Administrative Law (Past Year Attempt)

APRIL 2009, PART B, QUESTION 1

First Issue

Issue:

The issue is whether the decisions can be challenged by Sarimah on the ground that

the Higher Education Minister has failed to exercise his power by fettering his discretion.

Law:

A discretionary power is a power exercisable at the discretion of the concerned

authority. Officials in whom discretionary power is vested have a range of options at their

disposal and they exercise a measure of personal judgment in making choices.

Under extended ultra vires, fettering discretion is one of the types of non-exercise of

discretion by the authority.

Fettering discretion refer to the situation where the authority lays down a policy to

regulate its exercise of discretion in some matter, and seeks to apply that policy inflexibly

to all cases irrespective of the merits of the case. Fettering discretion is usually invalid on

the grounds that when a statute confers discretion on an authority to decide individual

cases, the authority is expected to consider each case on its merit. The courts do not

approve of an authority fettering its discretion by adopting a policy and applying it

generally to all cases irrespective of their merits.

In H Lavender and Son Ltd v Minister of Housing and Local Government1, the

order of the Minister of Housing was quashed as he fettered his discretion when he refused

to grant permission holding on the ground that the Minister of Agriculture objected to the

proposed use for agricultural reasons.

In Chee Siok Chin v Minister of Home Affairs2, the order made by the licensing

officer was held illegal as instead of exercising discretion in examining each individual

1 (1970) 3 All ER 8712 (2005) SGHC 216 at [93]

carriage, he fetters discretion with an inflexible norm and prevents himself from

considering the merits of each particular carriage.

Application:

In this problem, the Higher Education Minister have a discretionary power authorised

by the Higher Education Act 2008 (fictitious), to introduce a mechanism to ensure that

good quality graduates are produced by local universities to satisfy the demanding need of

the industry. Thus, the Higher Education Minister has a range of options at his disposal on

what types of mechanism he will introduce to achieve the objective stated in the statute

based on his personal judgment.

Based on the situation provided, there was a failure to exercise power on the part of

the Higher Education Minister as he has fettered his discretion in achieving the objective of

the statute. This is because, he had applied the policy provided in the statute inflexibly to all

cases irrespective of the merits of the case. It can be seen when he introduced the

mechanism that law graduates from local universities are not qualified to practice law upon

graduation but instead must enroll into an Academy of Law for one year, due to the

instruction of the newly appointed Law Minister.

The statute confers discretion on the Higher Education Minister to decide the

mechanism, but instead of exercising his decision-making power, the Higher education

Minister fettering his discretion by the instruction of the Law Minister. The Higher

Education Minister, adopting the instruction given by the Law Minister and applying it

generally to all cases without exercising his discretionary power to examine the merits of

each case.

Therefore, the order of the Higher Education Minister may be quashed as he fettered

his discretion as the mechanism was introduced not on his own discretion, but holding on

the ground that the Law Minister had instructed him to do so. This is strengthened by the

case of H Lavender and Son Ltd v Minister of Housing and Local Government3.

By following the instruction of the Law Minister, the order of the Higher Education

Minister may be held illegal as in Chee Siok Chin v Minister of Home Affairs4. This is

3 (1970) 3 All ER 8714 (2005) SGHC 216 at [93]

because, instead of exercising his discretion in examining a good mechanism to satisfy the

objective provided in the statute, he fetters his discretion as the order was made based on

the influence of Law Minister which then prevents himself from considering the merits of

each particular case.

Conclusion:

Sarimah may be able to challenge the decisions on the ground that the Higher

Education Minister has failed to exercise his power by fettering his discretion.

Second Issue

Issue:

The issue is whether the decisions can be challenged by Sarimah on the ground that

the Higher Education Minister has committed procedural ultra vires.

Law:

One of the three main types of ultra vires is procedural ultra vires. Procedural ultra

vires happens when the authority failed to comply with the procedures provided in the

statute while exercising its discretionary power.

Statute may lay down some procedural norms for the exercise of a discretionary

power. The procedural norms may be characterised by the courts either as mandatory

procedure or directory procedure.

