Justiciability - Capable of Being
Decided By A Court
Our next discussion is WHO should
arbitrate sports dispute in Malaysia. It is true that anybody can talk about
football..but none may capable of adjudicating sports matters. Some regulatory functions
need exercise of expert judgement. For example, in the lower scale, the rule of
the games during play and competition is decided by the referee. Interestingly,
the word referee referred to a person appointed by the British Parliament to
examine patent application as early as 1621. The word umpire acquires more sense
as 'the judge of play in games and sports'. Second example, if there is a
breach of any statutory terms, the sports executive committee have autonomous
power to hear and decide. Disciplinary committee functions only at the lower
level and their decision is not final. The question is 'Why them'? One of the
reason is they belong to 'powerful organisation'. They have capacity to act
'governmental alike' while still operating and possessing institutional legal
structures with private bodies entities. Those who are not understand their
governmental structure always complaint about this...but in fact it is
desirable that sporting bodies should be reasonably free to conduct the private
affairs. Court cannot interfere with these private matters.
Despite their administrative
efficiency, let's interpret 'them' in the context of Natural Justice. This
concept precludes any members of this 'powerful organisation' from sitting in
any hearing. If this happens, there is a reasonable likelihood or suspicion of
bias unless (1) the disciplinary code is well demarcated as 'prosecutorial' and
'adjudicating' function. It means those who prosecute must not involve or
participate or appearing to participate in the evidence gathering process. (2)
Any member who sits in the hearing does not participate as adjudicator during
the appeal. The simple reason is to avoid the tendency of supporting the
previous decision made by him. (3) The proper way is to appoint individual
members of the same profession who understand well a breach of professional
code of conduct. Some of these requirements are obligatory followed. There is
no room to challenge.
However, if I may suggest, the
available challenge now is not only when 'powerful organisation' mistakenly
solicit to pack disciplinary committee and tribunal with their own officials.
Of course, this ground is validly accepted. Any suspension imposed to any
aggrieved party shall subsequently revoke on the basis of a likelihood of bias.
The new ground of challenge is on custom and practice. First, the statute of
sports body had granted discretionary power to the manner and form of its
hearing (for example, power to decide there is no appeal). The monopoly
position have been traditionally acknowledged as being reason to supervise and
control their power (in the name of integrity and image...family bad story
should be discussed internally). Second, certain clauses / articles appear
unconstitutional against the rights of person (freedom of speech) in the
Federal Constitution. However, the plea by sports body is on the practice of
contractual relationship. The issue of excluding the court's intervention and
jurisdiction by contract is valid justification and has been considered in many
sports cases. The breach of any terms will purport tort actions against
members. But the point that sports (for example football) belongs to everyone,
and in a position of major national importance. It should be treated as public
law issues and no more contractual private affairs.
Sports Law Malaysia
