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The True and Finest Definition of Natural Justice: Prof Anwarul Yaqin Ahmad Ibrahim Kulliyah of Laws, International Islamic University & Assoc Prof Nik Ahmad Kamal Nik Mahmod Ahmad Ibrahim Kulliyah of Laws, International Islamic University

The Malayan Law Journal Articles
2001
Volume 4
[2001] 4 MLJ xlix; [2001] 4 MLJA 492001 4 MLJ xlix; 2001 4 MLJA 49

2001 Article:  THE PUBLIC SERVANT S RIGHT TO PLEAD MITIGATION IN DISCIPLINARY PROCEEDINGS: SOME REFLECTIONS ON THE RECENT FEDERAL COURT JUDGMENT IN UTRA BADI Prof Anwarul Yaqin Ahmad Ibrahim Kulliyah of Laws, International Islamic University

and

Assoc Prof Nik Ahmad Kamal Nik Mahmod Ahmad Ibrahim Kulliyah of Laws, International Islamic University

[*49]

Introduction

Some issues of far-reaching implications for the development of the law in respect of dismissals in Malaysia were recently determined by the Federal Court in Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang and Anor v Utra Badi a/l K Perumal. 1 The court, in a unanimous opinion, ruled that a government servant found guilty of misconduct had no separate right to raise a plea in mitigation. It allowed an appeal by the Penang General Hospital Public Services Disciplinary Authority against the decision of the Court of Appeal  2 which had earlier held that the government servant concerned, a hospital attendant facing disciplinary proceedings, had two separate rights – a right to submit explanations in his defence so as to exculpate him and, in the event his explanation was found unsatisfactory, a further right to make representations pleading for a lesser punishment.

The issue, whether or not such a right is available to a public servant, has been contested in quite a few earlier cases, besides Utra Badi. This right has been asserted on the strength of art 135(2) of the Federal Constitution, service rules pertaining to conduct and discipline of public servants as well as on the strength of the principles of natural justice. Judicial opinion on the issue has displayed profound differences. This is, at least in part, a product of the difficulty in defining the true intent behind the protective provisions of the Constitution and the rules governing disciplinary action. The problem of finding a consensus definition of such inherently ambiguous concepts as procedural fairness or reasonable opportunity has further exacerbated the position.  [*50]

The Federal Court judgment in Utra Badi now sets some issues at rest and will be a significant source of reference in the future development of administrative law. The judgment is important in that it may have an arresting effect, at least for some time, on the pace of the growing trend, markedly noticeable in some judgments especially of the Court of Appeal, of broadly construing the protective provisions of the Constitution and reading in them an expansive concept of procedural fairness in disciplinary proceedings or of determining the validity or otherwise of a disciplinary action on the touchstone of procedural fairness . The judgment is important for a further reason. It explains the import of certain observations of Salleh Abas LP in Alan Noor,  3 which had attracted differing opinions on the question of whether the observations were a part of the ratio of the case, and as such were of binding authority on the issue of mitigation, or were merely obiter.

This article briefly reviews the various approaches the courts below had adopted on the question of whether and on what basis (constitutional, statutory or theoretical) a public servant has a right to make a plea in mitigation and looks at what the Federal Court has decided.

Conflicting High Court opinions

The question of whether a public servant has a right to make a plea in mitigation on punishment in disciplinary proceedings provides an interesting perspective. Plea in mitigation is a recognized right in criminal law and is somewhat a part of the sentencing process. Attempts have been made in the recent past by individuals affected by disciplinary action to raise the argument that a right to mitigation should be available in disciplinary proceedings too, more so where the action taken is of serious consequences. It is obvious that a public servant has a right to explain his position using any expression he wishes while answering a show cause notice, including a plea to reduce the punishment contemplated. Differences in opinions arise where the argument is that an affected employee should have two distinct opportunities: one, to be able to put up adequately his side of the case in order to exculpate him and, the other, to raise a plea in mitigation where the disciplinary authority decides to take action against him.

Disciplinary rules do not expressly provide for such a right. The question thus centers on the issue, whether such a right could be inferred from the applicable disciplinary rules or from art 135(2) of the Constitution which seeks to ensure a reasonable opportunity of being heard or from the notional requirements of procedural fairness.

