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PROCEDURAL FAIRNESS

Abdul Muiz bin Ajis 13B0229


Mohd Hairul Hafizan bin Hanape 13B0234
Rajali bin Haji Aji
Asyraf






LLB & BSL




Faculty of Shariah and Law
Sultan Sharif Ali Islamic University
Brunei Darussalam


1435H/2014M
INTRODUCTION
Procedural fairness is a person right to be entitled to a hearing and the hearing must be a fair
hearing. Originated from the legal maxim audi alteram partem meaning hear the other side, it
justified that in any judicial proceedings that no men should be condemned unheard.
LOCUS CLASSICUS
The origin of procedural fairness in the common law started in the historical case of Ridge v
Baldwin, in this case a chief constable was dismissed from his occupation due to a being charged
with obstruction of justice and corruption. Although he was not found guilty he was still
dismissed and the main concern at that time was he was not given a proper hearing. The House
of lord contended that his dismissal was ultra vires because procedural right to be heard must be
honoured. Therefore, according to this precedent, it established that a fair hearing must be
conducted and it is a procedural right to a person subject to any claims, charges or allegations.
However, the judgement of Lord Reid in Ridge v Baldwin classified dismissal cases into three
groups:
Firstly, the relationship between servant and master where termination of the servant is done, it is
classified as contractual relations.
Secondly, termination of office held during pleasure is not entitled to a hearing for example a
minister office held at pleasure of the ruler, he cannot contended that his dismissal is unjust.
Lastly, termination from office due to other circumstances that led to the end of his service, he is
entitled to a fair hearing.
In any judicial proceedings, if the dismissed party was found in group 3 of the classification, he
has the right of procedural hearing otherwise the right is ceased to be given.
BENEFITS
Since both sides are given the opportunity to be heard equally, it should and would result in
many solid benefits. First of all, a fair hearing would result in the maintenance of the standard of
fair play of the decision-making bodies. This is because they (the decision-makers) will be
subjected to review, and if the court finds them acting in any way irrational or improper, their
decisions would be set aside as ultra vires. Thus they would think twice before acting irrationally
or abusing their discretion. Secondly, it promotes the confidence in the fairness of governments
and their decisions. The court will be there to clarify the reality. As long as both sides are heard
equally and both are satisfied, they would have no reason to complain. Trust in the government
in turn, would be more secure. Not to forget, controversies would be avoided as well. For
example, if a trustworthy public figure was charged with a crime in which he did not commit,
without giving him the chance to explain his side of the story, many controversies would arise.
Thirdly, it reinforces and strengthens the application of legal principles. Aside from the law
being upheld, the procedures which lead to it would be clear as well. People would respect the
law for its principled and unbiased nature. Fourthly, procedural fairness acts as a safeguard
against erroneous decisions. Even if the authorities make a decision it already deems correct, the
court is there to clarify it. A fair hearing to both sides should be made available just in case.
Because some errors could be made unknowingly or innocently, it is the courts job to revise the
facts clearly and objectively, before agreeing with the potentially incorrect decisions.
Furthermore, due to the opportunity given to both sides to explain, they will have no choice but
to willingly accept the courts decision. Lastly, it is simply logical that fair and lawful procedures
should result in fair and lawful outcomes. Whether it is advantageous to the government or the
person taking action against it, it will actually be in favour of both.
LIMITATIONS
However such bridge to judicial review, it is subject to the legislation intendment. This refers
to the intensity of the review, whereas the principle is that the court will not look thoroughly into
matters pertaining to the national security or have interests either economically or socially (or
socio-economic) towards its people, which if given greater a large portion of attention, it will
jeopardise these important interests. Other than that, any acts by the government servants or
officials, which overstep or transgress the limits omposed by the law governing such bodies (the
Parent Act), this act is term as ultra vires. Such decisions can be void or voidable, according to
the distinction between raw logic and practical reality. As a matter of logic, ultra vires decisions
are decisions outside, or in excess, of power and should thus be void. By contrast in practice, as
