24 October 2025
Please click HERE to download the full article in PDF.
Introduction
In a recent decision, the Court of Appeal revisited the scope of procedural fairness under administrative law in the context of disciplinary proceedings against public officers. The case of Professor Dato’ Dr. Mohd Fauzi bin Ramlan v Universiti Putra Malaysia & Ors presided by YA Datuk Nantha Balan, YA Dato’ Mohd Nazlan bin Mohd Ghazali and YA Dato’ Dr. Choo Kah Sing, underscores the importance of the principle of audi alteram partem, the right to be heard, particularly where statutory bodies undertake disciplinary action. The judgment not only clarifies the procedural obligations of statutory disciplinary committees but also highlights the judiciary’s vigilance in ensuring that fairness is not compromised in the name of administrative convenience.
Brief Facts of the Case
Professor Dato’ Dr. Mohd Fauzi bin Ramlan (“the Appellant”), was the former Vice-Chancellor of Universiti Putra Malaysia (“UPM”). During his tenure, he executed two development agreements on behalf of UPM, one for a “Medical City” project and another for a futsal facility, without obtaining prior approval from UPM’s Board of Directors. The University’s Disciplinary Committee (“DC”) found him guilty of insubordination under the Statutory Bodies (Discipline and Surcharge) Act 2000 (“Act 605”) and imposed a punishment of reduction in rank from VK6 to VK7.
The Appellant appealed to the Disciplinary Appeal Committee (“DAC”), chaired by the then Minister of Education. At the DAC hearing, the Appellant appeared and gave his explanation. However, other witnesses, including UPM’s former Legal Adviser, were interviewed separately, and the Appellant was not allowed to be present during those sessions nor afforded the opportunity to cross-examine or respond to their statements. The DAC eventually affirmed the DC’s decision. Dissatisfied, the Appellant sought judicial review, which was dismissed by the High Court, leading to the present appeal.
Issues before the Appellate Court
The central issue before the Court of Appeal was whether the DAC’s procedure of interviewing witnesses outside the Appellant’s presence and without allowing him to hear or respond to their testimony violated the audi alteram partem rule of natural justice. A subsidiary issue was whether such procedural defects could be cured by the DAC’s overall consideration of the appeal or whether they rendered the disciplinary proceedings fundamentally flawed.
The Appellate Court’s Decision
Allowing the appeal, the Appellate Court held that the DAC’s procedure amounted to a denial of the Appellant’s right to be heard. In arriving at this conclusion, the Court applied the principle in B. Surinder Singh Kanda v The Government of the Federation of Malaya[1], which established that disciplinary authorities must not consider evidence obtained “behind the back” of an affected party without affording an opportunity to respond. The Court declined to follow the earlier Privy Council decision in University of Ceylon v Fernando[2], finding its reasoning inconsistent with the jurisprudence in Kanda.
The Court emphasised that fairness under audi alteram partem requires more than a perfunctory opportunity to speak, it mandates a real and meaningful opportunity to meet the case made against one. Even if the DAC was not strictly bound to follow judicial procedures, the process it adopted must nonetheless be manifestly fair. By interviewing witnesses in the absence of the Appellant, the DAC effectively took evidence “behind his back”, a defect that struck at the very root of procedural fairness.
The Court further observed that the doctrine of “waiver” does not apply to cases involving a fundamental breach of natural justice. Citing Tan Boon Chee, David v Medical Council of Singapore[3] and Mayes v Mayes[4], the Court held that an individual cannot be said to have waived a right to fairness when the process itself is fundamentally unfair.
Key Takeaways
This decision serves as a timely reminder for all statutory bodies and public universities governed by the Statutory Bodies (Discipline and Surcharge) Act 2000 that procedural fairness is not a mere formality but a substantive obligation that must underpin every stage of disciplinary proceedings. Decision-makers must ensure that the affected individual is not only informed of the allegations but also given a fair and genuine opportunity to respond to all evidence that may influence the outcome.
From a practical standpoint, disciplinary and appellate committees should adopt transparent procedures that allow the officer to be present when oral evidence is taken, or when witnesses are examined. Even where the governing statute grants procedural flexibility, the process must still be seen to be fair, and every opportunity must be afforded for the officer to know and meet the case made against them.
This case also highlights that the “right to be heard” is an ongoing obligation that extends to every stage of the disciplinary process, including appeals. Committees should avoid any form of private or ex-parte communication with witnesses that may give the impression of “evidence taken behind the back” of the affected officer. Where witness interviews are necessary, both parties should be informed and given the chance to participate or respond.
Finally, the Court’s rejection of the waiver argument underscores that fundamental breaches of natural justice cannot be excused or cured after the fact. Institutions should therefore review their internal disciplinary frameworks, terms of reference, and training for committee members to ensure compliance with the principles laid down in Kanda’s case. Adherence to procedural fairness not only mitigates the risk of litigation but also enhances confidence in the institution’s governance and accountability processes.
Authors
Disclaimer: The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such.
[1] [1962] 1 MLJ 169 (PC)
[2] [1960] 1 WLR 223
[3] [1980] 2 MLJ 116
[4] [1971] 1 WLR 679
Please email your details to look@zulrafique.com.my if you would like to subscribe to our Knowledge Centre.
Let’s Connect!
➭ LINKEDIN: Zul Rafique & Partners
➭ INSTAGRAM: @zrplaw