In Utra Badi,  4 the question that arose for determination at the High Court of Malaya, Pulau Pinang was whether the plaintiff s dismissal was void for want of opportunity to mitigate. The plaintiff, who was a hospital  [*51] attendant was asked to show cause why disciplinary action for dismissal or reduction in rank should not be taken against him on the ground that the sample of urine taken from him was tested positive for drugs. The plaintiff denied that he was a drug addict and argued that there was a possibility that the relevant urine sample was not his but might belong to some other person. By a subsequent letter he was informed that he had been dismissed.

Vincent Ng J held the dismissal invalid as the disciplinary authority, acting under Public Officers (Conduct and Discipline) General Orders 1980, failed to provide any opportunity to the plaintiff to make a representation requesting for a lesser punishment. As the two alternative punishments were tentative, drastically distinct in effect and dismissal being the most severe punishment for a public servant, the plaintiff, in fairness, should have been given such an opportunity. The very question as to which of the two alternative punishments to mete out to the plaintiff would itself essentially entail a deliberative decision-making process on the part of the disciplinary authority.  5 A right to make a plea in mitigation could be implied in O 23  6 of the General Orders and art 135(2)  7 of the Federal Constitution.

In Samsuddin,  8 the show cause letter specified only one punishment, namely, dismissal. The plaintiff drew the attention of the High Court to the judgment in Utra Badi in his challenge against the dismissal. Kang Hwee Gee J of the High Court of Malaya, Ipoh, however, strongly disagreed.

Some of the reasons that persuaded the learned judge to deny such a right were: (a) In the context of the case, where dismissal was the only punishment expressed in the show cause letter, to say that the punishment itself involves a further process of decision-making is not correct. The disciplinary authority had already made up its mind when it issued the show cause letter to the plaintiff that action was commenced with a view to his dismissal. The authority could, at its own discretion impose a lesser punishment, without having to hear further from the plaintiff. (b) The plaintiff was only required to exculpate himself. He was at liberty to plead for a lesser punishment but this must be incorporated in the representation he wanted to make to exculpate himself. There could, therefore, be no question of a denial of any right under art 135(2) or under O 23 (c) The disciplinary procedure under the General Orders does not provide for a separate right of mitigation.  [*52]

Yap Jack Keet 9 raised the same question of mitigation, the argument being that where a show cause notice has been answered and the disciplinary authority finds that the explanation is not enough to exculpate the defendant, the imposition of a punishment itself involves a decision-making process which in turn entitles the public servant to an opportunity to be heard in mitigation. Clement Skinner J of the High Court of Malaya, Ipoh declined to follow the line of approach taken by Vincent Ng J in Utra Badi and held that no such right existed.

