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PERSIDANGAN SURUHANJAYA- SURUHANJAYA PERKHIDMATAN AWAM MALAYSIA JUDICIAL REVIEW DECISIONS : LESSONS LEARNT SHAMSUL BOLHASSAN SENIOR FEDERAL COUNSEL ATTORNEY GENERALS’ CHAMBERS 1

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  • PERSIDANGAN SURUHANJAYA-

    SURUHANJAYA PERKHIDMATAN

    AWAM MALAYSIA

    JUDICIAL REVIEW DECISIONS :

    LESSONS LEARNT

    SHAMSUL BOLHASSAN

    SENIOR FEDERAL COUNSEL

    ATTORNEY GENERALS’ CHAMBERS

    1

  • WHAT IS PUBLIC SERVICE ?

    • Article 132 of Federal Constitution

    (a) the armed forces

    (b) the judicial & legal service

    (c) the general public service of the federation

    (d) the police force

    (e) (repealed)

    (f) the joint public services

    (g) the state public service

    (h) the education service

  • SERVICE COMMISSIONS

    • Armed Forces Council

    • Judicial & Legal Service

    • Public Service Commission

    • Police Force Commission

    • Education Service Commission

  • DISCIPLINARY AUTHORITES

    • Discipline of public officers are provided for in the constitution.

    • Disciplinary authorities are given the powers to enforce internal discipline of public officers.

    • Disciplinary authorities in the public service are therefore creatures of statute.

  • DISCIPLINARY AUTHORITES

    • The Public Officers (Conduct & Discipline) Regulations 1993 made pursuant to Art.132 of the Federal Constitution governs disciplinary actions against public officers (with the exception of Armed Forces Council which is governed by the Armed Forces Act 1972 & Regulations thereunder)

  • RESTRICTION ON DISMISSAL & REDUCTION IN RANK

    • A.135(1) No member of any of the services mentioned in paragraphs (b) to (h) of clause(1) of A.132 shall be dismissed or reduced in rank without be given any reasonable opportunity to be heard.

  • RESTRICTION ON DISMISSAL & REDUCTION IN RANK (cont.)

    • A.135(2) Exceptions:

    - criminal charge has been proved

    - a detention order, supervision, restricted residence, banishment, deportation has been made.

  • Armed Forces

    • A.135 (2) of the FC however is not applicable to the armed forces.

    • The commissioning of a member of the armed forces is at the pleasure of the Crown durante bene placito (which basically means: ‘during our good pleasure’),

  • Armed Forces

    • When such commission under s.9 of the Armed Act 1972 is at the pleasure of the Crown, then conversely it can withdrawn or cancelled at any time at the pleasure of the Crown.

    • The Crown is not obliged to give any reason for doing so.”

  • Armed Forces Abdul Salam v Majlis Angkatan Tentera & Anor.

    -The issue before the Federal Court then was “Whether an officer of the armed forces whose commission is cancelled by the YDPA pursuant to s.9 of the Armed Forces Act 1972, although not required to be heard by the YDPA, having regard to art. 135(1) and (2) of the Federal Constitution, is nevertheless entitled to be heard by the Armed Forces Council before it makes it recommendation to the YDPA.”

  • Armed Forces Abdul Salam v Majlis Angkatan Tentera & Anor.

    - The Federal Court held that :

    (1) that the right to be heard of a member of the armed forces before dismissal was excluded

    by cl.1 art.135, members of the armed forces

    did not enjoy such privilege.

  • Armed Forces Abdul Salam v Majlis Angkatan Tentera & Anor.

    (2) The most prevalent reason for the rationale behind the exclusion of a right to be heard before dismissal was based on the fact that the commission of a member of the armed forces could be withdrawn at any time at the pleasure of the Crown and that being so, the Crown was under no obligation to give any reasons.

