JUDGMENT

Richard Malanjum CJ (Sabah & Sarawak):

(1) I have had the advantage of reading in drafts the respective judgments of my learned brothers, Zulkefli bin Ahmad Makinudin FCJ and Mohd Ghazali bin Mohd Yusoff FCJ.

(2) With respect I am inclined to agree with the draft judgment of Zulkefli bin Ahmad Makinudin FCJ.

(3) I would add that the term law in a given legislation including a written constitution has been understood to encompass both substantive law and procedure including the rules of natural justice.

(4) Thus, in Ong Ah Chuan v. Public Prosecutor And Another Appeal (1981) 1 MLJ 64 Lord Diplock at p. 71 said this:

In a Constitution founded on the Westminster model and particularly in that part of it that purports to assure to all individual citizens the continued enjoyment of fundamental liberties or rights, references to law, protection of the law and the like, in their Lordships view, refer to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation in Singapore at the commencement of the Constitution.

It would have been taken for granted by the makers of the Constitution that the law to which citizens could have recourse for the protection of fundamental liberties assured to them by the Constitution would be a system of law that did not flout those fundamental rules.

If it were otherwise it would be misuse of language to speak of law as something which affords protection for the individual in the enjoyment of his fundamental liberties, and the purported entrenchment (by Article 5) of Articles 9(1) and 12(1) would be little better than a mockery.

(5) Accordingly, observation of procedural fairness that is closely connected to a fundamental right, for instance, the right to life (art. 5(1)) as enshrined in our Federal Constitution is of paramount importance. Indeed right to life has been interpreted to include the right to livelihood. And it has been said that income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental (see: Delhi Transport Corporation v. D.T.C. Mazdoor Congress & Ors. (1991) Supp. 1 SCC 600) and referred to by our Court of Appeal in Tan Tek Seng & Tan Chee Meng v. Suruhanjaya Perkhidmatan Pendidikan & Anor. (1996) 2 CLJ 771. Hence, failure to observe such procedural fairness would tantamount to a breach or aiding a breach of such fundamental right.

(6) It is therefore critical for a public decision-taker to know that it is under a duty to act fairly including the observation of the rules of natural justice which comprised of two maxims namely, no man shall be a judge in his own cause and that no man shall be condemned unheard. (See: Re H.K. (an infant) (1967) 2 QB 617).

(7) Accordingly I agree with my learned brother Zulkefli bin Ahmad Makinudin FCJ that when there is a request by the public officer for an oral hearing after he had denied all the charges and appears to have exculpated himself by furnishing credible evidence in his representation letter, then by virtue of O. 26(5) of the General Orders 1980, the officer should be afforded an oral hearing to satisfy the requirement of art. 135(2) of the Federal Constitution .... And like my learned brother I too allow this appeal and grant the relief as given by him.

Zulkefli Makinudin FCJ:

Introduction

(8) This is an appeal by the appellant against the decision of the Court of Appeal in dismissing the appellants appeal against the decision of the High Court at Malacca. Leave to appeal was granted by this court to refer one question as follows:

Whether the principle in the case of Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor. v. Utra Badi K Perumal (2001) 2 CLJ 525; (2001) 2 MLJ 417 and the case of Public Services Commission Malaysia & Anor. v. Vickneswary a/p RM Santhivelu (substituting M Santhivelu a/l R Marimuthu, deceased