WHISTLEBLOWING

DEFINITION The disclosure by organization members former or current employees about the unethical, immoral or illegitimate action under the control of their employers, to persons or organizations that may be able to effect action. EXPLANATION Whistle blowing is an act of disclosure by a person on the possible wrongdoing, illegal or unethical activity by an organization. It is generally agreed that to be a whistleblower, a person must either be a member or former member of an organization. For this persons action to be considered as whistle blowing, the illegal action or wrongdoing must have been instigated by members of the organization. Misdeeds would cover all levels of employees including the employer themselves. ILLEGAL OR UNETHICAL CONDUCT A conduct or proactive that is forbidden by law which is also unauthorized or prohibited by a code of official or accepted rules, whereas it defines immoral conduct or practice that goes beyond accepted moral rules or limitation including unscrupulous or unethical act. TYPES OF WHISTLEBLOWING Internal whistle blowing is where the person must have gone to upper level top executives or officials to report wrongdoing. Internal reporting gives the organization an opportunity to take corrective measures before the problems develops into a widespread scandal attributed by the act of external whistle blowing. EXTERNAL WHISTLEBLOWING Involves disclosure of misdeeds outside the organization, usually to regulatory agencies or other parties external to the organization e.g. the police, environmental agencies or non-government organizations. THE FOUR COMPONENTS In whistle blowing four components are involved: the whistleblower, the complaint receiver, the organization or body against which the wrongdoing is alleged and The incident of wrongdoing itself. The wrongdoing receiving the most attention usually concerns top executives who knowingly or purposefully commit wrongdoing. Misdeeds may also be committed by middle or lower level employees, sometimes without the knowledge of their supervisors. THE IMPORTANCE OF WHISTLEBLOWING The continuing unethical behavior or illegal practices in government and business must be corrected if not eradicated. These negative activities have enormous impact on business as well as administration since it will contribute to wasteful, fraudulent and harmful actions to the public and management of organizations. CONTROVERSY Because of the controversy surrounding whistle blowing, a whistleblower has to take certain risks to come forward. In some organizations internal whistle blowing is preferred, provided it is dealt with some kind of an internal mechanism specialized in whistle blowing. CONSEQUENCES The fact that the whistleblower calls attention to possible wrongdoing or illegitimate activity within his organization turns him into a controversial figure. He often pays the price for disclosure and may face termination, harassment or the risk of being transferred and in some cases reduction in job specification and salaries. DEALING WITH WHISTLEBLOWING Genuine whistleblowers cannot be disregarded or ignored instead they should be dealt with effectively.

The organization must take certain measures to ensure that whistle blowing is genuine not ill-intent or questionable. Only then can whistle blowing can be regarded as a tool towards an effective management of workers and the organization itself. Previous studies have shown that by ignoring whistle blowing the matter may pose negative consequences for both employees and organization. Companies that failed to handle whistle blowing effectively may face the risk of external whistle blowing. If internal outlets do not exist for whistleblowers they will have no choice but to go externally to the authorities concerned or to the news media. The effect of this action is the reputation and image of the organization will be tarnished and potential lawsuits may be on the way for wrongful discharge. WHAT COMPANIES SHOULD DO? It is important for organization to know the views of the employees where whistle blowing is concerned. Whistle blowing can be used as an effective management tool. Studies have shown that organizations that do not encourage whistle blowing may want to reconsider the policy, instead of ignoring the issue they should accept the fact that whistle blowing does occur and it should be dealt with effectively. PROTECTION FOR WHISTLEBLOWERS Since whistleblowers face certain risks when disclosing wrongdoings they are protected by the law. In the USA, whistleblowers are protected by more than 20 statutes that provide for employees protection against reprisals from their employers when they disclose actions that violate specific federal statutes e.g. the Civil Rights Act, Employment Act and the Occupational Safety and health Act which all contain anti-retaliation provisions. THE WHISTLEBLOWER PROTECTION ACT 2010-WHISTLEBLOWING DEFINED An activity that involves disclosures by employees of wrongdoings at the workplace. Wrongdoings: malpractices, breaches of law, rules, regulation, codes of practice, standards of business conduct or ethical standards. Corrupt practices, abuse of authority, falsehoods and deceit in financial statements. Dangers to workers, the public and the environment, and unethical practices in the workplace. IMPACT & IMPLICATIONS OF NEW LEGISLATION Provides wide protection for whistleblowers th Came into force in 15 Dec 2010 Applies to anyone who makes a disclosure of improper conduct to enforcement agencies. Provides for criminal sanctions and wide ranging remedies to the whistleblower who has suffered detrimental action by reprisals at the hand of employer PROTECTION SCOPE Protection of confidential information Immunity from civil and criminal action Protection against detrimental action Criminal sanctions against persons perpetrating retaliatory action Civil remedies against persons perpetrating retaliatory action CONDITIONS FOR PROTECTION FOR MAKING DISCLOSURES Disclosure of improper conduct To any enforcement agency Based on reasonable belief Disclosure made in writing or orally (reduced into writing as soon as received by authorized officer IMPROPER CONDUCT DEFINED Improper conduct means conduct which if proved constitutes a disciplinary or criminal offence. Disciplinary offence is defined as:

