DUNLOP INDUSTRIES EMPLOYEES UNION v. DUNLOP (M) INDUSTRIES BHD.

[1987] CLJ 86 (Rep) [1987] 1 CLJ 232

DUNLOP INDUSTRIES EMPLOYEES UNION v. DUNLOP (M) INDUSTRIES BHD.
SUPREME COURT, KUALA LUMPUR
ABDUL HAMID OMAR CJ (MALAYA), GEORGE SEAH SCJ, EUSOFFE ABDOOLCADER SCJ
[CIVIL APPEAL NO. 481 OF 1986]
24 JANUARY 1987

JUDGMENT

Eusoffe Abdoolcader SCJ:

The crux of the case in the matter before us which is res integra concerns the semantic content and ambit of the functional application by the Industrial Court of the provisions of s. 56, and more particularly subsection 2(b) thereof, of the Industrial Relations Act 1967 (“the Act”) in considering a complaint of non-compliance with a provision for advance notice to a trade union under a collective agreement taken cognizance of by it prior to a retrenchment exercise implemented instanter in breach thereof and a fait accompli at the time of the complaint. This will involve and require a plain consideration of the terms of s. 56 and other germane provisions of the Act, and to avoid tautology, all references to statutory provisions in this judgment relate to the Act. We would add that the Industrial Court was not a necessary party to have been joined as a second respondent to the application for certiorari and even less so as the second respondent in this appeal, and for the purposes of this judgment we will refer to Dunlop Malaysia Industries Berhad as the respondent.

The appellant and the respondent entered into a collective agreement in 1982 which was taken cognizance of by the Industrial Court in Cognizance No. 67 of 1983. The collective agreement in accordingly by virtue of s. 17(1) binding on the parties and their integrants, and in accordance with the provisions of subsection (2) of s. 17 it is an implied term of the contract between the respondent and its employees that the rates of wages to be paid and the conditions of employment to be observed under the contract shall be in accordance with the agreement unless varied by a subsequent agreement or a decision of the Industrial Court. Article 42 of the collective agreement deals with retrenchment, and para. (a) thereof provides that the respondent will give such advance notice as soon as it is reasonably possible to the appellant in writing of any redundancy of retrenchment but such notice shall not be less than two months prior to retrenchment. Paragraphs (b) to (e) of Article 42 provide for the several matters on which any retrenchment exercise will have to be premised and for the entitlement of retrenched employees to specified benefits. Article 42(a) is clearly designed to facilitate mutual consultation and negotiation to avert retrenchment and would appear to be a corollary to give effect to the provisions of Clauses 20 and 21 of the Code of Conduct for Industrial Harmony which the Industrial Court can take into consideration in making an award by virtue of s. 30(5A).

The appellant received a letter at about 2.30 p.m. on 24 June 1986 from the respondent explaining the need to retrench some 114 of its employees who are members of the appellant due to a sharp decline in its business, and after a meeting between the parties, notices of retrenchment were issued at about 3.30 p.m. that very day to 112 employees. The appellant wrote to the respondent the next day protesting on the basis of a complaint of the breach of Article 42(a) of the collective agreement and asking for the withdrawal of the letters to the appellant and the employees concerned. The respondent replied on 27 June reiterating its position and stating that the retrenched employees would receive two months’ salary in lieu of notice in addition to retrenchment benefits and other accrued benefits including retirement gratuity. The appellant then on the same day lodged a complaint with the Industrial Court of non-compliance by the respondent with the provisions of Article 42(a) of the collective agreement.

The Industrial Court heard the appellant’s complaint of non-compliance and held in an award handed down on 14 August 1986 that the appellant had made out its case and accordingly under the provisions of s. 56(2)(b) ordered that the 112 employees of the respondent purported to have been retrenched were to be reinstated without loss of seniority or of pay, subject to the conditions that (1) they were to report to the respondent for duty within one week of the date of the order, and (2) all moneys purported to have been paid for their retrenchment, if paid, were to be refunded to the respondent in full on the day they reported for duty. Pursuant to this award 56 employees were reinstated by restoring them on the payroll of the respondent but the 56 others failed to comply with the second condition imposed in the award as they were unable to refund the retrenchment payments they had received.

The respondent then, after obtaining leave therefor, applied to the High Court for certiorari to quash the award of the Industrial Court which Harun Hashim J did on 29 October 1986. The case presented for the respondent was basically to the effect that the question of non-compliance with Article 42(a) related to a retrenchment exercise and accordingly gave rise to a trade dispute and should have been dealt with as such under the Act and not as a case of non-compliance with a term of the collective agreement between the parties , while that for the appellant was that this was a clear case of non-compliance with a term of the collective agreement to justify a complaint to the Industrial Court under s. 56 and an order for relief under the provisions of sub-section (2) thereof. The learned Judge has not given any written judgement on the reasons for quashing the award but indicated when recording his order in his notebook his finding that the Industrial Court had acted in excess of jurisdiction by ordering reinstatement when dealing with a complaint under s. 56, the failure to give notice under Article 42(a) was procedural and insufficient to attract the application of s. 56(2)(b) by way of restitution and the matter of retrenchment involved a question of non-employment and therefore clearly gave rise to a trade dispute which was to be resolved by conciliation and if necessary by reference to the Industrial Court under s. 26.

For the purposes of considering the proper approach for the determination of the issue presented before us in relation to the requisite provisions of the Act in this appeal against the order made by the High Court, we can do no better than refer to and adopt this passage in the judgment of this Court in Foo Loke Ying & Anor. v. Television Broadcasts Ltd. & Ors. [1985] CLJ (Rep) 122:

We should perhaps reiterate that the starting point in statutory interpretation is to consider the ordinary meaning of the word or phrase in question, that is its proper and most known signification. Some three months ago Lord Scarman in delivering the leading judgment of the House of Lords in South West Water Authority v. Rumble’s [1985] 1AC 609 said (at p. 619):

‘… the language of the two paragraphs consists of ordinary English words which possess by their very imprecision the flexibility which is the hallmark of the English language, and which is one of the reasons for the survival of English as a living and worldwide tongue. I have no doubt that it would be contrary to the legislative purpose of the enactment to restrict or refine their breadth and flexibility in the context of this legislation, which has to cover a wide range of circumstances and situations present and future. A restrictive interpretation of the legislature’s language would defeat the broad purpose of this innovative and reforming statute.’

We are of the view that the provisions of the Act under consideration before us call for a purposive and literal construction which is one which follows the literal meaning of the enactment where that meaning is in accordance with the legislative purpose and applies where the literal meaning is clear and reflects the purposes of the enactment …

The provisions of the Act are abundantly clear to refute any resort to a purposive and strained construction which requires a strained meaning where the literal meaning is not in accordance with the legislative purpose. In Reg. v. Broadcasting Complaints Commission, Ex parte Owen [1985] 1 QB 1153 (at p. 1174), it was held that the converse is not correct, namely, that it is legitimate to adopt a purposive construction so as to prevent the application of a statute to a situation which on its purely literal construction it would apply. This is what we think the appellants are seeking to persuade the Court to do.

The respondent does not dispute the fact that there has been a breach of the provisions of Clause 42(a) of the collective agreement. In this regard, two essential considerations assume vital significance. First, the appellant is not challenging the right of the respondent to retrench its employees but is only complaining of its failure to give the requisite advance notice provided for in Clause 42(a). If the complaint were of the breach of the provisions of any of the other paragraphs of Clause 42 of the collective agreement or if any dispute were to arise as to their implementation or application, the position would be entirely different as then there would clearly be a trade dispute within the connotation thereof in the definition of that term in s. 2 since they relate to principles affecting redundancy or retrenchment as such. And second, the advance notice in relation to any redundancy or retrenchment under para. (a) of Clause 42 is to be given to the appellant as the trade union of employees and a party to the collective agreement. As we have pointed out earlier, the purpose of the advance notice under Clause 42(a) must surely be to give time and make way for mutual consultation and negotiation in line with the provisions of the Code of Conduct for Industrial Harmony so as to obviate and abort any imminent trade dispute as a result.

The complaint of non-compliance with an award or collective agreement taken cognizance of is made under s. 56(1) and the Industrial Court can then give the relief specified in subsection (2) of that section. In regard to the matter before us where retrenchment was implemented as an accomplished fact but carried out in breach of the provisions of Article 42(a) of the collective agreement for advance notice to the appellant of not less than two months prior to the retrenchment, it is manifestly obvious that the only provision in s. 56(2) which can apply in such circumstances is para. (b) thereof which empowers the Industrial Court to “make such order as it deems fit to make proper rectification or restitution for any contravention of any term of such award or collective agreement”. Section 56 must be read, construed and understood in the light of s. 52(2) which prescribes that the provisions of the Act relating to trade dispute other than s. 26(2) and s. 30(4) shall apply to any matter referred to or brought to the notice of the Industrial Court under the Act. It accordingly follows that in dealing with a complaint of non-compliance under s. 56 the Industrial Court has all the powers with which it is invested in relation to trade disputes other than the two excepted provisions of the Act specified in s. 52(2). The provisions of s. 30(5) and (6) will also therefore equally apply in considering a complaint under s. 56.