  • Armed Forces Abdul Salam v Majlis Angkatan Tentera & Anor. (3) Also on policy grounds members of the armed forces play an important role in the defence of the nation. The continuance of any of its members might be detrimental to the best interest of the State thereby compromising the country’s security. Further the necessity to maintain discipline within the armed forces was vital f the military was to be functional and efficient. Any compromise thereto would affect discipline and threaten the chain of command necessary to effectively defend the nation.

  • Armed Forces Abdul Salam v Majlis Angkatan Tentera & Anor.

    (4)The supreme law of the land and the Arned Forces Act 1972 expressly excluded a right to be heard before dismissal for members of the armed forces. The exclusion was not only limited to when the YDPA cancelled the commission but also extended to when the Armed Forces Council deliberated on the recommendation to be made.

  • WHAT CAN A PUBLIC OFFICER WHO IS DISSATISFIED WITH THE DECISION OF THE

    DISCIPLINARY AUTHORITIES DO?

    • Public officers who are dismissed or reduced in rank under the 1993 Regulations have the right to challenge the decision in court through the process known as Judicial Review.

  • What is a Judicial Review?

    • Judicial Review is a process by which the High Court exercise its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and persons who carry out quasi-judicial functions or who are charged with public acts or duties.

  • JUDICIAL REVIEW IS NOT AN APPEAL

    – No appellate authority

    – Supervisory Jurisdiction

    – A review of the manner in which the decision was made

    – Concerns, not with the decision, but with the decision making process

    17

  • DECISION MAKING PROCESS

    • The issue then is whether the decision making process leading to the dismissal of the officer has been rightly and legally followed.

  • WHY IS THE DECISION MAKING PROCESS IMPORTANT

    The decision making is important because wrong decision making will result in : • Continuance in office of such guilty public officers

    may put the public in danger ( negligent, untrustworthy, dishonest, personal gains, lazy , etc)

    • Causing losses and wastage of public funds (paying

    backdated salaries, loss of man hours, etc)

  • WHY IS THE DECISION MAKING PROCESS IMPORTANT

    The decision making is important because wrong decision making will result in : • Discrediting and bringing the public service

    into disrepute(weak service, discontentment among public officers)

    • The finding of guilt of an innocent public officer.

    • Injuring reputation of an innocent public officer.

    • Causing the public officer to loss his livelihood.

  • PROPER DECISION MAKING

    • There must be a proper understanding of the

    administrative law especially specific grounds for challenging the decision of the Disciplinary Authorities in Judicial Review proceedings. Why?

    • Order 53 Rules of Court 2012 which governs

    judicial review has expended w.e.f. 1.8.2012 to include not only “decisions” but also “actions” and “ommissions”.

  • Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

    • The three (3) grounds described by Lord Diplock are “illegality’, “irrationality” and “procedural impropriety”

  • Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

    • By ‘illegality’ as a ground for Judicial Review I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

  • Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

    • By ‘irrationality’ I mean what can by now be succintly referred to as ‘Wednesbury unreasonableness’ (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

  • Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

    • I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision.

  • GROUNDS OF JUDICIAL REVIEW

    1. Illegality

    2. Irrationality

    3. Procedural Impropriety

    4. Proportionality(still in the process of

    being developed)

    Apart from these there are stand alone

    grounds of bias and mala fides.

  • 1. Illegality (ultra vires)

    • Decision maker must understand the law that regulates his decision making power and give effect to it. He should keep strictly within the parameters of his power.

    • The court is actually involved in the exercise of reviewing the impugned decision for substance and not just process.

    • This is done by confining the decision-makers strictly to the four walls of the powers conferred to them by statute.

    (Surinder Singh Kanda v. The Government of The Federation of Malaya)

    27

  • 28

    2. Irrationality • This refers to “Wednesbury unreasonableness”. It

    applies to a decision which is so outrageous in its

    defiance of logic or of accepted moral standards that

    no sensible person who had applied his mind to the

    question to be decided could have arrived.