Any action or omission which constitutes a breach of discipline in a public body or private body as provided by law or in a code of conduct, a code of ethics or circulars or a contract of employment, as the case may be.

ENTITIES PRESCRIBED TO RECEIVE REPORT Enforcement agency means; Any ministry, dept, agency or other body set up by the federal government, state government or local government (including its unit, section, division, dept or agency) conferred with investigation and enforcement powers. PROTECTION OF THE WHISTLE BLOWING UPON DISCLOSURE Protection from disclosure of confidential information by maker and receiver of disclosure Immunity from civil and criminal action Protection against detrimental action taken in retaliation against the whistleblower Note: i. protection also extended to any person related to whistleblower; ii. Protection may be revoked if it appears among others that the whistle blowing made a disclosure which he knew or believed to be false/did not believe to be true. DISCIPLINARY OFFENCES: IMPLICATIONS [SEC 13] Investigation by EA Findings and compilation of report by EA Recommendations by EA to (a) initiate disciplinary proceedings or (b) take such steps as it deems appropriate Employer to inform EA of steps taken or to be taken [within 6 months of receipt of finding / recommendation] or reasons for not acting upon recommendations EA reports to Minister where insufficient steps or inaction in giving effect to recommendations within 14 days from date of decision LOYALTY Loyalty does not imply that one has a duty to refrain from reporting the immoral or illegal actions of those to whom one is loyal. An employer who is acting immorally is not acting in his own best interests and an employee is not acting disloyally by blowing the whistle on the employer. WHISLTEBLOWING POLICY Whistleblowers who intend to come forward need to know that whatever they bring will be entertained or at least they know that a platform exist to hear their complaints. CONCLUSIONS Whistleblowers should be regarded as an asset to organizations as only genuine whistleblowers are considered. Organizations should as much as possible avoid external whistle blowing to avoid scrutiny or unwanted attention to issues which could be resolved internally

COMPANY LAW
BUSINESS ORGANIZATION Sole Proprietorship Individual in business on his own Partnership Two or more persons carrying on business with view of profit. Company PROCEDURE FOR INCORPORATION Incorporation steps Application & registration Documentation-among document to be lodge with the registrar-memorandum of association Article of association Form 48A Form 6 EFFECTS OF INCORPORATION The body corporate is a legal person created and recognized by the law Can sue and be sued, may enforce rights by suing and conversely it may incur liabilities and be sued by others. Perpetual succession-a company does not exist for a specified period of time but continues to exist until its name is struck off the register of companies. Company seal-a company is required to have a common seal. Power to own property-the property of the company is its own, not that of the members. CHARACTERISTICS OF A COMPANY S.16 (5) Companies Act 1965 on and from the date of incorporation specified in the certificate of incorporation, shall be a body corporate by the name set out in the memorandum and of suing and being sued and having perpetual succession and a common seal with power to hold land but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up. COMPANY AS SEPARATE LEGAL ENTITY Case of Solomon v Solomon & Co .Ltd (1897) As long as the necessary formalities of incorporation are satisfied, a new entity comes into existence which is separate and distinct from its directors and shareholders . The full implication of the concept that a company is a separate legal entity was recognized. LIFTING THE VEIL OF INCORPORATION One of the purposes of incorporating is to separate an individual from legal liability of a company. The veil of incorporation ensures that a company is a separate legal entity from its directors and shareholders , thus protecting the personal assets of owners and investors from lawsuits. Once a company is duly incorporated, the ct usually does not look behind the veil to inquire who really controls it. In certain situations a court will ignore the separate legal entity of a company and look for the members or the controllers of the company referred to as lifting the veil of incorporation. Lifting the veil of incorporation This might be done to make the members or controllers (primarily the directors) responsible for the act of the company.

