Professional Documents
Culture Documents
LXEB 1101
INDIVIDUAL ASSIGNMENT
( CASE NOTE )
Procedural history:
Firstly, this case was held in High Court. The judge in High Court, Rigby J. held that
the power to appoint and dismiss officers of his rank was vested in the Police Service
Commission and Commissioner of Police was an authority subordinate to the Police
Commission and he had no power to dismiss him. He also held that even if
Commissioner had power to dismiss the plaintiff, his dismissal was contrary to natural
justice and in breach of the Constitution because the plaintiff was not given a
reasonable opportunity of being heard. The learned trial judge granted the declaration
that the dismissal was void, inoperative, no effect and he was still the member of the
Police Force. Due to this outcome, the respondent appealed to the Court of Appeal.
The Court of Appeal allowed the appeal and held that the plaintiff was validly
dismissed. And from the judgement, plaintiff appealed to the Privy Council.
Legal issues:
(i)
Whether the Commissioner of Police had any power to dismiss the plaintiff who
is a police officer with the rank of Inspector and did it contrary to Article 135(1)
(ii)
of the Constitution?
Whether the proceedings which resulted in the dismissal of plaintiff were
conducted in accordance with natural justice and did it contrary to Article
135(2) of the Constitution?
heard. The appellant must know what evidence has been given and what statements
have been made affecting him, and then he must be given a fair opportunity to correct
or contradict them which appears in the cases such as Board Education v Rice and
Ceylon University v Fernando. The Report of the Board of Inquiry was sent to the
adjudicating officer but not the appellant. The appellant never had an opportunity of
dealing with it until the fourth day of the hearing of this action. This amounts to the
denial of natural justice. It was not correct when the adjudicating officer had the
Report of the Board of Inquiry unless the accused also had it and able to correct or
contradict the statements in it to his prejudice. In this case, risk of the occurrence of
prejudice had shown the breach of natural justice. No one who has lost a case believe
that he has been fairly treated if the other side had access to the judge without his
knowing.
Ratio decidendi:
First, the dismissal of the police officer with Inspector rank by the Commissioner of
Police was void, inoperative and of no effect. This is because this dismissal is against
the Article 135(1) of Federal Constitution. Only those who have the power to appoint
a police officer of a certain rank at that time can dismiss or reduce the police officer at
that equal rank. Next, the proceedings were not conducted in accordance with natural
justice. This is because the documents which related to the police officer were
provided to the officer that appointed to hear disciplinary charges but not the police
officer himself and caused him did not have a fair opportunity to correct or contradict
them. Right to be heard must be given to an accused man to know the case which is
made against him, what evidence is given, what statements have been made affecting
him and be given a reasonable opportunity to correct or contradict them.
Evaluation:
In my humble opinion, in this case, I agree with the decision made by the judges in
Privy Council. Although the dismissal of appellant by the Commissioner of Police is
allowed under Section 9(1) of Police Ordinance 1952, but it contradict with our
Constitution. Based on the principle of Ultra Vires, in a conflict of existing law and
between the existing law and the Constitution, the Constitution must prevail. The
Court apply the existing law with modifications to bring it into accord into the
Constitution, which is the Police Service Commission can appoint members of the
police service because they had the power since Merdeka Day. I see eye to eye with
the courts decision because at the same time, there cannot be two authorities whom
has a concurrent power to appoint members of the police service. To be fair to the
accused man, the dismissal should be done by the person that have the actual
authority and undergo the right proceedings. Hence, the decision of the court that held
the dismissal void, inoperative and of no effect is reasonable.
The decision of the Court that the reasonable opportunity of being heard should be
given to the appellant is also accurate. Its so unfair when someone get judge without
having their rights to correct or contradict the statements that had been made on him.
The adjudicating officer maybe is not bias and prejudice towards the appellant.
However, the rule against bias is one thing while the right to be heard is another thing.
These two rules are also important because both of them are the essential
characteristics of natural justice. The principle of Nemo judex in cause sua stated that
no person can judge a case in which he or she participates as a party. That means
nobody can judge on their own lawsuit, or else fair justice will not exist. While in the
principle of Audi alteram partem, it means hear the other side too or hear the
alternative party too. It means that no person should be judged without a fair hearing
and each party must be given the opportunity to respond to the evidence against them.
Both of this principle are very important. A fair and justice judgement must consider
the accused mans explanations and excuses. Thus, the right to be heard and the
opportunity to contradict the allegations must be given to every accused man. This
can prevent any bias, prejudice and unfairness in every judgement.
Conclusion:
In this case, the dismissal of the appellant by Commissioner of Police is void,
inoperative and of no effect. There is also a breach of natural justice in the dismissal.
Respondents should pay the costs of the court for the appellant.