    • To prove a case of that kind requires something

    overwhelming. It is not sufficient that the judge comes

    to a different conclusion. Reasonable people on the

    same facts can reasonably come to a different

    conclusion. The decision must be a perverse finding

    that is devoid of plausible justification.(Ghazi Mohd

    Sawi [1994] 2 MLJ 114 p.125)

  • 29

    2. Irrationality(cont.) In its wider sense ‘unreasonableness’ is referred to the

    failure to things that must be done (see Harpers Trading

    [1991] 1 MLJ 417 p.422)

    • A person entrusted with discretion must direct himself

    properly in law.

    • He must call his own attention to the matters which he

    is bund to consider.

    • He must exclude from his consideration matters which

    are irrelevant to what he has to consider.

    This head review the decision for substance and not just

    process.

  • 3. Procedural Impropriety

    Here the court is only concerned with the

    manner in which the decision is arrived act.

    (a) The duty to give fair hearing to a person

    affected by a decision

    - Lembaga Tatatertib Perkhidmatan

    Awam Hospital Besar Pulau Pinang

    & Anor v. Utra Badi K. Perumal

    30

  • b) The right to be heard orally and the appointment of a committee of investigation under Regulation 28(4) of the Public Officers (Conduct and Discipline) Regulations 1993

    - Ghazi bin Mohd Sawi v Mohd Haniff bin Omar, Ketua Polis Negara, Malaysia & Anor

    - Ang Seng Wan Dan Suruhanjaya Polis Di Raja Malaysia & Kerajaan

    Malaysia

    31

  • 32

    c) Failing to take into account relevant consideration

    Ang Seng Wan v Suruhanjaya Polis DiRaja Malaysia & Kerajaan Malaysia

    • ASP Ang had given sufficient exculpatory statement to rebut against all the four charges. On the other hand, with regard to the defence's case, we find no evidence whatsoever to substantiate the four charges.

    “However, what troubles this court is that, from the record, there is no evidence whatsoever to rebut or contradict the exculpatory statement of Ang.”

  • 33

    d) Taking into account irrelevant consideration

    Shamsiah bte Ahmad Sham v Public

    Services Commission, Malaysia & Anor

    • The record of service as far as the disciplinary

    action before the first respondent was

    concerned contained extraneous matters,

    detrimental to the appellant's case.

  • 34

    d) Taking into account irrelevant consideration

  • Taking into account irrelevant consideration

    Raja Abdul Malek Muzaffar Shah Raja Shahruzzaman v. Setiausaha Suruhanjaya Pasukan Polis & Ors [1995] 1 CLJ 619

    • the police service commission in deciding to dismiss

    the plaintiff took into account by ex parte other relevant information without making it available to the plaintiff to comment on it and that was clearly a breach of his constitutional rights and obviously went against the audi ultra partem rule

    http://www.cljlaw.com/membersentry/headnoteresult.asp?CLJ_1995_1_619;http://www.cljlaw.com/membersentry/headnoteresult.asp?CLJ_1995_1_619;http://www.cljlaw.com/membersentry/headnoteresult.asp?CLJ_1995_1_619;

  • Rule against bias

    • “The Rule against bias is that – a Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be biased”

  • Rule against bias Rohana bte Ariffin v Universiti Sains Malaysia

    [1989] 1 MLJ 487]

    • When the disciplinary authority was deliberating the breach of discipline, the Registrar, who was the complainant, was present. The court quashed the decision to dismiss the plaintiff on the grounds of bias, as the Registrar was present during the deliberations to dismiss the plaintiff.

  • Delay

    • There is no time frame to initiate a disciplinary action or to complete the disciplinary action.

    • Where time is not specified, reference is made to s.54 of the Interpretation Act.

    • That the disciplinary action be taken with all “convenient speed”.

  • Delay

    • What amount to convenient speed is a finding of fact in each case.

    • The disciplinary authority must give reasons for any delay and the court will decide whether the disciplinary action was made with convenient speed.

