I.

GROUND OF SUBMISSION

The Applicant submits that the decisions by the University to expel the students were
invalid on the ground of procedural impropriety, illegality and unreasonableness.

II.

SUBMISSIONS

Order 53, rule 4 Of Rules of Court 2012,1 provides that any person who is adversely
affected by the decision of any public authority shall be entitled to make the application.

Article 6 (1) Of The European Court Of Human Rights,2 states that in the
determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.

Therefore, the Vice Chancellor must give a reasoned judgment so as to enable an affected
individual to decide whether to appeal.

The verdict finding of the University suffers from procedural impropriety as in the
process of its making the procedures prescribed by statute have not been followed and the
rules of natural justice have not been adhered to.

1
2

Rules of Court 2012, (Order 53, Rule 4)

Article 6 (1) Of The European Court Of Human Rights

Natural justice is a procedural safeguard against improper exercise of power by a public

authority and has been characterized as fair administrative procedure. The purpose
behind natural justice is to ensure that decision-making is fair and
reasonable, but it is important not to confuse those objectives with what is legally
required.

In the case of Lord Steyn In Lloyd V Mcmahon,3 Lord Bridge Of Harwich, suggested
that the so-called rules of natural justice are not engraved on tablets of stone. In simple
words, the right to a fair hearing requires that individuals should not be penalized by
decisions affecting their rights or legitimate expectations unless they have been given
prior notice of the case, a fair opportunity to answer it, and the opportunity to present
their own case. The mere fact that a decision affects rights or interests is sufficient to
subject the decision to the procedures required by natural justice. In particular, it is wellestablished that when a statute has conferred on anybody the power to make decisions
affecting individuals, the courts will not only require the procedure prescribed by the
statute to be followed, but will readily imply so much and no more to be introduced by
way of additional procedural safeguards as will ensure the attainment of fairness.

Therefore, Highland University is a public authority, thus, they are bound to the rule of
natural justice, in order to safeguard against improper exercise of power by them. The
Highland University has to satisfy to the rule of natural justice in taking any action or
while making any decision.

[1987] AC 625

The outcome of the decision made by the Vice Chancellor turns out to be prejudice as he
has personal interest in expelling the students and he has failed to exercise his power by
fettering his discretion.

The first basic rule of natural justice is that nobody may be a judge in his own case. Any
person that makes a judicial decision must not have any personal interest in the outcome
of the decision. If such interest is present, the decision maker must be disqualified even if
no actual bias can be shown.The fundamental maxim of rule against bias is that justice
must not only be done but be seen to be done.

In the case of Rohana Ariffin & Anor V USM,4 Edgar Joseph Jr J had purported to
interpret that judicial review applies to any body of persons having legal authority
derived from public law to determine questions affecting the rights of subjects whether
that right is derived from statute or from the common law, and the High Court is not a
Court of Appeal from the body under review.

He added that the High Court limits itself to determining whether the public authority or
inferior tribunal has acted lawfully, rationally and with due regard to proper procedures
and the court will not substitute its judgment or discretion for the judgment or discretion
of the body under review.

Facts determined by the body under review are rarely open to review in the High Court
4

[1989] 1 MLJ 487

and the High Court will intervene unless there is express statutory direction to the
contrary; Additionally, if there is an established appeal procedure from the decision of the
body under review the court usually prefers this course to be followed and only activities
of a public nature can be the subject of judicial review.

Hence, it appears to be unfair and unreasonable hearing as the reasons of the decisions
was not made known to Bruce Lee and Anna Wong.

Reffering to Rohana Bte Ariffin V Universiti Sains Malaysia, the ground of decisions
must be stated by the University in order to serve fairness as it would be unfair to Bruce
Lee and Anna Wong to be expelled without a solid reason.

The right to a fair hearing is absent as the students were not given an opportunity to
present their case in order to enable them to rebut the allegation made against them and
they were not given adequate time to effectively prepare his or her own case and to
answer the case against him or her and has committed substantive ultra vires.