E.g. the corporate veil has been lifted by the court where a company is used as a vehicle of fraud, to avoid a legal duty. DUTIES OF DIRECTORS Who is a director? S.4 a person occupying the position of director Who is an officer? S.4 (1) directors, secretaries, employees, receivers, managers and liquidators under a voluntary winding up. CASE-HL BOLTON (ENGINEERING) CO.LTD V GRAHAM & SONS (1957) LORD DENNING STATED A company may in many ways be likened to a human body. It has brain and ner ve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre Continue Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company and control what it does. Continue Liability of its members-if company has incurred obligation it is primarily liable because its debts are separate from the debts of its members. Only when the company has insufficient assets to pay its debts those members may be liable. DUTIES OF DIRECTORS Fiduciary duties To act bona fide (good faith) in the interest of the company To exercise power for their purpose To avoid conflict of interest Duty to Act Bona Fide In The Interest Of the Company Acting for the benefit of the company means that directors must act; in the interest of the shareholders as a collective group in the interest of the group of companies in the interest of the employees in the interest of shareholders in the interest of the creditors Duty to Avoid Conflict Of Interest The director has the obligation to avoid conflict of interest aim to prevent directors improperly making a profit from their office. Cannot make personal profit arising from acting as director. To ensure that directors are not tempted by the prospect of deriving benefits for themselves. Making personal profits Bribes or other undisclosed benefits. Where director is paid bribe or secret commission in order to procure a particular course of action by the company or to influence the director in a particular way. Duty to exercise powers for proper purposes. Cannot misapply companys assets or use the power for wrong purposes. Belmont Finance Corporation Ltd v William Furniture (1980 )-if the directors misapply the funds of the company they commit a breach of trust. The company has the right to claim the amount received. The director can be charged under criminal breach of trust. The director may commit an offence if he misuse the companys fund or mixes the companys fund with his own of the funds of another co. In which the director has an interest. Taking up corporate opportunity o A director cannot make a profit from taking up an opportunity which should have been taken up by the company. Using confidential information

Directors are not permitted to use for their own benefit property or information entrusted to them for use on behalf of the company. o Permitted to use for their own benefit property or information entrusted to them for use on behalf of the company. o Misuse of trade secret and lists of customers for the use of competitors. o Overlaps with the duty not to take up a corporate opportunity and duty not to compete with the company. Disclosure of Interests The office of the director is vacated if the director is directly or indirectly interested in a contract with the company and fail to declare the nature of that interest in the manner required by the Act. The director could have protected themselves by making full disclosure at the general meeting Director shall not vote on a matter in which he or she is interested and if he does the vote is not counted [in proceedings of board meetings]

THE DUTIES OF CARE, SKILL AND DILIGENCE ROMER J. IN RE CITY EQUITABLE FIRE INSURANCE CO.LTD (1925)A director need not exhibit in the performance of his duties a greater degree skill than may reasonably be expected from a person of his knowledge and experience. INSIDER TRADING Securities fraud that are governed by the Securities Industry Act. It is a process whereby a person who is connected with a corporation uses information that is not generally available to the public when dealing in securities. The information in question must have been obtained by the insider by reason of his connection with the incorporation e.g. trade secrets, company strategy and plans. Who are corporate insiders? A director A secretary An executive officer An employee A receiver/manager A liquidator A trustee THE PROHIBITION ON INSIDER DEALING S.89 No person except a company or an agent of a company authorized in that behalf under the seal of the company shall issue or offer to the public for subscription or purchase or shall invite the public to subscribe for or purchase at interest. S.91 A person shall not issue or offer to the public for subscription or purchase or invite the public to subscribe for or purchase at interest unless, at the time of issue, offer or invitation there is enforce, in relation to interest, a deed that is an approved deed. TRADE SECRETS Include those information and knowledge to which a firm has proprietary rights, which it can legally and morally protect and refuse to reveal. CORPORATE GOVERNANCE The process and structure by which the business and affairs of the company are directed and managed, in order to enhance long term shareholder value through enhancing corporate performance and accountability, whilst taking into account the interest of other shareholders. OBJECTIVES To ensure that directors and managers, to whom the running of large corporations has been entrusted by the shareholders, carry out their responsibilities faithfully, placing the interest of the corporation ahead of their own.

