APRIL 2008. PART C. QUESTION 1. ISSUE 1 Whether Dr. Kasar could claim reasonable hearing under Art 135(2)?

LAW For this matter, the right of hearing is specifically conferred by the constitutional provision. Article 135(2) of the Federal Constitution lays down that no member of any service specified on paragraphs (b) to (h) of Article 132(1) shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard. Reasonably to be heard is part of principle of procedural hearing Other than that, Article 5(1) stated that no person shall be deprived of his life or personal liberty save in accordance to law. In addition, according to Article 8(1) all persons are equal before the law and entitled to be equally protected. In the case of Tan Tek Seng v Suruhanjaya Perkhidmatan, Court of Appeal considered the relevance and application of procedural fairness, irrationality and proportionality. In this case the appellant was the headmaster of a national type Chinese primary school. He was in that capacity entrusted with a sum of RM3 179 being the unpaid salary of the schools gardener who had not turned up for work for several months. He failed to return the money to the Educational Department. He had falsedly told that the money had been sent to it when the department asked for the return of the money. Eventually he did send the money to the Department. Because he retained the money he was charged for an offence under Section109 of Penal Code. The Sessions Court found him guilty, convicted him and imposed a sentence of six months imprisonment. The High Court at Muar which heard the appeal from the appellant affirmed the finding of guilt. But it made an order which had the effect of setting aside the conviction and punishment. It bound the appellant over to be good behaviour for a period of 3 years in sum of RM5000. In the case the majority of the Court of Appeal substituted the order of dismissal with a reduction in rank. In the case of Hong Leong v Liew Fook Chuan, the equality clause of the constitution can be used to require public administrators to observe the duty of procedural fairness towards all citizen.

APPLY In this problem, Dr Kasar is a medical officer. His right of hearing is specifically conferred by the constitutional provision. His work fall within Article 132(1), hence in applying Article 135(2), he shall not be dismissed or reduced in rank without being given a reasonable opportunity of being heard. In applying Article 5(1), employment is life. Whereas he is entitled of equality of law and hence entitled to be equally protected. In applying Tan Tek Seng v Suruhanjaya Perkhidmatan , Article 8 strikes at arbitrariness in state action and ensure fairness and equality of treatment. Whereas in applying Hong Leong v Liew Fook Chuan, equality before law does include the duty of a procedural fairness towards all citizen. CONCLUSION Thus, it is safe to said that Dr. Kasar could claim reasonable hearing under Art 135(2). So, Dr Kasar may succeed in challenging his dismissal on ground that he was not given a reasonable hearing.

ISSUE 2 Whether there is infringement of procedural fairness if oral hearing not given? LAW Hearing could be written or oral hearing because depending on the circumstances of an individual case. In the case of Ketua Pengarah Kastam v Ho Kwan Seng, the decision cancelling the forwarding agency was taken ad communicated to the respondent who then field a written representation of his own accord against the order. Federal Court held that this met the test of fair hearing as representation in writing would be all that was required and the fact that personal hearing was not demanded was a relevant consideration. The Court emphasize that insistence on oral hearing in each and every case would result in the breakdown of administration This is as such as a hearing is too slow, too technical and too costly. Oral hearing is needed if the case involved is complex or technical or serious charges had been made affecting reputation and livelihood of the alleged person. In the case of Travencore Rayons v Union of India, the issue was that a product of the company was subject to an exercise duty. The company argued that the product was not dutiable. Through various stages, the matter ultimately reached the government of India by way of appeal which was to adjudicate upon the matter in a quasi-judicial capacity. The government rejected the contention of the company without giving it an oral hearing. The company appealed to Supreme Court. It was held that if in appropriate cases where complex and difficult questions are raised, personal hearing is given, it would conduce a better administration and more satisfactory disposal of the grievances of the citizen. In the case of Pett v Greyhound Racing Association, the issue was whether the appellant, a licensed greyhound trainer had administered drugs to a racing dog. An inquiry was initiated into his conduct by the association. I might have reputation and livelihood were in jeopardy. He asked for an oral hearing but the opposition opposed it. Lord Denning state that whether an oral hearing was to be given or not depend on the nature of the inquiry. In this case, as it will affect reputation and livelihood, fairness ma require an oral hearing.

