplinary Board. He then by himself appointed new
members for Independent Disciplinary Board which all three of them were all
officers of DBKL. It means, these judges would be answerable to him. In
addition, two of the members which is Dato’ Salleh and Encik Zulkifli have been
promoted as officers of DBKL personally by Dato’ Ruslin and it shows that they
might be bound to him.
Apart from that, even though it
might be hard to prove the existence of personal bias, but the court will be
using an indication to ascertain it which is through reasonable man test as to
whether there would be a ‘real likelihood’ to be bias. In Yazid case, there is clearly
exist the ‘real likelihood’ to be bias on the part of the judge when three of
the members of Independent Disciplinary Board. Three of the second board were
all officers of DBKL and two of them have been promoted personal by Dato’
Ruslin. It must be noted that even though there is no intention to be bias, but
the personal relationship between Dato’ Ruslin and all three of members in the
second board may give some influence for the board in deciding case and thus,
the ‘real likelihood’ to be bias exists since any reasonable man would see the
outcomes of the case based on their personal interest. So, the High Court has
made a right decision in quashing the decision made by the authority for breach
of natural justice under the principle that ‘judge shall be neutral’.
On the other hand, on the part of
judgement of the High Court, we are in the opinion that there shall be higher
monetary compensation given to both applicants. Looking at the fact that there
has been a serious violation of the rules of natural justice, and if the case
had not been brought to court for judicial review, both of the applicant will
suffer reduction of 3 years in salary. Besides, looking at the abuse of power
by the authority and unfairness in deciding case just because of the letter of
complaint being sent personally over to Datuk Bandar considered as bringing
down his image was unreasonable. Moreover, only two years after complaint are
made then the case being heard in tribunal. It must be noted that the main
function delegation of power to authority and tribunal is to give quick justice
while applying rules of natural justice and fairness. However, by delaying the
case to be heard for two years just unreasonable in plus not applying
principles of natural justice and fairness.
Here can be seen that there is not
just an ordinary violation to natural justice, but a serious one. So, we are in
the opinion that the High Court has made a right decision in quashing the
decision made by the authority but there shall be higher compensation given to
both applicants rather than RM5000. This is under the reason that authority
shall not be given chance to abuse their power. If higher punishments are not
being given, then justice could not be uphold and there might be regular breach
of natural justice by authority among society in the future.
7.0
CONCLUSION
In
conclusion, certiorari can be used to quash the decision which was made by
inferior tribunals in excess or abuse of jurisdiction or contrary to the rules
of natural justice.
In
this case, the ground used in applying certiorari is due to the absence of
natural justice in deciding the judgement by the appointed Disciplinary Board.
Therefore, the certiorari was granted with regard to the breach of natural
justice and bias existed.
Plus,
the Disciplinary Board not in effect independent. They were beholden to Dato’
Ruslin since they were promoted by him after his appointment as Datuk
Bandar. In addition, the Disciplinary
Board did not called Dato’ Ruslin as a witness in order to deny the Applicants
the right to question the real complainant.
For
that reason, it was strikingly unreasonable for the Disciplinary Board to
dismiss the Applicants’ request and to proceed in the manner it did. By all
accounts, the proceeding should be conducted fairly and neutral by the
independent decision-maker. As a result, the judicial review for certiorari was
awarded by upholding the principle of administrative law.
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