NAZRUL IMRAN BIN MOHD NOR v CIVIL SERVICE COMMISSION MALAYSIA & ANOR [2021] MLJU 1965

 

NAZRUL IMRAN BIN MOHD NOR v CIVIL SERVICE COMMISSION MALAYSIA & ANOR [2021] MLJU 1965

Court of Appeal (Putrajaya)

Dismissing application for judicial review

Facts

1.    This is an appeal brought by the Appellant against the learned High Court Judge’s (“HCJ”) decision to deny a request for judicial review made in accordance with Rule 53 of the Rules of Court (2012).

2.    The Appellant’s request for relief was for a certification order to overturn the First Respondent’s choice to fire the Appellant from the Government.

3.    The Appellant served as the Second Secretary (Political, Economics, Training and Education) of the Second Respondent while holding the rank of Diplomatic Officer Grade M44 in the Ministry of Foreign Affairs.

4.    The Appellant was working in the Malaysian Embassy in Manila, Philippines, at the relevant time, which was January 11, 2107.  On Dato’ Sri Mohd Najib bin Tun Abdul Razak’s (a.k.a. “DS Najib”) Facebook page, he has left remarks.

5.    Following the Appellant’s remarks, disciplinary action was initiated against him. When DS Najib, the Chief Minister of Sarawak, learned of Tan Sri Adenan Satem’s passing, he posted a message of sympathy on Facebook. In response to this message, the Appellant wrote the following in response:

“Kesian. Hilang kwn, hilang deposit”

Translation – ‘Pity. Lost a friend, lost the deposit’

6.    Against the Appellant, disciplinary actions were taken based on the aforementioned assertion.

7.    According to Rule 35(2) of the Public Officers (Conduct and Discipline) Regulations 1993 (the “1993 Regulations”), the Chairman of the Disciplinary Board of the Public Service Management Group (No. 2) (Pengerusi Lembaga Tatatertib Perkhidmatan Awam Kumpulan Pengurusan (No 2)) determined that the disciplinary action against the Appellant was taken with the intent of dismissal or rank reduction.

8.    The Chairman then forwarded the disciplinary proceedings against the Appellant to the Chairman of the Public Services Commission’s Disciplinary Authority (“PSC or First Respondent”), who has the authority to act in accordance with the aforementioned Rule 37 of the 1993 Regulations.

9.    After carefully examining all the evidence, the Chairman of the Disciplinary Authority of the PSC found that there was a prima facie case against the Appellant and ordered for him to be prosecuted in accordance with r. 19 (1)(b) of the 1993 Regulations.

10.  The following was the charge levelled at the Appellant:

“Bahawa tuan, Nazrul Imran bin Mohd Nor (K.P.: 780203-05-5395), Pegawai Tadbir dan Diplomatik Gred M44, semasa bertugas sebagai Setiausaha Kedua di Kedutaan Besar Malaysia, Manila, Filipina, Kementerian Luar Negeri, pada 11.1.2017 melalui akaun laman Facebook Nazrul Imran telah membuat pernyataan ‘Kesian. Hilang kwn, hilang deposit’ dalam ruangan komen laman Facebook Najib Razak yang merupakan laman Facebook rasmi YAB Dato’ Sri Mohd Najib bin Tun Abdul Razak, Perdana Menteri Malaysia bertarikh 11.1.2017 pada jam 2.51 petang yang merakamkan ucapan takziah di atas kematian Ketua Menteri Sarawak. Pernyataan tuan tersebut yang disifatkan menghina, mengeji dan mengutuk YAB Perdana Menteri Malaysia selaku ketua pemerintahan tertinggi Kerajaan Malaysia boleh memalukan dan memburukkan imej dan nama Kerajaan Malaysia serta boleh menimbulkan persepsi negatif di kalangan orang awam.

Perbuatan tuan boleh disifatkan sebagai melanggar subperaturan 19(1)(b). Peraturan-peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 seperti berikut:

‘Seseorang pegawai tidak boleh, secara lisan atau bertulis atau dengan apa-apa cara membuat apa-apa pernyataan awam yang boleh memalukan atau memburukkan nama Kerajaan’

Perbuatan tuan tersebut juga boleh ditafsirkan sebagai berkelakuan dengan sedemikian cara sehingga memburukkan nama atau mencemarkan nama perkhidmatan awam dan tidak bertanggungjawab iaitu bercanggah dengan subperaturan 4(2)(d) dan (g), Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 seperti berikut:

‘Seseorang pegawai tidak boleh –

(d) berkelakuan dengan sedemikian cara sehingga memburukkan nama atau mencemarkan nama perkhidmatan awam dan

(g) tidak bertanggungjawab’.

