Here are the key points in response to your questions: - Ho Kwan Seng established that the rule of natural justice requiring a person not be condemned unheard applies to every administrative action that adversely affects an individual, regardless of how the power is labeled. This extended natural justice protections beyond just "judicial" or "quasi-judicial" powers. - Rohana Ariffin was significant as it was the first case to explicitly illustrate the application of procedural fairness in Malaysia. It established that procedural fairness requires the duty to give reasons for decisions that adversely impact individuals. It extended the obligations of decision-makers under natural justice/procedural fairness beyond just the right to be heard. In summary, Ho

1. Natural Justice
Right to be heard
Note:
Since the scope of NJ is very wide, the lecture will cover the essential aspects of NJ.

2. WHAT IS?
 A guarantee in the form of procedure to shun
improper exercise of power by the public
authority.
 Also known as procedural fairness, a modern
version of natural law which is a 17th century
invention. Dr Bonham’s 1610
 It is a minimum standards of fairness expected
to be observed by public authorities by anyone
whose rights were effected.

3. Evolution
 Originally NJ is applicable to those exercising judicial power and the
interest affected amounted to legal right, however such restrictions
excludes bulks of powers which is discretionary in nature exercisable
by administrators.
 The Renaissance of NJ - Ridge_v_Baldwin_[1].pdf
 A Chief Constable was dismissed without being given the right to be
heard. The learned judge disregard the categorisation of ‘judicial’,
‘administrative’ power and ruled that as long as the exercise of
power cause serious harm to an individual, it attracts the application
of NJ, in this case a right to be heard.
 In Malaysia, NJ become part of Malaysian law when in the case of
Ho_Kwan_Seng_[1].pdf, the FC declared that “the rule of natural
justice that no man may be condemned unheard should apply to
every case where an individual is adversely affected by an
administrative action, no matter whether it is labelled "judicial",
"quasi-judicial", or "administrative" or whether or not the enabling
statute makes provision for a hearing.”

4. Durayappah v Fernando [1967] 2
AC 337 (Pr Cl)
 Flexible general test 3 matters:
1. The interest affected;
2. The nature of the power;
3. The sanction imposed.
‘First, what is the nature of the property, the office held, status enjoyed or services
to be performed by the complainant of the injustice? Secondly, in what
circumstances or upon what occasions is the person claiming to be entitled to
exercise the measure of control entitled to intervene? Thirdly, when a right to
intervene is proved, what sanctions in fact is the letter entitled to impose upon the
other? It is only upon a consideration of all these matters that the question of the
application of the principle can properly be determined. (p350)

5. FROM NJ TO PROCEDURAL FAIRNESS
 NJ and Fairness is used interchangeably and expound the frontiers
of procedural rights that can be conferred to the people.
 Both NJ and fairness concepts are flexible and is very much
determine by the facts and circumstances of the case.
 Emphasis still lies in statutory requirements, thus fairness not
necessarily implies rights to a hearing. Rules against bias might be
treated more strictly and also known as procedural impropriety.
 The case of Rohana v USM describes the importance of procedural
fairness and is the first case that explicitly illustrate on the
application of PF. Procedural fairnessrohanaariffin.pdf
 Procedural fairness – general meaning - the idea of fairness in the
processes that resolve disputes
 Whatever situations that “restricts or appears to restrict the
defendant's ability to present his case may be held to be a breach of
procedural fairness” : non conferring the right of pre-trial hearing,
coaching student witnesses, presence of the Registrar’s during
deliberations.

6. TWO BASIC QUESTIONS
1. When does the principle of
NJ/PF applicable in
administrative action?
2. What are the elements of
NJ/PF?

7. When does the principle
become applicable?
 When it is stated in the :
i. Federal Constitution – Art 135(2)
ii. Statute - Universities and University Colleges
Act 1971, s 16A
iii. By laws: Rules Universiti Sains Malaysia
(Discipline of Staff) Rules 1979, rr 4, 14, 27, 33
& 35, Kaedah-kaedah Universiti Kebangsaan
Malaysia (Tatatertib Pelajar-pelajar) 1999.

8. FUNDAMENTAL PRINCIPLES OF
NJ
A. Right to be heard – audi alteram partem
(aap) – basic elements:
i. Parties shall be fully informed of the charges;
ii. Parties shall be given proper opportunity to prepare their case in answer to the
charges;
iii. Parties shall have the right to appear at the hearing and, generally, to be legally
represented;
A. Rule against bias – nemo judex in causa
sua

9. Right to be heard
 No fixed standard
 Decision maker can fix its own procedure
 In relation to such administrative matters as the expulsion of a pupil from a school it would be
quite inappropriate to model the procedure on that of a criminal trial. All that natural justice
requires is that the person charged with making the decision should act fairly. What is fair
depends on the circumstances and is a matter of commonsense.
Mahadevan_v_Anandarajan_PC.pdf
 Factors that determine the ingredients of fair
hearing
 The decision that cause serious harm to an
individual will attract higher standard of hearing.