The Court of Appeal s view

A unanimous Court of Appeal,  10 in its judgment delivered by Gopal Sri Ram JCA and Siti Norma Yaakob JCA, and with whom Mokhtar Sidin JCA concurred, held that a public servant had a right to make representations on the punishment proposed. The Court of Appeal s stand is as follows:
(a)    The disciplinary procedure adopted in the case did not afford the public servant an adequate opportunity of being heard. The show cause letter was not perhaps clearly worded.    Translated into English, the letter stated as follows:    [T]he Disciplinary Board, after considering all information received, is of the view that you are to be subjected to disciplinary action with a view to dismissal or demotion pursuant to General Order 26…After stating the charge that his urine was found positive for morphine, the letter stated:    Your act in becoming a drug addict amounts to an act…which contravenes the conduct under O 4(2)(d). If you are found guilty, you will be punished pursuant to O 36…Pursuant to General Order 26…you are required to make a written representation setting out the grounds upon which you seek to exculpate yourself. The letter stated that he was liable to either dismissal or reduction in rank pursuant to O 26. The letter then stated that if he was found guilty, the punishment would be pursuant to O 36,    Order 36 states that the disciplinary authority may impose on an officer any one or any combination of two or more of the following punishments: warning, reprimand, fine, forfeiture, stoppage of increment, deferment of increment, reduction in rank, dismissal. which specified as many as nine punishments. To the Court of Appeal, the language of the letter was crucial in that the expressions used left the intention behind it uncertain.
(b)    Dismissal being the most severe of all the punishments listed in the General Orders, the public servant was entitled to an opportunity to make representations on the indicated punishments.  [*53]
(c)    Siti Norma Yaakob JCA was of the view that O 26     The relevant provisions of O 26, which have been the subject of discussion on the issue of mitigation read as follows: … (2) The Appropriate Disciplinary Authority shall, after considering all the available information in its possession that there is a prima facie case for dismissal or reduction in rank, cause to be sent to the officer a statement in writing, prepared, if necessary, with the aid of the Legal Department, of the ground or grounds on which it is proposed to dismiss the officer or reduce him in rank and shall call upon him to state in writing within a period of not less than fourteen days from the date of receipt of the letter a representation containing grounds upon which he relies to exculpate himself. (3) If after consideration of the said representation, the Appropriate Disciplinary Authority is of the opinion that the unsatisfactory work or conduct of the officer is not serious enough to warrant dismissal or reduction in rank, the Disciplinary Authority may impose upon the officer such lesser punishment as it may deem fit. (4) If the officer does not furnish any representation within the specified time, or if he furnishes a representation which fails to exculpate himself to the satisfaction of the appropriate Disciplinary Authority, it shall then proceed to consider and decide on the dismissal or reduction in rank of the officer. implied two stages in disciplinary proceedings. The first was to determine whether the alleged misconduct had been made out after considering the facts of the allegation and the grounds on which the affected public servant relied to exculpate himself. Once the misconduct had been established, the second stage was to determine the appropriate punishment. The public servant had a right to be heard in mitigation at the second stage. Gopal Sri Ram JCA made a more general statement:
[S]ave in those cases falling under Part III  14 of the General Orders, there are two separate and distinct steps in the public service disciplinary process. The first step is for the disciplinary authority to decide upon the issue of guilt or innocence. If the decision is in favour of the employee, that is the end of the matter. But if the relevant authority finds the public servant guilty, then, and then only, does the question of punishment arise.
(d)    Siti Norma Yaakob JCA stated that the right to make a representation in mitigation was implied in O 23 and art 135(2), which guarantee a reasonable opportunity of being heard. Gopal Sri Ram JCA found support in art 5(1) and 8(1) and said:
The combined effect of arts 5(1) and 8(1)…is, in my judgment to demand fairness both in procedure and in substance whenever a public law decision has an adverse effect on any of the facets of a person s life… Procedural fairness demands not only the right in a public servant to make representations on the truth of the charges framed against him. It includes the right, after a  [*54] finding of guilt is made against him, to make representations on the question of punishment.  15

The court s view that a right to make representations on the question of punishment is implied in art 135(2) read with art 5(1) and 8(1) of the Constitution was perhaps in line with the constitutional doctrine of administrative fairness developed by it in a series of decisions  16 that have given a wide interpretation to art 5(1) and 8(1) and also with Rama Chandran 17 where the Federal Court established the principle that not only the law should be fair but also any procedure established by law.  18

Another issue considered by the Court of Appeal related to the status of an observation of Salleh Abas LP in Alan Noor.  19 Was the observation constitutive of a definite rule on the question of mitigation or was it an isolated remark having no bearing on the actual issues that arose for a ruling in that case? The observation had invited sharply differing conclusions as to its nature and intent and so its status as a binding precedent.