APPLY In this problem, Dr Kasar insisted that he shall be given an oral hearing. However, at the end of a special meeting among the Hospital Disciplinary Board, Dr Kasar application for oral hearing was rejected. Based on circumstance of this problem, hearing alone might be sufficient. In applying Ketua Pengarah Kastam v Ho Kwan Seng, the Board act is in line with the test of fair hearing as representation in writing would be all that was required and the fact that personal hearing was not demanded was a relevant consideration. If given oral hearing, it might be too slow, too technical and too costly. However, oral hearing is need in this case as it involved a serious charges, affecting reputation and livelihood of the alleged person. Dr Kasar was dismissed from his service. This will affect his reputation as a doctor and also as being a doctor is his main source of living, if this being taken away will affect his livelihood. This can be supported by applying the case of Pett v Greyhound Racing Association in which Lord Denning himself mentioned that oral hearing should be given if it affect reputation and livelihood of the person. In addition, in applying Travencore Rayons v Union of India, it would conduce a better administration and more satisfactory disposal of grievances of citizen by the Board if Dr Kasar granted with personal hearing. CONCLUSION Thus, it is safe to said that it is not an infringement of procedural fairness if oral hearing not given, however based on the ground that it will affect Dr Kasar reputation and livelihood, Dr Kasar should be given oral hearing. So, Dr Kasar may not succeed in challenging his dismissal on ground that he was not given oral hearing, however he may still be given a proper oral hearing.

ISSUE 3 Whether failure to provide right to counsel is an infringement to principle of procedural fairness? LAW Generally right to counsel is not a right but if the case is complicated, serious, affecting reputation or livelihood the allege person should be allowed legal assistance. In the case of Pett v Greyhound Racing Association the issue was whether Plaintiff could be represented a lawyer at the inquiry. Lord Denning stated that Plaintiff should be represented by a lawyer as he is facing a serious allegation that can affect his reputation and livelihood. Every person who is sui juris has a right to appoint agent for any purpose. According to him It is not every man who has the ability to defend himself on his own. When a mans reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He has a right to speak by counsel or solicitor. APPLY In this problem, Dr Kasar also stated that he should be represented by a counsel to explain his actual position. However the Hospital Disciplinary Board rejected his application. Generally right to counsel is not a right but in this case it involved a complicated, serious, affecting reputation and livelihood of Dr Kasar and thus he should be allowed legal assistance. This could be supported in the case of Pett v Greyhound Racing Association in which affirmed by Lord Denning that a party who is facing a serious allegation that can effect his reputation and livelihood should be represented by a lawyer. In addition, not all person can defend himself. Dr Kasar might not know the best way to defend himself or the right way to explain everything. There might be important aspect that could be left out. Hence a counsel or solicitor is a better option to defend on his part. CONCLUSION Thus, it is safe to said that failure to provide right to counsel is not an infringement to principle of procedural fairness, however based on the ground that it will affect Dr Kasar reputation and livelihood, Dr Kasar should be allowed to be represented by a counsel to explain his actual position. So, Dr Kasar may not succeed in challenging his dismissal on ground that his right to counsel has been infringed, however he may be given right to counsel.