To essentially secure sufficient disclosure so that investors and others can access a companys performance and governance practices and respond in an informed way. To realize long term shareholder value, including minority shareholders. CODE OF CORPORATE GOVERNANCE Reviewing and adopting a strategic plan for the company. Overseeing the conduct of the companys business to evaluate whether the business is properly managed. Identifying principal risks and ensure the implementation of appropriate systems to manage these risks. Continue Succession planning including appointing, training, fixing the compensation of and where appropriate, replacing senior management. Reviewing the adequacy and the integrity of the companys internal control and management. Information systems, including systems for compliance with applicable laws, regulations, rules, directives and guidelines.

THE LAW OF CONTRACT

CONTRACTS ACT 1950 S2 (H)-A contract is an agreement enforceable by law. A valid agreement which is legally binding on the parties. Enforceable in a court of law. S2 (G)-an agreement not enforceable by law is void. THE LAW OF CONTRACT The law assumes that parties have full freedom to make contract the way they wish to make based on the concept of freedom and equality. The law assumes that in making the bargains the parties enjoy equal position. The law is concerned only with the fulfillment of certain conditions by the parties so that the transaction can be recognized as a legally binding agreement and enforceable. The law of contract The law also assumes that the obligations imposed under a contract are self-imposed, entered freely by the parties. In reality the two parties are not always in an equal bargaining position. The need to make a contract often leaves one party in a weaker position. INTERPRETATION S2 (E)-an agreement is every promise or set of promises forming the consideration for each other. S2 (B)-a promise is when a person to whom the promise is made signifies his assent thereto, the proposal is said to be accepted. A proposal when accepted becomes a promise. S2(C) The person making the proposal is called the promissor/offeror and the person who accepts the proposal is called the promisee/acceptor/offeree ELEMENTS OF CONTRACT Offer and acceptance Consideration Intention to create legal relations Capacity to contract Consent Certainty OFFER & ACCEPTANCE

Proposal-s2(a)-when a person signifies to another his willingness to do or to abstain from doing anything, with a view of abstaining his assent of that other to the act of abstinence, he said to make a proposal. Proposal should be distinguished from invitation to treat (an attempt to induce another party to make an offer. It is not an offer by itself) Invitation to treat Invitation to treat is a preliminary communication at the stage of negotiation and a person who makes an invitation does not want to be bound by law. An invitation to another person to make an offer Examples of invitation to treat o Display of goods in a self service supermarket The proposal is made when the customer select the goods and bring them to the counter for payment. when payment is made, offer is accepted contract is concluded Auctioneer inviting bids for a particular article Advertisement in the newspaper Offer-when it is effective? S4-proposal is only effective if it is communicated to the acceptor Acceptance S2(b)-when a person to whom the promise is made signifies his assent thereto, the proposal is said to be accepted Communication of Acceptance Acceptance must be communicated/make known Acceptance is said to be communicated if it reaches to the offeror Acceptance by Post S4(2)communication of acceptance by post is complete o -as against the offeror, when it is put in the course of transmission to him, so as to be out of the course of the acceptor o -as against the acceptor, when it comes to the knowledge of the offeror. The offeror is bound by a contract made through post even though he does not know about the acceptance The acceptor is bound by the contract only when the acceptance has reached the knowledge of the offeror. Revocation of Offer and Acceptance S5 (1)-A proposal may be revoked at any time before the communication of its acceptance is completed as against the proposer, by not afterwards. An acceptance may be revoked at any time before the communication of the acceptance is completed as against the acceptor, but not afterwards. CONSIDERATION The price which one party pays to buy the promise or act of the other Need not be adequate (one can sell a bungalow at the price of RM500 if he wishes to do so o Case of Pang Swee Kim v Beh I Hock INTENTION TO CREATE LEGAL RELATIONS Intention relates to a persons state of mind Law cannot read the mind-presumption is used instead In business agreement, there is a presumption that the parties intend to enter into a contractual relationship/to enforce the contract. continue In social/domestic agreement, it is implied that no legal relations are contemplated, but this presumption may be rebuttable o if for instance there is an agreement made in writing CAPACITY TO CONTRACT