Mandatory procedure refers to the rules which are vital and goes to the root of the

matter. Failure to comply with mandatory procedure will render the decision is ultra vires.

In contrast, directory procedure refers to the ordinary rule which it non-compliance may not

vitiate the exercise of discretionary power if there is substantial compliance with that rules,

and the concerned person is not prejudiced thereby. However, there is no formula to

identify whether a procedural requirement is mandatory or directory.

In Chai Chwan v Singapore Medical Council5, it was stated that the question

whether a procedural requirement is mandatory or directory must be decided by the courts

having regards to the whole scope and purpose of the provision in question.

In United Development Company Sdn.Bhd. v The State Government of Sabah6, it

was held that the acquisition of land some 30 years ago was procedurally ultra vires and

invalid as there was a failure to obtain a statutory approval which was considered as

mandatory procedure.

Application:

In this problem, there was a procedural ultra vires committed by the Higher Education

Minister. This is because, the Higher Education Minister has failed to comply with the

procedures provided in the statute while exercising its discretionary power in providing the

mechanism to ensure that good qualities graduates are produced by local universities. The

statute provides that, in taking such action, the Higher Education Minister shall consult

those organisations and individuals he considers relevant.

However, the Higher Education Minister failed to comply with the procedure as he

only consulted the bar council, but not the Law Teachers Association (LTA), which is a

registered association, to which more than 70% of the local law lecturers belong. In this

situation, LTA may be considered as relevant organisations that need to be consulted. This

is because, the action taken by the Higher Education Minister involved law graduates from

local universities who are under the responsibility of the local law lectures who form the

majority part of the LTA. Therefore, it is necessary for the Higher Education Minister to

have consultation with the LTA as his action will indirectly involve them.

Referring to the case of Chai Chwan v Singapore Medical Council7, usually, the

court will regarded the requirement for consultation before making a decision as a

mandatory procedure. Therefore, failure of the Higher Education Minister to comply with

this procedure will render the decision bad as it has failed to fulfill the satisfactions of all

the persons and bodies involved.

5 (2009) SGHC 115 at [66]6 (2011) 7 MLJ 2097 (2009) SGHC 115 at [66]

Other than that, the procedure provided by the statute may be considered as a

mandatory procedure with the existence of the word “shall” which means that it is an

obligation required by the statute. Thus, as the procedure is mandatory, and the Higher

Education Minister has breached it, the decision made by the Higher Education Minister

may be considered ultra vires.

By the authority provided in United Development Company Sdn.Bhd. v The State

Government of Sabah8, the decision made by the Higher Education Minister may be

considered as ultra vires and invalid as there was a failure to consult with the relevant

organisations which was considered as mandatory procedure.

Despite of that, the Higher Education Minister may argue and defence himself that

there was a personal bias on the part of Sarimah. This is because, she wishes to challenge

the decision as she was one of the members of LTA and unsatisfied that the Higher

Education Minister did not consult them (the LTA) before making the decision.

Conclusion:

The decisions can be challenged by Sarimah on the ground that the Higher Education

Minister has committed procedural ultra vires.

Third issue

Issue:

The issue is whether the decisions can be challenged by Atan on the ground that the

Bar Council has committed substantive ultra vires.

Law:

One of the three main types of ultra vires is substantive ultra vires. Substantive ultra

vires happens when the discretionary action of authority falls outside the express limits of a

power provided under a statute.

8 (2011) 7 MLJ 209

In substantive ultra vires, the concern of the courts is to ensure authorities exercise

discretionary power according to, and within the limits set by, parent statute. Substantive

ultra vires means the decision – maker lacks substantive power by the enabling statute to

make decision or to take action in question.

In Fadzil bin Mohamed Noor v University Teknologi Malaysia9, it was held that the

general powers of the University Council, as provided by the statute, did not extend to

disciplinary matters and thus the exercise of the jurisdiction by the University Council in

dismissing the appellant was ultra vires its power.

Application:

In this problem, there was a substantive ultra vires committed by the Bar Council.

This is because, there was no discretionary power given to the Bar Council by the Higher

Education Act 2008 to prevent Atan from continuing his pupilage as a result of the order

made by the Higher Education Minister.