ISSUE 4 Whether failure to produce information to accuse person infringe procedural fairness? LAW All relevant material used in decision making must be brought to the notice of the alleged person. In the case of Shamsiah Ahmad Sham v Public Service Comm the appellant was dismissed on charges of negligence and dereliction of duty. In arriving at its decision, the disciplminay authority had taken into account her records of past conduct without giving her an opportunity of explaining the same. Supreme Court quashed her dsmissal. It was held that it is not a matter of pure technicality but it is absolutely fundamental in law that the appellant should have been given an opportunity of stating her case regarding her past conduct, considering that dismissal of a civil servant is not a light matter. In the case Abdul Rahman v Public Service Commission, an order of dismissal was quashed because the disciplinary authority took into consideration some information without disclosing the same to the concerned person thus depriving him of the opportunity of explaining it. APPLY In this problem, in the special meeting among the Hospital Disciplinary Board, they also referred to records of complaints made against Dr Kasar by some of the hospital patients regarding his attitude in attending the patients. This was not made known to Dr Kasar. In applying Shamsiah Ahmad Sham v Public Service Comm relevant material and information used in decision making must be brought to the notice of Dr Kasar. In other word, he should be informed on the records of complaints made against Dr Kasar by some of the hospital patients regarding his attitude in attending the patients. It is important to Dr Kasar to be given right to defend himself on the uninformed information as this involved his career and living source. The case of Abdul Rahman v Public Service Commission upon application to this problem also would affirmed that Dr Kasar should made known of the complaint and be given opportunity to explain himself. CONCLUSION Thus, it is safe to said that failure to produce information to accuse person does infringe procedural fairness. So, Dr Kasar may succeed in challenging his dismissal on ground that failure to produce information to him infringe procedural fairness.

ISSUE 5 Whether government could be held liable for the neglect act of its officer? LAW According to Section 5 of Government Proceedings Act the government will liable for any wrong act done or any neglect or default committed to the same extent that in which a principal is liable for any wrong done or neglect or default committed by the agent. However, this subject to conditions by virtue of Section 6(1) of Government Proceedings Act, which explain that the action cannot be taken against the government unless the action would have taken against such officer personally. This section states an action shall not lie against the government under Section 5 unless preceedings for damages in aspect of the act, neglect or default by an officer would have been then against such officer personally. Secion 6(2) of Government Proceedings Act stated that if any written law limit or negative the liability of the officer, theliability of the government is also limited. Section 6(4) of Government Proceedings Act stated that the government is not liable for any act, neglect or fault of an officer, unless he was employed by the government and paid by government revenues. In the case of Hj. Abdullah Rahman v Government, the driver who was a government officer had involved in an accident with the plaintiff. The plaintiff than sued the government to claim damages without including the driver as a party of the action. Reading Section 5, 6(1) and 6(4) together, the identitiy of the officer involved must be ascertained and his liability established before government can be made liable. Court dismissed his action on the ground that the government servant was not made the defendant. In the case of Lai Seng Co. V Government of Malaysia, under Order 16 Rule 11, Rules of Supreme court, a cause of mater is not to the defeated because of non-joinder of any party. This means that the fact that the officer is included in the action or not is immaterial. In the case of Mohammad Raihan B. Ibrahim v Government of Malaysia, there was a traffic accident due to the negligence of the government driver.The diver was not made a party to he action and hence it failed.

APPLY In this problem, on February 2007 Dr Kasar who was attached to the Cyberjaya Government Hospital was assigned to attend to the delivery of a baby by Nasibi. Though the baby was healthy, Nasibi bled heaviliy after the delivery. The heavy bleeding continued for 2 consequtive days and Nasibi fell into coma. The hospital try to regain Nasibis consciousness butt fail. Nasibis husband wish to take action against the government under negligence. In applying Section 5 of Government Proceedings Act if proven that Dr Kasar commit negligent, government can be held liable. Dr Kasar is an agent whereas the government is the principle since Dr Kasar is wirking for the hospital. Other than that, the government may stay be held liable even with the restriction under Section 6(1) of Government Proceedings Act. This is because as alleged by Dr Kasar, he had performed his duty according to the standard practice of a normal medica officer in handling delivery case. In addition he had taken every reasonable effort to stop the bleeding but the effort simply failed. In other word, if proven true, there is no action that can be taken against Dr Kasar personally. Applying Section 6(4) of Government Proceedings Act since Dr Kasar Is attached to the Cyberjaya Government Hospital, he is indeed employed by the government and paid by government revenues, thus government may be liable. In applying Hj. Abdullah Rahman v Government, applying Section 5, 6(1) and 6(4) together, the identitiy of the officer involved must be ascertained and his liability established before government can be made liable. Eventhough as according to Lai Seng Co. V Government of Malaysia, which explain that it is immaterial, it is advisable to Mamat to make Dr Kasar the defendant as well. This is because in referring Mohammad Raihan B. Ibrahim v Government of Malaysia, it is advisable to make Dr Kasar a party. CONCLUSION Thus, government could be held liable for the neglect act of Dr Kasar and it is advisable to Mamat to make Dr Kasar a party to the action.