10. Basic elements
 Reasonable Notice that enable the alleged
party to defend themselves;
 Surinder Singh Kanda v Government of the Federation of Malaya [1962] MLJ 169:
"If the right to be heard is to be a real right which is worth anything, it must
carry with it a right in the accused man to know the case which is made
against him. He must know what evidence has been given and what statement
have been made affecting him; and then he must be given a fair opportunity to
correct or contradict them.“
 Right to reply to the notice:
 Hearing need not mean oral hearing.
However if there is special request for oral
hearing such right should be entertained.
Yusof bin Sudin v Suruhanjaya Perkhidmatan Polis & Anor [2011] 5 MLJ 465

11. Pemakluman tentang kesalahan
 Shamsiah bte Ahmad Sham v PSC isu berbangkit
ialah tiada hak untuk didengar yang saksama
diberikan kepada beliau. Apa yang berlaku dalam kes
ini ialah dalam menjalankan kuasa untuk memecat
Shamsiah majikannya telah merujuk kepada rekod
pekerjaannya yang lalu, sedangkan tiada peluang
diberikan kepada Shamsiah untuk memberikan
penjelasan terhadap maklumat tersebut dan beliau
juga tidak dimaklumkan apakah kesalahan-kesalahan
lepas tersebut.

12.  Raja abdul malek Muzaffar Shah, kecacatan
akibat tidak memberitahu apakah “…
makumat-maklumat lain” yang dirujuk telah
menyebabkan pemecatannya bertentangan
dengan Per. 135(6). Plantif dengan itu tidak
berpeluang untuk membuat penjelasan
berhubung dengan “… maklumat-maklumat
lain yang tidak disampaikan kepada beliau”.

13. Extended Elements of NJ/PF
 Right to give evidence and call for witness –
must be done fairly –
Rohana Ariffin
 Duty to give reason-
SHAMSIAH BTE AHMAD SHAM V PUBLIC SERVICES
COMMISSION,MALAYSIA & ANOR [1990] 3 MLJ 364 shamsiahaap.pdf
Rohana Ariffin

14. Contd…
 Right to counsel – subject to statutory
provision and complexity of a case – not
an absolute right.
VC Jacob; Sithambaram; Federal Hotel.
 A fair procedure includes the duty of an
arbiter not to take into account matters
that have not been first put to the accused
with an opportunity for him to rebut them.
RAJA ABDUL MALEK MUZAFFAR SHAH BIN RAJA SHAHRUZZAMAN V
SETIAUSAHA SURUHANJAYA PASUKAN POLIS & ORS [1995] 1 MLJ
308Procedural fairnessrajaabdulmalek.pdf

15. Extension of Rohana …Hong Leong Equipment
[1996] 1 MLJ 481
 Gopal Sri Ram JCA:
 …the principle of the common law of England, which
imposes no obligation upon a public decision-maker to
give reasons, is based upon the historic premise that
courts there were under no obligation to give reasons for
their decisions. English courts, therefore declined to
impose upon other public decision-makers a standard
higher than that which they (the courts) were required
to meet.
 But this is not the position in this country. Here, it has
long been considered a duty of courts to produce
reasons for their decisions…

16. Tan Teck Seng
Punishment must be reasonable
 Mahkamah mengambililkira Per 5 dan Per 8 dalam
menilai kesesuaian hukuman yang dikenakan.
“In undertaking these two separate and distinct tasks, it need not afford the public servant an
opportunity to be heard: for, as the learned judge in the present case correctly concluded, that
right is lost to the servant by the operation of para (a) of the proviso to art 135(2). But it must,
when deciding what punishment it ought to impose on the particular public servant, act
reasonably and fairly.
If it acts arbitrarily or unfairly or imposes a punishment that is disproportionate to the
misconduct, then its decision, to this extent, becomes liable to be quashed or set aside. As to
whether our courts must, in all such cases, direct reinstatement or may grant some other
appropriate relief in an action for declaratory relief by, for example, imposing a lesser
punishment, is a question that I shall return to later.
It follows from what I have said, that the doctrine of procedural fairness, which is a product of
the combined effect of arts 8(1) and 5(1), does not require that a public servant be afforded the
right to make representations upon the issue of punishment in a case to which proviso (a) of art
135(2) applies. I therefore unhesitatingly reject the argument of counsel on this point.” (Gopal Sri
Ram JCA)

17. Court is ambivalence
 Minister of Human Resources & Ors v National
Union of Hotels, Bar and Restaurant Workers,
Semenanjung Malaysia & Anor (1997) 3 MLJ 377
the CA (the same judge as in Hong Leong)
opined that the absence of reasons does not
necessarily means that the decision is irrational.
 Q. Distinguish the facts in Hong Leong and
National Unions of Hotels case

18. Question
 The term natural justice and procedural fairness
are often used interchangeably, the more
modern term is arguably both broader and
thinner.
 What is the significance of Ho Kwan Seng as a
turning point in the development of natural law?
 What is the significance of Rohana Ariffin as a
turning point in the development of natural law?