Article 13(1): Accordance with Law
Ng Chin Siu & Sons Rubber Estate Sdn Bhd v Pentadbir Tanah Hilir Perak & Anor
[2013] MLJU 1590 COURT OF APPEAL (PUTRAJAYA)
Issue: Form D and E (mandatory procedure under LAA) issued to wrong entity.
Held: It was of no consequence that the respondents had in fact substantially complied with the essential provisions of the Land Acquisition Act 1960, that the appellant was not prejudiced because it was fully aware of the whole acquisition exercise or that it was open to the appellant to seek the remedy of a higher compensation for the said land. All these do not detract from the fact that the acquisition was not made in accordance with law and thus ipso facto null and void by virtue of Article 13(1) of the Federal Constitution.
Ee Chong Pang & Ors v The Land Administrator Of The District Of Alor Gajah & Anor [2012] MLJU 1366 COURT OF APPEAL (PUTRAJAYA)
Issue: Appellants contended that as a result of the failure of the State Authority to publish in the Gazette Form A, the land acquisition exercise was not carried out in accordance with the law. Thus the land acquisition by the State Authority was contrary to Article 13(1) and should be declared null and void.
Judge's Opinion: In this regard, we are in agreement with the view expressed by Gopal Sri Ram JCA (as he then was) in his dissenting judgment in Ng Kim Moi (P) & Ors v Pentadbir Tanah Daerah, Seremban, Negeri Sembilan Darul Khusus (Negeri Sembilan Township Sdn Bhd & Anor, proposed intervenors) [2004] 3 MLJ 301 where his lordship said (at p. 328):
[74] The draft judgment of my learned brother accepts in entirety the appellants' contention that Form A was never issued and that Form E was never served. However, my learned brother has gone on to hold that issuance of Form A is not mandatory despite the imperative language of s 4(1). With respect, this approach disregards well settled principles of statutory construction. We are here dealing with a statute which is aimed at the prevention of arbitrary escheatment of proprietary rights, the protection of which the supreme law of the Federation guarantees as a fundamental right. To read mandatory provisions in such a statute in a generous and favourable manner towards those whose duty is to ensure their due observance is to condone and promote maladministration in a manner so important as the deprivation of property. It is a message from the judicial arm of the Government to bureaucrats that due compliance with mandatory provisions of the Act will produce no consequences for them. I am therefore unable in the face of compelling authority as I have found and cited in this judgment to accept an ipse dixit based on no authority that compliance with s. 4(1) is not mandatory.
Held: Based on the above judicial authority, the issuance of Form A under section 4(1) of the Act is mandatory and the failure of the State Authority to comply with this mandatory provision can only mean that the land acquisition exercise is not in accordance with the law.
S KULASINGAM & ANOR v COMMISSIONER OF LANDS, FEDERAL TERRITORY & ORS [1982] 1 MLJ 204
Held: Acquisition could not be impugned on any ground of natural justice since the legislation imposed no obligation for any inquiry and hearing in respect of the acquisition. The legislature can by clear words exclude the principles of natural justice in the absence of specific constitutional guarantees and Article 13(1) in no way vitiates the provisions of the Land Acquisition Act.
In a Nutshell: Federal Court negatived right to pre-acquisition hearing under the LAA as a matter of natural justice, saying that there is nothing in the legislation imposing any such obligation in contrast to the specific provisions for an inquiry and hearing in respect of the quantum of compensation payable.
However, MP Jain said that, "Any argument that if one provision of a statute specifically stipulates natural justice and another provision therein is silent, then natural justice is impliedly excluded in the latter case, is now NOT accepted in other common law jurisdictions." See SL Kapoor v Jagmohan AIR 1981 SC 136; Swadeshi Cotton Mills v Union of India AIR 1981 SC 818.
In India, Swadeshi Cotton Mills v Union of India AIR 1981 SC 818, the court observed:
"The audi alteram partem rule ... is a very flexible, malleable and adaptable concept of natural justice. To adjust and harmonize the need for speed and obligation to act fairly, it can be modified and the measure of its application cut short in reasonable proportion to the exigencies of the situation. Thus, in the ultimate analysis, the question (as to what extent and in what measure) this rule of fair hearing will apply at the pre-decisional stage will depend upon the degree of urgency, if any, evident from the facts and circumstances of the particular case."
In Canada, in Nicholson v Haldimand Norfolk Regional Board of Commissioners of Police, a probationary constable in a municipality was dismissed without a hearing. There was a statutory provision requiring hearing only for those who crossed the probationary period, but not for one who was yet on probation. Still, the Supreme Court of Canada ruled that the probationer must be treated ‘fairly’. The consequences of dismissal to the concerned person were serious. The dismissal was thus quashed by the court. The moral of the case is that when a statute provides for hearing in one situation, but not in another, the court can still read the right of hearing in the latter situation on the ground of fairness.
Also, it is submitted that once the word ‘law’ in art 13(1) is read broadly so as to include natural justice therein, then natural justice becomes a constitutionally-guaranteed procedural safeguard and will have to be implied in every statute falling within the scope of art 13. The Constitution being the supreme law of the land, it will be beyond Parliament to dilute the effect of art 13 and exclude natural justice when a person is being deprived of his property.
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