Tuesday, 8 May 2012

Duty to act fairly - hearing process

1. In unincorporated sports association, members are governed by its Constitution and by-laws (Rule). However, the principle of natural justice is still applied to any accused members. Members of the sporting association could not arbitrarily be expelled or suspended without first being given a hearing, for their contracts of membership included a duty to act fairly.

2. In discussing the principle of natural justice in hearing process, we will consider a few issues:

(a) the objection on the ground of  likelihood of bias against the chairman / appointed Disciplinary Committee. A person who is appointed as chairman must objectively, fairly and impartially deal the matter brought before him. The universally accepted principle is that a person acted in a quasi-proceedings must be able to act above suspicion of unfairness. What account to suspicion of unfairness? (i) his past relationship (ii) feeling of bias or animosity or (iii) relevant circumstances from the available evidence or knowledge of which would not necessarily be available.

Darshan Singh v Farid Kamal Hussain  [2005] 3 MLJ 502;
Andhra Pradesh State Road Transport Corporation v Satyanarayan Transporters AIR 1965 SC 1303
Franklin v Minister of Town and Country Planning [1948] AC 87

(b) If the appointed chairman of disciplinary committee is also the same person to hear an appeal hearing. The chairman  or any disciplinary committees had shown active participation in the disciplinary proceedings. The general principle is the complainant or prosecutor should not participate in a decision or in an appeal from a decision, and should not even appear to participate; to do so would be contrary to the rule of natural justice.

Rohana bte Ariffin & Anor v Universiti Sains Malaysia [1989] 1 MLJ 487
Rattan Lal Sharma v Managing Committee AIR 1993 SC 2155
Collins v Lane, Cornish and Worcester Norton Sports Club Ltd [2003] LLR 19

(c) The failure of the Disciplinary Committee to provide full report of its decision. This constitutes breach of natural justice. The report must be made available in order to answer any allegations against the accused.

BSS Kanda v Government of the Federation of Malaya [1962] MLJ 169