Saturday, February 7, 2009

Natural Justice

There are things natural in nature. Examples of natural things are life and death; appointments and terminations; male and female and so on.

There is also a thing called natural justice. That's is why we have courts, magistrates and judges to impose them.

I am not a lawyer but I do some legal work for my department. I also go to the courts to prosecute law offenders. Most of the time my defendants plead guilty. Some of the cases are pleaded by lawyers who of course are more learned in law than me. This is because my cases are straight forward cases. If there is a need to produce evidence it is for my defendants to produce them, not me. So when they cannot produce any evidence they know they will lose the case. So it is better for them to pay the fines imposed by the court instead of hiring lawyers.

Now let me go to the Perak crisis. There are two main points being disputed. The first is the legality of the resignation letters of the PKR and DAP assemblymen and woman. The second is the sacking of the Mentri Besar by the Sultan. I am not going to use legal terms here . I will use the layman's term as far as possible.

I will talk about the second case that is the MB's sacking by the Sultan. The argument is although there is a provision in the Perak state constitution about the appointment of the MB by the Sultan there is no provision about his sacking by anybody. So who can sack him?

This is where natural justice comes in. The answer is simple. He who appoints can sack. Naturally the Sultan who appointed him can sack him too. But the Sultan just cannot sack his MB at his whim and fancy. In this case he was convinced that the MB has lost the majority support in the State Assembly.

How did he know that the MB has lost his majority support. By the numbers of state assemblymen and women that came to see him and said something like 'I don't support the present MB', 'I like to have a new MB' or something like that. By counting the numbers of the assemblymen and women that came to see him he knew that if the MB were to bring his assemblymen and women the same way and they said something like 'I still support the present MB' and 'Please don't sack the MB' the MB's numbers will not overcome the other group's.

The Sultan don't have to be a mathematical genius to figure that. He too don't need to ask the two groups to line up and see which line is longer.

As far as I know there is no need for written laws to produce justice. So this is where natural justice comes in. The Sultan is a former judge himself and he could have encountered cases where there is no written law and made his judgement. The Sultan still remembers that he was the one who appointed the MB and knows that this is the right time and with the right situation to sack him. This is a form of judgement too.

Someone told me the Federal Constitution too don't have provisions about the sacking of the Prime Minister. So who can sack the PM? Naturally the one who appointed him that is the Yang Di Pertuan Agong. The clause about the sacking of the PM could be intentionally left out of the Federal Constitution because the writer knew that is a natural thing that someone who is appointed can be sacked. The natural thing also is only the one who appoints can sack.

Let's go to something unforeseen that may happen. Of course there is a clause about the appointment of the Yang Di Pertuan Agong in the Federal Constitution. But I don't know whether there is any clause about the termination of service for the Yang Di Pertuan Agong. We know that for the state rulers they rule until death but each Yang Di Pertuan Agong's term is only five years.

Let's say that one Yang Di Pertuan Agong likes his position so much that he don't want to abdicate and return to his state after five years. Let's also say that there is no provision anywhere about the termination of the Yang Di Pertuan Agong's service. Can we say that we have a problem here because there is nothing which says that His Majesty can be sacked by anybody?

The solution is simple. We go to the principle of natural justice that anybody who appoints can sack. In the Yang di Pertuan Agong's case His Majesty is appointed by the Council of Rulers. So naturally the Council of Rulers can terminate his service.

5 comments:

Mohd Noor said...

Bang Maarof,

Setuju benar saya dengan ulasan Bang Maarof tu. Tetapi terdapat juga satu doctrine yang di panggil "functus officio" di mana pihak yang mengeluarkan sesuatu perintah tidak boleh mengeluarkan arahan untuk menarik balik perintah yang telah di keluarkan sebelumnya.

Contoh yang paling baik (sebenarnya contoh ni saja yang saya tahu!) Pentadbir Tanah di pejabat tanah. Beliau boleh mengeluarkan perintah untuk melelongkan mana mana tanah bergadai atas permintaan pemegang gadaian tetapi sekiranya peminjam atau penggadai menebus hutang sebelum tarikh lelong, Pentadbir Tanah tidak ada kuasa untuk mengeluarkan arahan untuk membatalkan lelong. Permohonan untuk membatalkan harus di buat di mahkamah.

Kali pertama saya come across doctrine functus officio ni saya berasa pelik sebab it's clearly against the law of natural justice tapi ianya mungkin unik dan perlu kerana melibatkan hal hal tanah yang mana pentadbirannya tidak sekata dari satu negeri ke satu negeri yang lain.

Saya pasti doctrine ni tidak di pakai untuk urusan perlantikan jawatan di negeri negeri. Wassalam

Mohd Noor
19720-1979
Sg Jeluk, Kajang

Maarof said...

Mohd. Noor,

Memang urusan di Pejabat Daerah dan Tanah ni unik sedikit. Contohnya tarikh-tarikh mesyuarat seperti Mesyuarat Jawatankuasa Lesen Minuman Arak hendaklah diwartakan. Jika mesyuarat ditangguh kerana tak cukup korum (pernah berlaku di sini) kena diwartakan tarikh baru. Tidak boleh ditangguh ke hari esok, mitahlnya. Kesian pemohon-pemohon lesen baru. Peminum tak ada masalah, boleh minum di tempat lain.

Saya agak apa yang MN maksudkan perintah Pentadbir Tanah itu diwartakan juga. Memang untuk membatalkan satu perintah yang sudah diwartakan memerlukan mahkamah.

Mohd Shah Khalid said...

Well said brother Maarof. From my observation, in politic the straight guy (lurus bendul) tend to loose. Apart from natural justice, a leader who could not keep his team together is not fit to be a leader, so should leave. Wallahhualam.

abdulhalimshah said...

Tuan Hj Maarof,
Under Common Law the right to hire goes with the right to fire, but not so with Constitutional Law. The sacking of a Mentri Besar must be in accordance with the State Law. I have no knowledge of Perak's Constitution, and let the Court determine whether Perak's case is done in conformity with the Constitution or not.
In my understanding, the principle of natural justice rests on two cardinal principles, that is the right to be heard and the right against bias. In the first case, a person must be given a reasonable opportunity of being heard and in the second a person who's involved with the case in question cannot be in position to hear it.

mem-Besar said...

salam!!
kesal pulak tak menyokong PM yg dulu masa dia duk "attack" ketuanan raja2 melayu ni ...

tapi herankan .. dulu tak ada pulak anak-anak melayu yg gagah berani pergi mendabik dada pertahankan kuasa raja2nya semasa kedaulatan raja2nya diusik ..

tak nampak saya kelebihan adanya system beraja ni dah .. lebih2 lagi raja2 sekarang yang ada kepentingan peribadi .. dah berpolitik dan berbusiness ..

wallahuaklam ..