The statute expressly stated for a mechanism to be introduced by the Higher

Education Minister, but the discretionary power is not extended to the other bodies affected

by the order. Thus, it can be clearly seen that the exercise of such power by the Bar Council

has falls outside the express limits of power provided under the statute.

The Bar Council, as the decision – maker, lacks substantive power by the statute to

prevent Atan from continuing his pupilage at Messrs Zaidi Ibra and Associates.

The power provided by the statute did not extend to the power of preventing a person

from continuing his pupilage at any legal firm, and thus the exercise of such power by the

Bar Council was ultra vires its power. This was strengthened by the case of Fadzil bin

Mohamed Noor v University Teknologi Malaysia10.

Conclusion:

9 (1981) 2 MLJ 19610 (1981) 2 MLJ 196

The decisions may be challenged by Atan on the ground that the Bar Council has

committed substantive ultra vires.

APRIL 2008, PART C, QUESTION 1

First Issue

Issue:

The issue is whether Dr. Kasar can challenge the decision of the Hospital Disciplinary

Board for his dismissal on the ground that there was no oral hearing given to him.

Law:

Natural justice is a procedural safeguard against improper exercise of power by a

public authority and has been characterised as ‘fair administrative procedure’. Natural

justice is a minimum procedural safeguard which the public authority has to satisfy.

Natural justice has two components which are the right to be heard, that is audi

alteram partem, and the right against bias, that is nemo judex in sua causa. Hearing is one

of the components of the right to be heard. Hearing may be in the form of oral, written, or

consultation or interview.

The basic legal proposition is that an oral hearing is not predicated in all cases, where

it is not regarded as a compulsory part of natural justice.

In Lloyd v McMahon11, it was held that the auditor’s decision cannot be challenged

on the ground that oral hearing was not given, as none of the councilors have asked for an

oral hearing even though they could do so. Clear ground for complaint of unfairness would

only arise if the councilors had asked to be heard orally and the auditor had refused.

There may be circumstances where the court may regard an oral hearing necessary in

the interest of fairness such as where issues of credibility are involved.

In Pett v Greyhound Racing Association Ltd.12, it was held that oral hearing may be

required if a person facing serious charge affecting his reputation and livelihood.

11 (1987) AC 62512 (1968) 2 All ER 545

Application:

In this problem, as the Hospital Disciplinary Board is a public authority, thus, they are

bound to the rule of natural justice, in order to safeguard against improper exercise of

power by them. The Hospital Disciplinary Board has to satisfy to the rule of natural justice

in taking any action or while making any decision.

Referring to the facts of the problem, Dr. Kasar has been given a written hearing

when he was issued with a show cause letter requiring him to explain in writing why a

disciplinary action for “dismissal” should not be taken against him for being negligent in

handling Nasibi’s case. Thus, this shows that right to hearing was given to Dr. Kasar in the

form of written hearing.

However, issue arises when Dr. Kasar insisted that he should be given an oral hearing,

but the Hospital Disciplinary Board had rejected the application. The right to oral hearing is

not predicated in all cases, where it is not regarded as a compulsory part of natural justice.

Relying on the authority in Lloyd v McMahon13, the decision made by the Hospital

Disciplinary Board in rejecting the application for an oral hearing may be challenged on the

ground that Dr. Kasar have already asked for an oral hearing to explain his actual position.

There was a clear ground for complaint of unfairness on the part of the Hospital

Disciplinary Board as Dr. Kasar had asked to be heard orally and the Hospital Disciplinary

Board had refused with no reasons given.

Other than that, oral hearing may be necessary in this problem as there are issues of

credibility involved. Referring to Pett v Greyhound Racing Association Ltd.14, oral hearing

may be required in this case as Dr. Kasar facing serious charge affecting his reputation and

livelihood.

The issue of negligence is a serious matter as it will affect his reputation as a

professional worker as well as his livelihood where it would be difficult for him to be

accepted as a medical officer in another hospital if he has been dismissed due to negligence.

This will in fact affect his income as it will be hard for him to be employed in the future.