Against the back drop and in the context of the several provisions of the Act we have referred to and discussed, it is abundantly clear that the Industrial Court could in the circumstances of the complaint of non-compliance which is the subject matter of this appeal make the order that it did for the retrenched employees to be reinstated, and this order was properly made in accordance with the provisions of s. 56(2)(b) for the purposes of making proper rectification and restitution for a contravention of a term of the collective agreement. It is in our view both an exercise of the power of rectification as well as restitution – rectification (that is to say, correction, putting right and making good) of the situation that had developed as a result of the contravention of Clause 42(a) by the respondent and restitution in restoring the status quo ante as a terminus a quo to lay open the way to the respondent to re-institute a retrenchment exercise if it is so minded but this time in compliance with the provisions of Clause 42 of the collective agreement. We would think that any other construction would emasculate and render impotent and otiose the provisions of s. 56 in circumstances such as those before us.

Mr. Das for the respondent however contends that any such construction would be to give a power to the Industrial Court not intended or envisaged by the Act. We think that, perhaps understandably, he contends to this effect as he cannot do otherwise in the light of his submission that non-compliance with Article 42(a) in the event gave rise to a trade dispute connected with the matter of employment or non-employment of workmen within the definition thereof in s. 2. When however we asked him, if indeed he was correct in his contention, what manner of relief s. 56(2)(b) would then encompass, he submits that it must necessarily refer to monetary compensation – a point not taken in the Court below and raised before us for the first time. We must wholly dissent, as, descending to mundane reality from the ethereal heights of hypothesis and speculation, this argument cannot actually withstand even casual scrutiny.

We must reiterate once again that the advance notice under Article 42(a) of the collective agreement is required to be given to the appellant and not to the individual employees affected. The retrenched employees would get their requisite salary in lieu of notice in addition to retrenchment benefits and other accrued benefits including pro-rata bonus and retirement gratuity. If then restitution in s. 56(2)(b) is to mean compensation in terms of money, it must mean compensation to the appellant as the trade union and not to its individual members who are affected by the exercise. How then is this compensation to be assessed and quantified and what is the measure of damages? How would any monetary award compensate the appellant for the deprivation of the opportunity of consultation and negotiation on behalf of its members prior to the implementation of retrenchment envisaged by the Code of Conduct for Industrial Harmony? And how would any compensation to the appellant as a trade union in any event, even if ascertainable, benefit its members affected as a result of the breach of the provision for advance notice to their trade union? These questions have only to be posed to manifest the imponderables involved, and merely raising these queries and hypothesizing on the answers, or rather the lack of any effective or rational ones, would suffice to evince ex visceribus the intrinsic inanity of the very suggestion of monetary compensation in the circumstances of this case. We would add that, if indeed restitution in s. 56(2)(b) can in fact mean compensation in the circumstances of the matter before us as contended for the respondent, the upshot at the very least would be to open the door to abuse in spawning and countenancing an unbridled licence for legalised breach of one or more terms of a collective agreement in such circumstances with virtual impunity and only on the sanction of a minimal imposition grossly incommensurate with the benefits the employer would reap by virtue of non-compliance therewith.

We are accordingly of the firm view that the provisions of s. 56(2)(b) and 52(2) clearly empowered the Industrial Court to make the award it did in dealing with the complaint of the appellant of non-compliance by the respondent with the provisions of Article 42(a) of the collective agreement. Our conclusion is wholly in consonance with the principle that differences and disputes in industrial relations ex necessitate rei require to be determined and disposed of as expeditiously as possible – a prescriptive postulate statutorily endorsed and affirmed in s. 30(3). Section 56 was clearly enacted to effectuate this requirement and end, as otherwise recourse would have to be had to a reactivation ab initio and repetition of the whole tedious exercise of the conciliation and consequential process under s. 26 by reference to the Industrial Court once again for resolving a trade dispute in a clear and uncontroverted case of mere non-compliance with a term of an award or collective agreement taken cognizance of by the Industrial Court.

In the event and for the reasons we have adumbrated, at the end of the day after hearing argument we allowed this appeal with costs here and below and set aside the order of the learned Judge which of course means that the respondent’s application for certiorari to quash the award of the Industrial Court made on 14 August 1986 stands dismissed. The deposit lodged in Court by way of security will be paid out to the appellant.

Also found at [1987] 1 CLJ 232

 

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TANJONG JAGA SDN. BHD. v. THE MINISTER OF LABOUR AND MANPOWER & ANOR.

[1987] CLJ 368 (Rep) [1987] 2 CLJ 119

TANJONG JAGA SDN. BHD. v. THE MINISTER OF LABOUR AND MANPOWER & ANOR.
SUPREME COURT, KUALA LUMPUR
ABDUL HAMID OMAR CJ (MALAYA), GEORGE SEAH SCJ, EUSOFFE ABDOOLCADER SCJ
[CIVIL APPEAL NO. 132 OF 1985]
27 AUGUST 1986

JUDGMENT

Eusoffe Abdoolcader SCJ:

The legitimacy of the institutional decision of the first respondent, the Minister of Labour and Manpower, in resolving a trade union recognition dispute statutorily entrusted to him under the provisions of s. 9(5) of the Industrial Relations Act 1967, (`the Act’) has yet once again been brought into issue in this appeal before us against the refusal of the High Court to grant an order of certiorari to quash his decision made on 3 April 1984 to the effect that the appellant which operates a night-club under the style of Shangri-la Nite club do accord recognition to the second respondent which is a trade union of employees in the hotel, bar and restaurant business in peninsular Malaysia to represent its employees other than those employed in a managerial, executive, confidential or security capacity.

I should perhaps observe at this stage, as I did right at the very outset of the hearing in Court, that except for the matter of the eligibility of the appellant’s employees for membership in the second respondent on the question whether the latter as a trade union enspheres such persons in the light of the nature of their employment, all the other matters put in issue in these proceedings were in fact raised and decided by the Federal Court in Pahang South Union Omnibus Co. Bhd. v. Minister of Labour & Manpower & Anor.[1981] CLJ 74 (Rep), with a wholesale transportation of the arguments taken from that to the present case even to the extent of resorting to the curious dichotomy of general as opposed to limited recognition of a trade union which is nowhere provided for, and so much so that the written submission Mr. Kulasegaran for the appellant has sought to put in these proceedings has a reference to the Transport Workers union of peninsular Malaysia instead ex facie to be so but says however there is, as he puts it, `a world of difference’ in the instant matter from Pahang Omnibus in view of the provisions of para. 4(1)(c), of the Industrial Relations Regulations 1980, (`the Regulations’) which came into operation on 15 September 1980 concomitantly with the amendments effected to s. 9 of the Act.

On 18 August 1983 the second respondent made a claim for recognition by the appellant under s. 9(2) of the Act in respect of its employees but the appellant disputed the fact that the majority of its employees were members of the second respondent and wrote to the director general of Industrial Relations asking for certain particulars of its employees in relation to this claim. The director general refused this request and in turn asked the appellant to submit a list of its employees which was duly sent. As there was no compliance with s. 9(3) of the Act the second respondent reported the matter in writing on 13 September 1983 under s. 9(4) to the director general who then referred it to the Registrar of Trade Unions pursuant to s. 9(4B) of the Act and para. 4(1)(c) of the Regulations for a membership check, and this apparently disclosed that 65.8% of the appellant’s employees were within the scope of union representation by the second respondent as at 18 August 1983 which was the date of the claim for recognition. The appellant was then advised to recognise and to convey its decision to that effect to the second respondent within fourteen days failing which action would be taken under s. 9(4C) of the Act.

The appellant apparently was dissatisfied with the outcome of the membership check by the Registrar and carried out a survey of its own which allegedly showed that the second respondent did not in fact represent a majority of its employees. I should perhaps pause to observe immediately that no point was taken by or on behalf of the appellant then or at any subsequent stage before the director general, the Registrar or the first respondent as to the ineligibility of its employees to be members of the second respondent by virtue of the nature of their employment. The director general by a letter dated 16 January 1984 rejected the appellant’s survey, reaffirmed the Registrar’s findings and stated that if recognition was not accorded by 25 January 1984 he would notify the first respondent under s. 9(4C) of the Act. The matter was accordingly referred to the first respondent who gave his decision on 3 April 1984 under the provisions of s. 9(5) of the Act according recognition to the second respondent. The appellant then applied to the High Court for certiorari to quash the first respondent’s decision, but this was refused on 14 March 1985.

The appeal before us was argued basically on three broad grounds, namely, (1) the nature of the business of the appellant as a night-club was such as to render its employees ineligible for membership in the second respondent which it was contended could only represent workmen in the hotel, bar and restaurant business; (2) the failure to comply with the provisions of para. 4(1)(c) of the regulations; and (3) breach of the rules of natural justice.

The argument advanced in this appeal primarily and substantially on a composite exposition of all three grounds revolved around the question of the failure of natural justice in the decision arrived at by the first respondent according recognition to the second respondent, and I must reiterate that all the points taken in this regard and the arguments advanced in support thereof were in fact a regurgitation of the very points raised and determined in Pahang Omnibus.

