THE Study OF THE Doctrine OF Proportionality IN Malaysia PDF

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THE Study OF THE Doctrine OF Proportionality IN Malaysia...

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Herald NAMSCA 1, 2018

Noor ‘Ashikin Hamid , Nazli Ismail Nawang, Kamaliah Salleh, Noraida Harun, Asiah Bidin

THE STUDY OF THE DOCTRINE OF PROPORTIONALITY IN MALAYSIA *Noor ‘Ashikin Hamid (1), Nazli Ismail Nawang (1), Kamaliah Salleh (1), Noraida Harun (1), Asiah Bidin (1) (1) Faculty of Law and International Relations, University Sultan Zainal Abidin, Kampus Gong Badak, 21300 Kuala Nerus, Terengganu, Malaysia * Corresponding author: * Noor ‘Ashikin Hamid: Faculty of Law and International Relations, University Sultan Zainal Abidin, Kampus Gong Badak, 21300 Kuala Nerus, Kerengganu, Malaysia, [email protected] Abstract. Judicial review is the process by which courts exercise a supervisory jurisdiction (or control) over the activities of publ The first principle of judicial review is concerned with the decision making process and not the merits, substance or justification. Whilst the second principle provides that there can be an exception to the first principle when the court could examine the substance or justification to satisfy itself that the decision maker has not transgressed the principles of procedural impropriety, illegality or irrationality. The objective of this paper is to determine whether the court may review for substance in cases where the principle of proportionality is at stake. The methodology used in this qualitative research is library research where relevant data from primary and secondary law documents are analysed. It is thus submitted that the principle of proportionality may also be added to the above categories thus widening the scope of judicial intervention of administrative action by way of judicial review. Keywords: Judicial Review, Proportionality, Substance, Justification. Introduction. The grounds for judicial review in summary are as follows: (i) Illegality - that the decision maker had failed to keep strictly within the perimeters of his powers; (ii) Irrationality or ‘Wednesbury unreasonableness’ - that the decision was "so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it"; and (iii) Procedural impropriety - that the decision maker failed to observe basic rules of natural justice and or procedural rules1. In Sheila Sangar v. Proton Edar Sdn Bhd & Anor1 the principles governing judicial review was neatly encapsulated as follows: “The first principle of judicial review concerned the decision making process and not the merits, substance or justification. The second principle is that there can be an exception to the first principle where the court could examine the substance or justification to satisfy itself that the decision maker had not transgressed the principles of procedural impropriety, illegality or irrationality”. The boundaries that traditionally distinguished review for process and that of substance have however been removed. The courts are now more inclined to review for substance as well in appropriate cases where the situation so requires. Proportionality is not a traditional and / or general ground for judicial review, except in the sense in which proportionality is built into ‘Wednesbury unreasonableness’. In Associated Provincial Picture House Limited v. Wednesbury Corporation2, Lord Geene MR alluded to the grounds of attack which could be made against the decision, citing unreasonableness as a ‘umbrella concept’ which covers the major heads of review and pointed out that the court can interfere with a decision if it is so absurd that no reasonable decision maker would in law come to it. The House of Lords in R (Daly) v. Secretary of State for the Home Department3 demonstrated how the traditional test of Wednesbury unreasonableness has moved towards the doctrine of necessity and proportionality. Lord Steyn noted that the criteria for proportionality are more precise and more sophisticated than traditional grounds of review and he outlined three concrete differences between the two: i. Proportionality may require the reviewing Court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. ii. Proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations. iii. Even the heightened scrutiny test is not necessarily appropriate to the protection of human rights. This article studies about the concept of proportionality and whether the doctrine permits the courts to scrutinize such decisions not only for process, but also the substance. Proportionality. In Council of Civil Service Unions and Others Appellants v. Minister for the Civil Service Respondent4, Lord Diplock added proportionality as another ground for judicial review. The doctrine requires public authorities to maintain a sense of proportion between their particular goals and the means they employ to achieve those goals, so that their actions impinge on individual rights to the minimum extent necessary to preserve the public interest 5. The meaning of proportionality under European law acknowledges the existence of three elements of consideration which consist of appropriateness of the measure, necessity and absence of disproportionate character6. Proportionality 1

4 MLJ 285 (2009) Associated Provincial Picture House Limited v Wednesbury Corporation 2 All ER 680 (1947) 3 R (Daly) v. Secretary of State for the Home Department 2 AC 532 (2001) 4 AC 374 (1985). 5 J. Schwartz, J. European Administrative Law. London: Sweet & Maxwell; 1992. 6 I. Turner, I. Judicial review, irrationality, and the legitimacy of merits-review. Liverpool Law Review 2008: 29(3), 309. 2

