ASSOCIATED PROVINCIAL PICTURE HOUSES V WEDNESBURY CORPORATION
[1948] 1. K.B. 223
[1947] ALL E.R. 680 CA
THE ZAMAORA [1916] 2 A.C. 77
Friday, June 25, 2010
Thursday, June 24, 2010
COUNCIL FOR THE CIVIL SERVICE UNIONS V MINISTER FOR THE CIVIL SERVICE
APPEAL FROM THE COURT OF APPEAL
By notice of application for leave to apply for JR pursuant to R.S.C. Ord 53 r.3 dated 7 March 1984 as amended on 21 June 1984,the applicants
-CCSU
-Jack Hart
-Ann Sarah Downey
-Christopher Hugh Braunholz,
- Jeremy Windust
-David Francis McCaffrey
Dennis Mitchell
By notice of application for leave to apply for JR pursuant to R.S.C. Ord 53 r.3 dated 7 March 1984 as amended on 21 June 1984,the applicants
-CCSU
-Jack Hart
-Ann Sarah Downey
-Christopher Hugh Braunholz,
- Jeremy Windust
-David Francis McCaffrey
Dennis Mitchell
COUNCIL FOR THE CIVIL SERVICE UNIONS V MINISTER FOR THE CIVIL SERVICE
A BRIEF HISTORY ON CCSU--1
The main functions of the Goverment Communications Headquarters (GCHQ) were to ensure the security of Military and Official communications and to provide the Goverment with signals intelligence; they involved the handling of secret information vital to national security.22 December 1983- Minister for the Civil Service- under Article 4 of the Civil Service Order in Council 1982- immediate variation of the terms and conditions of staff- no longer permitted to belong to National Trade Union-- there was no prior consultation.
J Glidewell granted the applicants a declaration that the instruction was invalid and of no effect.
CCSU- JUDGMENT AC 1985 pages 374-424 [50 pages]
LORD BRIGHTMAN- My Lords, I also would dismiss this appeal for one reason only, namely on the ground of national security.
LORD ROSKILL- I have therefore reached the clear conclusion, first,that the respondent has established that the work at GCHQ was a matter of grave national security.....and must lead to the result that the appeal should be dismissed.
LORD DIPLOCK- I agree with your Lordships that this appeal must be dismissed.
LORD SCARMAN- My Lords, I would dismiss this appeal for one reason only. I am satisfied that the respondent has made out a case on the ground of national security.
LORD FRASER OF TULLYBELTON- For these reasons, I would dismiss the appeal.
LORD ROSKILL- I have therefore reached the clear conclusion, first,that the respondent has established that the work at GCHQ was a matter of grave national security.....and must lead to the result that the appeal should be dismissed.
LORD DIPLOCK- I agree with your Lordships that this appeal must be dismissed.
LORD SCARMAN- My Lords, I would dismiss this appeal for one reason only. I am satisfied that the respondent has made out a case on the ground of national security.
LORD FRASER OF TULLYBELTON- For these reasons, I would dismiss the appeal.
Wednesday, June 23, 2010
WEDNESBURY'S CASE
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Traditionally the grounds of review are those laid down in this case. Those grounds have since been repostulated by the HOL in the case of CCSU [1985] AC 374
Traditionally the grounds of review are those laid down in this case. Those grounds have since been repostulated by the HOL in the case of CCSU [1985] AC 374
Tuesday, June 22, 2010
ORDER 53 r 3(6) RHC
An Application for Judicial review shall be made promptly and in any event within 40 days from the date when grounds for the application first arose or when the decision is first communicated to the respondent provided that the Court may,upon application and if it considers that there is a good reason for doing so, extend the period of 40 days"
Sunday, June 20, 2010
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
Judgment
The court held that it could not intervene to overturn the decision of the defendant corporation simply because the court disagreed with it. To have the right to intervene, the court would have to form the conclusion that:
the corporation, in making that decision, took into account factors that ought not to have been taken into account, or
the corporation failed to take account factors that ought to have been taken into account, or
the decision was so unreasonable that no reasonable authority would ever consider imposing it.
The court held that the condition did not fall into any of these categories. Therefore, the claim failed and the decision of the Wednesbury Corporation was upheld. According to Lord Greene MR,
“ It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.
The court held that it could not intervene to overturn the decision of the defendant corporation simply because the court disagreed with it. To have the right to intervene, the court would have to form the conclusion that:
the corporation, in making that decision, took into account factors that ought not to have been taken into account, or
the corporation failed to take account factors that ought to have been taken into account, or
the decision was so unreasonable that no reasonable authority would ever consider imposing it.