  • Procedural fairness - delay

    • “The fact that the General Orders do not prescribe a time limit does not mean that a disciplinary hearing in respect of charges of misconduct brought no matter how long after the event may be upheld as being procedurally fair. It depends on the facts of each case as well as on a number of factors such as the nature of the charge, the length of the delay and the reason for the delay, and the opportunity for the employee to meet the accusation against him. In the absence of any reasonable explanation, the longer the delay the more difficult it would be for the disciplining body to justify the proceedings against the employee” per Gopal Sri Ram JCA, Sentivelu v PSC

  • Procedural Fairness- Delay

    • The learned judge considered the extremely heavy duties of the members and the fact that the Commission's Secretariat was handling a great number of disciplinary cases and concluded that the Commission had discharged its duties within a reasonable time or, in the words of s. 54 of the Interpretation Acts"with all convenient speed".

    • Harbhajan Singh v Suruhanjaya Pasukan Polis Malaysia & Anor [2002] 3 MLJ 714

    http://www.cljlaw.com/membersentry/legislationSectiondisplayformat.asp?MY_FS_ACT_1989_388;54.;;

  • Procedural Fairness- Delay • Condonation in the context of employment contract is

    an act by the employer to excuse or forgive him for the wrongful act committed by the employee.

    • Condonation can be in active form i.e by the act of telling the person that he has been forgiven for the wrongful act done or by a passive act of not taking any action

    • Public Services Commission Malaysia & Anor v Vickneswary RM Santhivellu [2008] 6 CLJ 573

    • Abdul Razak Atan v Dato’ Hj Ahmad Ragib Hj Mohd Salleh & 3 Ors [2010] 6 CLJ 887

  • Procedural fairness –access to documents

    Chai Kok Choi v KPN [2008] 1 MLJ 725

    • The whole investigation papers prepared by cawangan tatatertib was given to the DA.

    • No request was made for any documents.

    • There was no allegation that the investigation papers had been used adversely against Chai except to frame the charges against him.

    • The Federal Court held that there is no duty to provide documents without a requests being made.

  • 4. Proportionality

    • The action must not be excessive and out of proportion to the occasion.In dismissal actions in Common Law and India if the decision of the court is an outrageous defiance of logic,then the sentence should not be immune from correction.This principle was applied in the case of Tan Teck Seng [1996] 1 MLJ 261 but over-ruled in Ng Hock Cheng [1998] 1 MLJ 153 in cases concerning disciplinary actions in Malaysia.

  • Common Errors in Discipline

    Mistake No.1

    • Allowing Problems to Continue

    • Ignoring unacceptable behavior in hopes that:

    a) no one else will notice,

    b) it will correct itself, and/or

    c) the officer will eventually just go away

  • Common Errors in Discipline

    Mistake No.2

    • Saving up a laundry list of occurrences in hope that, when added together, they will justify a bigger penalty

  • Common Errors in Discipline

    Mistake No.3

    • Applying rules inconsistently (unfairness)

  • Dato’ Haji Kusaini bin Haji Hasbullah & 2 Lagi v Ali bin Suman

    Double Jeopardy & Condonation • The 2 charges were in respect of the same

    conduct of the applicant in relation to the students.

    • 2 different disciplinary proceedings were taken by 2 different authority.

    • The wordings in the show cause letters were the same.

    • He was given a warning for the so called 1st disciplinary proceedings and transfer out.

  • Dato’ Haji Kusaini bin Haji Hasbullah & 2 Lagi v Ali bin Suman (cont.)

    Double Jeopardy & Condonation • In the meantime he was given a promotion to

    DG44. • Subsequently 2nd disciplinary proceedings were

    taken on the same grounds whichresulted in his dismissal.

    • The court held that there should only be one disciplinary proceedings and condonation has set in.

  • Asri Herman v Government Of Malaysia

    • The charges against the applicant were based on regulations which did not exist at the material time.

    • There was unreasonable and inordinate delay between 17 to 19 years on the part of the respondent in bringing the said charges against the applicant. The respondent's show cause letter to the applicant was dated 21 June 2006 whilst the applicant's commission of the alleged misconduct was on 15 October 1987, 25 May 1988 and 17 February 1989 respectively.

