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Case Update: Subsidiary or delegated legislation ought not to override and infringe the parent Act

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ADMINISTRATIVE LAW
Judicial review – Local authority – Dismissal from service – Failure of local authority to give reasonable opportunity to be heard

Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Prai & Anor v Muziadi Mukhtar
[2020] 1 CLJ 1, Federal Court
- see the grounds of judgment here

Facts The second appellant, a local authority responsible for the conduct and discipline of all its servants, received an anonymous letter pertaining to the involvement of the respondent, a senior security guard, in the crime resulting in his conviction at the Magistrates’ Court. This prompted the second appellant to conduct an investigation on the respondent. Having obtained the necessary confirmation and information on the respondent’s conviction, the second appellant convened an Internal Investigation Committee to inquire into the allegations in the letter. During the inquiry, the respondent admitted to having committed the offence, which was unlawful possession of property and gave his version of the events. The first appellant decided to terminate the employment of the respondent in public interest with full pension and retirement benefits but was rejected by the respondent. The first appellant then took a disciplinary action against the respondent by dismissing his employment without any benefits. Aggrieved, the respondent applied for a judicial review in the High Court. Hence, this current appeal by the appellants against the decision of the Court of Appeal affirming the decision of the Penang High Court which allowed the respondent’s application for judicial review to quash the decision of the first appellant on the ground that the failure by the appellants to give the respondent a reasonable opportunity of being heard as required by section 16(4)[1] of the LGA and regulation 29(1)[2] of the 1995 Regulations rendered the first appellant’s decision to dismiss the respondent from his employment unsustainable in law.

Issues The main issue is whether regulation 25(2)[3] of the 1995 Regulations void and ultra vires section 16(4) of LGA.

Held In dismissing the appeal, the Federal Court held the importance of the principle of audi alteram partem could not be overemphasised, a person should be given the opportunity to be heard before the decision that adversely affects him or her is made. Subsidiary or delegated legislation could not, or ought not to, infringe the parent Act which codifies common law principles, save in exceptional circumstances where the empowering statute provides that power expressly. Thus, regulation 25(2) of the 1995 Regulations is invalid and ultra vires its parent act, section 16(4) of LGA.

ZUL RAFIQUE & partners
{2 January 2020}
[1] “…Provided further that no officer or employee shall be reduced in rank or dismissed without being given a reasonable opportunity of being heard.”
[2] “…the Disciplinary Authority shall direct that statement containing the fact of the breach of discipline alleged to have been committed by the officer to be dismissed or reduced in rank be sent to the officer and shall call upon him to make a written representation, containing grounds upon which he relies to exculpate himself, within a period of not less than twenty-one days the date of receipt of the charge.”
[3] “…where an officer is dismissed or reduced in rank on the ground of conduct in respect of which a criminal charge has been proved against him; or…”