I think it might perhaps be just as well if at the outset I enter into a brief discourse on the function of judicial review and, as the crux of the appellant’s case essentially centres on the issue of natural justice I also touch on the principles relating thereto pertinent to the instant matter. It is of considerable significance to bear in mind that judicial review is of the hearing and not of the decision. The House of Lords firmly restated this principle in Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155 in holding that judicial review is concerned not with the decision but with the decision-making process, and that unless that restriction on the power of the Court is observed the Court will, under the guise of preventing the abuse of power, be itself guilty of usurping power. This exposition was cited with approval by Lord Fraser of Tullybelton in the House of Lords in Council of Civil Service Unions & Ors. v. Minister for the Civil Service [1985] 1 AC 374 (at p. 401). I would also refer to my judgment in Pahang Omnibus (at p. 78) in regard to the clear distinction between an appeal and judicial review and the essential scope and limitations of the latter.

On the matter of natural justice and the right to a hearing, the fundamental proposition about the content of the audi alteram partem rule has been stated time and again: it is variable. The rules are not inflexible principles and may vary in their content in the circumstances of the case and in their ambit in the context of their application [Pahang Omnibus (at p. 80) and the cases there-in cited]. I have elaborated on this in my judgment in Merdeka University Berhad v. Government of Malaysia [1981] CLJ 191 (Rep) (at pg. 212), affirmed by the Federal Court [1982] 2 MLJ 243 (at p. 252). In Regina v. Secretary of State for the Environment, Ex parte Norwich City Council [1982] 1 QB 808 May LJ, in the course of his judgment in the English Court of Appeal said (at p. 837-838):

However, although the general principle that justice must not only be done but be seen to be done is so well known, it is not to be applied without further thought to the circumstances of any particular case. As Sachs LJ said in In re Pergamon Press Ltd. [1971] Ch. 388, 403:

In the application of the concept of fair play, there must be real flexibility, so that very different situations may be met without producing procedures unsuitable to the object in hand. That need for flexibility has been emphasised in a number of authoritative passages in the judgments cited to this Court. In the forefront was that of Tucker LJ in Russell v. Duke of Norfolk [1949] 1 All ER 109, 118, and the general effect of his views has been once again echoed recently by Lord Guest, Lord Donovan and Lord Wilberforce in Wiseman v. Borneman [1971] AC 297, 311, 314 and 320. It is only too easy to frame a precise set of rules which may appear impeccable on paper and which may yet unduly hamper, lengthen and, indeed, perhaps even frustrate (see per Lord Reid in Wiseman v. Borneman at p. 308) the activities of those engaged in investigating or otherwise dealing with matters that fall within their proper sphere. In each case careful regard must be had to the scope of the proceeding, the source of its jurisdiction (statutory in the present case), the way in which it normally falls to be conducted and its objective.

In Regina v. Secretary of State for the Environment, Ex parte Brent London Borough Council & Ors. [1983] 1 QB 593 Ackner LJ said (at p. 642):

It is not possible to lay down rigid rules as to when principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject matter: Reg. v. Gaming Board for Great Britain, Ex parte Benaim & Khaida [1970] 2 QB 417, per Lord Denning MR at p.430. It is clear that different classes of cases were recognised in Ridge v. Baldwin [1964] AC 40, see per Lord Reid, at p. 72.

In Regina v. Secretary of State for the Home Department, Ex parte Gunnell, The Times, 3 November 1983, the rules of natural justice were held not to be applicable to the revocation of a prisoner’s parole. Every case must accordingly fall somewhere on a line of a continuum ranging from minimum standards to rigorous standards approaching the normal procedures of the superior Courts, although the superior Courts will not always be required to observe the higher standards [as for example, in Official Solicitor to the Supreme Court v. K. & Anor. [1965] AC 201].

The modern concept stems from the advent of the duty to act fairly as one of the prime functions of judicial control of executive and administrative determinations to ensure that the fundamentals of fair play have been preserved. Before this concept developed and crystallized however recourse was usually had to the judgment of Lord Loreburn LC in Board of Education v. Rice [1911] AC 179 (at p. 182), and indeed in this appeal Mr. Kulasegaran specifically relies on the passage in question. The process of decision in English administrative law so described was put to the test of natural justice in the leading case of Local Government Board v. Arlidge [1915] AC 120 in which a houseowner applied to the Court to quash the decision of the board dismissing an appeal after having held the required statutory inquiry against a closing order by local authority in respect of his house as being unfit for human habitation, claiming that it was contrary to natural justice on the grounds that he was entitled to be heard orally by the deciding officer whose identity was not disclosed in the order of the Board and that he was entitled to see the report of the inspector who had conducted the public local enquiry on behalf of the board. The House of Lords rejected the claim of the house owner and so far from disapproving the procedure adopted by the department, regarded it as complying with all the essentials of justice and as having done complete justice to the houseowner. Viscount Haldane LC said (at p. 132):

Such a body as the Local Government Board has the duty of enforcing obligations on the individual which are imposed in the interests of the community. Its character is that of an organisation with executive functions. In this it resembles other great departments of the state. When, however, Parliament entrusts it with judicial duties, Parliament must be taken, in the absence of any declaration to the contrary, to have intended it to follow the procedure which is its own, and is necessary if it is to be capable of doing its work efficiently.

Against the backdrop of the principles I have adumbrated I now turn to deal with the first point taken for the appellant, scilicet, the ineligibility of the appellant’s employees for membership in the second respondent by reason of the nature of the business carried on by the appellant. A trade union is defined in s. 2(1) of the Trade Unions Act 1959, to mean, so far as relevant for present purposes, any association or combination of workmen within any particular trade, occupation or industry or within any similar trades, occupations or industries, and subsection (2) of s. 2 enacts that for the purposes of the definition of `trade union’ in subsection (1) and the registration of a trade union, `similar’ means similar in the opinion of the Registrar. It is abundantly clear therefore that the Registrar determines the scope and ambit of trade union membership in relation to the nature of the business of the employer and this is evident from the decision of the Federal Court in Minister of Labour & Manpower & Anor. v. Paterson Candy (Malaysia) Sdn. Bhd. [1980] 1 LNS 46 . The direct nexus of this power entrusted to the Registrar to the Act appears in the definition of `trade union’ in s. 2 of the Act to mean any trade union registered under any law relating to the registration of trade unions and also in the provisions of s. 9(4B)(b) of the Act which empower the director general in carrying out his functions under subsection (4A) of s. 9 thereof to refer to the Registrar for his decision any question on the competence of the trade union of workmen concerned to represent any workmen or class of workmen in respect of whom recognition is sought to be accorded, and this paragraph further provides that the performance of duties and functiuons by the Registrar under this paragraph shall be deemed to be a performance of his duties and functions under the written law relating to the registration of trade unions.

In Mohamed Nordin bin Johan v. Attorney-General, Malaysia [1983] 1 CLJ 271 (Rep) the question in issue was whether the exercise by the Attorney-General of his power under reg. 2(2) of the Essential (Security Cases) Regulations 1975, which empowers him to issue a certificate that the commission of any offence against any written law in his opinion affects the security of the Federation can be challenged. The Federal Court held that this regulation attracts the pure judgment of the Attorney-General which cannot be subjected to an objective test and is not accordingly amenable to judicial review, citing with approval and following the decision of the Privy Council in Hubli Electricity Company Limited v. Province of Bombay LR 76 IA 57 in which it was held on the construction of the particular statutory provision in question that it was the subjective opinion of the government which was relevant and not the grounds on which the opinion was based.

In the matter before us there was no lis and no adversary and it was the Registrar’s subjective judgment based on his own observation and opinion as disclosed in his affidavit that was relevant and pertinent. A highly instructive authority in relation to this aspect is the decision of the English Court of Appeal in Regina v. Chief Registrar of Friendly Societies, Ex parte New Cross Building Society [1984] 1 QB 227. I would refer to the judgment of Sir John Donaldson MR (at p. 256) and of Griffiths LJ who said (at p. 260) that the Court must take broad view of the decision and not allow itself to be bogged down in minutiae, or led into the error of taking over the role of a fact finding tribunal, and indeed a statement to this very effect was made in Pahang Omnibus (at p. 78). And again (at p. 264) Griffiths LJ said:

In making his inquires the registrar is not conducting an adversarial inquiry in which two sides lay out before him all the evidence they wish to take into account. The registrar makes his own inquires and he has extensive powers and a large department at his disposal to do so. The registrar is engaged in an inquisitorial, not adversarial process.” I think it would also be useful to quote this passage from the judgment of Slade LJ (at p. 273):

In my opinion, however, these are the limits of the powers of the Court to interfere. It is not at liberty merely to substitute its own opinion for that of the chief registrar (see the Tameside case [Secretary of State for Education & Science v. Tameside Metropolitan Borough Council [1977] AC 1014] at p. 1064, per Lord Diplock); nor is it at liberty to act as an appellate Court from the chief registrar’s decision on questions of fact. If the society were in a position to prove by compelling evidence that a particular finding of crucial fact by the chief registrar was clearly wrong, this might give the Court power to intervene. Subject to this, however, on this application for judicial review, the society is not, in my opinion, entitled to call on the chief registrar to justify his findings of fact by evidence nor to expect the Court to reverse findings of fact made by the chief registrar, for the purpose of upsetting the exercise of his discretionary powers.