  • Asri Herman v GOM(cont.)

    • When the respondent brought the charges against the applicant after an unreasonable and inordinate delay of 17 to 19 years, the respondent had condoned the applicant's alleged misconduct by permitting him to continue employment without any form of punishment until its show cause letter dated 21 June 2006.

  • Asri Herman v GOM(cont.)

    • The respondent had taken into consideration other alleged misconduct of the applicant and also the finding of the applicant's guilt in Dr George Boey Teik's case without giving him an opportunity to defend himself. The applicant was therefore deprived of his right to be heard which had caused him grave injustice.

  • Pengerusi LTT PDRM Bukit Aman & 2 Lagi v Mohd Azuan Aniffa

    Quoting the wrong provision • The officer was detained under the

    ISA. Subsequently disciplinary proceedings was taken under Reg.32 and he was dismissed. The DA instead of quoting regulation 32, quoted regulation 33 which with regards to conviction.

  • Pengerusi LTT PDRM Bukit Aman & 2 Lagi v Mohd Azuan Aniffa

    Quoting the wrong provision • The court held that the DA has

    committed grave error when the officer was labelled a convict rather than “put away or detained” and has prejudiced him.

  • Ketua Polis Daerah Padang Besar, Perlis v Mohd Shahril Anwar bin Abdul Rashid

    Taking into consideration the officer’s record of service

    • The DA took into consideration the officer’s

    record of service without giving him the opportunity to contradict.

  • Kamarul Faizal bin Zakaria v Tan Sri Musa Hassan & 2 Ors

    Taking into consideration irrelevant factors

    • The officer was charged for extorting money . He denied the charge and a Committee of Inquiry was set up.

    • At the hearing of the CI 1 witness was called resulting in the 1st charge dropped. 2 other witnesses for the other 2nd & 3rd charges did not turn up. No reasons to explain the failure of the 2 witnesses.

    • CI recommended the other 2 charges be dropped too.

  • Kamarul Faizal bin Zakaria v Tan Sri Musa Hassan & 2 Ors

    Taking into consideration irrelevant factors

    • However, the DA refuse to follow the recommendation of the Investigation Committee which was set up to clarify on the doubt raised in the officer’s representation.

    • The DA also took into consideration other

    factors in passing sentence.

  • Rosman Daim v LTT Jabatan Pelajaran WP

    • Surcharge was taken against the officer for accounts dated 20 years back. The officer requested for the documents to be furnished in order to answer the allegation against him.

    • DA refuse to supply the particulars of the charge.

    • The court held that the charge too general.

  • Zaini bin Aman v LTT No.1 JPJ & 2 Lagi

    • The officer was charged under reg.4(c) and (g) for leaking information to one cargo truck company regarding JPJ enforcement operations.

    • However, no detail was given as to what information and when it was given from what date to what date.

  • Zaini bin Aman v LTT No.1 JPJ & 2 Lagi

    • The officer denied the charge as no evidence was given to him.

    • The court held that the charge is too vague in order to enable the officer to answer to it.

  • Ng Chuan Hock v LTT PDRM Bukit Aman

    • In this case the Investigation Committee (IC)was

    set flowing from the representation of the officer.

    • However, at the hearing of the CI,the officer was asked to leave the room when his witness was called.

    • Later he was dismissed & he challenged that he was not given a fair hearing at the IC.

  • Khalit bin Mat v Suruhanjaya Pasukan Polis

    • Despite his repeated request for documents none was forthcoming. In his representation he clearly stated that he has requested for the documents but as ignored by the Respondent.

    • The court held that he has the right to the document and he was deprived of putting in his complete or thorough representation.

  • Sattar bin Jaafar v Pengerusi Lembaga Tatatertib & 2 Lagi

    • The officer pleaded guilty in the Syariah Court and paid the fine of RM900. imposed.