The court held that the condition did not fall into any of these categories. Therefore, the claim failed and the decision of the Wednesbury Corporation was upheld. According to Lord Greene MR,
“ It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
The test laid down in this case, in all three limbs, is known as "the Wednesbury test". The term "Wednesbury unreasonableness" is used to describe the third limb, of being so unreasonable that no reasonable authority could have decided that way. This case or the principle laid down is cited in United Kingdom courts as a reason for courts to be hesitant to interfere into the decisions of administrative law bodies.
In recent times, particularly as a result of the enactment of the Human Rights Act 1998, the judiciary have resiled from this strict abstentionist approach, recognising that in certain circumstances it is necessary for them to undertake a more searching review of administrative decisions. Indeed, the European Court of Human Rights now require the reviewing court to subject the original decision to "anxious scrutiny" whether an administrative measure infringes a Convention right. In order to justify such an intrusion, the Respondents will have to show that it pursued a "pressing social need" and that the means employed to achieve this were proportionate to the limitation of the right.
In recent times, particularly as a result of the enactment of the Human Rights Act 1998, the judiciary have resiled from this strict abstentionist approach, recognising that in certain circumstances it is necessary for them to undertake a more searching review of administrative decisions. Indeed, the European Court of Human Rights now require the reviewing court to subject the original decision to "anxious scrutiny" whether an administrative measure infringes a Convention right. In order to justify such an intrusion, the Respondents will have to show that it pursued a "pressing social need" and that the means employed to achieve this were proportionate to the limitation of the right.
Council of Civil Service Unions v Minister for the Civil Service
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, commonly known as the GCHQ case was an English administrative law which held that the Royal Prerogative was subject to judicial review. In 1984 the British government under Margaret Thatcher decided that employees of the Government Communications Headquarters (GCHQ) would not be allowed to join a trade union for national security reasons. This was enforced through an Order-in-Council, an exercise of the Royal Prerogative. The Council of Civil Service Unions chose to bring this matter to court through judicial review, first to the High Court of Justice, which ruled the Order-in-Council was invalid. The case then went to the Court of Appeal, which decided that the national security issues trumped any problems of propriety.
From there the case went to the House of Lords, where it was decided on 22 November 1984. In their decision, the Lords found that exercises of the Royal Prerogative were generally subject to judicial review, with certain exceptions such as matters of national security. This was a significant break from the previous law, which held that prerogative powers were not in any way subject to judicial review. The GCHQ case served to identify that the application of judicial review would be dependent on the nature of the government's powers, not their source
From there the case went to the House of Lords, where it was decided on 22 November 1984. In their decision, the Lords found that exercises of the Royal Prerogative were generally subject to judicial review, with certain exceptions such as matters of national security. This was a significant break from the previous law, which held that prerogative powers were not in any way subject to judicial review. The GCHQ case served to identify that the application of judicial review would be dependent on the nature of the government's powers, not their source
CCSU-FACTS
The Government Communications Headquarters (GCHQ) is a British intelligence agency that provides signals intelligence to the British government and armed forces. Prior to the early 1980s its existence was not acknowledged, despite the fact that it openly recruited graduates. Following a spy scandal in 1983, the organisation became known to the public, and the government of Margaret Thatcher decided a year later that employees would not be allowed to join a trade union for national security reasons. This was enforced through an Order-in-Council, an exercise of the Royal Prerogative. Despite an extensive publicity campaign by trade unions, the government refused to reverse its decision, instead offering affected employees the choice between £1,000 and membership of a staff association or dismissal. Those employees dismissed could not rely on an industrial tribunal, as they were not covered by the relevant employment legislation. As such, the Council of Civil Service Unions decided judicial review was the only available route.[1]
CCSU- JUDGMENT
The case first went to the High Court of Justice, where it was heard by Glidewell J. Glidewell found that the employees of GCHQ had some right to consultation beforehand, and that the lack of consultation made the decision invalid. The decision was then taken to the Court of Appeal, where it was heard by Lane CJ, Watkins and May LJJ. The Court of Appeal took a "strongly non-interventionist-stance", holding that judicial review could not be used to challenge the use of the Royal Prerogative, because it is an executive rather than a judicial right to judge national security requirements. It would be inappropriate for the courts to intervene.[2]
The decision was again appealed, this time to the House of Lords, where it was heard by Lord Fraser, Lord Scarman, Lord Diplock, Lord Roskill and Lord Brightman; judgment was given on 22 November 1984. The House of Lords chose to overrule the Court of Appeal, with Diplock, Scarman and Roskill all holding that the use of the Royal Prerogative was by default subject to judicial review, in a similar fashion to statutory actions.[3] The Lords differed on their approach to this; Diplock held that any prerogative power which impacted on the "private rights or legitimate expectations" of people, while Lords Fraser and Brightman held that only powers delegated from the monarch could be subject to judicial review. This case was a valid scenario for that review, in that the powers had been delegated from the monarch to the Minister for the Civil Service.[4]