Mr. Kulasegaran however submits that it was incumbent on the Registrar to make due inquiry by considering evidence from both sides – virtually treating the matter as a lis inter partes – before arriving at a decision on the capacity of the second respondent in relation to representation of the appellant’s employees in the light of the business involved. There is no provision or requirement for due inquiry as such and all that was necessary was a fair and reasonable decision arrived at by the Registrar in the exercise of his discretion. Even if there was a specific statutory requirement for due inquiry, it is interesting to note the decision in Regina v. The Staines Union [1893] 69 LT 714. Section 299 of the Public Health Act 1875 empowered the Local Government Board to enforce the performance of its duty to provide sufficient sewers by a defaulting local authority, where the Board was satisfied, after due inquiry, that the authority had been guilty of the alleged default. The defaulting authority in that case, which was being proceeded against by way of mandamus, contended that the Board had not in fact held the `due enquiry’ required by the statute, for the hearing officer had refused to allow certain meterial evidence tendered by the authority. The Court, however, rejected this contention, Cave J stating (at p. 716):

The objection raised was, that there had not been due inquiry, but I have very grave doubt whether we have anything to do with the question of due inquiry. The Local Government Board – and not this Court – had to decide. They had to be satisfied, and though, no doubt, they were to be satisfied after `due inquiry’. these words did not mean that the Queen’s Bench Division had to exercise its ordinary jurisdiction, or rather an appeal jurisdiction, on what was `due inquiry’. I have always protested against the attempt of the Courts to take part in jurisdiction which they had nothing whatever to do with. So long as the question is one of law it is quite proper that the Courts should pronounce an opinion; but what we are now asked to do is to see whether there has been any inquiry in point of law. If it could be shown that there was no inquiry at all, there might be some ground for refusing this application for a mandamus. But it was admitted that there had been an inquiry, and an inquiry which had satisfied the Local Government Board.

In exercising his functions in this regard, the Registrar had an unfettered discretion which was subject to a duty to act responsibly in the Wednesbury sense [Associated Provincial Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223], that is to say, if a decision-making body comes to its decision on no evidence or comes to an unreasonable finding – so unreasonable that a reasonable person would not have come to it – then the Courts will interfere. The Wednesbury principle refers in effect, in the words of Lord Diplock in Bromley London Borough Council v. Greater London Council & Anor. [1983] AC 768 (at p. 821), to decisions that, looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them. I cannot see in the matter before us that the Registrar has failed to exercise his discretion within this constraint. Now if the Registrar had sought to foist a gaggle of goblins on to a union of saints, then Lucifer or the archangles might well have had a justifiable complaint, but who could expostulate if it had been a posse of pixies instead?

It is not necessary in the circumstances to go at any length into the nature of the appellant’s business as Mr. Kulasegaran has sought to do, but I would only refer to a decision of the House of Lords to show that the opinion of the Registrar in this case was wholly justified. In Carter v. Bradbeer [1975] 1 WLR 1204; 3 All ER 158; 61 Cr App R275 the defendant was the holder of a justices’ on-licence and a music, singing and dancing licence for a club to which a special hours certificate applied to the whole of the premises. The club premises consisted of two floors on each of which there was a large room with a dancing area with tables and chairs and a counter from which intoxicating liquour was served. One floor also had a counter for serving food which could be consumed on either floor. Music was played but there was only occasional dancing and the sale of food was minimal. The main activity which took place at the club was the consumption of intoxicating liquour. The defendant was charged and convicted on eight counts of selling intoxicating liquour after the permitted hours. The question that arose was which part of the premises constituted the `bar’. The House of Lords held the word `bar’ in the relevant statute had more than one meaning and might denote (a) a counter over which drink was served or (b) the room containing the counter, and further the definition of `bar’ in another section of the statute extended that word so as to comprehend not only what in ordinary parlance would be described as a bar but also a place which was exclusively or mainly used for the sale and consumption of intoxicating liquour, whether or not it contained a bar counter. Accordingly four of the Law Lords held that the counters were `bars’, and alternatively one of them held that the rooms on each floor were bars.

The Registrar in the instant appeal affirmed he `was satisfied that the major business of the (appellant) is the operation of a bar and therefore it comes within the scope of r. 3 of the Rules of the second respondent’, and this is substantiated by the two affidavits affirmed by the Selangor branch secretary of the second respondent. It might well therefore be, in the light of this and the decision in Carter v. Bradbeer, that even if the appellant was accorded a hearing on this aspect as he claims he was entitled to, it would have made no difference. I would refer in this regard to my judgment in Merdeka University (at p. 212):

In Malloch v. Aberdeen Corporation [1971] 1 WLR 1578 Lord Reid (at p. 1582) thought that if it could be clearly demonstrated that whatever the appellant in that case said could make no difference, that `might be a good answer’, and Lord Wilberforce said (at p. 1595):

A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the Courts, unless behind it there is something of substance which has been lost by the failure. The Court does not act in vain. This seems to imply that the discretion to refuse a remedy may be exercised when the Court judges that natural justice would make no difference or that there was no prejudice.

In Cinnamond & Ors. v. British Airports Authority [1980] 1 WLR 582 Brandon LJ said in his judgment in the English Court of Appeal (at p. 593) that the plaintiffs in that case could not complain of not having an opportunity would have availed them nothing and they were not prejudiced thereby, expressly relying on and adopting what was said by Lord Reid and Lord Wilberforce in Malloch v. Aberdeen Corporation which I referred to and cited in Merdeka University.

I therefore find that the first point taken for the appellant in relation to the eligibility of the appellant’s employees for membership in the second respondent is wholly devoid of any merit or substance whatsoever.

The other two grounds taken by Mr. Kulasegaran, namely, non-compliance with para. 4(1)(c) of the Regulations and failure of natural justice, appear to me to be so interlinked and inosculated that they can and should be considered together. Mr.Kulasegaran submits that the amendments effected in 1980 and the enactment of the Regulations has changed the situation to such an extent that the decision in Pahang Omnibus is distinguishable. I must wholly dissent from any such proposition. Paragraph 4(1)(c) of the Regulations empowers the Director General in carrying out his functions under Part III of the Act (which relates to the recognition and scope of representation of trade unions) to request the Registrar to ascertain and inform him as to whether or not the workmen in respect of whom the claim for recognition is made are members of the trade union making the claim. This paragraph is only a procedural provision to implement the substantive provisions enacted in s. 9(4B) of the Act which I have already referred to and set out earlier. The substantive provision of s. 9 of the Act enable the director general to refer to the Registrar for his decision any question on the competence or scope of union representation. Surely when the Director General in exercising his powers under the Act and the regulations refers the matter to the Registrar, the Registrar must ascertain before he decides any question of competence under s. 9(4B) of the Act. Mr.Kulasegaran complains that in the circumstances of this case the Registrar has failed to ascertain, and in answer to a specific question from me purports to advance the astounding proposition that it is possible to decide without ascertaining! I need do no more than indicate his reply, as merely stating it suffices ex visceribus to evince its intrinsic inanity.

The examination of the claim for and decision on recognition of the second respondent in this matter reveals virtually a repetition of what occurred in Pahang Omnibus in respect of the sins of omission alleged to have been committed by the Registrar and the various steps suggested that he should have taken in the process of deciding the issue. The affidavits of the director-general, the deputy Registrar of Trade Unions, who was the acting Registrar at the material time, and the first respondent all disclose that the latter has acted fairly, properly and reasonably in the exercise of his broad discretion in the matter under s. 9(5) of the Act and has taken all relevant matters into consideration and had sufficient evidence and material before him for the purposes of arriving at his examining the several points taken in this regard on behalf of the appellant as this would merely be a reduplication of the judgment in Pahang Omnibus.Section 9(6) of the Act furthermore postulates a privative clause to the effect that the decision of the first respondent under subsection (5) shall be final and shall not be questioned in any Court. This clause is of course ineffective as regards jurisdictional review but there is no jurisdictional error of any kind whatsoever at all in this case.

In the event and for the reasons I have given, at the conclusion of argument the learned Chief Justice, Malaya and I dismissed this appeal with costs. The deposit in Court will be paid out to the first respondent to account of his taxed costs, and I should perhaps observe that the costs of the first respondent both here and in the Court below will of course be carried on a solicitor and client basis pursuant to the provisions of s. 2(b) of the Public Authorities Protection Act 1948 a case of Pahang Omnibus all over again!

George Seah SCJ:

The facts relevant to this appeal may be stated shortly.