Alan Noor was decided in circumstances somewhat similar to those that arose in Utra Badi. In that case, the plaintiff, a probationary police inspector, received a letter from the Deputy Inspector General of Police ( the Deputy IGP ) asking him to show cause why action should not be taken against him. The letter mentioned three charges levelled against him but did not mention that the Deputy IGP contemplated punishing the plaintiff by reducing his rank. The plaintiff made representations in writing in answer to the allegations raised against him. More than a year later, the Deputy IGP imposed on the plaintiff the punishment of a reduction in rank. Ajaib Singh J (as he then was) decided in favour of the plaintiff declaring the letter invalid as it failed to specify the nature of the punishment to which he was liable, which was a requirement of O 30(2).  20 He stated:
The plaintiff sent a reply to the Deputy Inspector General of Police on 7 June 1980 giving his explanations on the three charges. After considering these explanations and having found that the plaintiff had failed to exculpate  [*55] himself, it was incumbent upon the Inspector-General of Police thereafter to give the plaintiff an opportunity to make a plea in mitigation on punishment. This right of the plaintiff to be heard in mitigation is implied in regulation 27 of the General Orders and in art 135(2) of the Federal Constitution for otherwise it cannot be said that the plaintiff had been given a reasonable opportunity of being heard. He had to be heard throughout the proceedings from the beginning to the end. Isn t it a fair and reasonable expectation of any person condemned for a wrong that he would be heard in mitigation before any punishment is imposed on him?  21

On appeal,  22 although the Supreme Court agreed with the trial judge s ruling that the letter was invalid Salleh Abas LP, who delivered the judgment, said:
As it stands, this passage appears to be misleading. This passage should be read in the light of the factual situation of this case, wherein the show cause letter dated 14 May 1980 was completely silent as to the contemplated punishment to be imposed at the end of the disciplinary proceedings. Therefore, in order to ensure that the respondent understood and appreciated the seriousness of the proceedings he was facing, the learned trial judge was right in insisting that another chance must be given to him, which he called a plea of mitigation. If, however, the show cause letter had included the proposed punishment, for example, by the inclusion of such statement as This proceeding is taken against you with a view to dismissal or reduction in rank… or This proceeding is taken under General Order 30 with a view to dismissal or reduction in rank …, or such other phraseology as would give the effect of making the respondent understand the nature of the proceedings and what they would lead to, there is no necessity for the appellants to give another opportunity of being heard before the punishment is imposed.  23

In Utra Badi, at the High Court, the defendants, in order to counter the claim of the plaintiff that he was given no opportunity to mitigate, relied on the observation in Alan Noor as the ratio of the case and as of normative authority for the court on the question of mitigation. Vincent Ng J took the position that the observation was not binding on the court as it was merely obiter in nature.  24 In Yap Jack Keet,  25 Clement Skinner JC of the Ipoh High Court disagreed with the opinion of Vincent Ng J of the Penang High Court that the observation in Alan Noor was merely obiter.  26

A more serious attempt was made, though for a different purpose, to explain the status of the observation in Alan Noor. In Samsuddin,  27 decided the same year as Utra Badi, Kang Hwee Gee J of the Ipoh High Court disagreed with Vincent Ng J in Utra Badi and interpreted the observation to mean that a government servant has no right to enter a separate plea of  [*56] mitigation where the disciplinary authority specifies the nature of punishment intended to be imposed.  28 Kang Hwee Gee J went a step further and said that a plea in mitigation on sentence exists only in a judicial proceeding (and not in a disciplinary proceeding). He said:
[I]n my considered view, a plea in mitigation on sentence exists only in a trial in a court of law which employs a distinct form of procedure where the hearing is restricted to determining the guilt of an accused. A separate less formal inquiry is conducted after he is found guilty by the court to enable the appropriate sentence to be passed. It is only at this stage that the accused is allowed to plead in mitigation. But a disciplinary inquiry is not a trial.  29

The above statement is correct in so far as mitigation as a traditional concept is concerned, but it misses an important point. The earlier part of the observation in Alan Noor, which Kang Hwee Gee J accepted as the ratio of the case and as a binding precedent, clearly implies a right to make representations on the proposed punishment in a particular set of circumstances where the nature of punishment contemplated is not indicated. Alan Noorwould seem to be the authority for the proposition that where a show cause letter is silent on the nature of the possible punishment and the punishment is of a serious nature, such as dismissal or reduction in rank, the affected employee must be given an opportunity to make representations on punishment. Salleh Abas LP had no objection when this opportunity was termed by Ajaib Singh J as the plea in mitigation .