Section 16B (3A) Of The Universities And University Colleges Act 2012,5 states that
the Vice-Chancellor, or Deputy Vice-Chancellor, employee or committee of employees
delegated with the functions, powers or duties under subsection (3), shall inform the
student in writing of the grounds on which it is proposed to take action against him and
shall afford him a reasonable opportunity of being heard.
5

Section 16B (3A) Of The Universities And University Colleges Act 2012

Right of hearing means that the affected party must be given an opportunity to present his
case in order to enable him to rebut the allegation made against him.

Whether or not a person was given a fair hearing of his case will depend on the
circumstances and the type of the decision to be made. The minimum requirement is that
the person gets the chance to present his case. If the applicant has certain legitimate
expectations, the rules of natural justice may also require that they are given an oral
hearing and that their request may not be rejected without giving reasons. Where the
decision is judicial in nature, for example a dismissal of an official in punishment for
improper conduct, the rules of natural justice require a hearing and the person question
must know the case against them and be able to examine and object to the evidence.

In the case of Fadzil Bin Mohamed Noor V Universiti Teknologi Malaysia,6 Raja Azlan
Shah Cj (Malaya) stated that the general power of the University Council, as provided by
the statute, did not extend to disciplinary matters and thus the exercise of the jurisdiction
by the University in dismissing the appellant was ultra vires its powers.

He or she is entitled to the protection of a hearing before the appropriate disciplinary

authority, including the right to appeal to the university council from the decision of that
authority. If that right is violated, then the court may allow declaratory relief. Their
Lordship find it hard to believe that in the field of employment (in the present case), the
Legislature can really be said to have intended that the appellant is deprived of his
employment without any regard for vested right. To say that there were no disciplinary
6

[1981] 2 MLJ 196

rules under which he could be charged is an argument which totally has only to be
rejected.

The decision of the court above is of immense importance in the context of this study
where it goes on to show that public bodies or authorities must comply with the
requirement of procedural fairness. Failure to do so, would allow the courts to examine
the manner in which public bodies exercise their powers. This in turn would foster the
spirit of good governance since their decisions may well be quashed by the courts where
they have exceeded their powers. Therefore, there was a substantive ultra vires
committed by the University by expelling the students.

Besides that, it appears that there was no fair and reasonable hearing as Bruce Lee and
Anna Wong was not given the right to counsel in order to explain their position and they
were only given five minutes to explain themselves. Hence, the Vice Chancellor should
have informed the students in writing of the grounds on which it is proposed to take
action against them and afforded them a reasonable opportunity of being heard. The
pronouncement of the University to expel the students is illegal or irrational and the
expression manifest unreasonableness.

A person in whom is vested a discretion must exercise his discretion upon

reasonable grounds. Discretion does not empower a man to do what he likes
merely because he is minded to do so and he must generally exercise the discretion to do
not what he likes but what he ought.

In other words, he must, by use of his reason, ascertain and follow the course which
reason directs. Therefore, he must act reasonably.

Lord Greene Mr, in Associated Provincial Picture Houses, Limited V Wednesbury

Corporation,7 stated that the court is entitled to investigate the action of the local
authority with a view to seeing whether they have taken into account matters which they
ought not to take into account, or, conversely, have refused to take into account or
neglected to take into account matters which they ought to take into account.

Once that question is answered in favour of the local authority, it may be still possible to
say that, although the local authority have kept within the four corners of the matters
which they ought to consider, they have nevertheless come to a conclusion so
unreasonable that no reasonable authority could ever have come to it.

In such a case, the court can interfere. The power of the court to interfere in each case is
not as an appellate authority to override a decision of the local authority, but as a judicial
authority which is concerned only to see whether the local authority have contravened the
law by acting in excess of the powers which Parliament has confided in them.

[1948] 1 KB 223

III.

CLOSING SUBMISSION

The Applicant submits that the decision by the University to expel the applicants was invalid
on the grounds of procedural impropriety and illegality. For the reasons discuss above and on
the fact that the verdict finding of the University suffers from procedural impropriety,
illegality and unreasonableness, therefore, the remedy of certiorari may be granted to quash
decisions of the University to expel the students.

For the reasons discussed above, the Applicant prays that the question posed to this Court be
answered in the affirmative.

Dated this:

5th DECEMBER 2014