Despite this attitude, the appeal failed due to the national security grounds. Lords Fraser, Scarman and Diplock all believed that the issue of national security was outside the remit of the courts, Scarman writing that "It is par excellence a non-justiciable question. The judicial process is totally inept [sic] to deal with the sort of problems which it [national security] involves". Fraser stated that while the courts would not by default accept a government statement that there was a national security issue, it was a "matter of evidence", and the evidence provided showed that the government was correct.[5]
The decision was again appealed, this time to the House of Lords, where it was heard by Lord Fraser, Lord Scarman, Lord Diplock, Lord Roskill and Lord Brightman; judgment was given on 22 November 1984. The House of Lords chose to overrule the Court of Appeal, with Diplock, Scarman and Roskill all holding that the use of the Royal Prerogative was by default subject to judicial review, in a similar fashion to statutory actions.[3] The Lords differed on their approach to this; Diplock held that any prerogative power which impacted on the "private rights or legitimate expectations" of people, while Lords Fraser and Brightman held that only powers delegated from the monarch could be subject to judicial review. This case was a valid scenario for that review, in that the powers had been delegated from the monarch to the Minister for the Civil Service.[4]
Despite this attitude, the appeal failed due to the national security grounds. Lords Fraser, Scarman and Diplock all believed that the issue of national security was outside the remit of the courts, Scarman writing that "It is par excellence a non-justiciable question. The judicial process is totally inept [sic] to deal with the sort of problems which it [national security] involves". Fraser stated that while the courts would not by default accept a government statement that there was a national security issue, it was a "matter of evidence", and the evidence provided showed that the government was correct.[5]
CCSU
Judicial review of non-statutory executive powers can give rise to a tension between competing principles. On the one hand, the rule of law requires the courts to review the legality of executive action. On the other hand, the separation of powers precludes the Court from trespassing into matters entrusted or committed to other branches of government. The fundamental role of the court in judicial review proceedings is to identify and enforce limits on executive power, whether derived from statute, prerogative or the common law. In this way, 'judicial review is neither more nor less than the enforcement of the rule of law over executive action'.At Commonwealth level, the entrenched original jurisdiction of the High Court under s 75 of the Constitution 'is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them'For this reason, it is necessary to maintain the role of courts in supervising the exercise of non-statutory powers by the executive.
However, the scope of review in any particular case must take account of the nature and subject matter of the power relied upon by the executive, and the context in which it is exercised. Some aspects of some non-statutory powers may be non-justiciable, and beyond the proper role of the courts. Ultimately, this is a reflection or application of principles relating to separation of powers, in that the courts' role is confined 'to the exercise of judicial power in relation to issues not properly assignable to other branches of government under the separation of powers and otherwise within the institutional competence of the courts'
However, the scope of review in any particular case must take account of the nature and subject matter of the power relied upon by the executive, and the context in which it is exercised. Some aspects of some non-statutory powers may be non-justiciable, and beyond the proper role of the courts. Ultimately, this is a reflection or application of principles relating to separation of powers, in that the courts' role is confined 'to the exercise of judicial power in relation to issues not properly assignable to other branches of government under the separation of powers and otherwise within the institutional competence of the courts'
CCSU
It was implicit in the CCSU Case that many of the important remaining prerogative powers would often be held to be non-justiciable. Some powers which were specifically mentioned as not being subject to judicial review were the power to enter into treaties and the conduct of foreign policy, the defence of the realm and the control of the armed forces, the prerogative of mercy, the dissolution of Parliament and the appointment of Ministers.Such powers are governed by broader policy considerations which are more appropriately entrusted to the political branches of government, and which are unsuited to examination by the courts.
CCSU
Lord Scarman
I believe that the law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter upon which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power... Today, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.
I believe that the law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter upon which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power... Today, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.
CCSU
The CCSU Case established that prerogative powers are not subject to an absolute immunity from judicial review. The case arose from a challenge to a Ministerial instruction altering the terms and conditions of service for staff at the Government Communications Headquarters, pursuant to which staff would no longer be permitted to belong to national trade unions. The applicant union sought review of the instruction on procedural fairness grounds, complaining that there had been no prior consultation in relation to the instruction. The instruction was issued under powers conferred on the Minister by an Order-in-Council which had been made in the exercise of the Crown's prerogative powers in relation to its civil service (rather than pursuant to an Act of Parliament). The House of Lords held that the fact that the ultimate source of power for the instruction was derived from the prerogative did not prevent judicial review. As Lord Diplock asserted, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review.