ISSUE 6 Whether Mamat could claim production of document against the government to prove negligent act of Dr Kasar? LAW As far as the right to information is concerned, in Malaysia, there are a few provisions stated in the Evidence Act 1950. According to Section 123 no one shall be permitted to produce any unpublished officials records relating to affairs of state except with permission of the officer at the head of department who shall give or withhold permission subject to the government of Malaysia and of the Chief Minister in the case of a department of a state government. Other than that, Section 124 stated that no public officer shall be compelled to disclose communications made to him in officials confidence when he considers that the public interst would suffer by the disclosure Next, Section 162(2) stated hat Court have discretionary power to check or inspect. Government do privilege but Court have power whether the document should be disclosed or not. In case of B.A. Rao V Sapuran Kaur, the respondent claimed the damages on behalf of the state f the deceased for his death as a result of negligence of the medical officers f the district hospital. A committee of inquiry was set up by the hospital to enquire into death of the deceased. The respondent issued a notice to produce the report and findings of the committee. The appellant objected to doing so on the ground that the reports and findings of the committee where unpublished official records and if were privileged from disclosure under S123 of Evidence Act In support of the claim, the Deputy SECRETARY General of the Ministry of Health filed an affidavit objecting to the production of the report on the ground of public interest and public service. Trial Court disallowed the objection and ordered production of the committees report and findings. Federal Court upheld trial Court decision on appeal.

APPLY In this problem, Mamat, Nasibis husband wished to take an action against the government. Upon proceeding Mamat requested the production of the reports and findings of the investigation in order to use them to prove the negligent conduct of the medical officer of the Cyberjaya Government Hospital. However, the request was turned down on ground that it it a governmental document and is therefore private and confidential. In applying Section 123 of Evidence Act 1950, the hospital is not permitted to publish report and findings of the investigation. He might get so if he received permission from Head of Department which subjected to permission from the government of Malaysia. However, in applying Section 124 of Evidence Act, if the information might affect public interest the hospital may disclose the information. In other word, government have privilege of disclosing the information, however in regard to Section 162(2) of Evidence Act, Court still have discretionary power to check or inspect on whether the document should be disclosed or not. However, in applying B.A. Rao V Sapuran Kaur, as this matter may be of a public interest matter, government may disclosed the information from Mamat.

CONCLUSION Therefore, Mamat could claim production of document against the government to prove negligent act of Dr Kasar because eventhough government have privilege in this aspect, Court may still grant Mamat claim.

APRIL 2009. PART B. QUESTION 1.

ISSUE 1 Whether authority had acted unreasonably in imposing that law graduates from local universities are not qualified to practice law upon graduation but instead must enrol an Academy of Law for one year. LAW Unreasonableness is something so absurd that no reasonable person or sensible person could have come to that decision. Test of reasonableness was laid down in Wednesburys case or also known as Wednesburys Test. It stated that something so absurd that no reasonable or sensible person could have come to that decision Thus, the test of reasonableness is whether a reasonable man or person would think or make the same decision. Other than that, there is also Test in Poplars case (Roberts v Hopwood) where it explain what was reasonable in view of the Court. the Poplar Borough council had power under relevant statute to employ servants and pay them as they think fit. It paid for every employees regardless of work done. In the case of Prescott v Birmingham Corp, under the statute, the corporation was authorised to run transport services and to charge such fares to passengers as the corps thinks fit. The corp decided not to charge any fare from old women over 65 years and old man over 70 years of age. Court declared that the scheme as going beyond anything which could be reasonably be regarded as authorised by the DP of fixing fares and declared it ultra vires. It was held that it is not a proper exercise of discretion by the corp. The ct derives support from Poplar for its view. Test in Wednesbury is very narrow. However, Malaysia accepted the principle. In Pengarah Tanah dan Galian WP v Sri Lempah, the condition of surrounding freehold for a 99-years lease in lieu of getting permission to develop land was also characterized as unreasonable,. Also in the case of, the authority must act reasonably and may impose condition relevant to the permitted development.

