Kindness, Compassion, and the Law

 

In a legal system built on confrontation and technicalities, one judge’s bold decision in Ipoh dares to rewrite the script. This post examines a case that could redefine how we think about justice—not just as a matter of rules, but as a moral obligation to care.

Kindness and compassion are not words that one normally associates with the law. The remote, often obscure language of the law and the cut and thrust of the judicial trial have no place for kindness and compassion.

Trials are adversarial. Their origins are in combat, and combatant attitudes still rule the way trials are conducted.

Lawyers’ letters to opponents are aggressive, demanding, and threatening. Judges, when they decide on a matter, whatever that matter is, will generally apply the dry letter of the law regardless of how it might impact the person against whom it is applied.

Any mitigation of the harshness of the laws must be found in the laws themselves. Compassion and kindness play no role, even when the most human needs, such as the need to be employed, come before the courts for a decision.

It was refreshing, therefore, to see a recent judgment of the High Court in Ipoh adding those elements of compassion and kindness to its decision. This note will omit the citation to the case to protect the identity of the teacher.

The case concerned an application for judicial review of a decision of a disciplinary board to dismiss the applicant. The applicant was a government schoolteacher. The teacher, because of persistent psychological problems, was absent from school on several occasions. The school was aware of his medical condition when he was transferred to the school in 2007. The school was also aware that he elected not to be boarded out of service because of his illness, but desired to continue to work as a teacher.

Because of the severe effect of the medication on him in the morning, the teacher had asked to be reassigned to teach in the afternoon, but this was denied. Instead, following his absences from class, the Ministry of Education found him guilty of misconduct and dismissed him from service. He appealed to the Disciplinary Appeal Board, but without success. The teacher then applied to the High Court in Ipoh for a judicial review of the Appeal Board’s decision.

The teacher’s main argument was that neither the disciplinary board nor the appeal board had, in reaching their decision, considered his medical condition or his appeal to be reassigned to teach in the afternoon classes.

A judge who is considering an application for judicial review must confront a whole range of technical issues in law. Judge Su Tiang Joo JC, the judge in the instant case, waded through all these issues before deciding in favour of the schoolteacher.

But what is noteworthy about his judgment is his comments about how the education authorities disregarded the teacher’s medical condition and his request to be reassigned to classes in the afternoon.

Kindness, the judge thought, could have avoided the teacher having to appeal to the courts for relief.

‘It is unfortunate that the respondents have collectively failed to show kindness to the applicant, necessitating his having to come to the Court to seek justice and, undoubtedly, the compassion of this Court on the situation in which the applicant finds himself, and this Court ought not to turn him away. Along the path on Constitutional Hill in Johannesburg, leading to the Constitutional Court of South Africa, the highest court on constitutional matters, is a big structure made up of letters that reads “BE KIND”. Its location within the grounds of the Constitutional Court makes it clear that it is this attribute that the Constitutional Court holds dear, and which underpins the cornerstone of a civilised society of equals governed by the Rule of Law.

The American psychiatrist, Theodore Isaac Rubin, said in words that resonate very well with this Court, and I quote, “Kindness is more important than wisdom, and the recognition of this is the beginning of wisdom.”

According to the judge, the silence was deafening on the part of the authorities when they refused to deal with the serious ailment ‘suffered by a man who was struggling to cope and who at the same time is desperately seeking to hold onto his job which he cherishes so as to be able to pay off his housing loan (with 17 years more to go) and to look after his aged mother . . .’

This is an inspiring decision. The imposition of a duty on government officials to be kind may establish a new judicial ground for reviewing their decisions.

More than that, the judge’s remarks might persuade them in their work to be kind to the thousands who turn to them daily for help.

Higher Education Minster Acted Ultra Vires Rules High Court

 

Section 4A, the Universities and University Colleges Act 1971.

For the purpose of selecting a qualified and suitable person for the post of Vice-Chancellor or for any other post to which the Minister has the power to appoint under this Act, the Minister shall, from time to time, appoint a committee to advise him on such appointment.

The Minister of Higher Education acted ultra vires and in violation of natural justice in terminating the appointment of a member of the statutory committee established to advise the minister on the appointment of Vice-Chancellors. This was the finding of the KL High Court following an application for judicial review (JR) of the minister’s action. The JR application was made by Dr Andrew Aeria, the member involved in the dismissal. The decision was delivered on 12 August 2021.