S11-every person is competent to contract who is of the age of majority, who is of sound mind, is not disqualified from contracting from any law to which he is subjected to. Any other written law which fix the age of majority - Rajeswary & Anor v Balakrishnan where an attempt was made by the defendant to challenge the validity of a promise to marry by referring to the age of the plaintiff who was 16 years at that time. But the court decided that an agreement of marriage is valid even though the parties are minors by referring to the customary law of Sri Lanka. Exceptions Contracts by minors are valid under certain circumstances o Contracts for necessaries. S69- if a person is incapable of entering into a contract or anyone whom he is legally bound to support, is supplied by another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person. Scholarships-s4 contracts amendments) Act 1976- No scholarship agreement shall be invalidated on the ground that the scholar entering into such agreement is not of the age of majority. Insurance-Insurance Act 1963- a minor over the age of 10 may enter into a contract of insurance but if he is under 16, the written consent of parent or guardian is needed. Apprenticeship-The Children and Young Persons (Employment) Act 1966 o Child Is A Person Below The Age Of 14, Young Person Is Between The Age Of 14 And 16 Sound Mind S.12 Contracts Act 1950 o A person is said to be of sound mind for the purpose of making the contract, if at the time when he makes it he is capable of understanding it and of forming a rational judgment as to its effect upon his interest. o A person usually suffering from mental disorder may make a contract during those periods when he is sound. Contract by Minor Age of Majority Act 1971-18 years old Effect of contract by minor-VOID o Mohori Bibee v Dharmodas Ghose (contract by an infant is void) Exceptions-s4-matters relating to marriage, divorce, dowry and adoption o Religion and religious rites of persons within Malaysia. A person, who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind. LEGAL EFFECTS OF CONTRACTUAL RELATIONSHIP Valid Contract - contractual obligations arise, legal remedies enforceable in cases of breach of contract Voidable contracts-can affirm or repudiate the contract Void contracts-cannot be enforced in a court of law. VOIDABLE CONTRACTS S2 (i) avoidable contract is a contract which is valid at the time when it is entered until it is set aside by the parties in the contract due to a number of factors. Such a contract satisfies all the required elements of a valid contract but the said agreement may contain elements which may make the contract voidable e.g. elements of coercion or fraud When parties entered into agreement with the presence of fraud, coercion or misrepresentation the parties to the contract are said to have entered into an involuntary contract in the absence of free consent of the parties.

EMPLOYMENT LAW
EMPLOYMENT LEGISLATION 1. Employment Act 1955 2. Industrial Relations Act 1967 Regulates relation between employers and workmen and unions Lay down rules to help prevent and settle dispute between the parties 3. Trade Union Act 1959 Control activities of trade unions Lay down rules and procedures to followed by trade unions 4. Occupational Safety and Health Act 1994 5. Employees Provident Fund Act 1991 6. Employees Social Security Act 1969 EMPLOYMENT ACT Protect workers from exploitation Lay down provisions regarding the minimum benefits of workers Designed for all workers covered by the Act. Employment Act Enforcement body-Department of Labour o inspections at the place of employment o investigate complaints from employees e.g. unfair labour practices o assessing claims by employees when disputed by employer at the labour court

Types of dispute that can be heard are regarding termination benefits, maternity benefits, and overtime payments including sick pay. Coverage of Employment Act Not all employees are protected by the EA st Coverage-1 schedule (types of occupation and wage) Who has a contract of service and his wages do not exceed RM 3,000 a month Who has a contract of service, regardless of wages Manual laborer, supervise manual laborers Engage in operation/maintenance of any vehicle for the transport of passengers or goods Domestic servant. Private sector only For workers in West Malaysia Contract Of Service & Contract For Service To make employer responsible for the act of employees/protected under employment law, there must be a relationship. Employer-employee relationship is determined based on contract of service. Employer who hirers out workers-cannot be considered as employee but independent contractor where contract/payment is for their service. Factors Determining Employment Status Is there a written contract?-what are the terms of the contract? How payment is made?-regular basis or on completion of work? Whether EPF contribution being made Does the employer control how and when the work is done? Contract of service Written and oral agreement Terms of contracts should not be less favorable than those specified in the act Duration-can be for a particular period of time/open ended (no specified duration) No restrictions on employees rights to unionize. Terms of contract of service Express and implied terms Express-clearly stated in the contract o Relate to rights of employee & rights and responsibilities of employee o Based on collective agreement Implied terms-implied by law and customs o work with due care o obedience o faithful Provisions under Employment Act Wages o no minimum wage for all workers but lays down certain procedures relating to payment o wages council to decide minimum wages in certain industries Payment of wage o period of at least one month every month (more frequently is allowed but not less) o not later than 7 days from wage period Advances of wage o not allowed unless for special purposes (buying vehicle or house) Deduction o allowed in certain circumstance with restriction o No more than 50% from employees wages unless includes repayment of housing loan (up to75%) Wages

