presentations

1. PRINCIPLE OF NATURAL JUSTICE

2. BIAS - DEFINITION
• LEGAL - an operative prejudice, whether
conscious or unconscious, as result of some
preconceived opinion or predisposition, in
relation to a party or an issue.
• DICTIONARY - anything which tends a person
to decide a case other than on the basis of
evidences.

3. PRINCIPLE OF NATURAL JUSTICE
• Natural Justice (NJ) is a principle that intended to
ensure law with fairness and to secure justice.
Fairness and justice should vest the manner of
arriving of decisions by judicial process. The IC as
the mechanism of arbitrating industrial dispute
when dealing with matters referred to it.
• 2 essential elements of NJ:
A. The rule against bias
B. That of hearing both sides ("audi alteram
partem“)

4. A) The rule against bias
• The rule against bias requires the adjudicator
to be neutral between the disputing parties
and appear to be above board. This principle
is based on two requirements:
I. No man should be a judge in his own cause
("nemo judex in cause sua“) and
II.Justice must not only be done, but manifestly
and indubitably be seen to be done

5. The rule against bias has 2 main features:
1. the administrator exercising adjudicatory powers
must have not have any personel or proprietary
interest in the outcome of the proceedings.
2. There must be a real likelihood of bias. Real
likelihood of bias is a subjective term which means
either actual bias or a reasonable suspicion of bias.
– difficult to prove the state of mind of person.
Therefore, the courts see is whether there is a
reasonable ground for believing that the deciding
factor was likely to have been biased

6. Forms of bias:
• Personel bias - It arises out of the personal or professional
relationship of friendship or hostility between the authority and the parties.
It’s the human nature that we try to give favourable decision to our friends or
relatives, whereas use the same as a weapon against the enemies.
• Pecuniary bias - Any financial interest howsoever small it may be
is bound to vitiate the administrative action.
• Subject-matter bias - The situations where the deciding officer
is directly or indirectly in the subject matter of the case.

7. Forms of bias (CONTINUED)
• Departmental bias - The problem of departmental bias is
something which is inherent in the administrative process, and if it is not
effectively checked, it may negate the very concept of fairness in the
administrative proceeding.
• Pre-conceived notion bias - Bias arising out of
preconceived notions is a very delicate problem of administrative law.
• Bias on account of obstinacy - The word Obstinacy
implies unreasonable and unwavering persistence and the deciding officer
would not take ‘no’ for an answer. This new category of bias was discovered
in a situation where a judge of the Calcutta High Court upheld his own
judgment while sitting in appeal against his own judgment.

8. B. The Rule of Hearing Both Sides
• This rule is expressed through 2 maxims:
i. Hear the other side and
ii.No man should be condemned unheard (give
opportunity to be heard)

9. i. HEAR THE OTHER SIDE
The adjudicator (judge) must act in good faith and fairly listen to both
sides, for that is the duty of the adjudicator who decides anything.
They can obtain information in any way they think best. They must
always give opportunity to those who are parties in the controversy
for correcting any relevant statement.
•Any proceedings commenced must with prior notices to the parties in
order to avoid vitiate the resulting decision. Therefore, the person
should be given adequate notice of the proceedings so that they may
be able to:
a.Effectively prepare their case and to answer the case of the
opponent.
b.Make their representations and
c.Appear at the hearing.

10. ii. Opportunity to be Heard
The parties involve must have a reasonable
opportunity of being heard in their defence.
•3 requirements of fair or reasonable opportunity:
a.The adjudicator should receive all the relevant
material, which a party wishes to produce in
support of its case.
b.The evidence of the opponent, whether oral or
documentary, should be taken in his presence.
c.Each party should have the opportunity of
rebutting the evidence of the other by cross-
examination or explanation.

11. CONCLUSION
1. The rules of NJ are not inflexible principles – flexibility
is allowed however, they may vary in their content in
the circumstances of each case and in their ambit in
the context of their application.
• For example: The concept of fair hearing, particularly,
varies significantly in different contexts such as
whether it is a sophisticated full-fledged hearing or a
brief and minimal one; hearing prior to the decision
or post decisional hearing. i.e. depending on the
circumstances of each particular case, this rule, in its
application is flexible enough to range from minimum
to rigorous standards

12. CONCLUSION (CONTINUED)
2. Flexibility of the rules of NJ is emphasized
it should be noted that their fundamental
importance should be stressed.
• For example: As long as notices were
produced to the appellant or the disputing
parties – the fundamental of adequate,
clear, certain and unambiguous notice
should be stressed. A vague notice is not a
proper notice.

13. CONCLUSION (CONTINUED)
3. While it is important for administrative bodies to conform to natural
justice in their proceedings, a mere fetish of those principles will not
justify the interference by the review court.
• “ A breach of procedure, whether called a failure of NJ, or an essential
administrative fault, cannot give him a remedy in the courts, unless
behind it there is something of substance which has been lost by the
failure. The court does not act in vain”.
• Case: Tanjong Jaga Vs. Minister of Labor (1987) 1MLJ33.
• Tanjong Jaga argued that it was a nightclub and as such the NU of HB&R
workers not the competent union to represent its workers. It challenged
the unilateral decision of the Registrar to the contrary, complaining that
he failed to give an opportunity to be heard on this contention.
• The Supreme Court held that the Registrar in this case was satisfied that
the major business of the nightclub was in the operation of the bar – S.C.
Judge Abdool Cadeer – ‘allowing a hearing to the night club would not
have wide any difference’.