The Permanent Selection Committee for the Appointment of Vice-Chancellors

The committee in question is the Permanent Selection Committee for the Appointment of Vice-Chancellors (the Committee) which is established under section 4A of the Universities and University Colleges Act 1971 (the Act). The Committee’s function is to advise the minister in selecting qualified and suitable persons for the post of Vice-Chancellors in public universities. Section 4A was added to the Act in 2009 to ensure ‘greater accountability, transparency, professionalism and academic independence and autonomy in the process of the appointment.’ The section applies not only to the appointment of vice-chancellors and deputy vice-chancellors but also to other officials in the Ministry such as the Director-General of Higher Education and Deputies Director-General. However, the Committee only deals with the appointment of vice-chancellors.

The High Court Decision

Dr Aeria was appointed to the Committee in 2018 for a term of three years with a provision for earlier termination with 30 days’ notice. Notwithstanding those provisions, his appointment was terminated in April 2020 when a new minister took office, giving him only 4 days’ notice. Dr Aeria’s application for judicial review was filed in 2020 and the matter was heard in August this year. Apart from declaring the minister’s actions ultra vires and against natural justice, the court also issued a certiorari order to quash the minister’s decision to terminate Dr Aeria’s appointment. Further, the court declared that because of the quashing of the decision, Dr Aeria’s membership in the Committee was deemed to have continued from the date of his appointment to the date of the court’s order. Dr Aeria was awarded costs of RM 5000 and damages that are to be assessed by the court.

Wider Implications of the Case

The High Court’s decision may have wider implications than on the rights of reinstatement of someone wrongfully removed from a statutory committee. Despite the important role it plays, the Committee functions outside public scrutiny and oversight. Even insiders in the higher education sector are ignorant about how the Committee’s advice to the Minister is reached and communicated to the Minister. In fact, the very manner in which the Committee is presently constituted raises a few questions about whether there has been compliance with section 4A. The section directs the Minister to establish a committee ‘from time to time’ to advise him on the appointment of any official who the Minister is empowered to appoint under the Act. Section 4A makes no provisions for the constitution of the committee or how it is to function. In any case, what is envisaged by the section cannot by any stretch of the language used be described as a permanent committee. Nevertheless, what has transpired through bureaucratic processes in the Ministry of Higher Education (MOHE) is the establishment of a committee described as the ‘Permanent Selection Committee for the Appointment of Vice-Chancellors.’ Although it is the Minister who appoints members to the committee, there are documents (created by the MOHE) that deal with the terms of appointment, the responsibilities of members appointed to the committee and the criteria for the selection of Vice-Chancellors. The MOHE’s efforts in setting up the Committee and the attendant regulations no doubt contribute to good management and continuity in the Committee’s processes. However, if the criteria for appointment of VCs is set by the Ministry, would that not interfere with the independence of the Section 4A committee? A factor not considered by the High Court decision is the legality of any appointments to the seat of Vice-Chancellor that may have been made on the advice of the Committee during the absence of Dr Aeria from the Committee.

The substantive orders and declarations issued by the High Court in this judicial review would, it is submitted, support arguments in a future application to challenge the constitution of the Committee and perhaps even the decisions it makes in advising the Minister.

Judicial Review

Dr Aeria’s case establishes that the court’s willingness to inquire into the propriety of appointments and removal of members from the Committee under an application for judicial review. If this is the case, then in appropriate circumstances, a member of the Committee, or indeed any other party with an interest in the appointment of a Vice-Chancellor, may be able to apply for a judicial review of the advice that the Committee gives to the Minister under the section.

Judicial review is a powerful tool to subject official decisions to an independent review of lawfulness. Actions for judicial review play a key role in keeping those vested with statutory powers to act according to those powers. Not many in academia are willing to take such actions and as such the High Court decision, is a tribute to Dr Andrew Aeria’s willingness to challenge the Minister’s decision.

Unanswered questions aside, there is no doubt that the decision as delivered by the High Court will strengthen the role of the Section 4A Committee, prevents its manipulation by the Minister and ensure the independence of the members appointed to the Committee.

Gerak’s Judicial Review Application Rejected. No written reasons for the rejection

 An earlier post on this blog wrote about GERAK’s application to the High Court for a judicial review of the appointment of the VC of Terengganu. Gerak’s application challenged the appointment on the ground that it had not complied with the statutory requirements of the Universities and University Colleges Act 1971.  After hearing the arguments of lawyers appearing for the different parties on 25 March 2021, the High Court rejected Gerak’s application on 9 April 2021. The court’s reasons for rejecting the application were not given. High Court judges are only required to provide written reasons for their decisions if a party to the action decides to appeal the decision. Our information is that the executive committee of Gerak is considering appealing the decision.

The absence of any obligation on a judge to give written reasons for their decision may come as a surprise to many. It is, however, the position that judges owe no duty to write the reasons for their decisions; none is imposed by law nor by the extensive rules of court. The origins of the present position can be traced through how English common law was introduced into this country to the decisions of the courts in England in the 17^th century on that point. The justification for not requiring judges to write their opinion is that the imposition will cause delays and ultimately the cost of litigation that will fall on the litigant.