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Noor ‘Ashikin Hamid , Nazli Ismail Nawang, Kamaliah Salleh, Noraida Harun, Asiah Bidin

proposes the idea that the furtherance of a desired administrative aim may not be necessary if it could be achieved through different means. The court must examine those different means to match with the objective of the administration. It was observed that “disproportionality may arise if the court is successful in its search for different means that would have less restrictive effect on the rights or interest of the individual to achieve the desired end or public goal”7. The principle has a reputation in the European Court as a tool to ensure that fundamental rights are sufficiently protected. The essence of the proportionality principle is that not only must discretionary power be used for legitimate purpose; it must also be proportionate in scope and effect. It was claimed that proportionality as part of substantive fairness means that the decision taken must be reasonable and it must not be a disproportionate punishment8. It must be a fair and just punishment. A punishment imposed by a public decision-maker on a person who has committed a breach of a law must be proportionate to the wrongdoing complained of. Application under common law. Previously, the common courts are reluctant in adopting proportionality as a separate ground of judicial review. Lord Lowry in Regina v. Secretary of State for the Home Department, Ex parte Brind9 justified his opinions for several reasons: first, most executive decision -makers were elected, for judges to make administrative decisions in place of them would be an abuse of their supervisory jurisdiction; secondly; judges were generally ill-equipped by training or experience to decide an answer where the scales were evenly balanced; and thirdly, the likely increase in applications for judicial review if the standard were lowered. They contended that if they do so, this would mean that the courts would be accessing the merits of discretionary decision taken by the administration. The rejection by the House of Lords of the development of proportionality as a separate head of review in English law appears, therefore, to be based firmly on the established limits of judicial review i.e. that legality and not the merits of decision-making is subject to challenge. Lord Roskill said that the adoption of proportionality in the present case would be for the court to substitute its own judgment of what was needed to achieve a particular objective for the judgment of the Secretary of State upon whom that duty has been laid by parliament. But so to hold in the present case is not exclude the possible future development of the law in this respect. Later, the House of Lords tends to employ the proportionality in domestic law. In Regina (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions10, Lord Slynn had urged proportionality becoming an independent head of judicial review as part of the English administrative law, not only when judges are dealing with Community acts but also when they are dealing with acts subject to domestic law. He argued that firstly the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v. Ministry of Defence, ex p Smith11 is not necessarily appropriate to the protection of human rights. The test applied in above case is that: “The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above”. The decision of the United Kingdom Supreme Court in Pham v. Secretary of State for the Home Department12 marks a turning-point in the role of proportionality as a common -law ground of judicial review. The key issue in that case was whether it was lawful for the Home Secretary to strip the appellant of his British citizenship and depart home to Vietnam, where he was born. He acquired British citizenship in 1995 but never renounced his Vietnamese nationality. In 2011, the Home Secretary made an order under section 40(2) of the British Nationality Act 1981 depriving the appellant, who had allegedly participated in terrorist training in Yemen. The appellant was notified that he would be departed to Vietnam. When the Vietnam Government subsequently argued that the appellant was not a Vietnam national, the appellant challenged the Home Secretary’s decision on the ground that it would render him stateless. In the proceedings, the alternative argument advanced by the appellant was to the effect that deprivation of British citizenship operated so as to deprive the claimant of his citizenship of the European Union (EU), the latter being parasitic upon the former; that this EU dimension dictated that the Home Secretary’s decision should be reviewed on proportionality grounds; and that the Home Secretary’s decision would not pass muster under the proportionality test. Lord Sumption (with whom Lords Neuberger and Wilson and Lady Hale agree) was willing to countenance the possibility of proportionality review at common law. His Lordship observed that—although English law has not 7

Ahmad, R. The principle proportionality in the law of preventive detention: Reconciling rights and national security. Current Law Journal 2008:3, i-ixx. 8 Krishnan, L. The shifting sands of judicial minds in relation to art. 8 of the Federal Constitution. Current Law Journal 2005: 5, i-x. 9 1 AC 696 (1991) 10 2 WLR 1389 (2001) 11 QB 517 (1996) 12 UKSC 19 (2015) 901

Herald NAMSCA 1, 2018

Noor ‘Ashikin Hamid , Nazli Ismail Nawang, Kamaliah Salleh, Noraida Harun, Asiah Bidin