13 (1987) AC 62514 (1968) 2 All ER 545

Besides, it is necessary for him to be given an oral hearing as the inquiry during the

hearing will result in the dismissal of his service as a doctor. This is considered a serious

matter where a written hearing would not be sufficient and he may need an oral hearing to

explain his actual position, in order to prevent the dismissal from taking place.

Conclusion:

Dr. Kasar can challenge the decision of the Hospital Disciplinary Board for his

dismissal on the ground that there was no oral hearing given to him, where he has already

apply for it.

Second Issue

Issue:

The issue is whether Dr. Kasar can challenge the decision of the Hospital Disciplinary

Board for his dismissal on the ground that there was no fair and reasonable hearing as no

right to counsel was given to him.

Law:

Fair and reasonable hearing is one of the components of the right to be heard. In order

to achieve a fair and reasonable hearing, one of the requirements is that the parties must be

given the right to counsel.

A party not legally represented, may be at great disadvantage where he may be unable

to deal with difficult question of law and fact arise. Besides, where elaborate evidence is to

be produced, a lack of legal representation may actually lead to the appearance of injustice.

In Pett v Greyhound racing Association Ltd.15, the court of Appeal ruled that natural

justice required that the plaintiff should be represented by a lawyer as he was facing a

serious charge concerning his reputation and livelihood.

15 (1969) 1 QB 125, (1968) 2 All ER 545

In Fraser v Mudge16, it was held that there should be no legal representation in a

disciplinary matters.

In R v Secretary of State for the Home Department17, the Court of Appeal held that

while a prisoner is not entitled to legal representation as a matter of legal right, a Board of

Visitors has a discretion to permit legal representation.

The criteria that need to be considered to allow representation includes, the

seriousness of the charge and potential penalty, and the capacity of a particular person to

present his or her own case.

Application:

In this problem, it appears that there was no fair and reasonable hearing as Dr. Kasar

was not given the right to counsel in order to explain his actual position.

Thus, it can be seen that Dr. Kasar may be at great disadvantage where he may be

unable to deal with difficult question of law and fact arise regarding his problem as he was

not legally represented. It will be difficult for him to defend himself in the hearing as he is a

doctor who did not have any legal basis and the issue on negligence is definitely out of his

field.

Thus, in this situation, the denial of the right to counsel have lead to the appearance of

injustice to Dr. Kasar. If he is given the right to counsel, he may have a better chance not to

be dismissed where his lawyers will present the best out of his case.

Referring to Pett v Greyhound racing Association Ltd.18, it is necessary for Dr. Kasar

to be given the right to be to be represented by a lawyer as required by natural justice where

he was facing a serious charge concerning his reputation and livelihood.

The issue on negligence is a very serious issue that will affect his reputation as a

doctor as well as his future career. When he was dismissed due to the reason of negligence,

it will be hard for him to get another opportunity to serve as a medical officer at another

hospital. Thus, his income, in fact, will also be affected.

16 (1975) 3 All ER 7817 (1984) 1 All ER 79918 (1969) 1 QB 125, (1968) 2 All ER 545

However, applying Fraser v Mudge19, there should be no legal representation in Dr.

kasar situation as it was a problem which involved a disciplinary matters. It can be clearly

seen from the facts of the problem that this was a disciplinary matters on negligence where

disciplinary action of dismissal is to be taken against Dr. Kasar.

Nevertheless, this view was no longer applicable. Relying on the authority provided

by R v Secretary of State for the Home Department20, it is up to the discretion of the

Hospital Disciplinary Board whether to permit legal representation or not.

Even though the Hospital Disciplinary Board has rejected the right of counsel for Dr.

Kasar, they did not comply with the criteria that need to be considered to allow

representation. Representation should be allowed as the charge imposed on Dr. Kasar was

serious where the potential penalty is dismissal from his service as a medical officer.

Besides, Dr. Kasar did not have a capacity of to present his own case as he was not legally

trained and it will be hard for them to point the question of law.

Conclusion:

Dr. Kasar can challenge the decision of the Hospital Disciplinary Board for his

dismissal on the ground that there was no fair and reasonable hearing as no right to counsel

was given to him where his application for oral hearing was rejected by the court.

