Administrative Law - Law 506

Answer:

In Malaysia, where the written law is Federal Constitution, it is clearly established that one of the combined
effects of Article 5(1) and 8(1) of the Federal Constitution is to confer a general procedural protection of
fairness to cases involving personal liberty guaranteed under the Federal Constitution. In Danaharta Urus
Sdn Bhd v Kakatong Sdn Bhd, the Federal Court held that the common law right of access to justice is not
an absolute right. It held that while article 8(1) provides that all persons are equal before the law and are
entitled to equal protection before the law, this need to be read together with article 121(1) in respect of the
High Court ’s jurisdiction and powers as may be conferred by or under federal law.

Natural justice is safeguard against administrative actions. It is a procedural and not a substantive
safeguard. Natural justice gives no basis to review into the merits of a decision or dictates the decision’s
outcome. This principles concerning the process related in order to make decision. One of the element in
natural justice is Audi Alteram Partem or right to be heard. In Syed Othman J in Wong Kwai v President
Town Council, Johore Bahru, the court stated that failure to observe the rule before a tribunal makes a
decision would cause a decision to lose its judicial character. A significant case on the right to a hearing is
upheld by the decision of the Federal Court in Ketua Pengarah Kastam v Ho Kwan Seng. The issue in this
case was that whether the cancellation of the forwarding agency’s registration is a quasi judicial act that
natural justice will become applicable? The Federal Court overruled the decision by the High Court and
upheld that natural justice was applicable for the matter of cancellation of the agency despite the fact that
there is no provision governed in the statute. The court emphasised that the rule requiring a fair hearing is
very crucial because it can be used to display the whole idea of an administrative procedural rights in
accordance with the famous landmark case of Ridge v Baldwin. The court also cited the relevant principles
stating that the rule of natural justice must be that no man shall be condemned unheard. This should apply to
case where an individual is adversely affected by an administrative action be it ‘judicial’, ‘quasi-judicial’ or
‘administrative’ or whether or not the existing statute provide provision for hearing.



The principle carries a wide or broad principle regarding the application of natural justice to administrative
proceedings. Expression like ‘every case’ which are used in a judgment appears to make the right of a
hearing as a principle of a universal application in administrative proceedings affecting an individual either in
adverse or in potential. Yet, this is still viewed as too broad prima facie because there may be circumstances
when the courts feel hearing is not necessary even though a person may be affected by an administrative
action. This are specified when some action has to be made in an emergency such that a hearing may be
excluded when it would obstruct prompt action, especially action of a preventive or remedial type. For
example, circumstances of summary action for public security or public order maintenance, detention of
security suspects during wartime or infringement with property rights for interest of public health and safety.
There are rare or exceptional cases whereby court may hold natural justice if it is not called for.

In the case of Nakkuda Ali v Jayaratne, for matter involving cancellation of licences, the Federal Court
decided that hearing should be improper when a privilege is withdrawn. The Federal Court view in this case
has leaved a deep and significant impact on the development of the right to a hearing in Malaysian
Administrative Law and also has widely expanded the spectrum of natural justice. Now, the well established
rule is that before a licence is cancelled, it should be given a hearing. Besides that, as stipulated in the case
of Malloch v Aberdeen Corporation, the words ‘without assigning any reason’ do not exclude a hearing.

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 Administrative Law - Law 506

Apart from that, in matters pertaining to dismissal of employment, it is proper to refer to the case of Fadzil
bin Mohamed Noor v Universiti Teknologi Malaysia. In this case, the fact was that the University
dismissed an assistant lecturer on the ground of absence without leave, the lecturer was dissatisfied and
challenged his dismissal. The application succeeded in appeal to the Federal Court where Raja Azlan Shah
CJ referred to the prior case of Ridge v Baldwin stating that, in a pure master and servant case, dismissal
was governed by the law of contract and therefore no right to a hearing shall be given. In other words, the
principles of administrative law including natural justice have no part to play for a pure master-servant case.
Therefore, in this case, the University must follow natural justice before dismissing a member of its own
academic staff. The same proposition would seem to apply in regards to dismissal of a worker by any other
statutory body.