in Boddingtonper Lord Irvine said: ...In my judgment, the true effect of the presumption is that
the legislation or act which is impugned is presumed to be good until pronounced to be unlawful,
but is then recognised as ever having any legal effect at all.
PROCEDURAL FAIRNESS IN MALAYSIA
There are several cases in Malaysia where the exercise of the legal maxim, audi alteram partem
amounted as one of the basis of equality.
For instance, the case of Ahmad Azam v Bin MohdSalleh v Jabatan Pembangunan Koperasi
Malaysia (2004) 4 MLJ 86. It is a case concerning building inspection. In the case, the plaintiff
reported to the Cooperative Tribunal on the ground that, the inspection made by the Jabatan
Pembangunan Malaysia was not reasonable. The plaintiff also, in the said case, had tried to apply
for a certiorari to quash the order of the inspection. The basis of the plaintiffs claim for a
hearing in the case was by virtue of the Cooperative Societies Act 1993.
The main issue that stood up before the judges of the court was whether the claim for a fair
hearing to be considered (whether the said Act does provide so) so as to be given to the plaintiff.
It was held by the Court that, the Cooperative Societies Act 1993 does not require that such a
hearing to be given or allowed. Furthermore, permitting such a hearing would, according to the
Court be seen as opening floodgates to all enforcement agencies actions. This is, thus not
favorable.The High Court through the words of Reus Sharif: To hold such a process of
inspection reviewable would open up the investigation process of all enforcement agencies to
constant judicial review. I have no valid reason to open the floodgate
In short, letting the plaintiff a procedural hearing would consequently leads to difficulties for the
enforcement agencies to undergo construction and works. The claim for hearing was in this case,
failed.
Another case is the case of Ketua Pengarah Kastam v Ho Kwan Seng (1997) 2 MLJ 152 which
concerned about the case of smuggling. In the case a fair hearing was also not rewarded.
Addressing this, Raja Azlan Shah quoted as saying, no men should be condemned unheard
should apply to every case be it judicial, quasi-judicial or administrative tribunal or whether the
enabling statute makes provision for a hearing.
On the other hand, in the case of Sarawak Electricity Supply Corporation v Wong Ah Suan, the
Court emphasizes that if a person were to be deprived of any of their rights, the rule of audi
alteram partem must be strictly observed. Whilst in Wong Kwai v President of Town Council
Johor Baru was regarding the demolition of a building which has been constructed in
contravention of the bye-laws of the Town Council. The Court decided that, a fair hearing was to
be given before any further action is to be executed. The order of demolition should be effective
after the plaintiff failed to overrule the decision of the court during the proceedings (hearing) and
not before it.
Justice Syed Othman quoted in the light of the legal maxim where he emphasized: If the
tribunal fails to observe them (audi alteram partem) a decision loses its judicial character. In
short, he urged that before a tribunal could ever make a decision, a fair hearing must be given or
otherwise an issue of inequality could be raised.
The moot question here is that: if Art. 84C does not give any way to the citizens to apply for
judicial review of the administrative actions, then how to ensure that there will not be any abuse
of power by the members of the executive arm of the government.
PROCEDURAL FAIRNESS IN BRUNEI
According to Art. 83B proviso, although Judicial Review is basically not available in Brunei
Darussalam, provided that they will be new written laws provides that if any person or citizen
wants to sue the government or make the government accountable to certain acts and decisions
which they considered as not constitutional, their cases can be heard in the Courts of Brunei
Darussalam. Or there is issues rising such as, that some party of organisations of government
might abuse the power conferred unto them by the statues and also the immunity from being held
accountable in the line of duty by these 84C and B provisions. Such as Wise commenced: the
days of the road shield of sovereign immunity behind which public officials conducted the
public works without fear of court imposed penalties are long over. Such parties may be hiding
behind this privilege. Otherwise, there remains as the current practice of 84C, where there will be
no judicial review for any matter pertaining to public actions by the administrative. 84B proviso
provides hope and perhaps a possible way for any person or citizen for this country to apply for
the bringing of proceedings against the government by the way of mandamus, certiorari or
prohibitions, for the wrongs and offences committed in the name of carrying the duties of the
administration.