The Court of Appeal in Utra Badi endorsed Vincent Ng J s view in the High Court that the observation in Alan Noordid not constitute a binding precedent. In its view the observation was unnecessary in so far as the actual decision was concerned. It noted that the Supreme Court in Alan Noorhad declared the disciplinary action (reduction in rank) bad in law for three reasons. Firstly, the show cause letter was not issued by the appropriate disciplinary authority  30 as required by O 30(2). Secondly, there was nothing in the show cause letter to indicate that the authority intended or contemplated a reduction in his rank (a punishment which in the Supreme Court s view entailed serious consequences) thus depriving the public servant of an opportunity to prepare his defence in that light. Thirdly, there was a gap of about a year between his reply and the punishment, which might have the effect of creating an impression in his mind that the punishment would not be so serious as the one actually imposed. Gopal Sri Ram JCA concluded that the judgment in Alan Noor, which favoured the public servant, was based on specific issues, as outlined above, and the remarks of Salleh Abas LP which were made in criticism of Ajaib Singh J s remarks were unnecessary as far as the actual decision on the issues was  [*57] concerned.  31 Siti Norma JCA too, in a separate judgment, held the same view and treated the observation as being made obiter.  32

The Federal Court on mitigation

The Federal Court, in its judgment delivered by Abdul Malek Ahmad FCJ, with whom Ahmad Fairuz Sheikh Abdul Halim FCJ and Steve Shim CJ (Sabah and Sarawak) concurred, held that a public servant was not entitled to make a representation as a second opportunity and that the dismissal in that case was procedurally fair. The court noted that the show cause letter was in order and its intent was not uncertain. Abdul Malek Ahmad FCJ said:
In essence, the undoubted overall effect of the show cause letter illustrated that the respondent had at the earliest available moment been informed of the two possible punishments under consideration should he not be able to exculpate himself of the charge made. With all these in mind he had been accorded every opportunity to defend himself.  33

Construing the language of O 26 which had been the subject of interpretation in the courts below, the Federal Court stated that the words it shall then proceed to consider and decide on the dismissal or reduction in rank of the officer in para 4 of O 26 do not mean that there should be another separate hearing just to consider that after asking for the officer s views again.  34

The Federal Court made an important observation as to the constitutionality of the General Orders, which had been variously construed earlier by the courts below. It stated that they were in accord with the mandate implied in art 135(2) and were also in compliance with the requirements of natural justice and procedural fairness. Abdul Malek Ahmad FCJ said:
[W]e are of the view that the General Orders, in detailing the procedures therein, have sufficiently complied with art 135(2) of the Federal Constitution and, in the process, are in accord with the concept of natural justice and procedural fairness. As succinctly stated by the learned leading Senior Federal Counsel in his submissions and as propounded in the long line of authorities considered, there is certainly no separate right to make representations upon the punishment that ought to be meted out to the officer to be dismissed or reduced in rank. In fact, under para (4) of General Order 26 of the General Orders, the first appellant is not even required to make a finding of guilt which strongly indicates that there is only one hearing for a show cause letter issued under that General Order.  35 [*58]

The Federal Court interpreted the observation in Alan Noorto the effect that if the show cause letter had specified the nature of the punishment for misconduct, there was no need to be given another opportunity of being heard before the punishment was imposed. Referring to the observation in Alan Noor, the learned FCJ said:
This … passage could only be interpreted to mean that an officer has no such right to enter a separate plea of mitigation before sentence if the disciplinary authority had made it clear in the show cause letter that the disciplinary proceeding was initiated with a view to dismiss or to reduce him in rank. That right, it would appear from the judgment, had been construed to be no more inclusive than the right to make representations to exculpate himself which the plaintiff in the instant case was bound to make under O 26(2).  36

As regards the two alternative punishments stated in the show cause letter, the court interpreted the observation in Alan Noorto the effect, in so far as the show cause letter in Utra Badi was concerned, that:
If the show cause letter had put the officer on notice as to the two most severe punishments for misconduct, there is no need for him to be given another opportunity of being heard before the punishment is imposed.  37
On the question of the status of the observation in Alan Noor, the court held that:
[T]he remarks made in Alan Noor bin Kamat s case formed part of the ratio. It was not a mere chance remark nor a subsidiary reason for the main principle and the finding was quite necessary for the decision reached.  38