The 2nd respondents, Kesatuan Kebangsaan Pekerja-Pekerja Hotel, bar dan restoren Semenanjung Malaysia or National Union of Hotel, bar and restaurant Workers, Peninsular Malaysia are a registered trade union, and the appellant, Tanjong Jaga Sdn. Bhd. is a limited company trading under the style of Shangri-la Nite club. On 18 August 1983 the 2nd respondents made a claim to the appellant for general recognition pursuant to s. 9(2) of the Industrial Relations Act 1967,) (as amended) (hereinafter referred to as the Act). The appellant did not accord recognition and on 6 September 1983 they wrote to the director-general of Industrial Relations attached to the Department of Industrial Relations, Malaysia (hereinafter called the director-general) for certain particulars. The director-general declined to supply the information asked for but instead directed the appellant to furnish to him a list of their employees as at 18 August 1983. This was complied with by the appellant on 23 September 1983 Meanwhile, the 2nd respondents reported the matter to the director-general under s. 9(4) of the Act after failing to receive any response from the appellant. To try to resolve the matter the director-general requested the Registrar of Trade Unions (hereinafter called the acting Registrar) on 3 October 1983 to carry out a membership check pursuant to reg. 4(1)(c) of the Industrial Relations Regulations 1980,. After scrutinising the application forms, receipt books, minutes book and membership register, the acting Registrar stated that the examination disclosed that 65.8% of the workmen employed by the appellant were members of the 2nd respondents as on 18 August 1983. In computing this percentage, the acting Registrar did not take into account the change (if any) in the number of members after 18 August 1983 because for the purpose of recognition, he stated that only the number of members as at the date of the claim is relevant. This result was conveyed to the Director-General on 1 November 1983, who in turn informed the appellant. When recognition was still not accorded by the appellant the director-general notified the Minister of Labour on 27 January 1984 pursuant to s. 9(4C) of the Act. After having carefully considered the reports of the director-general and the acting Registrar of Trade Unions, the Minister decided on 3 April 1984 pursuant to s. 9(5) of the Act that the appellant should accord recognition to the 2nd respondents. This was duly conveyed to the appellant on 5 April 1984. Since a decision of the Minister under sub-section 5 of s. 9 of the Act that shall be final and shall not be questioned in any Court, the appellant applied for and was given leave by a Judge of the High Court to issue a certiorari to quash the decision of the Minister on the ground that it was a nullity (see South East Asia Firebricks case [1980] 2 MLJ 165). After hearing the application the learned Judge dismissed the originating motion hence this appeal to the Supreme Court.

The first point taken by learned Counsel for the appellant was that in carrying out the membership check under reg. 4(1)(c) of the Industrial Relations Regulations 1980, which came into force on 15 September 1980, the acting Registrar failed to comply with the rules of natural justice in that firstly, he refused to given an opportunity to the appellant to examine the documents submitted to him by the 2nd respondents and secondly, he failed to give to the appellant a chance to be heard. In my opinion, this submission had been dealt with by the then Federal Court in the case of Pahang South Union Omnibus Co. Bhd. v. Minister of Labour & Manpower & Anor.[1981] CLJ 74 (Rep) I would respectfully agree with this decision. This ground therefore fails. It seems to me that the function of the Registrar of Trade Unions under reg. 4(1)(c) of the Industrial Relations Regulations 1980, is to verify the membership register of the union claiming for recognition and to report the result of his finding to the director-general of the Department of Industrial Relations. It is doubtful whether he is required to make any decision under the sub-paragraph.

The other point argued by learned Counsel for the appellant was that the 1st respondent, the Minister of Labour, failed to consider and/or to decide whether the employees of the appellant were eligible to become members of the 2nd respondents in view of the fact that the appellant was operating a night-club and not a hotel, bar or restaurant. In my opinion, that is the nub of the appellant’s case.

Now, it was not in dispute that the director-general requested the acting Registrar to carry out a membership check of the 2nd respondents under reg.4(1)(c) of the Industrial Relations Regulations 1980, Instead of confining himself to this matter the acting Registrar proceeded to deal and decide some question which was not remitted to him for his determination, viz. the issue which formed the subject-matter of the second ground of appeal. This was what the acting Registrar said in para. 2 of his affidavit:

After a visit to the Shangri-la Nite club, I ascertained that It was a bar-cum-night-club and its workmen apart from those excluded under s. 9(1) of the Industrial Relations Act 1967, came within the ambit of r. 3 of the Rules of the second respondents.

In deciding this question it was plain that the acting Registrar did not comply with the requirements of natural justice.

In the case of Board of Education v. Rice [1911] AC 179 @ 182 Lord Loreburn LC said:

Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view … The appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus or certiorari.

This passage appears to have been approved by the House of Lords in Local Government Board v. Arlidge [1915] AC 120.

In the earlier case of Spackman v. Plumstead Board of Works [1885] 10 App Cas 229 the question raised was whether the certificate of the superintendent architect was conclusive in fixing the general line of building under the Metropolis Management Act 1862 and Lord Selborne said at p. 240:

No doubt in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a Judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their views.

The general tests have been adopted and followed by me in the case of Wong Ah Suan v. Sarawak Electricity Supply Corp.[1982] CLJ 50 (Rep) I see no valid reason to depart from this view and would apply it whenever the Registrar of Trade Unions had been requested to make a decision under s. 9(4B)(b) of the Act on the competence of the trade union of workmen concerned to represent any workmen or class of workmen in respect of whom recognition was sought to be accorded.

In Anisminic v. Foreign Compensation Commission [1969] 2 AC 147 @ 171 Lord Reid expressed the opinion that a decision made or given in contravention of the rules of natural justice would be a nullity. His Lordship was also of the view that a decision would be null and void if in perfectly good faith the officer had misconstrued the provisions giving him the power to act so that he failed to deal with the question remitted to him and decided some question which was not so remitted. Applying this test to the facts of this case, in my opinion, the purported decision of the acting Registrar that the employees of the appellant (except those employed in managerial, executive, confidential or security capacity) were eligible to become members under r. 3 of the 2nd respondents’ constitution was a nullity in that firstly, the acting Registrar decided a question which was not remitted to him for his decision and the appellant had no notice that the acting Registrar would be dealing with this question. Secondly, in purporting to make this ruling, the acting Registrar had failed to observe the principles of natural justice.

Now, when the 1st respondent decided that recognition be accorded to the 2nd respondents by the appellant pursuant to s. 9(5) of the Act the Minister of Labour stated in his affidavit that “My decision under the said section is made only after careful consideration of all the reports of both the Director-General of Industrial Relations and the acting Registrar of Trade Unions.” In my opinion, before the Minister had jurisdiction to make a decision or Order under s. 9(5) of the Act he must first of all be satisfied that the 2nd respondents were competent to represent that class of workmen in the employment of the appellant, that is to say, that the particular class of workmen were eligible to apply and to become members under r. 3 of the constitution of the 2nd respondents. Until this important question had been properly resolved by the acting Registrar, in my opinion, any membership check pursuant to reg. 4(1)(c) of the Industrial Relations Regulations 1980, would be an exercise of futility. It would be like putting the cart before the horse.

Since the report of the acting Registrar had played a material part in the Minister’s decision dated 3 April 1984 directing the appellant to accord recognition to the 2nd respondents and since, in my opinion, the Minister had no jurisdiction to make the decision or Order under s. 9(5) of the Industrial Relations Act 1967, (as amended) until he was satisfied that the 2nd respondents were legally competent to represent that class of workmen in the employ of the appellant (see Inchcape (M) Holdings Bhd. v. Gray [1984] 2 CLJ 77 (Rep) I am constrained to hold that the purported decision or Order of the 1st respondent was a nullity (Maradana Mosque Trustees v. Mahmud [1967] 1 AC 13).

Reference was made to a dictum of Lord Wilberforce in the case of Malloch v. Aberdeen Corp. [1971] 1 WLR 1579 @ 1595 which reads:

A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the Courts, unless behind it there is something of substance which has been lost by the failure. The Court does not act in vain.

Lord Scarman discussed this dictum in the Privy Council in the case of Wong Ah Suan v. Sarawak Electricity Supply Corp.[1982] CLJ 50 (Rep). (supra) and at p. 57 His Lordship said:

Their Lordships think it impossible on the facts of this case to know what the Governor-in-Council would have decided, had the plaintiff been given an opportunity to develop orally or in writing his full case before the decision was taken. It cannot be said with any certainty that the decision would have been the same.

In other words, the dictum only applies in clear and obvious cases and the observations of Lord Scarman, in my opinion, aptly apply to the facts of this case.

For the above reasons, I would issue an order of certiorari in terms of the originating motion. The appeal would therefore be allowed with costs here and below.

Also found at [1987] 2 CLJ 119

 

Posted in Administrative Law, Industrial Relations Law

DATUK T.P. MURUGASU v. WONG HUNG NUNG

[1988] 1 CLJ 30 (Rep) [1988] 1 CLJ 119

DATUK T.P. MURUGASU v. WONG HUNG NUNG
SUPREME COURT, KUALA LUMPUR
SALLEH ABAS LP, WAN SULEIMAN SCJ, EUSOFFE ABDOOLCADER SCJ
[CIVIL APPEAL NO. 212 OF 1987]
19 JANUARY 1988

JUDGMENT

Eusoffe Abdoolcader SCJ:

The respondent is a football player registered with the Selangor Football Association which is a member of the Football Association of Malaysia (`the Association’) and was at all material times a member of the national football team selected to represent the country in the Asian Games held in South Korea in September 1986. He was summoned, on a charge of having committed gross misconduct and bringing the game into disrepute in that he had instigated some members of the national team to deliberately lose the game against Saudi Arabia at Kwangju Stadium in South Korea on 21 September 1986 and also offered the sum of RM5,000 to each of them for Malaysia to lose by a two-goal margin, to appear before the Executive Committee of the Association which held an enquiry into the allegation and duly found the charge proved and the respondent guilty, and imposed on him the penalty of suspension for life from playing, coaching or holding any office in any association or club participating in any tournament or competition organised by the Association.