DICEY'S RULE OF LAW
Albert Dicey is credited with providing the logical foundation upon which the modern notion of the rule of law is based. He laid out his three principles of the rule of law in his 1885 book An Introduction to the Study of the Law of the Constitution (often abbreviated as Law of the Constitution):
•everyone is equal before the law
•no one can be punished unless they are in clear breach of the law
•there is no set of laws which are above the Courts.
Although few would argue with the first two principles, the third principle is actually quite contentious as it is incompatible with the notion of a written constitution since such a constitution would be above the Courts. This simple fact leads us to have to consider Dicey's views on written vs unwritten constitutions.
•everyone is equal before the law
•no one can be punished unless they are in clear breach of the law
•there is no set of laws which are above the Courts.
Although few would argue with the first two principles, the third principle is actually quite contentious as it is incompatible with the notion of a written constitution since such a constitution would be above the Courts. This simple fact leads us to have to consider Dicey's views on written vs unwritten constitutions.
Dicey's views on Parliamentary Supremacy
Dicey's views on Parliamentary Supremacy
When Dicey wrote Law of the Constitution in 1885, a central part of his work was the sovereignty or supremacy of Parliament. By this he meant that Parliament had and should have the right to pass any law that it wished to pass. His reason for believing this was, in essence, that laws which passed through Parliament were subject to intense scrutiny and this intense scrutiny would ensure that only good laws would make it through Parliament. In contrast, he viewed the Constitutional Supremacy approach to be less satisfactory as it could and did often result in bad laws which were either fixed or voided by the courts in obscure (i.e. hard to comprehend) judgments.
When Dicey wrote Law of the Constitution in 1885, a central part of his work was the sovereignty or supremacy of Parliament. By this he meant that Parliament had and should have the right to pass any law that it wished to pass. His reason for believing this was, in essence, that laws which passed through Parliament were subject to intense scrutiny and this intense scrutiny would ensure that only good laws would make it through Parliament. In contrast, he viewed the Constitutional Supremacy approach to be less satisfactory as it could and did often result in bad laws which were either fixed or voided by the courts in obscure (i.e. hard to comprehend) judgments.
CONFLICT OF LAWS
b) Article 119 of Federal Constitution in Malaysia specifically states that every citizens above the age of 21 is qualified to vote, which is a form of expression and participation in politics. Thus, the provisions under Section 15(5)(a) of the University & University College Act 1971 which disallows students from expressing support and participating in politics is in direct contradiction with the Federal Constitution of Malaysia.
Saturday, June 19, 2010
DICEY
The Rule of Law is an important constitutional doctrine expounded by Dicey and this doctrine is still of great relevance and significance today particularly in a system with a written constitution guaranteeing fundamental rights.
ARTICLE 162(6) FEDERAL CONSTITUTION
ARTICLE 162(6) FEDERAL CONSTITUTION further stipulates that a Court or Tribunal is empowered to modify any pre- Merdeka which is inconsistent with the Constitution so as to bring it into accord with the Constitution.
ARTICLE 4(1) FEDERAL CONSTITUTION
Art. 4(1) FC stipulates that that the Constitution is the supreme law of the Federation and any law passed after Merdeka which is inconsistent with the Constitution is, to the extent of the inconsistency, null and void.
Official Secrets Act
The Official Secrets Act provides for tough penalties, including life imprisonment, for disclosing or possessing Official Secrets, or for failing to report information about an offence or suspected offence to the authorities. The law, based on the British Official Secrets Act 1911, gives broad powers to officials to classify any information as an official secret.
Legal and Regulatory Framework
Article 10 of the Federal Constitution guarantees the right to freedom of expression for all citizens. However, the Constitution allows Parliament to impose laws to restrict the right ‘in the interest of security, friendly relations with other countries, public order, or morality’.
ARTICLE 121 FEDERAL CONSTITUTION
With the Amendment to Article 121 of the FC establishing a seperate system of Syariah Courts, the Goverment has declared that Malaysia is an Islamic country . This declaration only relates to the applicationof Islamic Law to the Muslims.
Thursday, June 17, 2010
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR.TTS-1
p.1
COURT OF APPEAL, KUALA LUMPUR
TUAN GOPAL SRI RAM JCA DATO' N.H. CHAN JCA DATO' AHMAD FAIRUZ SHEIKH ABDUL HALIM J
[CIVIL APPEAL NO. J-01-28-1995]
22 JANUARY 1996
The appellant was, until his dismissal, a member of the national education service.He was employed as the headmaster of a National Type Chinese Primary School, at Simpang Rengam in the State of Johor.