A person shall be given a right to be heard as illustrated in the case of Cheow Siong Chin v Timbalan
Menteri Hal Ehwal Dalam Negeri Malaysia. In determining this right, the court looks into the language of
Article 5(1) stating that no person shall be deprived of their personal liberty save in accordance with the law.
Article 160 of the Federal Constitution defined ‘Law’ as including ‘the common law in so far as it is in
operation in the Federation. Therefore, the court in its judgment said that the right to be heard is a principle
of common law and the virtue of Section 5(1) clearly upholds the concept of audi alteram partem that no one
should be condemned unheard. Nonetheless, there is misunderstanding of the concept of natural justice in
the case of Andrew v Superintendent of Pudu Prison Kuala Lumpur. The court in that case ruled that the
appellant are denied of his right to be heard implied or otherwise before the order of detention was issued
but it was held in several cases that natural justice can be implied even if a statute is silent unless it is clearly
excluded expressly or impliedly.

Next, in matters pertaining to any acquisition of land by the Malaysian Government must be in accordance
with the Land Acquisition Act 1960. By virtue of Section 12 of the said Act, the Land Administrator must make
a full inquiry into the value of land acquired but it is silent on the right of hearing for the person whose land is
proposed to be acquired. The judgment in Kam Gin Paik v Pemungut Hasil Tanah, Daerah Barat Daya
Penang, seems to accept indirectly that a landowner whose land is being acquired has a right to be heard.
This simply means that the respondent may give material or any relevant fact to the matter in question and
the Administrator is bound to consider all those materials to assess compensation. In addressing the similar
scope of law, question arose as to whether a landowner can claim any right to raise objections to the
proposed acquisition of his property under the Land Acquisition Act 1960. The answer is again vague as
there is no definite provision to assist this issue. Therefore, any pre-acquisition hearing could be derived only
from general principles of law such as the concept of natural justice or Article 13 of the Federal Constitution.
The right of hearing specifically on matters of compensation as provided under Land Acquisition Act 1960 is
not sufficient according to the case of S Kulasingam v Commissioner of Lands, Federal Territory.



Furthermore, there are doctrine of ‘legitimate expectation’ that has been applied in the case such as
Berthelsen v Director General of Immigration and also recently used in several more cases in answering
the right of hearing to an affected person. The doctrine of legitimate expectation belongs to the domain of
public law and is intended to give relief to the people when they are not able to justify their claims on the
basis of law in the strict sense of the term though they had suffered a civil consequence because their
legitimate expectation had been violated. To illustrate this doctrine, it is proper to refer to the case of Lee

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 Administrative Law - Law 506

Freddie v Majlis Perbandaran Petaling Jaya (MPPJ). In this case, there was an empty area of land in a
residential area which the residents have been enjoying as recreational area for years. Without consulting
the residents, the MPPJ granted permission for a construction of multi-storeyed building. Court in this case
held that the residents have a legitimate expectation to be notified of the construction and to have their
objections heard by the MPPJ before permission was granted.



Similarly, the concept of natural justice is applicable to certain aspects of the relationship between a society
and its members. There are conditions in which natural justice may take place in this kind of relationship
provided that the committee of the club must not be biased in deciding the suspension of a member for
misconduct, that the member must be informed of his alleged wrong and that he must be given an
opportunity to be heard in defence. However, this is subjected to the rule of the club itself, whether or not it
gives unfettered power to the court. If the rules of a club excluded natural justice when taking a disciplinary
action against its members, court will have absolute power to render the rules invalid on the grounds of
breach of public policy. This intention of the court may be viewed as expanding the scope of natural justice
rather than confining it. 



In order to expel or suspend a member of a trade union, a political party or a private sector employee on the
grounds of misconduct, natural justice is also required in such circumstances. But, it must be noted that ‘the
rules of natural justice vary in content and ambit according to the circumstances and context’ as pointed out
in the case of Abdul Salam bin Husin v Majlis Angkatan Tentera. For any cases submitted, it is crucial to
prove clearly that the right of hearing has been deprived in order to uphold natural justice. Again, it is
reminded constantly by the judges in many cases that the function of ‘the rules of natural justice is basically
to ensure fairness and impartiality’.



In conclusion, natural justice is a very crucial principle that must be observed and applied in any organized
and civilized legal system including Malaysia. The extents of case-law in Malaysia regarding the rights of
hearing are still general, broad and loose. 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 him or her, either criminal or disciplinary, can claim the right of fair hearing as
stipulated in the case of Local Government Board v Arlidge, whereby the judge observed that before a
tribunal can make a decision, the rule of audi alteram partem must be considered.

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