TO BE HEARD WITHOUT SPEAKING

Introduction

Are you sure your voice was heard?

Let's imagine a colleague filed a complaint against you, alleging you committed some misconduct, and your boss wants to fire you based on the complaint. Would you like to be allowed to tell your own story or explanation to justify your action? Do you want to tell your boss how unreliable the colleague's allegation is? Such needs to be given a chance to defend yourself must inherently involve a fundamental aspect of the principle of natural justice - the right to be heard.

In this context, both parties in any proceeding will often give contradicting narratives — one party will usually advance points in his favour, while the other party will emphasise all the facts that undermine the previous party's narrative. Thus, the rationale of the right to be heard is plain and clear: it not only empowers the aggrieved party to present his case, but also instils confidence in the administration of justice. Essentially, this indicates that each person must be allowed to tell his own story, or in other words, he must be given the right to be heard before a decision affecting his right can be made.

What is a Right to be Heard?

Lord Denning in the celebrated case of B Surinder Singh Kanda v The Government of the Federation of Malaya[1] succinctly outlined the three components of a right to be heard:

1. A right to know the case which is made against him;

2. A right to know what evidence has been given and what statements have been made affecting him; and

3. A right to be given a fair opportunity to correct or contradict those evidence and statements.

In this vein, the right to be heard is seen as the right of a person to learn about the case against him, to be provided with materials that are not in his favour, and to be given a sufficient opportunity to rebut the claim against him.

Right to an Oral Hearing

While most people believe that oral communication is more effective, the pertinent question here is whether the right to be heard entails the right to be heard orally. To put it another way, must an oral hearing be held before a decision be made?

Except in cases where an oral hearing is expressly required by written law, the short answer to the preceding question is generally no. Suffian CJ explained this in Najar Singh v Government of Malaysia & Anor:[2]

…No doubt "to hear" is according to the Shorter Oxford Dictionary "to listen to; to give ear to; hearken to; to give audience to" – all of which imply that the plaintiff must be given facilities to make representations that could be perceived through the defendants' ears, not eyes, but that Dictionary also gives the following definitions of to hear: "to be informed of; to be informed; to learn." This makes clear that a hearing does not necessarily mean an oral hearing.

This stance was later supported in another Federal Court case, Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi a/l K Perumal,[3] where it was held that a right to be heard does not necessitate a right to be heard orally.

That being said, a decision taken in the absence of an oral hearing is not always incontestable. To quote Gopal Sri Ram JCA in Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis & Ors[4] on page 316D:

…Nevertheless, the principle that the right to be heard is non-inclusive of a duty to afford an oral hearing does not mean that the failure or refusal to afford such a hearing would render the decision reached safe and harmless from attack. Cases may arise where, in the light of peculiar facts, the failure to afford an oral hearing may result in the decision arrived at being declared a nullity or quashed.

Thus, if the facts of the case necessitate it, an oral hearing may be required in certain situations.

When is an Oral Hearing Necessary?

Malaysian courts have repeatedly held that what was most important was not the presence of an oral hearing, but that the individual was given a reasonable opportunity to be heard. Accordingly, in Yusof bin Sudin v Suruhanjaya Perkhidmatan Polis & Anor,[5] the Court of Appeal held that a refusal to hold an oral hearing before dismissing a police officer was not illegal because the officer was given a reasonable opportunity to be heard and the concept of procedural fairness was met.

Thus, on what occasion a reasonable opportunity to be heard can only be achieved through an oral hearing? Cases show that the courts will be inclined to rule that the individual in question should be allowed the opportunity to be heard orally in the following circumstances:

1. If the accused did not admit to committing the offence: see Chai Kok Choi v Ketua Polis Negara & Ors;[6]

2. If the written representation, which was not mere denials, was not adequately considered: see Kerajaan Malaysia & Ors v Tay Chai Huat;[7]

3. If sufficient exculpatory statement was given to rebut the charges against the individual: see Ang Seng Wan v Suruhanjaya Polis Di Raja Malaysia & Anor,[8] and

4. If the person facing disciplinary proceedings specifically requests an oral hearing: see Vijayarao a/l Sepermaniam v Suruhanjaya Perkhidmatan Awam Malaysia.[9]

The circumstances listed above are by no means exhaustive. Ultimately, an oral hearing would be required if justice and fairness warrant it upon looking at the facts of the case.

Conclusion

To clarify, one is entitled to an oral hearing when fairness requires it, but fairness does not require an oral hearing in every situation.[10] Whether an oral hearing is required will depend on the subject matter and circumstances of the specific case, as well as the nature of the decision to be made: some subject matter may be adequately dealt with by way of a written representation; some can only be effectively decided through an oral hearing in which witnesses can be called and examined to determine the truth of assertions. Any deprivation of the right to be heard orally when justice necessitates it may lead to the decision made being challenged.

Disclaimer:

This article does not and is not intended to constitute legal advice; instead, all information, content, and materials available in this article are for general informational purposes only. The author makes no representation as to the correctness or completeness of any information contained in this article, and the author shall not be liable for any errors or omissions contained in this article. The author assumes no liability for any losses, injuries, or damages resulting from the viewing or use of any information contained in this article.

[1] [1962] 1 MLJ 169, PC, 172I - 173A. [2] [1974] 1 MLJ, FC, 140H - 141A. [3] [2001] 2 MLJ 417, FC. [4] [1995] 1 MLJ 308, COA, 316D. [5] [2008] 4 MLJ 687, COA. [6] [2008] 1 MLJ 725, FC, [9]. The exact phrase used in the judgment is, “…an oral hearing might have been necessary if the appellant had not admitted committing the offences.” [7] [2011] 2 MLJ 160, COA. [8] [2002] 2 MLJ 131, COA. [9] [2018] 12 MLJ 17, FC. [10] R (on the application of Ewing) v Department for Constitutional Affairs [2006] 2 All ER 993, QB.