The facts leading up to and upon which, his dismissal was based are important. I shall therefore go into them in some detail here: The appellant was, as I have said, the headmaster of a school.
He was in that capacity entrusted with a sum of RM3,179.00 belonging to the Johore Education Department ("the Department"). This sum constituted the unpaid salary of the school's gardener who had not turned up for work for several months.Under the relevant financial regulations that governed the duties of the appellant, he was obliged to return this sum of money to the Department.
He failed to do so. When the Department asked for the return of the money, he told them that it had been sent to them.That was not correct.
COURT OF APPEAL, KUALA LUMPUR
TUAN GOPAL SRI RAM JCA DATO' N.H. CHAN JCA DATO' AHMAD FAIRUZ SHEIKH ABDUL HALIM J
[CIVIL APPEAL NO. J-01-28-1995]
22 JANUARY 1996
The appellant was, until his dismissal, a member of the national education service.He was employed as the headmaster of a National Type Chinese Primary School, at Simpang Rengam in the State of Johor.
The facts leading up to and upon which, his dismissal was based are important. I shall therefore go into them in some detail here: The appellant was, as I have said, the headmaster of a school.
He was in that capacity entrusted with a sum of RM3,179.00 belonging to the Johore Education Department ("the Department"). This sum constituted the unpaid salary of the school's gardener who had not turned up for work for several months.Under the relevant financial regulations that governed the duties of the appellant, he was obliged to return this sum of money to the Department.
He failed to do so. When the Department asked for the return of the money, he told them that it had been sent to them.That was not correct.
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR.[TTS-2]
Because he retained the money he was charged for an offence under s. 409 of the Penal Code. Two charges were framed against him.
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR
The explanation of the appellant for retaining the money was that by reason of his transfer he became confused (bingung), worried (runsing) and disappointed and injured in his feelings (kecewa) and also because at one time he wished to return the money but a cheque was mislaid.
He said he cashed the 2 cheques in question in order to make it easier to balance the bank account at the end of the month.He gave no effective explanation for keeping the money so long before returning it to the Department.
He said he cashed the 2 cheques in question in order to make it easier to balance the bank account at the end of the month.He gave no effective explanation for keeping the money so long before returning it to the Department.
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR.
p.3
In Mohamed Adit v. PP [1967] 1 MLJ 151, 152 Ismail Khan J (later CJ, Borneo) quoted the following passage from the judgment of Fazil Ali J:
It is not necessary or possible in every case of criminal breach of trust to prove in what precise manner the money was spent or appropriated by the accused, because under the law even temporary retention is an offence provided that it is dishonest; but the essential thing to be proved in case of criminal breach of trust is whether the accused was actuated by dishonest intentions or not.
In Mohamed Adit v. PP [1967] 1 MLJ 151, 152 Ismail Khan J (later CJ, Borneo) quoted the following passage from the judgment of Fazil Ali J:
It is not necessary or possible in every case of criminal breach of trust to prove in what precise manner the money was spent or appropriated by the accused, because under the law even temporary retention is an offence provided that it is dishonest; but the essential thing to be proved in case of criminal breach of trust is whether the accused was actuated by dishonest intentions or not.
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR
p.4
Unfortunately he told a lie in answer to the request for payment and kept the money too long. I do not see much criminality in the appellant's action or more appropriately I should say the offence were committed under extenuating circumstances.It is a borderline case, one suitable for exercise of the power given under s.173A of the Criminal Procedure Code(Emphasis added).
Unfortunately he told a lie in answer to the request for payment and kept the money too long. I do not see much criminality in the appellant's action or more appropriately I should say the offence were committed under extenuating circumstances.It is a borderline case, one suitable for exercise of the power given under s.173A of the Criminal Procedure Code(Emphasis added).
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR.
p.5&6
2. Dimaklumkan iaitu dalam perbicaraan kes rayuan oleh Encik Tan Chee Meng @ Tan Tek Seng di Mahkamah Tinggi, Muar pada 1hb April 1990 didapati bahawa Mahkamah Tinggi telah memerintah rayuan pegawai tersebut diterima.
Hukuman dan sabitan yang dikenakan keatasnya oleh Mahkamah Sesyen Muar diketepikan dan digantikan beliau di lepaskan dengan bersyarat supaya berkelakuan baik selama tempoh 3 tahun dari tarikh 1 April 1990 dibawah s. 173A(2)(b) Kanun Keseksaan dengan ikatan bon berjumlah RM5,000 tanpa penjamin.
Bersama-sama ini disertakan satu salinan fotostat Perintah Mahkamah daripada Penolong Kanan Pendaftar, Mahkamah Tinggi Muar Cr. Appeal No. 52 - 2 - 88 bertarikh 3 April, 1990 untuk tatapan dan tindakan tuan selanjutnya.