Jika tuan didapati bersalah atas pertuduhan di atas, tuan boleh dihukum mengikut Peraturan 38, Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993.”

11.  The accusation against the Appellant was contained in a show cause letter that was issued, served on him, and he had also received the same.

12.  The show cause letter gave the Appellant 21 days from that date to submit his defence in an effort to clear his name of the accusation.

13.  The Appellant did in fact send a letter of representation to the First Respondent’s Secretary.

14.  The Appellant was thereafter dismissed from service in accordance with Regulation 38(g) of the 1993 Regulations because the First Respondent believed that the Appellant’s representation did not exonerate him from the accusation brought against him.

15.  Dissatisfied with the First Respondent’s decision, the Appellant applied to the High Court for judicial review.

16.  The learned High Court Judge (“HCJ”) essentially concluded that courts shouldn’t consider appeals of decisions reached by lower tribunals and decide their merits in judicial reviews. For this assertion, the learned HCJ cited the Court of Appeal’s ruling in T. Ganeswaran v. Suruhanjaya Polis Diraja Malaysia & 1 lagi [2005] 3 CLJ 302.

17.  The learned HCJ in that case also made reference to the following words:

“Mengenai perkara ini ingin kami merujuk kepada keputusan House of Lords di dalam kes Chief Constable of North Wales Police v. Evans [1982] 3 All ER 141 yang menyatakan:

Judicial review is not an appeal from a decision but a review of the manner in which the decision was made, and, therefore the court is not entitled on an application for judicial review to consider whether the decision itself was fair and reasonable.

Judicial review is concerned, not with the decision, but with the decision – making process. Unless the restriction on the power of the court is observed, the court will in my view under the guise of preventing the abuse of power, be itself guilty of usurping power’.

Menyentuh soal yang sama di dalam kes Rohana bte Ariffin & Anor v. Universiti Sains Malaysia [1988] 1 CLJ 559; [1988] 2 CLJ (Rep) 390, Edgar Joseph Jr. J (beliau ketika itu) di dalam penghakimannya menyatakan:

‘I would at the outset say that in considering these applications I have kept in the forefront of my mind the basic principles to be distilled from a number of cases upon which courts will review decisions of public authorities and inferior tribunals.

The basic principles may be stated thus:

(1) judicial review applies to anybody 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;

(2) the High Court is not a Court of Appeal from the body under review;

(3) 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;

(4) the court will not substitute its judgment or discretion for the judgment or discretion of the body under review;

(5) facts determined by the body under review are rarely open to review in the High Court;

(6) the High Court will intervene unless there is express statutory direction to the contrary;

(7) if there is an established appeal procedure from the decision of the body under review the court usually prefers this course to be followed;

(8) only activities of a public nature can be the subject of judicial review’.”

[Emphasis Added]

18.  The learned HCJ also found that the Appellant must be subject to the applicable legislation, including the 1993 Rules, upon joining the civil service.

19.  It could not be argued that Regulation 19(1)(b) of the 1993 Regulations rendered the Appellant’s right to free speech illusory. Thus, the learned HCJ found no merit on the question of illegality brought by the Appellant.

20.  The learned HCJ held that the PSC’s conclusion that the Appellant had failed to exonerate himself of the accusation was neither irrational nor unreasonable because it was up to the PSC to reach that conclusion.

21.  The learned HCJ also cited the Supreme Court’s finding in Kerajaan Malaysia & Ors v. Tay Chai Huat [2012] 3 MLJ 149, a case from the Federal Court, in which it was stated as follows:

“The courts have very limited review powers over administrative determinations of public bodies and are constrained to confirm the findings in disciplinary hearings. The courts will only intervene in disciplinary cases where there was a fundamental procedural flaw. The courts cannot exceed its role in cases of this genre as the instant appeal. The courts cannot interfere merely because it may come to different conclusions on facts on the same basis of the same evidence. Weighing and assessing the evidence is the function of the disciplinary authority which is the body to which the legislature has entrusted the responsibility of deciding the issue, and not the courts. Hence, the court should approach cases of this genre as the instant appeal in the following way, namely, whether there has been an error in the process or whether there was procedural irregularity in the decision making proceedings leading to the public officer’s dismissal.”