Third issue

Issue:

The issue is whether Dr. Kasar can challenge the decision of the Hospital Disciplinary

Board for his dismissal on the ground that there was no fair and reasonable hearing as no

disclosure of material was made to him.

Law:

Fair and reasonable hearing is one of the components of the right to be heard. In order

to achieve a fair and reasonable hearing, one of the requirements is that there must be

disclosure of materials to the parties.

19 (1975) 3 All ER 7820 (1984) 1 All ER 799

The general principle is that all the materials which are being relied on by an

adjudicating authority for giving its decision against a person should be brought to that

person’s notice. Furthermore, that person should be given an opportunity to comment,

criticize, explain, or rebut the materials.

In Phang Moh Shin v Commissioner of Police21, the court held that the inquiry was

to be defective as the contents of the documents in which the inquiry officer took into

account in arriving at his decision were never disclosed to the plaintiff and the plaintiff was

never given an opportunity to answer or explain.

In Shamsiah bt Ahmad Sham v Public Service Commissioner22, it was held that the

hearing was not fair and reasonable as the disciplinary authority had taken into account the

appellant’s record of past conduct without giving her an opportunity of explaining it.

Application:

In this problem, it appears that there was no fair and reasonable hearing as there was

no disclosure of materials to Dr. Kasar.

It can be clearly seen from the facts of the problem that the Hospital Disciplinary

Board has also referred to records of complaints made against Dr. Kasar by some of the

hospital patients regarding his attitude in attending to patient. Nevertheless, these material

was never exposed to Dr. Kasar.

As a result, Dr. Kasar did not obtain the opportunity to comment, criticize, explain, or

even rebut the records of complaints. Thus, there was a disadvantage on the part of Dr.

Kasar as he did not have the opportunity to defend himself as he has no knowledge on the

materials relied by the Hospital Disciplinary Board.

Relying on the authority in Phang Moh Shin v Commissioner of Police23, the hearing

conducted by the Hospital Disciplinary Board was not a fair and reasonable hearing as the

contents of the documents in which the Board took into account in arriving at their decision

were never disclosed to Dr. Kasar and he was never given an opportunity to answer or

explain.

21 (1967) 2 MLJ 18622 (1990) 3 MLJ 36423 (1967) 2 MLJ 186

Furthermore, as referring to Shamsiah bt Ahmad Sham v Public Service

Commissioner24, it may be said that the hearing conducted by the Hospital Disciplinary

Board was not fair and reasonable as they had taken into account Dr. Kasar’s record of past

conduct without giving him an opportunity of explaining it.

Conclusion:

Dr. Kasar may challenge the decision of the Hospital Disciplinary Board for his

dismissal on the ground that there was no fair and reasonable hearing as no disclosure of

material was made to him.

Fourth Issue

Issue:

The issue is whether Dr. Kasar can challenge the decision of the Hospital Disciplinary

Board for his dismissal on the ground that there was no fair and reasonable hearing as no

reasoned decisions was made known to him.

Law:

Fair and reasonable hearing is one of the components of the right to be heard. In order

to achieve a fair and reasonable hearing, one of the requirements is that the reasons of the

decisions must be made known to the parties.

However, the duty of the adjudicatory body in giving reasons to their decisions is not

a mandatory, where it is only a good criteria of administration.

There are two opinions on the duty to give reasons for decision. Firstly, the Supreme

Court of India has observed that grounds of decisions must be stated. Secondly, British

Court have taken the view that grounds of decisions are not necessarily to be stated.

In Rohana bte Ariffin v University Sains Malaysia25, it was held that a reasoned

decision can be an additional constituent of the concept of fairness, and as the plaintiff

cannot appeal without knowing the ground of decisions, the court ruled that the ground of

decisions must be stated.

24 (1990) 3 MLJ 36425 (1989) 1 MLJ 487

Application:

In this problem, it appears that there was no fair and reasonable hearing as the reasons

of the decisions was not made known to Dr. Kasar.

However, the general principle is that duty of the Hospital Disciplinary Board in

giving reasons to their decisions is not a mandatory, where it is only a good criteria of

administration.