Notwithstanding the absence of any obligation to do so, judges, even those sitting in lower courts do provide written reasons for their decisions and they are generally encouraged to do so by those administering the judicial system. Recently, Chief Justice Tengku Maimun Tuan Mat, speaking at an induction programme for new judges, highlighted the importance of judges writing the grounds of their judgment in court cases. The Chief Justice explained that written judgments would lead to more care in arriving at decisions and enable parties to know why they had won or lost a case and to also enable other lawyers to predict how future cases on a similar point may be decided by other courts.

Written judgments add clarity to laws whether they are found in statutes or the decisions of other judges. Written judgments also contribute to the development of the laws and make them better accord with social realities and needs. The judge deciding the application of the laws to a particular dispute at a given moment in history can mediate the laws to the needs of that moment. By writing reasons for a decision, the judge will provide a record for other courts to apply his reasoning or depart from it or modify it to the dispute before the court. Written judgments are important to define the legal rights and obligations of individuals. In the present case, a written judgment would have given the parties involved a better understanding of how s. 4A of the Universities and University Colleges Act 1971, the law at the centre of the challenge applies, its scope and its limitations.

An application for a judicial review ensures that those vested with legal powers to do something that affects the public interest, such as the appointment of a Vice-Chancellor, exercise those powers in compliance with the empowering law. The decisions of judges who review administrative procedures will also add greater clarity to the laws. Such legal actions do not come cheap to those initiating them and at the end of the day the very least they deserve, even if they fail in their application, is that they have a better understanding of the law.

A public statement of the reasons for a judgment is therefore owed to those involved in the action and to the community at large. If decisions are made without giving written reasons, as in the dismissal of the Gerak application, it will lead to a feeling of injustice among the members of the association and a reduced appreciation or understanding of legal rights and obligations. It also leaves Gerak in a quandary about appealing the decision.

GERAK applies for Judicial Review of the appointment of the Vice-Chancellor of Universiti Terengganu

Kuala Lumpur 25 March 2021

The High Court in KL heard an application this afternoon from Gerak, a leading academic association, for a Judicial Review of the appointment of the Vice-Chancellor of Universiti Terengganu.

The application was made by Pertubuhan Pergerakan Tenaga Akademik Malaysia (Gerak) (Malaysian Academic Movement), Professor Zaharom Bin Nain as Chair of the Association, and Rosli Bin Mahat as Secretary of the Association. The respondents to the application are the Minister of Higher Education, Malaysia and Ybhg Dato’ Dr. Nor Aieni Binti Haji Mokhtar (Vice-Chancellor, Universiti Malaysia Terengganu)

The application was made on the alleged ground that the appointment of the Vice-chancellor was not in compliance with section 4A of the Universities and University Colleges Act 1971 (Act 30). Section 4A was added in 2008 through an amendment Act. The section reads as follows:

4A.  For the purpose of selecting a qualified and suitable person for the post of Vice-Chancellor or for any other post to which the Minister has the power to appoint under this Act, the Minister shall, from time to time, appoint a committee to advise him on such appointment. 

Gerak’s application states that the object of the new section at the time it was passed was to instill 'greater accountability, transparency, professionalism and academic independence and autonomy in the process of the appointment' of Vice-Chancellors of public universities. The contentions before the court this afternoon centered around two main issues which were,

1. Whether Gerak had standing as a society of academics to apply for a judicial review (the standing issue), and
2.  Whether section 4A of the Universities and University Colleges Act 1971 (Act 30) applied to reappointments of vice-chancellors or was only limited to first appointments. (the reappointment question)

On the issue of standing, Gerak’s lawyers argued that Gerak had satisfied the “adversely affected” test as required by law and therefore had standing to apply for the JR. It was argued that Gerak as an interest group representing academics has a real and genuine interest in ensuring the appointment of Vice-Chancellors is carried out openly and transparently with the advice of a committee appointed under section 4A. That section was introduced to strengthen academic freedom and the autonomy of universities, which are also some of Gerak’s objectives. Secondly, compliance with section 4A, it was argued, ensured that members of Gerak who aspired to apply for the position of Vice-Chancellor of a public university would have fair access to such a position whenever the position of Vice-Chancellor in a public university fell vacant.

The view of Gerak’s lawyer on the second point was that section 4A applied not only to the first appointment of an individual as Vice-Chancellor but also subsequent appointments.

Lawyers for the Minister and the incumbent Vice-Chancellor took opposing views on both questions.

The High Court will deliver its decision on the application on 9 April 2021.