[Emphasis Added]

22.  The learned HCJ concluded that the PSC had given the Appellant’s representations serious attention and that the Appellant had been granted the privileges provided by the 1993 Rules.

23.  The PSC concluded that the Appellant had not successfully defended himself against the charge. The Appellant himself had made reference to unfavourable remarks made about his posting by others.

24.  Due to the fact that his remarks were directed at the head of Malaysia’s executive branch, he had embarrassed or defamed the Malaysian government.

25.  His remarks went viral on social media and drew criticism from those who were disrespectful, unpleasant, and insulting to the deceased, the former chief minister of Sarawak.

26.  As a result, in accordance with Rules 4(2)(d) of the 1993 Rules, the Appellant’s actions had disgraced the public service and brought it into disrepute.

27.  He also acted irresponsibly in expressing the remarks, bringing him into the purview of Regulation 4(2)(g) og the 1993 Regulations.  As a result, the HCJ concluded that the PSC’s conclusion was not irrational nor unreasonable.

28.  The learned HCJ then held that the PSC had acted in conformity with the 1993 Rules in response to the Appellant’s claim that the punishment imposed by the PSC was excessive.

Issue

1.    Whether the Public Service Commission’s decision can be reviewed?

Ratios

1.    As previously noted, the learned HCJ generally found that the PSC’s decision to dismiss the Appellant was proper, but that be subject to judicial oversight.

2.    According to the High Court, the PSC had complete and unrestricted authority to make the decision it had reached, hence it should not have been challenged.

3.    As previously mentioned, the learned HCJ cited the rulings in T. Ganeswaran by the Court of Appeal and Vickneswary by the Federal Court in support of this assertion.

4.    As previously stated, the learned HCJ ruled that the PSC’s conclusion that the Appellant had failed to exonerate himself of the accusation as not irrational or unreasonable because it was up to the PSC to reach to that conclusion.

5.    Respectfully however, the Court of Appeal found that the learned HCJ erred on this matter.

6.    In contrast to the two cases mentioned above, the Federal Court has rendered at least three decisions that are binding on the High Court and that indicate that decisions made by lower tribunals or decision-making bodies may be subject to judicial review and scrutiny.

7.    The three apex court decisions indicate that the PSC’s judgement is not solely within its discretion and prerogative.

8.    The first case is R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147 (“R Rama Chandran”) from the Federal Court, where Edgar Joseph Jr. FCJ (as he was then) made the following ruling.

“It is often said that judicial review is concerned not with the decision but the decision making process. This proposition may well convey the impression that the jurisdiction of the Courts in judicial review proceedings is confined to cases where the aggrieved party has not received fair treatment by the authority to which he has been subjected, or as stated by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service where the impugned decision is flawed on the ground of procedural impropriety. But Lord Diplock’s other grounds for impugning a decision susceptible to judicial review makes it abundantly clear that such a decision is also open to challenge on ground of ‘illegality’ and ‘irrationality’ and in practice this permits the Courts to scrutinise such decisions not only for process, but also for substance. Lord Diplock also mentioned “proportionality” as a possible ground of review which called for development.”

[Emphasis Added]

9.    R Rama Chandran was then cited by the apex court as evidence that even the merits or content of decisions made by lower tribunals and other such organisations are subject to judicial review, not just the decision-making process itself could be contested.

10.  In accordance with this authority, a court of law may also contest and review the PSC’s judgement.

11.  With such justification, this Court held that the court has the authority to analyse and examine the substance and merits of the PSC decision when performing its appeal duty.

12.  The First Respondent’s Chairman swore an affidavit to dispute the application for judicial review by the Appellant. She confirmed that she presided over the meeting where it was decided to terminate the Appellant’s employment.

13.  She further confirmed in her affidavit that the Appellant had filed a representation outlining his response to his Facebook statement.

14.  She confirmed that it was decided that the Appellant had failed to exonerate himself after taking into account the aforementioned representation.

15.  She had, however, omitted to articulate in the affidavit why she believed the Appellant had failed to do so.

16.  In her affidavit, she didn’t explain why she believed the Appellant had failed to exonerate himself.

17.  It is insufficient for her to just assert that she gave the appellant’s representation significant consideration. Her claim that the Appellant’s representation did not clear him of the allegation is equally lacking.

18.  These assertions lacked substance since the reasons why the Appellant’s representation was unjustified were not provided.