There are two opinions on the duty to give reasons for decision. Firstly, the Supreme

Court of India has observed that grounds of decisions must be stated. Secondly, British

Court have taken the view that grounds of decisions are not necessarily to be stated.

Having regarded the circumstances of the problem, I would prefer to apply the first

view, where the Hospital Disciplinary Board must state the ground of their decisions in

dismissing Dr. Kasar. This is because, dismissal is a very serious matter where it appears

necessary for the Board to provide the reasons in supporting the dismissal.

Referring to Rohana bte Ariffin v University Sains Malaysia26, the ground of

decisions must be stated by the Hospital Disciplinary Board in order to serve fairness as it

would be unfair to Dr. kasar if he was dismissed with no solid reason given. Dismissal is a

very serious matter which will affect his career as well as his livelihood, and it will be

unfair to dismiss him without reasons given for that decision.

Other than that, it is necessary for the Board to state the grounds of decisions to

enable Dr. kasar to appeal on that decision. As dismissal is a very serious matter, Dr. Kasar

may want to challenge the dismissal through appeal, and he cannot do that without knowing

the grounds for him to be dismissed from his service.

26 (1989) 1 MLJ 487

Conclusion:

Dr. Kasar can challenge the decision of the Hospital Disciplinary Board for his

dismissal on the ground that there was no fair and reasonable hearing as no reasoned

decisions was made known to him.

Fifth Issue

Issue:

The issue is whether Mamat can take any action against the government on the ground

that there was a negligent conduct of the Medical officers of Cyberjaya Governmental

Hospital which has caused death to her wife, Nasibi.

Law:

There are two types of liability on the part of the government, which are contractual

liability and tortious liability. Under tortious liability, different provision will be applied to

the tort committed by the public officer and the army officer.

Sec 5 of the Government Proceedings Act 1956 makes the government liable for any

wrongful act done by any public officer , in the same manner as that in which a principal is

liable for any wrong committed by his agent.

Sec 6(1) of the Government Proceedings Act 1956 provides that an action shall not

lie against government unless the proceedings for damages in respect of the act, neglect or

default by an officer would have lain against such officer personally.

In Abdul Rahman v Government of Malaysia27, the court ruled that the identity of

the officer must be established before the government can be made liable.

In Kerajaan Malaysia v Lay Kee Tee28, it was held that in tort the government officer

responsible for the alleged tortious act must be made a party and that officer’s liability

established before the government can be made vicariously liable as principal.

27 (1966) 2 MLJ 17428 (2009) 1 MLJ 1

Sec 6(4) of the Government Proceedings Act 1956 provides that the government is

not liable for any act, neglect, or default of an officer unless he or she was employed by the

government and paid in respect of his or her duties as an officer wholly out of government

revenues.

In Mohamed Raihan bin Ibrahim v Government of Malaysia29, the government was

held vicariously liable for the negligent of the teacher who failed to provide proper

supervision of the pupils and thus caused injury to one of them.

Application:

This is a problem which falls under tortuous liability as Mamat want to initiate an

action against the government due to the negligence conduct of the medical officers of

Cyberjaya Government Hospital.

Mamat may be succeed in initiating an action against the government as according to

Sec 5 of the Government Proceedings Act 1956, the government can be made liable for

any wrongful act done by any public officer , in the same manner as that in which a

principal is liable for any wrong committed by his agent.

However, the question arose here, that is whether the medical officers may be

considered as public officers or not. Regarding this matter, we need to refer to Sec 6(4) of

the Government Proceedings Act 1956, which provides on who should be considered as a

public officer.

Applying Sec 6(4) of the Government Proceedings Act 1956, the medical officers of

Cyberjaya Governmental Hospital may be considered as public officer as they were

employed by the government and paid in respect of their duties as an officer wholly out of

government revenues. This, in fact, shows that the Government will be liable for the

negligence, or default of the Medical officers.

29 (1981) 2 MLJ 27

However, one condition that needs to be satisfied before the government can be held

liable for the action or negligence committed by the public officers is that the identity of the

officer must be stated as in Sec 6(1) of the Government Proceedings Act 1956.

