case study in Malaysia

1. CERTIORARI

2. • In Administrative Law, there are 2 types of
common law remedies, namely private law
remedies and public law remedies.
• In Malaysia, Certiorari falls under the public law
remedies.
• Certiorari (Latin word) can be defined as a
quashing order.
• It is a retrospective order that brings a decision
made by the authority before the court and prays
that such decision to be quashed.
Introduction

3. Case :Yazid Bin Samsudin & Mohd Yunus Bin
Jalaludin v Datuk Bandar Kuala Lumpur
• Parties: 1. Yazid Bin Samsudin
2.Mohd Yunus Bin Jalaludin
3. Datuk Bandar Kuala Lumpur
• Judge Panel: Mohd Ariff Md Yusof
• For the applicants –
 Ambiga Sreenevasan (K Palaniandy with him);
 M/s K Palaniandy & Associates
• For the respondent - Thangaraj Balasundram & Nalani
Murugiah; M/sThangaraj & Associates
• Judgement date: 26 January 2010

4. Facts of the Case

6. Appointments of Two Disciplinary Boards

7. 27/7/ 2005
The Applicants received a show cause letter- pleaded
not guilty

8. 6/12/2005- The second hearing
 Applicants with their lawyer requested
the charges to be dropped on basis of
confusion on the identity of the real
complainant.
 Disciplinary Board decided to continue
the hearing and called Encik
Mohammad Saibani as the complainant.

10. Applicable
Law of the
Case

11. Referred cases

12. Referred cases

14. Other cases
4) Dato' Tan Heng Chew v. Tan Kim Hor [2006] 2
AMR 549
5) Government of Malaysia & Anor v. Jagdish
Singh [1987] CLJ 110 (Rep); [1978] 2 MLJ 185
6) Majlis Perbandaran Pulau Pinang v. Syarikat
Berkerjasama-sama Serbaguna Sungai Gelugor
[1999] 3 CLJ 65; [1999] 3 MLJ 1
7) Mohamed Ezam bin Mohd Nor & Ors v. Ketua
Polis Negara [2001] 4 CLJ 701; [2002] 1 MLJ 321

15. Referred legislation
1) City Hall of Kuala Lumpur Officers (Conduct and
Discipline) Rules 1989, Rule 25(17)
2) Section 16(4) of Local Government Act 1976
3) Section 17 of Local Government Act 1976

17. Judgment
of the Court

18. • In this application for judicial review, the
Applicants prayed for an order of certiorari to
quash the decision of the Disciplinary Board of
Bandar Raya, Kuala Lumpur dated 29th March
2006 which found them in breach of disciplinary
rules, and accordingly
imposed punishments on them, which included
a reduction in salary for three years.
• The grounds in support were basically failure of
natural justice in the decision-making process.

19. The Summary Grounds in the Statement under
Order 53, rule 3(2) enumerated the basis of the
challenge
• The true decision-maker, ... Dato’ Haji Ruslin
bin Hj. Hasan (“Dato’ Ruslin”) was a judge in
his own cause
• In consequence, the rules of natural justice
were violated
• justice was not seen to be done
• right of free speech and expression and their
right of employment were violated

20. • The said Dato’ Ruslin ought to have
exercised his discretion
• The Board further acted contrary to
procedural fairness in refusing to call
the said Dato’ Ruslin as a witness on
behalf of the management

21. DECISION OF THE COURT
• This Court agreed with the Applicants.
• Allowed the application for the substantive
relief of certiorari to quash the decision of
the Datuk Bandar Kuala Lumpur.
• Enclosure 1 with costs of RM5,000.00 to be
paid by the Respondent to the Applicants.
• The evidence disclosed a serious violation of
the rules of natural justice.

22. Dato’ Ruslin is the real
complainant:
-actively pushing for the
Disciplinary Proceedings to
be conducted,
-took more than an active
interest in it.
Second
Disciplinary Board was
not independent
-Dato’ Ruslin appointed
officers who were bound
to him.
Failure to call Dato’
Ruslin as witness-
denial of right of the
Applicants to question
the real complainant.
the judicial review
application for certiorari
to issue to quash the
decision of the
Disciplinary Board was
allowed
Decision

23. • On the facts of this present judicial review
application, a serious procedural
impropriety was established, particularly in
respect of the nemo judex in causa sua
principle, in the sense that “a person
adjudicating should be disinterested and
unbiased”

24. Analysis
of the Case

25. Analysis
• Agreed with the decision of High Court to
quash decision made by Disciplinary Board.
• For authority to make decision in case, they
should apply natural justice.
• NATURAL JUSTICE  a procedural safeguard
against improper exercise by the authority.
(to put a person in a right position)

26. Natural Justice
Audi Alteram Partem Rules Against Bias
Notice hearing
Pecuniary bias
Personal bias
• Have personal
relation
• Hard to prove
Policy bias
 Judge must always be neutral
• Denial of right to
bring evidence
which includes
witness
• Breach of natural
justice

27. • Yazid’s case obviously appeared a personal bias
• Proven when Dato’ Ruslin, a complainant who made a complaint
against applicant, revoked the first appointed members of
Independent Disciplinary Board
Then • Dato’ Ruslin appointed new
members of Second
Disciplinary Board
• All three were officers of
DBKL
• Encik Zulkifli & Dato’ Salleh
were officers promoted
personally by Dato’ Ruslin.
Encik Zulkifli
Dato’ Salleh
Encik Mohd Najib

28. • Personal bias can be ascertained by using reasonable man
test, as to test whether there is a ‘real likelihood’ to be
bias.
• In Yazid case, there are ‘real likelihood’ for members of
Independent Disciplinary Board to be bias in making decision.
• Even there was no intention to be bias, but the personal
relation between Dato’ Ruslin and members of board may
give some influence for the board in deciding case so there
exist a ‘real likelihood’ to be bias.
• Thus, order of certiorari shall be granted by High Court to
quash such decision by the authority.
• Judge shall be neutral.

29. About Judgment of Court
• We are in opinion that there
shall be higher compensation
for applicant
• RM5000 is not enough
• Looking at the fact applicant
only made formal complaint
to Dato’ Ruslin about
promotion.

30. • Instead of considering complaint made by both
Applicant, Dato’ Ruslin then made another
complaint against both of them for
questioning his integrity.
• Dato’ Ruslin has acted unreasonably
• Further appointed members of board
himself
• NO FAIRNESS
• Only 2 years later the case been heard.
• One of purpose giving power to
tribunals and authority to decide case is
to avoid delay and give immediate
judgment while applying natural justice
and fairness.

31. • So, there shall be higher
compensation given to applicant.
• To avoid more abuse of power by
other authority, if not, then there
will be no justice for people in the
future.

32. Conclusion

33. • Certiorari can be used to quash the decision
which was made by inferior tribunals in
excess/abuse of jurisdiction or contrary to
the rules of natural justice.
• In this case, the certiorari was granted with
regard to the breach of natural justice and
bias existed.

34. • Plus, the Disciplinary Board not in
effect independent.
• They were beholden to Dato’ Ruslin
since they were promoted by him
after his appointment as Datuk
Bandar.
• In addition, the Disciplinary Board did
not called Dato’ Ruslin as a witness in
order to deny the Applicants the right
to question the real complainant.