2. Dimaklumkan iaitu dalam perbicaraan kes rayuan oleh Encik Tan Chee Meng @ Tan Tek Seng di Mahkamah Tinggi, Muar pada 1hb April 1990 didapati bahawa Mahkamah Tinggi telah memerintah rayuan pegawai tersebut diterima.
Hukuman dan sabitan yang dikenakan keatasnya oleh Mahkamah Sesyen Muar diketepikan dan digantikan beliau di lepaskan dengan bersyarat supaya berkelakuan baik selama tempoh 3 tahun dari tarikh 1 April 1990 dibawah s. 173A(2)(b) Kanun Keseksaan dengan ikatan bon berjumlah RM5,000 tanpa penjamin.
Bersama-sama ini disertakan satu salinan fotostat Perintah Mahkamah daripada Penolong Kanan Pendaftar, Mahkamah Tinggi Muar Cr. Appeal No. 52 - 2 - 88 bertarikh 3 April, 1990 untuk tatapan dan tindakan tuan selanjutnya.
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR.
p.7
The expression "dengan sabitan tersebut" (with the above mentioned conviction) which appears in the latter portion of the second paragraph of the letter is an obvious reference to the order of the High Court binding the appellant over under s. 173A of the Code. Further, the letter treats the order of the High Court as having altered only the sentence imposed by the Sessions Court.
The expression "dengan sabitan tersebut" (with the above mentioned conviction) which appears in the latter portion of the second paragraph of the letter is an obvious reference to the order of the High Court binding the appellant over under s. 173A of the Code. Further, the letter treats the order of the High Court as having altered only the sentence imposed by the Sessions Court.
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR.
p.8
The first primary submission of Counsel for the appellant is comprised in the question which Encik Das formulated when he opened the appeal:
Can a member of the public service who has been bound over under s. 173A of the Code be subject to disciplinary punishment of either dismissal or reduction in rank under General Orders 33 and 35 of Chapter D?
The first primary submission of Counsel for the appellant is comprised in the question which Encik Das formulated when he opened the appeal:
Can a member of the public service who has been bound over under s. 173A of the Code be subject to disciplinary punishment of either dismissal or reduction in rank under General Orders 33 and 35 of Chapter D?
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR
p.9 Let me take Article 135(2) first.
It reads as follows: (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:
Provided that this clause shall not apply to the following cases: (a) where a member of such a service is dismissed or reduced in rank on the ground of conduct in respect of which a criminal charge has been proved against him;
It reads as follows: (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:
Provided that this clause shall not apply to the following cases: (a) where a member of such a service is dismissed or reduced in rank on the ground of conduct in respect of which a criminal charge has been proved against him;
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR.
p.11
In this Order, the term 'acquittal' includes a discharge not amounting to acquittal.
29. An officer who is acquitted shall not be dismissed on the charge upon which he is acquitted but nothing in this General Order shall prevent disciplinary action from being taken against the officer on any other grounds arising out of his conduct in the matter whether or not connected with the performance of his duties provided that the said grounds do not raise substantially the same issues as that on which he is acquitted.
In this Order, the term 'acquittal' includes a discharge not amounting to acquittal.
29. An officer who is acquitted shall not be dismissed on the charge upon which he is acquitted but nothing in this General Order shall prevent disciplinary action from being taken against the officer on any other grounds arising out of his conduct in the matter whether or not connected with the performance of his duties provided that the said grounds do not raise substantially the same issues as that on which he is acquitted.
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR.
It was only after the decision in Re H.K. (an infant) [1967] 2 QB 617 did it come to recognize that a public decision-taker was under a duty to act fairly and that the duty encompassed, but was wider than, the rules of natural justice.
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR
p.14
When the Constitutionality of State action; be it legislative (which is not the case here) or administrative; is called into question on the ground that it infringes a fundamental right, the test to be applied is whether that action directly affects the fundamental rights guaranteed by the Federal Constitution or that its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective or illusory.
When the Constitutionality of State action; be it legislative (which is not the case here) or administrative; is called into question on the ground that it infringes a fundamental right, the test to be applied is whether that action directly affects the fundamental rights guaranteed by the Federal Constitution or that its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective or illusory.
Wednesday, June 16, 2010
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR.
p.16
In Karam Singh v. Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129 Suffian FJ (as he then was) drew attention to the difference in language between the two Articles.
He said (at p. 150 of the report):
Our law is quite different from that of India...... Secondly, as already stated, here detention, in order to be lawful, must be in accordance with law, not as in India where it must be in accordance with procedure established by law. I have underlined the word 'procedure' twice in the extract from Sastri J's minority judgment in Atma Ram above [the reference here is to State of Bombay v. Atma Ram AIR 1951 SC 157], to show the importance attached to procedure under Indian Law."
