Service Disciplinary Cases In Malaysia – A Brief Discussion

By Author: Premkumar Nadarajan.
Total Articles: 26
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The service disciplinary cases (Najar Singh; Sithambaram; Ghazi ) are a candid example of a narrow and restrictive approach by the courts. It is submitted that the procedural Fairness ( of which audi alteram partem is a limb) is a fundamental right governed and protected by Article 8 of the Federal Constitution . Thus all Parent Acts and subsidiary legislation that deal with procedures applicable to disciplinary actions are subject and subservient to the Constitutional provisions and not vice versa. The Najar Singh case however used the common law to interpret the Constitution, thus denying the life and dynamism of a living document, the Constitution. This case involved the dismissal or reduction of rank of government servants as stipulated in article 135(2) of the Federal Constitution.; it was in issue as to whether the said article gave a right to a oral hearing .The said government servant, a police officer while in preventive detention was given a chance to exonerate himself in writing but was not allowed an opportunity of an oral hearing . It is noted here that the fact that the General Orders Chap D in regards to disciplinary ...
... cases involving civil servants does not expressly mention the right cannot be an adequate reason to refuse or negate the requirement of a hearing. However it is submitted that Article 135(2) being a guarantee of a reasonable opportunity of being heard , should be the signpost to latch onto in regards to fundamental liberties; it is a misguided notion to search for such liberties in procedurally minded orders such the General Orders . In this ( Najar Singh) case , the learned judge held , inter alia, that since the person affected failed to claim to claim a oral hearing, he was in no position now to make a grievance of such before the court. A similar antiquated tone was seen in Ghazi bin Mat Sawi v. Mohd Haniff bin Omar, Ketua Polis Negara, Malaysia & Anor .The issue before the court was whether the police officer concerned , a government servant , was entitled to an oral hearing when disciplinary action is being taken against him (which could lead to dismissal from service) . The court looked at Ch D of the 1980 General Orders and concluded that an oral hearing was not obligatory thereunder. The court emphasized :“ In dealing with Ch D of the 1980 General Orders we remind ourselves that we are dealing with General Orders that have legislative effect and we must guard ourselves against adding words into them which were never intended……”. The statement of the judge in Mat Sawi runs contrary to the court decision of Tan Boon Chee, David v. Medical Council of Singapore which states that there are certain definite fundamental principles of natural justice which cannot be waived. This case involved the issue as to whether there was a failure of natural justice whereby the council members of the disciplinary body having failed to hear the entire stratum of evidence presented and the submissions made ; decided on the charge made against the appellant , a medical doctor, against certain charges of infamous conduct, in such cases a hearing being stipulated under s.23 the Medical Registration Act . In answering this issue the learned judge ahd to decide on the point of waiver namely silence on the part of the appellant would necessarily exclude the application of natural justice to him . The Court held:“Counsel for the respondents concedes that there was a breach of the rules of natural justice but he submits that there was a waiver of the breach because the appellant was in a position to object and failed to do so. The appellant was represented by Counsel and it is submitted that the appellant's Counsel was fully conscious of the breach and should have raised an objection. It is contended that by allowing the proceedings to go on in the circumstances which are now objected to, the appellant disentitled himself to raise any objection because of his waiver and approbation (emphasis mine). Reliance is placed on the decision in Wakefield Local Board of Health v. West Riding and Grimsby Rly Co. [1865-66] 1 QB 84 and Chop Wong Soong Co. V. Khoo Hean Kee [1964] 1 LNS 26 . The cases relied upon by Counsel for the respondents are in my opinion of no help to the respondents. This is an appeal under s. 24 of the Medical Registration Act by a medical practitioner aggrieved by the decision of the medical council. It is open to the appellant on appeal to raise any valid objection to the proceedings before the Medical Council as the appeal is by way of a re-hearing of the whole case. In the Chop Wong Soong Co. V. Khoo Hean Kee [1964] 1 LNS 26 case, it was certiorari which was asked for - a discretionary remedy in the particular circumstances of the case. The decision in Wakefield's case is old law which cannot stand scrutiny in the long line of modern cases. It is clearly contrary to the decision in R v. Sussex Justices, supra, where the question of waiver was raised but clearly rejected by Lord Hewart. See also Munday v. Munday [1954] 2 All ER 667 and Fulker v. Fulker [1936] 3 All ER 636…(emphasis mine)”Furthermore the court in Tan Boon Chee cited a relevant observation from an English case with approval: ‘ A rule of natural justice which goes to the very basis of judicature cannot be waived’ .It is submitted that this is in accord with the submission that every power exercised must be with a minimal procedural and substantive content. The words of the Court of Appeal in the Raja Abdul Malek case supports this contention:“…nevertheless the principle that the right to be heard is non – inclusive of a duty to afford an oral hearing does not mean that the failure or refusal to attend such a hearing would render the decision reached safe and harmless from attack. Cases may arise where, in light of peculiar facts, the failure to afford a oral hearing may result in the decision being arrived at declared a nullity and quashed ( see R v. Immigration Appeal Tribunal)…….” This misguided notion of equating silence with exclusion of fundamental rights is further seen in cases such as Sithambaran v. Attorney – General . This case involved a challenge to a dismissal action taken against a police corporal .The said corporal never raised the matter of legal representation, the court held that the question of an exercise of discretion by the inquiry officer never arose . This once again is a pedantic and mechanical approach to opening the key to a dynamic constitution.

lecturer at a private learning institution ( UTAR).