VJ'

Firm Code: 7977

2011 Certification No: 2011/M/07977/57508

TIMELESS LEGAL MAXIMS FROM THE - "AL-SUNNAH"

From Ali r.a.berkata Rasulullah s.a.w. bersabda yang bermaksud;

"Apabila dua  orang dihakimkan kepadamu, maka janganlah kamu menjatuhkan hukuman untuk yang pertama sehinggahlah kamu mendengar percakapan (keterangan) daripada yang lain, maka kamu akan mengetahui bagaimana caranya kamu membuat keputusan."

The above legal maxim  already existed long before the English Judiciary  laid down  the equitable maxim that  "No one shall be condemned unheard" & " Justice must not only be done but must be seen to be done."

The above legal  requirements is also part of  the Malaysian Federal Constitution [in the context of Administrative Law]


Article 135

1.(2) No member of such a service as aforesaid shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard:

If the above law is breached, it will pave the way for Judicial Review in the High Court for an application for 'Certiorari' . The High Court has the jurisdiction to quash the decision of an Inferior Tribunal or even the Public Services Commission.
Case Law-TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR [CIVIL APPEAL NO. J-01-28-1995] 22 JANUARY 1996

Ps. This is not the "only" case law but one among thousands. Students need to do some reading up. Remember- you can only build up on previous existing knowledge.This can take some time. There is no such thing as understanding Judial  Review  after  browsing 2 hours in the library. ---Vj---

WELCOME BACK TO STUDIES

Just a gentle reminder to students that the holidays are over-vj-

Lau Yuk Hua's case.

LAU YUK HUA V THE COMMISSIONER OF STATE PUBLIC SERVICE COMMISSION OF SARAWAK -[2011] 4 AMR 700 --YEW KEN JIE J

Held: The right  to be "heard " in a disciplinary action levelled againt a public officer need not be by way of oral evidence, and it can take a form of  representation.Thus, failure to be accorded an oral hearing does not mean that there is a denial of natural justice. The applicant was given the opportunity to be heard in that he was given the opportunity to give a written representation. Hence, there was no breach of  rule32(1) of the PSC Rules. [PSC- Public Services Commission Rules]

CASE LAW

 Najar Singh v Goverment of Malaysia & Anor [1976]  1 MLJ 203 PC -Viscount Dilhorne

The word "heard"  does not invariably connote an oral hearing.It can be used and is not infrequently used in relation to something written.

Zainal bin Hashim v Goverment of Malaysia  [1979] 2 MLJ 276 PC

The right to be heard given by Article 135(2) of the Constitution dos not require the person concerned to be given an oral hearing and it could not be argued that the failure to give the appellent an oral hearing was a denial of justice.

PSC Malaysia v Vickeswary a/p RM Santhivelu YAA Tan Sri Zaki PCA ( as His Lordship then was) held:-

"...  it is clear that it is never the intention of the legislators to give an officer under disciplinary action the right to give oral evidence.In any case as far as the deceased was concerned, he was given an opportunity and he did give a very lengthy letter explaining in detail why he could not  have committed the acts of which he was charged under. He said in his letter that he was prepared to appear  before the disciplinary authority  to answer questions  but the disciplinary authority decided from the evidence available to it that it was not necessary to hear the deceased in person."

When the moon is full...

Oysters open completely when the moon is full; and when the crab sees one it throws a piece of stone or seaweed into it and the oyster cannot close again so that it serves the crab for meat. Such is the fate of him who opens his mouth too much and thereby puts himself at the mercy of the listener.

Leonardo da Vinci 1452-1519

Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn. Bhd [2010] 6 MLJ -at page 1

Historically, JR was only concerned with the decision making process where the impunged decision was flawed on the ground of procedural impropriety.However the decision in R Rama Chandran held the decision of an inferior tribunal may be reviewed on the grounds of  'illegality',  irrationality and possibly 'proportionality' which permit the Courts to scrutinize the decision not only for process but also for substance.It allows the Courts to go into the merits of the matter.The distinction between review and appeal no longer holds. ( see para 15) R Rama Chandran v The Industrial  Court of  Malaysia & Anor [1997] 1 MLJ 145 followed.

[ This is a ridiculous decision  and on the exam papers needs to be handled cautiously and meticulously. The origin of JR and its purpose needs to be re-examined.]

[2010] 6 MLJ -at page 1

Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn. Bhd

FC-Putrajaya - Civil Appeal No.01-1-2009
Arifin Zakaria CJ Malaya ,  Mohd Ghazali and Raus Sharif    12 May 2010

Dari segi sejarah,semakan kehakiman hanya berkaitan dengan proses membuat keputusan dimana keputusan yang dipersoalkan adalah salah atas alasan ketidakwajaran prosedur.

Walau bagaimanapun , keputusan didalam kes R Ramachandran memutuskan bahawa keputusan tribunal yang lebih rendah boleh disemak atas alasan 'illegality, irrationality dan kemungkinan 'proportionality' yang membenarkan Mahkamah meneliti keputusan tersebut bukan hanya untuk proses tetapi juga untuk kandungan.

Ia membenarkan Mahkamah menentukan merit perkara  tersebut.Perbezaan di antara semakan dan rayuan tidak bertahan lagi  (lihat perenggan 15 ) R. Rama Chandran v Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 diikut.

ABANDONED OFFICE

The Bush administrations sent terror suspects to Libya for interrogation, despite that country's reputation for torture, according to documents found in the abandoned office of Libya's spy chief. This document is the first of two discussing the rendition and human rights of Abdel-Hakim Belhaj.