    • Disciplinary action was then taken under Reg.36 not with a view to dismissal. Subsequently the officer put in his representation. However, no decision was made in respect of the disciplinary proceedings.

  • Sattar bin Jaafar v Pengerusi Lembaga Tatatertib & 2 Lagi (cont.)

    • The DA then decided to suspend the officer and proceed under Reg.33 on the grounds that he has been convicted in the Syariah Court and dismissed the officer.

    • He challenged his dismissal on the grounds that the earlier disciplinary proceeding is still pending and no decision has been made.

    • The decision by the DA was quashed.

  • Mohd Zul Hazi Mohd Zulkafli v Suruhanjaya Pasukan Polis & Anor

    • On 31.5.2010 disciplinary action was taken against the officer one of which was for receiving bribes amounting to RM5,000 from one Alex the complainant in 2005.

    • In between he was promoted to the rank of ASP and later when for an interview for DSP post.

    • He applied for extension of time in order for him to be furnished with the statement made by Alex but was not supplied.

  • Mohd Zul Hazi Mohd Zulkafli v Suruhanjaya Pasukan Polis & Anor (cont.)

    • Despite that he put in his representation on 26.5.2011.

    • By a letter dated 16.12.2011 he was informed that he was dismissed from service.

  • Mohd Zul Hazi Mohd Zulkafli v Suruhanjaya Pasukan Polis & Anor (cont.)

    • The court held that there was a clear breach of natural justice. In order for the officer to prepare an effective defence against the charge, he needs to have sight of the allegation made against him to have the opportunity to rebut each and every allegation.

  • Mohd Zul Hazi Mohd Zulkafli v Suruhanjaya Pasukan Polis & Anor (cont.)

    • Further there was a delay of 5 years since the alleged incident and the date of the show cause letter.

    • The fact remained that during this period the officer was promoted to the ASP post and even considered for the promotion of DSP post.

  • Muhaizar bin Subeki v Suruhanjaya Perkhidmatan Pelajaran

    • Disciplinary action was taken against the officer for sexual harassment under Reg.4A i.e “in a relationship” and “”sexual intercourse” and Reg.4(d) conducting in a manner which can bring disrepute to public service and 4(g) being irresponsible.

    • However, the show cause was only issued to the officer on 17.3.2014 in respect of disciplinary offence committed on 30.5.2009

  • Muhaizar bin Subeki v Suruhanjaya Perkhidmatan Pelajaran

    • All the alleged disciplinary offences was framed in one charge.

    • Officer deny the charge as no police report was made. No medical report to prove penetration etc. No corroborative evidence.

    • The decision was however deferred pending further advised from AG’s Chambers.

  • Muhaizar bin Subeki v Suruhanjaya Perkhidmatan Pelajaran

    • The issues now are :

    1. Whether there is a delay/condonation?;

    2. Whether the charge is vague? Taking into consideration that one offence for one charge to enable the officer to answer effectively.

  • Mohd Suhaimi bin Ismail v Suruhanjaya Perkhidmatan Pendidikan

    • The officer was charge for sexual harassment under Reg.4A committing carnal intercourse in September 2005.

    • Police report was made and the case was NFA as there was no evidence of sodomy.

    • Disciplinary action was commenced on 11.11.2014.

  • Mohd Suhaimi bin Ismail v Suruhanjaya Perkhidmatan Pendidikan

    • The officer was promoted to DG44 on 1.9.2013.

    • The officer denied the charge. Similarly, the decision was deferred pending further advised from AG’s Chambers.

  • Mohd Suhaimi bin Ismail v Suruhanjaya Perkhidmatan Pendidikan

    • The issues now are :

    1. Whether there was a delay?

    2. Whether there is sufficient evidence to convict him on the charge?

    3. Whether there is condonation taking into consideration that he has been promoted before disciplinary action was taken.

  • 75

    CLOSING REMARKS

    Disciplinary action involves deprivation of a person’s livelihood and reputation

    At the heart of the matter lies the concept of procedural fairness and to act fairly

  • THANK YOU

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