APPLY In this problem, the Higher Education Minister announced with immediate effect, that law graduates from local universities are not qualified to practice law upon graduation but instead must enroll into an Academy of Law for one year. In applying Wednesburys Test, it is not reasonable to implemend such rule. One of the reason is that eventhough the purpose was to ensure good quality graduates, it will undermine student and universities. This system almost resemble UiTM system in which a law degree graduate will undergo one year LLB Hons in order to create a more quality graduate. However, even this system will soon no longer be used. Impliedly, it is not an ideal system. Thus, as according to Wednesburys Test, it is not reasonable to implement such law on the ground that it is not reasonable. In addition it is too extreme to do such just for the sake of improving quality if graduate. There a lot of other incentive in which are capable to do the same target. CONCLUSION Thus, it is safe to said that the authority had not acted reasonably in imposing that law graduates from local universities are not qualified to practice law upon graduation but instead must enrol an Academy of Law for one year. Thus, Sarimah and Atan may challange the validity of the new rules on ground that authority had acted unreasonably in imposing the rule.

ISSUE 2 Whether the decision of the authority could be challenged as invalid on the ground that the authority had failed to exercise its discretionary power by acting in a fettering manner? LAW Fettering discretion arises, for example, when the authorities make policy to regulate the exercise of their discretion and apply the policy inflexibly to all cases coming before it for decision irrespective of the merits of each case. In the case of B. Lavander v Minister of Housing, the government adopted a policy to reserve high quality agricultural land for purpose of agriculture against disturbance by graves working. The Minister of Housing who had discretion to allow extraction of minerals refused permission to the petitioner to extract minerals from an agricultural holding on ground that the Minister of Agriculture objected to the proposed use of the land for reasons of agriculture. The order of the Minister was quashed on the ground that (i) the Minister followed an inflexible policy in such cases and thus fettered his discretion by a self-created rule of policy. (ii) the Minister in effect left the making of decision (power which was vested on him) to the Minister of Agriculture who under the law had no status to make an effective decision except perhaps in a consultative capacity. In the case of British Oxygen Co v Minister of Technology, The decision maker may adopt a policy but should be prepared to listen to new arguments, and consider any special circumstances applicable to an individual cases as to why the general policy should not be applied to it. Authority should always be willing to losten to any one having new to say. APPLY In this problem, when Higher Education Minister exercise his discretionary power when it lay down the policy of law graduates from local universities are not qualified to practice law upon graduation but instead must enrol into an Academy of Law for one year and announce it with immediate affect irrespective of its merits of an individual case is indeed a fettering discretion. The Higher Education Minister also had acted upon the instruction of the newly appointed Law Minister who doubted the quality of local law graduates. In fact, prior to the announcement, the Higher Education Minister consulted the Bar Council, but not the Law Teachers Association (LTA) a registeres association, to which more than 70% of the local law lecture belong.