 For recovery of wages overpaid in the immediate preceding three months EPF contributions, SOCSO Recovery of advances where no interest is charged Must be in legal tender Not in cash terms Working Hours S.60A No employee can be forced to work more than 5 hours without 30 minutes of rest. Maximum working hours per day are 8 and 10 hours for a spread over hours. Can be increased to 12 hours i.e. considered as over time o in several circumstances, working overtime is compulsory (essential services) o Working hours are not more than 48 a week Termination for Misconduct S.14 employer has the right to dismiss, downgrade, impose any other lesser punishment on employee who is after a due inquiry found guilty of misconduct. Domestic inquiry (investigation up to 2 weeks) Can suspend from work and give half wage only Must follow the procedure; comply with the principle of Natural Justice.

What Is Natural Justice?

Two elements of natural justice;1) The right to be heard given to the person whose rights has been violated (audi alteram partem) 2) The decision-maker must be impartial hence rule against bias conveys the meaning that all decisions must be made fairly without any elements of biasness (nemo judex in causa sua). ELEMENTS OF NATURAL JUSTICE THE RIGHT TO BE HEARD The right to be heard contains two elements;1. Notice 2. Hearing 1) Notice The basis of natural justice is that before any action can be taken on any person there should be complete notice served on the person on the details of the case. In urban housing co. V oxford council the court stated that the authority concerned must either give there person notice that they will be considering the matter to reach a

decision or if they have reach a decision they will give him the opportunity to show reasons why the actions decided by them should not be taken against him. The purpose of notice is clear;A. To enable the accused to obtain information of his case clearly B. The accused has reasonable time to prepare his defence. If notice is not complete or sufficient the administrator can be deemed to act not in accordance with the rules of natural justice. Accusation/charges The accused has the right to know the charges made against him Mahadevan V Anandrajan (1974) 1 mlj 2 Time The accused should be given reasonable time to prepare his case or defense see Phang Moh Sin V Commissioner Of Police (1967) 2 Mlj 186 plaintiff was not given ample notice to enable him to prepare his case. In re Liverpool Corporation, Ex Parte Liverpool Fleet Operators Association [1972] 2 All ER 589 The court ruled that notice was incomplete since it only reaches the accused or the association on the due date therefore the time was not reasonable for them to prepare their defence. 2. Hearing How should the responsible party holding the hearing ensure that hearing is conducted in the right manner? Circumstances vary but the court will ultimately be the last resort to determine what constitutes a reasonable hearing. The issue in consideration is that whether hearing should be oral or in written form. Again this would depend on the facts of the case. A Fair and Reasonable Hearing How to ensure this? Certain elements have to be identified;1. The judge has to show all information or evidence which will be used in making his decision in the case. 2. During the hearing, the administrative authority must accept all evidence and materials given by the accused. This is to ensure that the accused have sufficient opportunity to show proof to support or rebut any case against him. If the administrator fails to do this then there will be a breach to natural justice. 3. The authorities must give the accused opportunity to rebut any allegations made against him. 4. During the hearing, the judge must listen to all evidence and testimonies from both sides and not on one side only. Reasoned Judgment/Decision Judges in adjudication must give a reasoned decision to ensure that powers given are not abused. If a reasoned decision were given the administrator would have to use their mind based on the case before them and not in a mechanical manner. BIAS Maxim-nemo judex incausa sua or the rule against bias was applied since the year 1610 in the case of Dr Bonham (1610) co. Rep.114. In this case the board of medical practice fined a doctor because he practices medicine without any license. The decision of the board was quashed because when they reached their decision they had an interest in the case. In the process of decision-making and adjudication a judge must be fair and at the same time use his objective mind in the case that came before him. If a judge is partial then his decision cannot be just. This is based on two principles;1) One cannot be a judge in his own cause. 2) Justice should only be done but seen to be done. However de smith is of the opinion that a person who has an interest in any case can still become a judge in certain circumstances;-