Conclusion

The effect of the Federal Court judgment is that once a disciplinary action is taken against a public servant, the matter ends there. The affected public servant has no right to make any representation on the punishment imposed. If the show cause letter indicates the nature of the punishment, there is no need for him to be given another opportunity of being heard before the punishment is imposed .  39 The court arrived at this result on a plain reading of the relevant provisions of the General Orders governing the procedure in disciplinary proceedings which, in terms, nowhere talk about a right of the affected public servant to make any representation on the indicated punishment. This result is also based on the assumption that a show cause letter, where it indicates the possible punishments, is enough to meet the constitutional requirement of reasonable opportunity under art 135(2). In the court s view, where more than one punishment is indicated (or, by implication, even one) the affected public servant is at liberty to  [*59] make any representation in the reply to the show cause letter itself, pleading for a lesser punishment.

This result, it seems, may sometimes be unworkable in practice. Where a public servant relying on the evidence with him denies the allegations against him in his reply to the show cause letter, pleading mitigation at the same time may amount to self-contradiction. Pleading a total denial of the truth of the charges and pleading for a lesser of the two punishments may often appear anomalous.

The Federal Court judgment, however, implies that a show cause letter gives the concerned public servant adequate opportunity to exculpate himself by submitting whatever evidence he deems favourable to his side of the case, including any additional grounds in mitigation. A separate right is not expressly assured in the relevant General Orders, nor is a part of reasonable opportunity guaranteed under art 135(2).

Where, however, a show cause letter is silent, the rule in Alan Noor, it seems, would apply and any disciplinary action would be in breach of the General Orders (where they apply). The Court of Appeal in a recent case  40 allowed the appeal by a lance corporal who was dismissed from the police force upon being convicted. Referring to Alan Noor, the court stated that the dismissal was invalid as the letter did not bring to his attention the contemplated punishments, which was in breach of Police Officers (Conduct and Discipline) Regulations 1993 and also amounted to a deprivation of procedural fairness.

The general thrust of the judgment is that a right , within the broader concept of reasonable opportunity , is available in the context of disciplinary proceedings only where such a right is expressly incorporated in the relevant substantive or procedural provisions. Principles of natural justice, or procedural fairness , have a limited role to play. In the context of the extent and scope of the right to a reasonable opportunity of being heard, the principle that the judgment seeks to emphasise is that as the disciplinary procedure is regulated by law, being the General Orders, it must be followed by the disciplinary authority and any alleged failure of reasonable opportunity must be determined within the framework of the language used.  41

This approach is rather a reaffirmation of the position taken by the Supreme Court in Ghazi bin Mohd Sawi 42 where Jerumi Serjan CJ (Borneo) speaking for the panel said:  [*60]
In dealing with…General Orders we remind ourselves that we are dealing with General Orders that have legislative effect and we must guard ourselves against adding words into them which were never intended.

The learned judge found support for his view in the words of Barwick CJ in Twist,  43 where he had said:
…if the legislation has made provision for that opportunity [to be heard] to be given to the subject before his person or property is so affected, the court will not be warranted in supplementing the legislation, even if the legislative provision is not as full and complete as the court might think appropriate. Thus, if the legislature has addressed itself to the question of whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation, decided what opportunity should be afforded, the court being bound by the legislation, as much as is the citizen, has no warrant to vary the legislative scheme.

The Supreme Court in that case also drew support to sustain its view, noted above, from what Lord Bridge of Harwich in Lloyed 44 had suggested:
My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.

The last lines in the passage above suggest that the courts in order to ensure fairness ought to imply additional procedural safeguards to supplement any statutory omission. However, the Federal Court judgment in Utra Badi now makes it clear that the rules regulating disciplinary procedure as they exist now in the General Orders are in compliance with art 135(2) and are also in accord with the general notion of fairness . It is on this premise that the court concluded that the General Orders are adequate in protecting the public servant in disciplinary proceedings and cannot be stretched too wide to include a right to make a representation on the punishment proposed as a second opportunity.