19.  In this regard, the Court had referred to the ruling in Perbadanan Pengurusan Trellises v. Datuk Bandar Kuala Lumpur & Ors [2021] 3 MLJ 1 explains the requirement for reasons in a recent judicial review case.

20.  When giving the court’s ruling, the learned Mary Lim JCA (now FCJ) went over a number of cases and made the following points very clear:

“[112] Then, there is the matter of duty to give reasons. We would have thought that the law on this issue is fairly clear and settled from the early years of Rohana bte Ariffin & Anor v Universiti Sains Malaysia [1989] 1 MLJ 487 where it was ruled that a reasoned decision can be an additional constituent of the concept of fairness’ and where the reasons have to be given so that the right of appeal may be properly and meaningfully exercised; to Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor dengan tanggungan [1999] 3 MLJ 1(‘MPPP’) where the Federal Court extensively reasoned on why there must be this duty to give reasons even if there is no express provision for such duty. According to the Federal Court, this duty to give reasons emanates from the concept of fairness; see also Kesatuan Pekerja-Pekerja Bukan Eksekutif Maybank Bhd v Kesatuan Kebangsaan Pekerja-Pekerja Bank & Anor [2018] 2 MLJ 590; [2017] 4 CLJ 265 and Mohamad Hassan bin Zakaria v Universiti Teknologi Malaysia [2017] 6 MLJ 586; ; [2017] 10 CLJ 36 (see discussions of the same in Save Britain’s Heritage v Secretary of State for the Environment and others [1991] 2 All ER 10).”

“[113] The absence of an express provision in any statute requiring the decision- maker to give reasons does not mean that the duty does not exist unless and until the statute specifically states so. Even then, the case law has developed progressively to instill an innate will on public authorities to explain their decisions. The Federal Court in Kesatuan PekerjaPekerja Bukan Eksekutif Maybank Bhd categorically held that ‘The absence of such a provision ought not to be regarded as a cloak under which the decision maker can hide his rationale for making the decision, privy only to himself but a mystery to the interested parties or the public at large”

21.  The extensive justification in the aforementioned case law unequivocally shows the requirement for the First Respondent to gives its reasoning for its decision.  Due to the failure of the same to provide those justifications, its decision was cannot stand.

22.  Accordingly, the Court also provides comments as to the statement wrote by the Appellant of ‘Kesian. Hilang kwn, hilang deposit’ that the same did not contravene Regulation . 4(2)(d) and (g) of the 1993 Regulations:

“An officer shall not

(d) conduct himself in such a manner as to bring the public service into disrepute or bring discredit to the public service;

(g) be irresponsible;”

23.  It is the view of the Court also that even if the statement were to be taken as a whole, it could not possibly bring the Government into disrepute or cause it to appear foolish because-

(a) it is too brief and, more importantly, too cryptic;

(b) different audiences may interpret it differently; and (c) the Government itself could not possibly be impacted by the statement.

24.  The facts previously described raise a number of questions about the Appellant’s penalty that should be taken into account.

25.  First, as previously mentioned, proportionality is another basis for challenging the First Respondent’s decision.

26.   The Court found that the statement couldn’t have violated the legislative provisions, as we have indicated.

27.  Thus, the Appellant could not be found guilty of the accusation, and his dismissal could not be justified.

28.  Secondly, the right to seek mitigation before to punishment is also a well-established right.

29.  Since it is already common knowledge that sentences should not be handed down before the individual in question has a chance to be heard, the right to mitigate is both cliché and fundamental.

30.  This is a question of fairness that should be given to a person prior to punishment. especially when the disciplinary action was taken with the intention of dismissing him or lowering his rank.

31.  As for that, there’s always a chance the Appellant wouldn’t have been fired from his job if the opportunity to mitigate had been given.

Decision 1.    The Court of Appeal allowed the appeal, simultaneously setting aside the High Court’s order.
Key Take Away

1.     Judicial review is the legal authority and capability of a court to decide whether a legislative action or administrative rule conflicts with or contravenes the provisions of an existing law.

2.    In Malaysia, Order 53 of Rules of Court 2012 provides for application for Judicial Review and govern all applications seeking the relief specified in paragraph 1 of the Schedule to the Courts of Judicature Act 1964 as below-

(a) Habeas Corpus

(b) Mandamus

(c)  Prohibition

(d) Quo Warranto

(e)  Certiorari

(f)   Injunction

(g) Declaration

(h)  Monetary Compensation

 

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