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PERSIDANGAN SURUHANJAYASURUHANJAYA 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(e) (repealed)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Crown, then conversely it can withdrawn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
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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.
2.
3.
4.
Illegality
Irrationality
Procedural Impropriety
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)
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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)
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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.
29
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
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.”
32
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.
33
d) Taking into account irrelevant
consideration
34
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
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
•
•
•
•
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 overruled 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.
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
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