A further message of the judgment is that where a right is not expressly conferred by a constitutional or statutory provision or is not founded on any earlier judicial authority, such a right cannot be implied. The judgment also implies that any reliance on art 5(1) and 8(1) of the Federal Constitution as extrinsic aids in the construction of the disciplinary rules applicable to  [*61] public servants is not in tune with the constitutional and statutory scheme of things. This approach leaves in doubt the efficacy of the proposition insisted on by the Court of Appeal in a series of judgments,  45 that the combined effect of the two constitutional provisions would tend to permit a court to imply certain additional safeguards where the law and its procedure are considered inadequate.

An important issue before the Federal Court in Utra Badi was whether the observation of Salleh Abas LP in Alan Noor was a part of the ratio of the case and as such was of binding authority. The Court of Appeal viewed the observation as merely obiter. Gopal Sri Ram JCA stated that the observation was not merely in the nature of an obiter but was also plainly wrong :
In my view, the obiter dictum of the Supreme Court in … Alan Noor…is plainly wrong. It was expressed without the benefit of a mature argument upon the combined effect of Articles 5(1) and 8(1) of the Federal Constitution.  46

It is not clear why the Court of Appeal expected a mature argument upon the combined effect of those articles. Articles 5(1) and 8(1) received an expansive construction only in recent years, essentially from the Court of Appeal. Their exact scope of application in many respects is yet to be settled by the apex court. Gopal Sri Ram JCA s remarks in a recent case, that art 8(1) has the effect of ensuring fairness in all forms of state action and is of wide sweep  47 may be true; but these were later developments. The learned JCA himself noted in that case that it was only in 1989 that procedural fairness as a concept was emphasized in Rohana 48 which later courts were to develop with great effect.

It may be noted here that courts following the common law tradition of stare decisis (stand by earlier decisions) have yet to develop any authentic tests for drawing the line between the ratio decidendiof a case and the part that may be regarded as merely obiter. The commonly accepted formulation of a ratio decidendi is that it is a ruling expressly or impliedly given by a court which is sufficient to settle a point of law put in issue by the parties arguments in a case, being a point on which a ruling was necessary to justify the decision in the case.  49 But a formulation like this is prone to break down in marginal situations. This is evident from the way the courts differed widely in their approach to the understanding of the observation in Alan  [*62] Noor. Gopal Sri Ram JCA in Utra Badi referred to the following test suggested by Edgar Joseph Jr FCJ in Feyen:  50
[O]biter dictum is a mere chance remark by the court and is used in contradistinction to ratio decidendi – the rule of law for which a case is authority .  51

The test is a simple explanation of the nature of the ratio and obiter and is perhaps easier to apply than a test like the one noted above. What the test suggested was that a judge should see whether a certain statement was a chance remark . A plain reading of the Alan Noorobservation would suggest that it was not. The observation was certainly not a part of the reasons for the decision by the Supreme Court as the question of alternative punishment was not put in issue by the parties arguments. However, the Supreme Court s attention was certainly drawn by the remarks of Ajaib Singh J which, though unnecessary for a ruling by the Supreme Court, were capable of creating a state of uncertainty. The observation of Salleh Abas LP was an expression of the Supreme Court s concern to remove any possible misgivings and to see that its judgment was seen in the correct perspective. It was thus in no way in contradistinction to the ratio of the case.

But even this test, simple as it seems though, may not always be viable when applied to factual situations. Despite all the good reasons the learned JCA gave in explaining the context in which the observation in Alan Noorwas made, he arrived at a conclusion which the Federal Court later noted was not a correct inference to draw.

The Federal Court s stand, it would appear, portrays a correct interpretation of the letter and intent of the observation in Alan Noorand would perhaps obviate much of the uncertainty its various constructions had created.
Return to Text

n   1[2001] 2 MLJ 417.

n   2Lembaga Tatatertib Perkhidmatan Awam, Hospital Besar Pulau Pinang v Utra Badi a/l K Perumal[2000] 3 MLJ 281.

n   3Inspector General of Police & Anor v Alan Noor bin Kamat [1988] 1 MLJ 260.

n   4Utra Badi K Perumal v Lembaga Tatatertib Perkhidmatan Awam, Hospital Besar Pulau Pinang & Anor [1998] 2 CLJ 306.

n   5Ibid at 322.

