Natural justice

Natural Justice

Meaning:

• Procedural safeguard against improper exercise of powers by a public authorit

• Characterised as fair administrative procedure

• Procedural fairness is an integral part of Administrative Law

Natural Justice

• Development and Application

• Elements/Principles of Natural Justice

• Effect of failure to observe natural justice

Development and Application1. Look into the classification of powers

- Applied if it involved quasi judicial power- Cooper v Wandsworth of Works (1863) 14 C.B.N.S. 180

2. Strict approach- natural justice not applicable if it is pure administrative approach- Nakkuda Ali [1951 AC 66.

3. Flexible approach-Ridge v Baldwin (1964) AC 40-fairness-Re (H) K (an infant) [1967] 2 QB 617-procedural fairness-Tan Teck Seng - Hong Leong

Development and Application

4. Principle of legitimate expectation 

• Legitimate expectation arises when there is a promise or representation or past practice followed by authority. 

• Legitimate Expectation includes expectation which goes beyond an enforceable legal right, provided it has reasonable basis.

• Expectation may be based on some express statement of undertaking, or on behalf of, the public authority which has the duty of making the decision, or from the existence of a regular practice which the claimant can reasonably expect to continue.

- Schmidt v Secreatary of State for Home Affairs [1969] 2 WLR 337.- -Re Liverpool Taxi Owners, Assoc. [1972]2 All ER 589

- AG of Hong Kong v NG Yuen Shiu [1983] 2 AC 629.

Legitimate Expectation

• Application in Malaysia

- J. P Belthelsen v Director General of Immigration [1987] 1 MLJ 134.

- Dr. Benjamin George & Ors v Majlis Perbandaran Ampang Jaya and others [1995] 3 MLJ 665.

- Lee Freddie v Majlis Perbandaran Petaling Jaya [1994] 3 MLJ 640.

Elements of Natural Justice

I. Right to be Heard (audi alteram partem)

2. Rules against bias (nemo judex in causa sua)

Right to be heard

1. Noticea) Chargesb) Time

2. Hearinga) Writtenb) Oralc) Reasonable hearing

Right to be heard

1. Notice

a) Content of charges should be informed

- if charges on minor sentence but punish for severe punishment therefore notice must be given

- grounds of charges must be clear

-Maradana Mosque Trustee v Badi-ud-din- Mahmud [1967] 1 AC 13

- Mahadevan v Anandrajan [1974] 1 MLJ 2

Right to be heard

1. Notice

b) Sufficient time must be given to make defence

- Re Liverpool Taxi Owner’s Association [1972] 2 All ER 589

- Phang Moh Sin v Commissioner of Police [1967] 2 MLJ 186

Right to be heard

1. HearingIntroductionHearing could be written or oral hearing because defending on the circumstances of an individual case- Ketua Pengarah Kastam v Ho Kwan Seng [1977] 2 MLJ 152

a. WrittenIf the case is simple and not complicated or technical written hearing is sufficient

Right to be heard

b. Oral

- Oral hearing is needed if the case involved is complex or technical or serious charges had been made affecting reputation and livelihood of the alleged person

- Travencore Rayons AIR 1971 SC 862

- Pett v Greyhound [1968] AII ER 545

- Phang Moh Sin

- Pengarah Kastam

Right to be heard

c) Reasonable hearing

To ensure that there is a fair hearing is given, the hearing must be reasonable. Reasonable hearing includes the following:

i) Disclosure of evidence or information

ii) Right to receive information

iii) Right to counsel

iv) Reasoned decision

v) Based on procedural fairness

Right to be heardc) Reasonable hearing

i) Disclosure of evidence or information- relevant material used in decision making must be brought to the notice of the alleged person- R v Secretary of state for the Home Department ex parte Hosenball [1977] 1 WLR 766- R v Chief constable of North Wales Police v Evans [1982] - Fairmount Investments Ltd v Secretary of state for the Environment [1976] 1 WLR 1255- Phang Moh Sin- Shamsiah Ahmad Sham (1990) 3 MLJ 364- Abdul Rahman v Public Service Comm (1991) 2 MLJ 240- Re Paragamon Press Ltd (1971) Ch 388

Right to be heard

c. Reasonable hearing

ii) Right to accept information- Decision maker must accept information or

evidence given by the alleged person to support or rebut allegation against him/her

- R v Board Visitors of Hull Prison ex parte St Germain (No. 2) 1 WLR 1401

- Malayawata Steel Bhd v Union Malayawata Steel Workers [1978] 1 MLJ 87

Right to be heard

c. Reasonable hearing

iii) Right to counsel- Generally not a right but if the case is complicated, serious, affecting reputation or livelihood the allege person should be allowed legal assistance

- Pett v Greyhound Racing Association [1969] 1 QB 125- -Pett No 2 [1970] 1 QB 46- R Secretary v of State for the Home Department ex

parte Tarrant [1985] QB 251- R v Board of Visitors of the Maze Prison ex parte

Home and Mc Cartan [1988] AC 379

Right to be heard

c. Reasonable hearingiv) Reasoned decisions- It is not an obligation to give reasons but by

giving reasoned decisions it amounts to good administration

- Breen v AEU 2 QB 143- Travencore Rayons- Pemungut Hasil Tanah, Daerah Barat Daya,

Pulau Pinang v Kam Gin Paik [1983] 2 MLJ 392- Rohana Ariffin v USM (1989) 1 MLJ 487

Right to be heard

C. Reasonable hearingiv. Reasoned decisions- Based on procedural fairness

Giving of reasons extended to cases affecting fundamental liberties of a persons- Padfield v Minister of Agriculture , Fisheries and Food [[1968] AC 997- Rohana Ariffin v USM- Hong Leong Equipment [1996] 1 MLJ 481

- based on Hong Leong

Rules against bias

Elements of bias

• Pecuniary bias

• Personal bias

• Policy bias

Rules against bias

Elements

1. Percuniary bias

- percuniary interest disqualify a judge

- Dimes v Grand Junction Canal (1852) 3 HLCas 759.

Rules against bias

Elements

2. Personal bias

- adjudicator can’t have relationship, friendship, business with party in dispute

- test- whether ther is likelihood of bias

- Metropolitan Properties [1968] 3 All ER 304

- A. Kraipak AIR 1970 SC 150

- Govindaj v President MIC [1984] 1 MLJ 190

Rules against bias

Elements

3. Policy bias- Gullapalli N Rao v Andra Pradesh AIR 1959 SC 308

- Franklin v Minister Town and Country Plainning (1948) AC 87

- Alkaff & Co v The Governor-in-Council [1937] MLJ 202