The parties involved in the case have been informed of the judges interests in the case but they clearly waived their rights to object this matter. 2) There is a statutory provision which give the judge the power to be one. 3) In very exceptional circumstances, since all the existing judges have an interest in the case, then by using the doctrine of necessity one can become a judge even though he has an interest in the case. There are three types of bias 1) Pecuniary bias 2) Personal bias 3) Policy bias Pecuniary bias In the case of Dimes V The Grand Junction Canal Company (1852) 3 HLCAS 759 In this case, a company filed a case against a landowner and the matter involved the matters of the company. The Lord Chancellor presiding over the case is also a shareholder in the company. The decision of the Lord Chancellor is made for the company. The court quashed the decision of the Lord Chancellor since he has an interest in the company. Personal Bias A basic principle of personal bias is that a person cannot judge or presides over a case, which is related to him including his family and his close friends. The test used is that whether there is a tendency for bias to occur. The test is seen from the perspective of a reasonable man. The purpose for the test is to ensure that the public is confident there is justice and that this confidence will be destroyed if there are reasonable persons thought that the judge was bias. In the case of Metropolitan Properties Co. V Lannon (1968) 3 ALL ER 304- tenants of an apartment had appealed to the committee of civil assessment for the reduction of their rent. The chairman of the committee is the son of one of the tenants. The committee decided to give the reduction. The appeal court said that the decision of the committee cannot be enforced because there was a tendency for bias to occur. The court said that even though the decision must have been made in a just manner but if others think that the decision was made with certain elements of bias then it is invalid. Cooper V Wilson (1937) The court quashed the dismissal of a police officer due to the reason that the chief of police who was responsible in his dismissal was present in the hearing. Even though the chief of police was not in the committee but his presence can cause bias to occur. Policy Bias The basis of policy bias is;1) The prosecutor cannot be the judge of the case 2) The policy-maker cannot solve the problems, which have resulted from the execution of such policy.

1)

ETHICS
LEGAL PHILOSOPHY/JURISPRUDENCE The philosophy of law-the nature of law which would include legal theories What is the meaning of law? o used in many different senses o Rules or standards for behaviors that are explicitly enforced by the society o Principles governing and regulating human behavior. THE ROLE OF LAW/WHY DO WE NEED LAW? Man is social in nature; need some form of social order. Main purpose is to create social harmony in the community

 The larger the community, the more complex will be the law Law is a mechanism for social control UNDERSTANDING THE MEANING OF LAW School of thoughts Natural law Positive law Realist view Sociological view NATURAL LAW Law is derived from a higher entity ordained by a divine force. Based on the principles of natural law i.e. there are moral principles prescribed by nature which can be discovered by man. PRINCIPLE OF NATURE ST 1 principle of nature: good is to be done and promoted and evil is to be avoided. Natural law theorist: any man made law is in violation of natural law and is not true law Law should be just and fair An unjust law is not law and should not be obeyed-Blackstone POSITIVE LAW A rule from a political superior to a political inferior habitually obeys, with sanctions imposed if rule is broken-John Austin is a command from sovereign authority in a society study of law as it exist in the legal system, not as it ought to be on moral ground, does not require law to be moral or fair. POSITIVISM Law is a system of orders, commands, or rules enforced by power. That is enacted in some fashionpurely a human product-artificial rather natural A rule of law has no connection with what is morally right or correct or true in order to qualify as law. POSITIVIST Salmond- the body of principles recognized and applied by a state in the administration of justice. o Superior order, enforceable in a court of law to secure justice. Hart- law consist of two rules o Primary rules impose duties as it is human nature to do good thing and to avoid evil. o secondary rule-societys duties to impose rules, setting rules and punishment REALIST VIEW From us scholars-the world as it actually operates, carried out and enforced rather than series of rules contained in statute Gray-rule of conduct lay down by persons acting as judicial organ of the state. Law is what the judges declare. THE REALIST Only law passed down by judges are considered as law Therefore judge-made laws are recognized rather law as contained in statutes Realists believed that judges can do more in contributing to society in terms of law-making .SOCIOLOGICAL VIEW Study the effects of law and society on each other Law is an empirical phenomenon; its nature can be understood only when it is viewed in terms of its relationship to society. Kasper Malinowski He believed that in modern societies, legal rules are distinguishable from social and moral values. o Organized government, judicial bodies, administrative machinery exist to ensure disobedience is secured by sanctions.