n   6Order 23 states that in all disciplinary proceedings under Part II of the General Orders, no officer shall be dismissed or reduced in rank unless he has been afforded a reasonable opportunity of being heard.

n   7Article 135(2) of the Federal Constitution provides that a member of the public service shall not be dismissed or reduced in rank without being given a reasonable opportunity of being heard.

n   8Samsuddin bin Mohd Saad v Pengarah Hospital Bahagia, Ulu Kinta & Anor[1998] 7 MLJ 785.

n   9Yap Jack Keet v Ketua Polis Negara & Anor [2000] 7 CLJ 74.

n   10Supra note 2.

n   14Part III of the General Orders includes cases where a member of the public service is either convicted of a criminal offence, or an order of detention, restricted residence, supervision, banishment or deportation is made against him. The learned JCA stressed that in all such cases there is no second right to representation available to a public servant on the issue of punishment because O 33 expressly excludes any such right.” Ibid at 397.

n   15Supra note 2 at 296.

n   16See for example Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan[1998]1 MLJ 261; Hong Leong Equipment Sdn Bhd v Liew Fook Chuan [1996] 1 MLJ 481; Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis & Ors [1995] 1 MLJ 308.

n   17Rama Chandran v The Industrial Court of Malaysia [1997]1 MLJ 145.

n   18In a recent case the Court of Appeal noted: A number of our [Malaysian] decisions have conferred a broad and liberal interpretation upon art 5(1) and 8(1)…The latter art in particular has the effect of ensuring fairness in all forms of state action and is of wide sweep: Deputy Chief Police Officer, Perak & Anor v Ramesh a/l Thangaraju[2001]1 MLJ 161, at 166.

n   19Supra note 3.

n   20Order 30(2) of the General Orders requires the Disciplinary Authority to send to the officer who is subject to disciplinary proceedings a statement in writing, prepared, if necessary, with the aid of the Legal Department, specifying the grounds on which it is proposed to reduce the officer in rank or to dismiss him.

n   21[1987] 1 CLJ 51 at 56.

n   22Supra, note 3.

n   23Ibid, at 265.

n   24Supra, note 4 at 318.

n   25Supra, note 4.

n   26Ibid, at 86.

n   27Supra, note 8.

n   28Ibid, at 805-806.

n   29Ibid, at 805.

n   30The appropriate authority was the IGP and not the Deputy IGP, as the Police Force Commission had delegated its disciplinary powers to the former.

n   31Supra, note 2, at 293.

n   32Ibid, at 301.

n   33Supra, note 1, 432.

n   34Ibid, at 439.

n   35Ibid, at 440.

n   36Ibid, at 442.

n   37Ibid, at 429.

n   38Ibid, at 431.

n   39Ibid, at 429.

n   40Mohd Noor bin Abdullah v Nordin bin Haji Zakaria [2001] 2 MLJ 257, 265.

n   41See for a similar approach, Kang Hwee Gee J s remarks on this point in Samsuddin, a case cited with approval by the Federal Court in Utra Badi: supra note 8, at 803.

n   42See Ghazi bin Mohd Sawi v Mohd Haniff bin Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 MLJ 114.

n   43Twist v Randwick Municipal Council [1976] 136 CLR 106 at 110.

n   44Lloyed v McMahon & Anor [1987] AC 625.

n   45See, eg: Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis & Ors[1995] 1 MLJ 308; Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor[1996] 1 MLJ 261; Deputy Chief Police Officer, Perak v Ramesh a/l Thangaraju[2001] 1 MLJ 161; [2001] 2 MLJ 257.

n   46Supra, note 2, at 296.

n   47Deputy Chief Police Officer, Perak v Ramesh a/l Thangaraju[2001] 1 MLJ 161, at 166.

n   48Rohana bte Ariffin & Anor v Universiti Sains Malaysia [1989] 1 MLJ 487.

n   49Marie Fox and Christine Bell, Learning Legal Skills, Blackstone Press Limited, 3rd ed 1999, at 33.

n   50Co-operative Central Bank Ltd v Feyen Development Sdn Bhd [1997] 2 MLJ 827.

n   51Ibid, at 835-836.

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