The respondent as a result instituted proceedings by way of originating summons on a number of grounds for a declaration that the decision of the Executive Committee of the Association made on 20 October 1986 was null and void and an injunction to restrain the Association from enforcing it, and Harun Hashim J granted the declaration and injunction sought on 4 May 1987. In this appeal against that decision we are only concerned with one issue, scilicet, that of waiver or acquiescence on the part of the respondent by virtue of his appearance before the Executive Committee.

Raja Aziz Addruse for the Association made a valiant effort in the first instance to argue that although under the Constitution of the Association the matter should have been dealt with by the Disciplinary Committee, it was still open in the circumstances to the Executive Committee to hold the enquiry and deal with it as it did but after some gentle probing by us into the matrix of his submission by reference to the requisite provisions of the Association’s constating instrument he gracefully resiled and conceded that the Executive Committee had in fact no jurisdiction or power to do so, but then promptly proceeded to rely on his alternative submission that by appearing before the Executive Committee the respondent had waived his right to have the matter heard by the Disciplinary Committee on the premise that his relationship with the Association is contractual and can therefore be waived by him. We would immediately point out the fallacy of the premise in that the respondent has no direct contractual relationship or privity with the Association as he cannot be and is not a member of the Association as defined in its Constitution; the Selangor Football Association with which the respondent is registered as a player is.

The only issue for determination is therefore the question of waiver and acquiescence raised on behalf of the Association. Raja Aziz agrees in answer to a question we put that apart from the letter of 3 October 1986 from the Executive Secretary of the Association summoning him to attend before the Executive Committee, the respondent did not know before which body of the Association he was appearing. It must be borne in mind that the respondent did not have the benefit of legal advice or representation; legal representation at an enquiry is specifically excluded by the Association’s Constitution and none was accordingly suggested or accorded notwithstanding the extremely grave charge preferred against the respondent.

Waiver should be found only on clear evidence, particularly when a person in the position of the respondent in this case was without legal assistance in the domestic forum. The circumstances of this matter disclosed in evidence clearly refute any semblance of waiver or acquiescence by the respondent. A waiver must be an intentional act with knowledge [Pemungut Hasil Tanah, Kota Tinggi v. United Malayan Banking Corporation Berhad [1982] CLJ (Rep) 244, a decision of the Federal Court affirmed by the Privy Council: [1984] 2 MLJ 87; 1 CLJ (Rep) 51; 3 WLR 867]. It is abundantly clear that the respondent had neither intention nor knowledge to meet the requisite criteria; Raja Aziz agreed he did not know before which body he was appearing, and it is apparent from the circumstances that he was not fully cognisant of his rights and was only conscious of having to appear before the Association at an enquiry in relation to an allegation of serious misconduct on his part.

One other point as to waiver: it was only taken in the course of argument in the Court below; it was never properly pleaded or raised in the affidavit in reply to the respondent’s affidavit in support of his summons. The Supreme Court of India held in Motilal pedampat Sugar Mills Co. Ltd. v. State Of Uttar Pradesh [1979] AIR SC 621 that it was clearly impermissible to raise a plea of waiver without an amendment of the affidavit in reply or a supplementary affidavit raising such plea.

We should perhaps also refer to Art. 55 of the Association’s Constitution which provides that should inter alios a player fail to attend any enquiry or hearing when called upon to do so, then the Council shall adjudicate upon the charge or allegation in such manner and upon such evidence as it deems expedient. If therefore the respondent had purported to stand on his rights there was the distinct and dire possibility of the enquiry proceeding in absentia and judgment by default being entered against him as it were.

In any event, as under its Constitution only the Disciplinary Committee is empowered to exercise the jurisdiction of the Council of the Association in all cases of misconduct and infringement of the Constitution, there can be no waiver, if waiver can apply at all, to confer jurisdiction in the matter on the Executive Committee. Jurisdiction does not originate in the consent or acquiescence of the parties and cannot be established, where it is absent, by such consent, acquiescence or waiver of rights [Mersing Omnibus Co. Sdn. Bhd. v. Minister of Labour and Manpower & Anor. [1983] CLJ (Rep) 266; Federal Hotel Sdn. Bhd. V. National Union Of Hotel, Bar & Restaurant Workers [1983] 1 CLJ 150 (Rep)].

And so, cadit quaestio. It is not accordingly necessary to consider the other matters raised in relation to the application of the rules of natural justice as our conclusion on the issue of waiver is decisive of the matter. The appeal was accordingly at the conclusion of argument dismissed with costs, and the deposit lodged in Court by way of security directed to be paid out to the respondent.

 
Posted in Administrative Law

MALAYAN BANKING BHD. v. ASSOCIATION OF BANK OFFICERS PENINSULAR MALAYSIA & INDUSTRIAL COURT

pp[1988] 1 CLJ 183 (Rep) [1988] 1 CLJ 276

MALAYAN BANKING BHD. v. ASSOCIATION OF BANK OFFICERS PENINSULAR MALAYSIA & INDUSTRIAL COURT
SUPREME COURT, KUALA LUMPUR

SALLEH ABAS LP, WAN SULEIMAN SCJ, EUSOFFE ABDOOLCADER SCJ
[CIVIL APPEAL NO. 384 OF 1987]
22 MARCH 1988

JUDGMENT

Eusoffe Abdoolcader SCJ:

This appeal centres primarily on the determination of the question of an error of law amounting to excess or lack of or defect in jurisdiction sufficient to preclude the postulate of a statutory privative clause prohibiting certiorari to quash an industrial award.

Lim Tong Sun (`Lim’) was at the time of his dismissal a Class II Officer attached to the Cameron Highlands Branch of the appellant Bank. A domestic inquiry was held in respect of charges against him that he had issued two cheques but closed his account with the Bank before they could be presented, and then issued three more cheques after closing his account, and of impersonating the Branch Manager of the Bank and borrowing money from a customer of the Bank at the latter’s house, and further of breach of duty in failing to abide by instructions requiring him to stay at his place of residence in Cameron Highlands during normal working hours whilst under suspension. The panel of inquiry found Lim guilty on all the charges except that of impersonation and as a result he was dismissed on the basis that he had abused his position and misplaced the trust put in him as an officer of the Bank. The respondent, a trade union of which Lim was a member, took issue on his behalf in the matter of his dismissal, and as a result a trade dispute ensued which was referred by the Minister of Labour and Manpower to the Industrial Court under the provisions of s. 26(2) of the Industrial Relations Act 1967.

The Industrial Court held the dismissal of Lim to be unduly harsh and therefore without just cause or excuse. It did not however think it appropriate to direct reinstatement and accordingly awarded to Lim as an alternative remedy a sum of RM61,056 for salary due as at the last date of hearing before the Industrial Court, namely, 18 October 1986, compensation in lieu of reinstatement and bonus for 1984 and 1985, with a direction for the appropriate deduction and payment of his Employees Provident Fund contributions up to 18 October 1986. The Bank then applied to the High Court for certiorari to quash the award but Harun Hashim J holding that the Industrial Court acted well within its jurisdiction dismissed the application with costs.

It would be appropriate to initially consider the law in this regard and then relate its application to the facts of the matter before us. Section 33B(1) of the Industrial Relations Act enacts a privative clause precluding certiorari in respect of any award, decision or order of the Industrial Court under the Act. I held in Mak Sik Kwong v. Minister of Home Affairs, Malaysia (No. 2) [1968] 2 MLJ 175 (at p. 179) that a privative clause of this nature is not operative in the face of a jurisdictional defect or fraud and has no effect at all as regards jurisdictional review, and reaffirmed this in Chan Siew Kim v. Woi Fung Sheng Tim Medical Store & Anor [1978] 1 MLJ 144 (at p. 146); both these cases were cited with approval by the Privy Council in South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union & Ors. [1981] AC 363 (at pp. 372-373).

I discussed and analysed at some length the question of what amounts to a jurisdictional defect in Mak Sik Kwong (No. 2) (at pp. 177-179) and in Chan Siew Kim where I said (at p. 146):

The question of whether or not there is a manifest defect of jurisdiction will be one for consideration and determination on the particular circumstances of each case as it arises in the light of the principles discussed and postulated in my judgment in the case referred to [Mak Sik Kwong (No. 2)]…

For a jurisdictional defect, it is not enough to establish error of law. It must be shown that that error goes to jurisdiction, power or validity.