in places where there are no law making bodies etc. people comply with rules created based on custom/practices (rules are law) NATURE OF ISLAMIC LAW SHARIAH o Command, prohibition, guidance and principles that God has addressed to mankind pertaining to their conduct in this world and in the next life. Sources of law:-Quran (word and command of God. o Sunnah (word of the messenger (prophet) BLACKS LAW DICTIONARY Law is that which is laid down, ordained or established. A rule or method according to which phenomena or actions co exists or follow one another. Law refers to a result regardless of the process used to bring it about. JURISPRUDENCE Jurist means law pruden means wisdom Wisdom of law/knowledge or skill in law Stone it is the lawyers examination of the precepts, ideals and techniques of th e law in the light derived from the present knowledge in disciplines other than the law. Salmond- looking at the widest permissible sensejurisprudence is the science of civil law. Prof.Hari Chand- an attempt to study the nature of laws, their techniques , development and achievement. To trace a law of law, a law behind the law-caveat emptor, nemo dat quod non habet, res ipsa loquitor. Involves study of general theoretical question about o nature of law and legal systems o social nature of law o Relate with other disciplines eg medical men study diseases and remedies, jurist study defects and remedies in law. ISLAMIC LAW FIQH (jurisprudence)-the law itself Usul fiqh (science of jurisprudence) the study of how to derive from the hukm o interest (riba) is prohibited-oppression- disastrous to society o liquor-cause to lose self-control The importance of cause and effect-if the effect is good, the way it is done will be taken into account to determine the validity of the act (ethical concept) The end does not justify the means as against the Machievallen rule of the end justifies the means. Why study jurisprudence? Curzon : Jurisprudence offers an overall view of the law, a unified picture in which the nature of legal institutions and theories becomes more comprehensible Austin : Jurisprudence is a map of the law which presents it as a system or organic whole

ETHICAL PHILOSOPHY & ITS CONSIDERATIONS Theories to distinguish right actions from wrong actions. The objective of this part of the study is to apply the use of ethical philosophies as ethical decision tools. o Consequentialist o Non-Consequentialist Classification of Consequentialist

 Egoism Utilitarianism Consequentialist The moral rightness of an action is determined solely by its results. If it is good, the act is right-vice versa Q-consequences for whom? o Egoism is for the advancement of self-interest o Utilitarianism is where one must take into account everyone affected by the action Egoism An act is morally right if only it best promotes the individual long term interest. Misconception-doing what a person thinks is right for him, have intrinsic value. Cannot act honestly, but sometimes action is ethical an serve the interest of others. Egoist does not preach not to assist others but individual has no basic moral duty to do so. Problems with egoism People are motivated by self interest only. Does not really qualify as a moral theory. Utilitarianism An action is morally right and ethical if it produces the greatest amount of good for the greatest number of people. Always act to produce the greatest possible balance of good (happiness/pleasure) over bad/unhappiness for everyone affected by our action. Only if this can be achieved that the action be considered as morally right. Greatest good for the greatest number of people. Bentham- interest of the community are simply the sum of interest of its members Actions are right if they promote the greatest human welfare and wrong if not. Happiness of the community is measured by the number/total amount of individual happiness. John Stuart Mill Utility principle allows consideration of the relative quality of pleasure and pain. 6 criteria in utilitarianism theory; happiness action affect people to a different degrees In principle, anything will be morally right in some particular instances. continue Expect the happiness as much as possible because people do not know with certainty the future consequences. Measure happiness in long term not by immediate result. Choosing possible action doesnt require disregarding ones own pleasure. Non-Consequentialist Right and wrong are determined not only by the consequences of the act- there are many other determining factors. Examine every factor relevant to the moral assessment of an action. Kolhbergs Theory o Pre-conventional level; Ethical behavior is based on reaction to punishment and reflect desire to receive reward Conventional level Accept morality that is learned from others (parents/peers) conformed to norm of surrounding. follow the law in ones society-able to differentiate what is good and bad, what one is suppose to do and not to do/which is against the law. Post-conventional Self accepted moral principles, not because of the society;-

- 1 stage-social contract and individual rights-speak and understand morality based on rights of individual. nd -2 stage-able to give reason/rationale defense of the moral principles that guide our actions-this is where ethical theories come into play. Kants Ethics Non-consequentialist o Do not have to know the likely result in order to know that it is immoral. o Moral rule can be known as a result of reason alone (reasoning)-e.g breaking a promise (because of inherent character of the act and not because it might hurt others feelings).

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