In Karam Singh v. Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129 Suffian FJ (as he then was) drew attention to the difference in language between the two Articles.
He said (at p. 150 of the report):
Our law is quite different from that of India...... Secondly, as already stated, here detention, in order to be lawful, must be in accordance with law, not as in India where it must be in accordance with procedure established by law. I have underlined the word 'procedure' twice in the extract from Sastri J's minority judgment in Atma Ram above [the reference here is to State of Bombay v. Atma Ram AIR 1951 SC 157], to show the importance attached to procedure under Indian Law."
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR.
p.20
That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood.
If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.
That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood.
If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR.
In Bandhua Mukti Morcha v. Union of India & Ors. AIR [1984] SC 802, 811-2, Bhagwati J made the following pronouncement when considering the expression "life" appearing in Article 21 of the Indian Constitution: It is the fundamental right of every one in this country, assured under the interpretation given to Article 21 by this Court in Frances Mullin's case (AIR 1980 SC 849) to live with human dignity, free from exploitation.
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR.
For there is the second and distinct reason for which the learned Judge upheld the appellant's dismissal.
It has to do with the word "proved" appearing in para. (a) in the proviso to Article 135(2) of the Federal Constitution. The word, it is to be noted, is "proved" and not "convicted". In a case where a binding over order is made under s. 173A of the Code, there must first be a plea or a finding of guilt.
It has to do with the word "proved" appearing in para. (a) in the proviso to Article 135(2) of the Federal Constitution. The word, it is to be noted, is "proved" and not "convicted". In a case where a binding over order is made under s. 173A of the Code, there must first be a plea or a finding of guilt.
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR
In Ranjit Thakur v. Union of India AIR [1987] SC 2386, 2393, Venkatachalaiah J., when dealing with the appropriateness of the punishment handed down by a Court Martial, said:
Judicial review generally speaking, is not directed against a decision, but is directed against the 'decision making process.' The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court- Martial. But the sentence has to suit the offence and the offender.
Judicial review generally speaking, is not directed against a decision, but is directed against the 'decision making process.' The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court- Martial. But the sentence has to suit the offence and the offender.
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR.
p.28
The decisions of Canadian and Australian Courts are not binding upon us, and still less those of the United States, but, where they are relevant, they will always be listened to in this Court with attention and respect, as the judgments of eminent men accustomed to expound and illumine the principles of jurisprudence similar to our own; and if this Court is so fortunate as to find itself in agreement with them, it will deem its own opinion to be strengthened and confirmed.
The decisions of Canadian and Australian Courts are not binding upon us, and still less those of the United States, but, where they are relevant, they will always be listened to in this Court with attention and respect, as the judgments of eminent men accustomed to expound and illumine the principles of jurisprudence similar to our own; and if this Court is so fortunate as to find itself in agreement with them, it will deem its own opinion to be strengthened and confirmed.
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR
Gopal Sri Ram
In arriving at my conclusion on the remedy that ought to be given in this case, I have derived much assistance from the judgment of Edgar Joseph Jr J (as he then was) in Rohana bte Ariffin v. University Sains Malaysia (supra), which I have already described as an important decision.
In that case, recognition was afforded by his Lordship to move away from the technicalities of particular remedies and to the achievement of substantial justice.
In arriving at my conclusion on the remedy that ought to be given in this case, I have derived much assistance from the judgment of Edgar Joseph Jr J (as he then was) in Rohana bte Ariffin v. University Sains Malaysia (supra), which I have already described as an important decision.
In that case, recognition was afforded by his Lordship to move away from the technicalities of particular remedies and to the achievement of substantial justice.
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR
Gopal Sri Ram
In his statement of claim, the appellant has also prayed for "further or other relief as this Honorable Court thinks fit". In Lim Eng Kay V. Jaafar Bin Mohamed Said [1982] 1 LNS 12, a prayer in a statement of claim read "Any other relief which this Honourable Court deem fit to grant". Salleh Abas FJ (as he then was) said that this prayer "must not be treated as a mere ornament to pleadings devoid of any meaning".
I am of the view that the same may be said of the like prayer in the present case.
In his statement of claim, the appellant has also prayed for "further or other relief as this Honorable Court thinks fit". In Lim Eng Kay V. Jaafar Bin Mohamed Said [1982] 1 LNS 12, a prayer in a statement of claim read "Any other relief which this Honourable Court deem fit to grant". Salleh Abas FJ (as he then was) said that this prayer "must not be treated as a mere ornament to pleadings devoid of any meaning".