The question that must now be confronted is whether error as to non-jurisdictional facts can in itself amount to legal error. The starting point must necessarily be Lord Sumner’s classic judgment in Rex v. Nat Bell Liquors Ltd. [1922] 2 AC 128 (at p. 152):

It has been said that the matter may be regarded as a question of jurisdiction, and that a justice who convicts without evidence is acting without jurisdiction to do so. Accordingly, want of essential evidence, if ascertained somehow, is on the same footing as want of qualification in the magistrate, and goes to the question of his right to enter on the case at all. Want of evidence on which to convict is the same as want of jurisdiction to take evidence at all. This, clearly, is erroneous. A justice who convicts without evidence is doing something that he ought not do, but he is doing it as a Judge, and if his jurisdiction to entertain the charge is not open to impeachment, his subsequent error, however grave, is a wrong exercise of a jurisdiction which he has, and not a usurpation of a jurisdiction which he has not. How a magistrate who has acted within his jurisdiction up to the point at which the missing evidence should have been, but was not given, can, thereafter, be said by a kind of relation back to have had no jurisdiction over the charge at all, is hard to see.

Lord Denning MR said in O’Reilly v. Mackman [1983] 2 AC 237 (at p. 253) that the Nat Bell decision represented administrative law’s darkest hour. Its effects can still be seen in some modern-day judgments which deny absolutely the possibility that acting on no, let alone insufficient, evidence or other factual material can ever amount to a jurisdictional error.

But the Nat Bell reasoning, on which the result (the rejection of `no evidence’ as a jurisdictional ground of review) was based, was wrong, and always had been. There have always been jurisdictional grounds of review for errors committed in the course of an inquiry validly commenced. Fraud, breach of natural justice, and applying the wrong test are the easiest examples. These are all vitiating errors occurring in the course of an inquiry properly commenced, and yet the Nat Bell theory of jurisdiction was not finally rejected until the House of Lords decision in Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147. It is now possible but no longer necessary to treat factual error as unreviewable, and I would refer in this regard to the passage in my judgment in Chan Siew Kim (at p. 146) which I have adverted to earlier.

The general principle would appear to be that it will usually be proper to treat a decision-maker’s tasks of fact-finding and the drawing of factual inferences from established facts as falling within the decision-maker’s jurisdiction, unless the decision-maker has reached absurd results or reached results absurdly. I should perhaps pause here to refer to my judgment in this regard in Tanjong Jaga Sdn. Bhd. v. Minister of Labour and Manpower & Anor. [1987] CLJ (Rep) 368 where in dealing with the question of unreasonableness I alluded (at p. 374) to Lord Diplock’s exegesis in Bromley London Borough Council v. Greater London Council & Anor. [1983] 1 AC 768 (at p. 821) in regard to decisions that, looked at objectively are so devoid of any plausible justification that no reasonable body of persons could have reached them, and it would not perhaps be amiss to refer in this context to Dunn LJ’s assertion in Regina v. Secretary of State for the Home Department, Ex parte Asif Mahmood Khan [1984] 1 WLR 1337 ( at p. 1352) that `The categories of unreasonableness are not closed…’ Mason J said in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. [1986] 66 ALR 299 (at p. 310) that it might be possible to challenge a decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations, or the taking into account of irrelevant considerations, but that the decision is `manifestly unreasonable’ … (A) Court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

A line of cases has recently emerged which asserts a judicial power to review decisions upon the ground that they lack a rationally probative basis in fact. The first case was Regina v. Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 QB 456 in which Diplock LJ stated (at p. 488) that natural justice requires decision-makers to base their decisions `upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event which would be relevant. It means that (the decision-maker) must not spin a coin or consult an astrologer …’. Ex parte Moore has been approved in Australia in Minister for Immigration and Ethnic Affairs v. Pochi [1980] 31 ALR 666 (At pp. 688-690 per Deane J).

There are then some cases which assert that a jurisdictional error is committed if a decision-maker acts upon an incorrect basis in fact. The leading case is Secretary of State for Education v. Tameside Metropolitan Borough Council [1977] AC 1014, in which Lord Wilberforce said (at p. 1047) that an official exercising a discretionary power commits a jurisdictional error if he or she acts `upon an incorrect basis of fact’. Tameside has been endorsed in Australia (Barbaro v. Minister for Immigration and Ethnic Affairs [1982] 46 ALR 123 (at p. 127); Peko-Wallsend Ltd. v. Minister for Aboriginal Affairs [1985] 59 ALR 51 (at p. 77)), England (Hollis v. Secretary of State for the Environment [1982] 47 P. & CR. 351) and New Zealand (Daganayasi v. Minister for Immigration [1980] 2 NZLR 130 (at p. 149)). Lord Denning MR has also suggested some widening of the scope of review of the exercise of discretion for factual error in Laker Airways Ltd. v. Department of Trade [1977] 1 QB 643 by his predication (at p. 706) that:

the Courts can examine the exercise of (discretionary) powers to see that they are used properly, and not improperly or mistakenly. By `mistakenly’ I mean under the influence of a misdirection in fact or in law.

In Ashbridge Investments Ltd. v. Minister of Housing and Local Government [1965] 1 WLR 1320 Lord Denning MR said (at p. 1326) in the context of a challenge to the Minister’s confirmation of a compulsory purchase order:

The Court can only interfere on the ground that the Minister has gone outside the powers of the Act or that any requirement of the Act has not been complied with. Under this section it seems to me that the Court can interfere with the Minister’s decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law. It is identical with the position when the Court has power to interfere with the decision of a lower tribunal which has erred in point of law.

Ashbridge could perhaps be treated as relevant only to the question of what can amount to a non-jurisdictional error of law but it was not so regarded in Coleen Properties Ltd. v. Minister of Housing and Local Government [1971] 1 WLR 433 where it was treated as a jurisdictional matter. In Australia, Deane J referred with approval to Ashbridge in Pochi (at p. 690).

It is now necessary to examine the question of a jurisdictional defect in the award of the Industrial Court and for this purpose to apply the law I have ventilated in this regard to the facts of the matter under consideration. The Industrial Court held that the domestic inquiry held by the Bank was biased in that the panel conducting it did not approach the matter with an open mind and appeared to be prejudiced primarily on the premise that the questions put to Lim by members of the panel were incriminating. A perusal of the proceedings at the inquiry does not substantiate any such conclusion, but holding as it did the Industrial Court then proceeded to completely ignore the proceedings at the domestic inquiry and purported to deal with the several matters of complaint against Lim independently and de novo on a fresh assessment.

The Industrial Court in its award dealt with the several charges regarding the cheques and accepted the explanation given by Lim regarding his conduct and honest intention but nevertheless found him guilty of misconduct in issuing two cheques in favour of Genting Berhad, and in the course of doing this made observations and drew inferences, wholly unreasonably and without any factual substratum, to the effect that there was no documentary evidence that an employee of the Bank should not borrow from a customer of the Bank and that it was the duty of the Bank to show a regulation to this effect which has been brought to the attention of its staff and that a breach of such a regulation would seriously jeopardise the employee’s position in the Bank, and that the Bank had not established that borrowing money from one of its customers would give rise to conflict in the discharge of the employee’s duties.

The Industrial Court in fact held that the misconduct in respect of the two cheques issued by Lim which it found substantiated did not relate to his work, his duties and responsibilities as a Class II Officer of the Bank. I must immediately say this appears to be a completely perverse finding, and cases such as Ramiah v. State Bank of India [1964] AIR Madras 335 involving the head cashier of a branch of a bank clearly illustrate the fact that a fraud committed by an employee in a position of trust is misconduct and that drawing cheques on a bank in which the employee has no account or an insufficient account, knowing that they will be dishonoured, is misconduct, and this would be all the more so in relation to an employee who is an officer of that very Bank itself.

The Industrial Court took into account as it said in its award Lim’s past record but equated this only to `his length of service and the quality of his past service’, and went on to say that having regard to his 22 years of service and `to equity, good conscience and the substantial merits of the case’, whatever that is supposed to refer to or mean in relation to the instant matter in the face of the facts elicited and the admissions made by Lim at the domestic inquiry, it found that his dismissal was unduly harsh and therefore without just cause or excuse. It refused to even consider or take into account the fact that Lim had his annual increment withheld in 1976 and again in 1984 for two consecutive years on separate disciplinary grounds, and if it had bothered to give some consideration to the transcript of the proceedings of the domestic inquiry the Industrial Court could hardly have failed to notice that Lim’s attitude and conduct at the inquiry reeked of arrogance and truculence throughout.

In the light of the several matters I have discussed and considered against the background of the law in regard to jurisdictional error, the decision of the Industrial Court was clearly perverse and so devoid of plausible justification that no reasonable body of persons could have reached it. The Industrial Court accordingly transcended its jurisdiction in making the award that it did and the privative provisions of s. 33B(1) of the Industrial Relations Act would not accordingly preclude the issue of certiorari in the circumstances.

In the event at the conclusion of argument the Lord President and I, by a majority (with Tan Sri Wan Suleiman SCJ dissenting), allowed this appeal with costs here and below to the appellant, set aside the order of the learned Judge and issued certiorari to quash the award of the Industrial Court, and directed that the deposit lodged in Court by way of security be paid out to the appellant.