In applying B. Lavander v Minister of Housing to this problem, Higher Education Minister fail to exercise his discretionary power on ground that when Higher Education Minister had acted upon the instruction of the newly appointed Law Minister who doubted the quality of local law graduates, Higher Education Minister followed an inflexible policy in such cases and thus fettered his discretion by creating a self-created rule of policy. Other than that, Minister in effect left the making of decision (power which was vested on him) to Bar Council who under the law had no status to make an effective decision , not even a consultative party. In applying British Oxygen Co v Minister of Technology even if Higher Education Minister may adopt the policy should be prepared to listen to new arguments, and consider any special circumstances applicable to an individual cases as to why the general policy should not be applied to it. In this problem, Sarimah, the Dean of the Facukty of Law, University of Malaysia, and also a member of the Law Teacher was not satisfied with decision of Higher Education Minister and feels that the policy is unfair for the local universities and local law graduates. Other than that, Atan who is a graduate of East University of Malaysia currently doung his pupillage at Messrs Zaidi Ibra and Assosiates was prevented from continuing his pupillage by the Bar Councul because of the new rule of policy. He has no funds to take up the course when he was asked to complete the one year course. CONCLUSION Thus, Higher Education Ministers new rule of policy can be challenged as invalid on the ground that the authority had failed to exercise its discretionary power by acting in a fettering manner. Other than that, when a statute confer discretion on an authority, it is expected to consider each case on it merits, rather than adopt an inflexible standard and apply it to each and every case. Thus, Higher Education Minister should listened to Sarimah and Atan problems as the authority should always be willing to listen to any one having new to say even if the new rule of policy can be implemented. Therefore, it is advisable to Sarimah and Atan to voice out their problem an may challenge the new rule of policy on the ground mentioned earlier.

ISSUE 3 Whether the action of the authority could be challenged as invalid on the ground that the authority had abuse its power by taking into account irrelevant considerations by imposing by imposing RM20,000? LAW Irrelevant Consideration is consideration outside scope of statute. The effect of this as that the action or decision is invalid. In the case of Short v Poole Corp, It may be possible to prove that an act of the public body, though performed in good faith and without the taint of corruption, was so clearly founded on alien and irrelevamt grounds as to be outside the authority conferred on the body, and therefore inoperative. In the case of Maradana Mosque trustees v Mahmud, Privyl Council quashed a ministers order being based partly on ignoring relevant and partly on taking into account irrelevant considerations. The Minister did take into account mismanagement of the school in past APPLY Statute conferring discretion on an authority may itself lay down the consideration which should be taken into account for its exercise. If fail to comply so would render it invalid. In this problem, Higher Education Act 2008 auhtorised the Minister of Higher Education to introduce by such means as he deems appropriate a mechanism to ensure that good quality graduates are produced by local universities to satisfy the demanding needs of the industries. In taking such action the Higher Educatiion Minister shall consult those organisations and individuals he considers relevant. Prior to the announcement, the Higher Education Minister consulted the Bar Council, but not the Law Teachers Association (LTA) a registeres association, to which more than 70% of the local law lecture belong. In addition the academy of Law will be managed by an independent organisation that will impose a fee of RM20,000 per year. Based on the conditions stated in the Higher Education Act, Higher Education should consult whom he think is relevant. This almost giving unlimited term for to Higher Educational Minister to exercise his power. In a way consulting Bar Council is relevant as it law-relatedparty. If this is the case, Court will then have to look into its purpose, tenor and provision, whether relevant or irrelevant consideration have been applied. Looking at it purpose, it is

irrelevant to consult Bar Council as in a degree they are of lower as compared to Law Teachers Association. What should be relevant is to consult Law Teachers Association (LTA) a registered association, to which more than 70% of the local law lecture belong. This is line with Maradana Mosque trustees v Mahmuds case. In addition applying Short v Poole Corp, in relation to this problem when Academy of Law will be managed by an independent organisation that will impose a fee of RM20 000 per year, there is some sort of corruption seen here. Not only the amount is too excessive, it is also not relevant for the Academy of Law to be handled by an independent organisation. CONCLUSION Discretion should not be guided by irrelevant considerations, other than stated by statute and, conversely, a decision maker while exercising his discretionary power ought to take into account relevant considerations. If not it would be invalid. Thus, the action of the authority could be challenged as invalid on the ground that the authority had abuse its power by taking into account irrelevant considerations by imposing by imposing RM20,000. Thus Sarimah may challenged the authoritys action on this ground.

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