adopted the principle of proportionality generally, it has for many years stumbled towards a concept which is in significant respects similar, and over the last three decades has been influenced by European jurisprudence even in areas of law lying beyond the domains of EU and international human rights law. Starting with the decision of the House of Lords in R v. Secretary of State for the Home Department, Ex p Bugdaycay13, it has recognised the need, even in the context of rights arising wholly from domestic law, to differentiate between rights of greater or lesser importance and interference with them of greater or lesser degree. This is essentially the same problem as the one to which proportionality analysis is directed. The solution adopted was to expand the scope of rationality review so as to incorporate at common law significant elements of the principle of proportionality Finding: A study in Malaysia. The proportionality principle normally requires the Malaysian court to strike an effective balance between the severity of an employee’s conduct and the sanction imposed. In other word, the punishment should be commensurate with the gravity of the offence. The application of proportionality was evidenced in the Court of Appeal case of Tan Tek Seng @ Tan Chee Meng v. Suruhanjaya Perkhidmatan Pendidikan & Anor 14, where a senior assistant of a primary school was charged in court for misappropriating a sum of RM 3,179 from the school. He, subsequently, made good the sum. He was convicted by the Sessions Court and sentenced to six months' imprisonment. On appeal to the High Court, the conviction was substituted by a finding of guilt and the sentence of imprisonment was set aside. Instead, the Court made an order of binding over for good behavior for a period of three years. Disciplinary proceedings were then instituted. The disciplinary authority decided that he be dismissed from service. Tan then filed a writ action seeking the declarations that his dismissal be declared void and invalid. The action was dismissed by the High Court. On appeal to the Court of Appeal, it was held (by a majority judgment, allowing the appeal) that the disciplinary authority must, when deciding what punishment it ought to impose on the particular public servant, act reasonably; and that if it imposed a punishment that was disproportionate to the misconduct, its decision on the punishment was liable to be quashed or set aside. The Court of Appeal then by a majority substituted the order of dismissal in effect with an order that the senior assistant of the primary school be reduced in rank and salary to those of an ordinary teacher. Gopal Sri Ram JCA (as he then was), in delivering the majority judgment, said that 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. In regard to the appropriate punishment, the court referred to Ranjit Thakur v Union of India15 in which Venkatachaliah J, when dealing with the appropriateness of the punishment handed down by a court martial, said: “Judicial review generally speaking, is not directed against a decision, but is directed against the 'decision -making process.' The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review”. In Malaysia, it is well settled that the Industrial Court has the jurisdiction to substitute its own view in respect of the quantum and/or degree of punishment in place of the employer’s view. In New Straits Times Press (M) Bhd v Ravichandran Marimuthu and others16, the Industrial Court reviewed the punishment of dismissal which was imposed by the employer in respect of 13 workmen who had been dismissed for taking part in a picket. The Industrial Court held that the dismissals of the workmen were without just cause or excuse. The Industrial Court held as follows: “It is also the law that before the punishment of dismissal is meted out employers ought to take into account the seriousness of the misconduct and the past record of the employees...”. In the court’s opinion the punishment of dismissal meted out to the claimants was in the circumstances harsh. It was tainted by vindictiveness on the part of the company and not in accordance with principles of industrial relations and good conscience and equity. Therefore the court would say that the claimants from the circulation department also were dismissed without just cause”. The Federal Court in Norizan bin Bakar v. Panzana Enterprise Sdn. Bhd.17 ruled that the Industrial Court has the jurisdiction to decide if the dismissal of an employee was without just cause or excuse by using the doctrine of proportionality. In this case the appellant obtained leave to file appeal to the Federal Court arguing that the Industrial Court had jurisdiction to consider and evaluate the harshness of an employer's decision to dismiss an employee by applying the doctrine of proportionality of punishment. The court dismissed the appeal and held that the Industrial Court could substitute its own view, in place of the employer's view, as to what should be the appropriate penalty for an employee's misconduct. The doctrine of proportionality of punishment was inbuilt into the Industrial Relations Act (“IRA”) and the Industrial Court was duty-bound to decide, using that doctrine, whether a proven misconduct 13

AC 514 (1987) 2 CLJ 771 (1996) 15 AIR SC 2386 (1987) 16 3 ILR 588 (1999) 17 6 MLJ 605 (2013) 14

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Herald NAMSCA 1, 2018

Noor ‘Ashikin Hamid , Nazli Ismail Nawang, Kamaliah Salleh, Noraida Harun, Asiah Bidin

constituted just cause or excuse for dismissal. The Industrial Court had the jurisdiction to decide whether dismissal was too harsh a punishment in the circumstances when ascertaining an award under s. 20(3) of the IRA. In Majlis Peguam Malaysia v Hari Krishnan a/l Jeyapalan18 where the complainant had appointed the respondent, an advocate and solicitor to recover a sum of RM59,000 from Ariasamy. Ariasamy had made the payment through the respondent, nevertheless, the last three cheques issued by the respondent to the complainant were dishonoured and two of the cheques were drawn on the respondent’s client’s account. The complainant then lodged a report to the appellant on the matter and consequently the appellant sought written explanation from the respondent. Upon failure of the respondent to provide any written explanation, the disciplinary board (‘the DB’) issued a notice under s 100(6) and (9) of the Legal Profession Act 1976 (‘the LPA’) to the respondent for him to appear before the DB. On the respondent’s request, the DB referred the matter to the disciplinary committee (‘the DC’) for further investigation. At the same time, the complainant had withdrawn the complaint against the respondent. The DC found that the respondent was guilty of misconduct and on the hearing before the DB, the respondent was ordered to make restitution to the complainant in the amount of RM 3,800 within one month; and the DB further ordered that the respondent be struck off the Roll as an advocate and solicitor. The Court of Appeal in this case varying the DB’s order and substituting the order for striking out from the Rolls of Advocates and Solicitors with a fine of RM 11,400 to be paid within one month from the ...