Also found at [1988] 1 CLJ 276

 

Posted in Administrative Law, Industrial Relations Law

CALEY OTOTO WORLDWIDE SDN BHD v. SUN WEN LONG

2010] 1 CLJ 725 [2009] 1 LNS 1107

CALEY OTOTO WORLDWIDE SDN BHD v. SUN WEN LONG
HIGH COURT MALAYA, KUALA LUMPUR
ABDUL MALIK ISHAK J
[CIVIL SUIT NO: S3-22-496-2001]
3 JULY 2009

COMPANY LAW: Directors – Fiduciary duties – Breach – Allegation of – Receiving monies under various contracts and depriving plaintiff of the benefit of various orders for supply of goods – Whether allegations against defendant collapsed for failure of calling material witness to testify – Whether plaintiff’s claims based on mere conjectures

EVIDENCE: Witness – Failure to call material witness to testify – Claim against director for breach of fiduciary duties – Hearsay – Whether admissible – Evidence Act 1950, s. 114(g) – Whether invoked – Whether allegations against defendant collapsed for failure of calling material witness to testify – Whether plaintiff’s claims based on mere conjectures

The plaintiff, a private limited company, claimed that the defendant, while holding the position of a managing director of the plaintiff, had personally received monies from PT International Corporation (‘PTIC’), a Singapore company, under various contracts for the supply of goods which were meant for the plaintiff amounting to RM802,521.24. The plaintiff also advanced another claim that the defendant had, after the defendant resigned as a managing director of the plaintiff, deprived the plaintiff of the benefit of various orders for the supply of goods to PTIC and that the defendant had personally received the sum of RM1,489,313.67. The defendant, a Taiwanese national and a shareholder of the plaintiff, denied the plaintiff’s claim and placed the plaintiff to strict proof thereto. The defendant disputed that PTIC had allegedly ordered certain goods from the defendant as the managing director of the plaintiff and intending to contract with the plaintiff. The defendant also disputed that the goods were delivered by the defendant personally and that the monies transmitted by PTIC to the defendant’s wife’s bank account were allegedly meant as payment for the purchase of such goods delivered by the defendant. The plaintiff disputed the defendant’s explanation that the monies paid by PTIC to the defendant’s wife’s bank account were part of the purchase price for goods sold to PTIC by one Liu Jin Shu and were meant for the benefit of the said Liu Jin Shu. The plaintiff had called only one witness to prove its claim, one Mr Ong Aik Lay (PW1) who gave a witness statement marked as Bundle ‘G’ and he relied entirely on it. In PW1’s witness statement, he said that he had been informed by one ‘Mr Pishu’ of PTIC that PTIC had placed orders with the defendant intending to order them from the plaintiff and that the defendant had delivered the goods to PTIC. Under cross examination, PW1 admitted that he had no personal knowledge of what had transpired and that he only knew what this ‘Mr Pishu’ of PTIC had allegedly informed him. However, no explanation was advanced by PW1 as to why ‘Mr Pishu’ or for that matter any other officer of PTIC with personal knowledge of the alleged matters were not called as the plaintiff’s witness. The whole of PW1’s evidence hinged on ‘Mr Pishu’. The issue that arose was whether the plaintiff was able to prove its alleged claim against the defendant.

Held (dismissing plaintiff’s claim with costs):

 

(1) Hearsay is used to describe statements that one hears but does not know it to be true. The purpose of PW1 in referring to what ‘Mr Pishu’ had told him was to establish the truth of what ‘Mr Pishu’ had said orally to him, and this would be hearsay and inadmissible. Mr Pishu’s testimony would make or break the plaintiff’s case. Yet, Mr Pishu was not called as a witness for the plaintiff by the plaintiff. No explanation at all was given as to why Mr Pishu was not called. Had Mr Pishu been called, he would certainly shed some light to the whole case. He too would be cross examined by the defendant in regard to the alleged orders by PTIC and the alleged deliveries thereto including the necessity of producing copies of the shipping documents. Section 114(g) of the Evidence Act 1950 allowed the court to presume that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it. The court was entitled to have the best evidence before it. The defendant was justified in imploring this court to invoke s. 114(g) of the Evidence Act 1950 in the absence of Mr Pishu bearing in mind that the burden to prove the case rested all along with the plaintiff. (paras 14, 20, 26, 28 & 29)

 

(2) The allegations against the defendant about contracting with PTIC without the plaintiff’s knowledge, consent or authorization and retaining the proceeds of those contracts to himself together with the arguments that the defendant held the proceeds of those contracts by way of an implied trust for the benefit of the plaintiff and further that the defendant had made secret profits arising from those contracts and must be held accountable to the plaintiff collapsed to the ground like a deck of cards because Mr Pishu did not come forward to testify and the evidence of PW1 was hearsay and inadmissible. (para 48)

 

(3) The plaintiff’s statement of claim pleaded and alleged that the defendant had received monies from PTIC. The plaintiff’s statement of claim did not plead by way of an alternative that the monies had been received by the defendant’s nominee or the defendant’s wife. From the available evidence adduced before this court there was nothing to show that the defendant received any monies. The evidence showed that the monies paid by PTIC were received by the defendant’s wife. That being the case, the plaintiff had failed to prove its case based on the pleadings. (para 57)

 

(4) A director owes a fiduciary duty to his principal and he must prefer his principal’s interest to that of his own. If the director secretly makes a profit behind the back of his principal he must be accountable for it and he may be liable in damages for deceit. But in the present case at hand, the plaintiff was only conjecturing that the defendant had secretly made a profit for himself. The plaintiff’s submissions were based on mere conjectures. The ‘must be’ and ‘must have’ basis could be dismissed in one single word as ‘hearsay’. (para 66)

 

Posted in Company Law, Evidence

DOUBLE ACRES SDN BHD v. TIARASETIA SDN BHD

2000] 7 CLJ 550

DOUBLE ACRES SDN BHD v. TIARASETIA SDN BHD
HIGH COURT MALAYA, KUALA LUMPUR
ABDUL MALIK ISHAK J
[CIVIL SUIT NO: S5-22-116-99]
31 JULY 2000

DOUBLE ACRES SDN BHD v. TIARASETIA SDN BHD
HIGH COURT MALAYA, KUALA LUMPUR
ABDUL MALIK ISHAK J
[CIVIL SUIT NO: S5-22-116-99]
31 JULY 2000

COMPANY LAW: Directors – Liability – Liability for breach of contract by company – Whether confined to s. 132(1) Companies Act 1965 – Whether lifting of veil of incorporation necessary

CIVIL PROCEDURE: Pleadings – Counterclaim – Bare allegations of fraud and conspiracy – Whether counterclaim struck out

This was an appeal against the order of the Senior Assistant Registrar dismissing an application by one Teok Kian Seng (‘TKS’) to strike out the counterclaim of the defendant (‘Tiara’) against him. TKS was the second defendant named in the counterclaim.

The facts were that Tiara had employed the services of the plaintiff (‘DASB’) to develop a piece of land. TKS was the director of DASB. DASB entered into an agreement with another company called Puncakdana Sdn Bhd (‘Puncakdana’) to develop the said piece of land. Puncakdana then took a loan with MBf Finance Bhd for development purposes. Tiara claimed that TKS was personally liable for alleged breaches of contract by DASB with Tiara. Tiara also claimed for a sum of RM9 million which allegedly was an unauthorised drawdown of the said loan by the defendants named in the counterclaim. Apart from these, Tiara raised the issues of fraud and conspiracy.

Held:

[1] TKS was not personally liable for the breaches by DASB, if at all that breaches were to exist. As Tiara had cited DASB in its counterclaim, Tiara had no cause of action against TKS in his personal capacity. As a director of DASB, TKS duties and liabilities did not extend beyond the parameters of s. 132(1) of the Companies Act 1965.

[2] The parties to the MBf loan were Puncakdana and MBf Finance Bhd. It was therefore apparent that TKS had no say or control over the manner in which the MBf loan was operated. There was thus no necessity to lift the veil of incorporation of DASB. Even if the drawdown of RM9 million was unlawful, it was for MBf Finance Bhd to pursue the matter. Tiara who was not the lender nor the borrower under the MBf loan was not entitled to bring a claim for the sum of RM9 million.

[3] Bare allegations were advanced by Tiara in regard to the issues of fraud and fraudulent misrepresentation. Tiara too failed to show how TKS orchestrated the alleged fraud and fraudulent misrepresentation.

[4] There was no agreement or arrangement among the defendants in the counterclaim to carry out an overt act detrimental to Tiara. Just like fraud, conspiracy too must be particularised in the counterclaim so that the opposite party would not be caught off guard. Incidentally, in Tiara’s affidavits the particulars of conspiracy were not itemised at all.

[5] Tiara failed not only to plead but also to prove how the defendants had conspired among themselves to intentionally injure Tiara. There was also a failure to show how Tiara had suffered as a result thereof.

[6] TKS had demonstrated conclusively from the relevant affidavits and the supporting documents thereto that Tiara’s allegations were mischievous, irrelevant and totally unsustainable against him.

[Appeal allowed.]

Posted in Civil Procedure, Company Law

The state of Oregon’s Death with Dignity Act

http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/index.aspx

On October 27, 1997, the state of Oregon enacted the Death with Dignity Act which allows terminally-ill Oregonians to end their lives through the voluntary self-administration of lethal medications, expressly prescribed by a physician for that purpose.

This is an interesting legislation. I do not think Islam allows such legislation, however, I need to study this thoroughly.

Posted in The state of Oregon's Death with Dignity Act