In this problem, it seems that Mamat did not satisfy the condition as he did not name

the officer as an individual, where he generally mentioned “medical officers”. Thus, as the

identity of the officer was not stated, his action may be dismissed by the court. This is

because, if any action is going to be taken against the government, the public officer must

be held liable first.

Thus, as there was a failure on the part of Mamat to name the public officer, he cannot

proceed in taking action against the government. This is supported by the case of Abdul

Rahman v Government of Malaysia30.

Furthermore, as relying on the authority in Kerajaan Malaysia v Lay Kee Tee31, the

government cannot be held as vicariously liable for the negligence committed by the

medical officers as the medical officer responsible for that negligent act was not made a

party.

Therefore, if Mamat want to initiate an action against the government due to the

negligence of the medical officer, he must state the name of the medical officer first, in

order to make the government vicariously liable.

Referring to Mohamed Raihan bin Ibrahim v Government of Malaysia32, the

government may be held vicariously liable for the negligent of the medical officer who

failed to exercise reasonable standard of care in handling Nasibi’s case which has caused

Nasibi to dead.

Conclusion:

Mamat can take action against the government on the ground that there was a

negligent conduct of the Medical officers of Cyberjaya Governmental Hospital which has

caused death to her wife, Nasibi, on the condition that he must named the officer who

responsible for that conduct.

30 (1966) 2 MLJ 17431 (2009) 1 MLJ 132 (1981) 2 MLJ 27

Sixth Issue

Issue:

The issue is whether Mamat can take action against the government on the ground

that there was a need for the production of the reports and findings of the investigation by

the Cyberjaya Governmental Hospital.

Law:

The concept of open government is part of democratic culture in democratic

countries. One of the aspects of open government is public interest immunity. The

underlying purpose of public interest immunity is to prevent the disclosure of evidence in

the courts on the ground that there is public interest in ensuring that no prejudice or injury

is caused to national affairs by the disclosure of certain documents or information in certain

documents. On the other hand, there is the competing public interest in ensuring that the

administration of justice is not frustrated by government withholding documents which

need to be produced if justice is to be done and the community’s best interests served.

These two competing aim must be balance.

In Conway v Rimmer33, it was ruled that, in order to decide whether the documents

are privileged or not, the court have the power to examine the documents, without them

being showed to the parties involved.

In BA Rao v Sapuran Kaur34, the court inspected the reports and findings of the

committee regarding the death of the deceased, and held that there were nothing in the

documents that can affect public interest and public service, thus the documents were

ordered to be disclosed.

Application:

33 (1968) AC 91034 (1978) 2 MLJ 146

In this problem, the aim of the Hospital Disciplinary Board in refusing to produce the

reports and findings of the investigation is for the purpose of ensuring that no prejudice or

injury is caused to national affairs by the disclosure of those documents. They argued that

the documents are government documents and therefore, private and confidential.

On the other hand, there is the competing public interest in ensuring that the

administration of justice is not frustrated by government against Mamat, who requested the

production of that reports and findings in order to prove the negligent conduct of the

medical officer.

Relying on the authority in Conway v Rimmer35, the question of whether the reports

and findings of the investigation are privileged or not is for the court to determine without

them being showed to the parties involved, not the Hospital Disciplinary Board.

Therefore, in this problem, the Cyberjaya Government Hospital cannot immediately

turn down the request made by Mamat to produce the reports and findings as they do not

have any power to do so. The power in determining whether such documents are privileged

or not lies within the court.

Referring to BA Rao v Sapuran Kaur36, only after the court made judgment on

whether those documents should be disclosed or not to be disclosed, only then the request

made by Mamat can be turn down or upheld.

Before the documents requested by Mamat are produced to the court and judgment

given by the court, the Hospital Disciplinary Committee should not contended that the

documents requested are private or confidential, and thus should not be disclosed.

Conclusion:

Mamat can take action against the government on the ground that there was a need for

the production of the reports and findings of the investigation by the Cyberjaya

Governmental Hospital before the court, as the question of privileged should be determined

by the court.

35 (1968) AC 91036 (1978) 2 MLJ 146