I am of the view that the same may be said of the like prayer in the present case.
Ahmad Fairuz J:
"I have had the advantage of reading the judgment of my learned brother Gopal Sri Ram JCA in draft and agree with the reasons and conclusions expressed therein"
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR.
N.H. Chan JCA:
On appeal, the High Court at Muar confirmed the finding of guilt but it set aside the imprisonment and instead bound over the plaintiff for three years under s. 173A(A)(ii) (b) of the Criminal Procedure Code without recording a conviction against him.
Article 135(2) will not apply to a case which comes within any proviso to the Article.
In the present case proviso (a) applies to the plaintiff as he was dismissed "on the ground of conduct in respect of which a criminal charge [had] been proved against him." Therefore, the plaintiff's claim under paragraph 12 of the statement of claim that his dismissal had infringed natural justice in that he was not afforded an opportunity to be heard must necessarily fail.
On appeal, the High Court at Muar confirmed the finding of guilt but it set aside the imprisonment and instead bound over the plaintiff for three years under s. 173A(A)(ii) (b) of the Criminal Procedure Code without recording a conviction against him.
Article 135(2) will not apply to a case which comes within any proviso to the Article.
In the present case proviso (a) applies to the plaintiff as he was dismissed "on the ground of conduct in respect of which a criminal charge [had] been proved against him." Therefore, the plaintiff's claim under paragraph 12 of the statement of claim that his dismissal had infringed natural justice in that he was not afforded an opportunity to be heard must necessarily fail.
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR.
N.H. Chan JCA:
At the outset, both parties agreed that there was only one issue which would decide the whole case without having to call witnesses.
That issue is this:
Whether the binding order made by the High Court, Muar, Johore under s. 173A (ii)(b) of the CPC could be construed as a "conviction" under paragraphs 3, 33 and 35 of the Public Officers (Conduct and Discipline) (Chapter 'D') General Orders 1980 ("GO") and, if the reply was in the positive, the dismissal was said to be perfectly legitimate and effected according to law.
At the outset, both parties agreed that there was only one issue which would decide the whole case without having to call witnesses.
That issue is this:
Whether the binding order made by the High Court, Muar, Johore under s. 173A (ii)(b) of the CPC could be construed as a "conviction" under paragraphs 3, 33 and 35 of the Public Officers (Conduct and Discipline) (Chapter 'D') General Orders 1980 ("GO") and, if the reply was in the positive, the dismissal was said to be perfectly legitimate and effected according to law.
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR.
N.H. Chan JCA:
Phillips J in N. C. Watling & Co. Ltd. v. Richardson [1978] ICR 1049 at pp. 1056, 1057:
"...the industrial tribunal, while using its own collective wisdom is to apply the standard of the reasonable employer; that is to say, the fairness or unfairness of the dismissal is to be judged not by the hunch of the particular tribunal, which (though rarely) may be whimsical or eccentric, but by the objective standard of the way in which a reasonable employer in those circumstances, in that line of business, would have behaved"
Phillips J in N. C. Watling & Co. Ltd. v. Richardson [1978] ICR 1049 at pp. 1056, 1057:
"...the industrial tribunal, while using its own collective wisdom is to apply the standard of the reasonable employer; that is to say, the fairness or unfairness of the dismissal is to be judged not by the hunch of the particular tribunal, which (though rarely) may be whimsical or eccentric, but by the objective standard of the way in which a reasonable employer in those circumstances, in that line of business, would have behaved"
Tuesday, June 15, 2010
TAN TEIK SENG V SURUHANJAYA PERKHIDMATAN PENDIDIKAN
Gopal Sri Ram JCA
p.264
Instead an order was made reducing the appellant in rank in the manner appearing in the departments letter dated 10th April 1990, with effect from the date of his dismissal.
p.264
Instead an order was made reducing the appellant in rank in the manner appearing in the departments letter dated 10th April 1990, with effect from the date of his dismissal.
TAN TEIK SENG V SURUHANJAYA PERKHIDMATAN PENDIDIKAN
1996 1 MLJ 265 -308
P 265
NH CHAN
It was reasonable for the employers in the instant case to have reasonably taken the view that dismissal was the appropriate penalty.The offence for which the appellant had been found guilty was of a grave one for which a reasonable employer might reasonably take the view that that in itself was gross misconduct and that it was quite reasonable to dismiss him.(see p. 308 D)
P 265
NH CHAN
It was reasonable for the employers in the instant case to have reasonably taken the view that dismissal was the appropriate penalty.The offence for which the appellant had been found guilty was of a grave one for which a reasonable employer might reasonably take the view that that in itself was gross misconduct and that it was quite reasonable to dismiss him.(see p. 308 D)
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