14. CONCLUSION (CONTINUED)
4. There is the emerging concept of fairness, which is larger in context than the rules of
natural justice.
• Fairness – the duty to act fairly – does not mean it to be a substitute for NJ – the
administrative bodies in exercising their discretion owe a constitutional duty to
perform it fairly and honestly to the best of their ability -–rather than to use the phrase
as NJ – the procedure must be fair to all those who have an interest in the decision.
• C. V. Das – Administrative Law & the Citizen, MLJ No.1981
• The principles of NJ do not apply to administrative bodies when the Nature of function
they discharge is not analogous to judicial or when the nature of complaint does not fit
into any of the recognized rules of NJ.
• Case: The management receives a complaint on 6 workers for misconduct. The
immediate respond is to suspend the allege workers for 1 week. Then the mgmt. Call
for a meeting of the representative of the workmen in the CO’s employment to decide
future fate of there 6 suspended colleagues. Based on the discussions/arguments as
well as giving the rep. Opportunity to voice their opinion the mgmt decided a
judgement to be passed on the 6 workers to be terminated.
– Suspension of the 6 workers from work for one week was within the ambit of IR practice.
– To hold domestic inquiry
– to determine cause for the co. to order suspend the employee
– whether there are just & proper
– to determine what further action should be taken

15. NATURAL JUSTICE AND EXECUTIVE
AUTHORITIES
Shamsiah Bte Ahmad Sham V. Public Services
Commission (1990) 3 MLJ – illustrates how a
disciplinary authority could be violating the
principles of natural justice when it is perfectly
entitled to take into account the employee’s
record of past conduct in considering her guilt
or the appropriate punishment.

16. NATURAL JUSTICE AND EXECUTIVE
AUTHORITIES(CONTINUED)
• Shamsiah was a book binder in the Government Printing
Department, who was dismissed by the Public Services Commission
after she had been found guilty of negligence and dereliction of duty.
She applied to the High Court for a declaration that her dismissal
was null and void. Her application was dismissed by the High Court,
and she appealed.
•
• The core of the complaint in the Supreme Court was that the Public
Services Commission, in arriving at its decision to dismiss her from
service, had taken into account extraneous matters, namely the
record of her past conduct, which had been entered in her record of
service and produced by her departmental head to the Public
Services Commission without giving her an opportunity to explain or
controvert her record of service, which played a part in influencing
its decision to impose the severest punishment under the relevant
regulations.

17. NATURAL JUSTICE AND INDUSTRIAL
COURT
Section 23A of IRA 1967 – a person is qualified for appointment as president or chairman of the IC only if, for the seven
years preceding his appoinment, he has been an advocate and solicitor… or a member of the judicial or legal service of the
Federation or of the legal service of the state ..
•the professional background of the presiding officers of the IC in Malaysia makes them keenly aware of the need for the
quasi- judicial bodies to observe the principles of natural justice in their proceedings.
•The IC allows legal presentations to the parties and the representatives must facilitate the observance of natural justice
during the proceedings in the IC.
•
•Case: Minister of Labor, Malaysia V. National Union of Journalist, Malaysia (1991) 1 MLJ 24
•
•Minister of Labour(MOL) refused to refer a dispute to the IC – The IC strictly observe and support the view of rules of
fairness.
•
•Yaqzid Othman, a reporter of Utusan Melayu, who was dismissed for misconduct, the MOL refused to refer the dispute to
the IC though he was well aware that no domestic enquiry was done. However, the Minister listed in his affidavit several
facts and circumstances he took into account in arriving at his decision.
•The Supreme Court allowed the Union ‘s application for an order of certiorari to quash the decision of the Minister and an
order to refer the dispute to the IC
•
•Industrial Court
•Yazid Othman was not give the opportunity of being heard in his own defence .
•Ordered his reinstatement with back wages
•
•

18. NATURAL JUSTICE AND INDUSTRIAL COURT (CONTINUED)
Case: Minister of Labor, Malaysia V. National Union of Journalist,
Malaysia (1991) 1 MLJ 24
•Minister of Labour(MOL) refused to refer a dispute to the IC – The
IC strictly observe and support the view of rules of fairness.
•Yaqzid Othman, a reporter of Utusan Melayu, who was dismissed
for misconduct, the MOL refused to refer the dispute to the IC
though he was well aware that no domestic enquiry was done.
However, the Minister listed in his affidavit several facts and
circumstances he took into account in arriving at his decision.The
Supreme Court allowed the Union ‘s application for an order of
certiorari to quash the decision of the Minister and an order to
refer the dispute to the IC.
•Industrial Court:
– Yazid Othman was not give the opportunity of being heard in his own defence
– Ordered his reinstatement with back wages

19. Benefits of complying with the Principles of NJ
Natural justice can benefit the decision maker as well as the person or
organisation whose rights or interests may be affected in the following ways.
• Assists the decision maker in reaching the correct and preferable decision;
• Provides the decision maker with relevant information, evidence or
interpretation of legislation or policy which he/she has not considered;
• Provides a useful avenue for the decision maker to ensure that the facts or
information that he/she is relying on is correct;
• Exposes any weaknesses in the decision-making process, information or
evidence on which a decision is to be based, which avoids later
embarrassment, including the need to re-make the decision;
• The comments or submissions made by the person or organisation may
provide advance warning of the basis on which the decision is likely to be
challenged.