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Thursday, March 12, 2015

A legitimate expectation to attend parliamentary sittings? – Hafiz Hassan

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John Peter Berthelsen, an American, was granted an employment pass on 2 November 1984 for a period of two years – valid until 2 November 1986 – for the purposes of his employment as a staff correspondent attached to the Kuala Lumpur office of the Asian Wall Street Journal. On 26 September 1986 Mr Berthelsen was served with a notice of cancellation of his employment pass by the Director General of Immigration under the Immigration Regulations 1963 (“the Regulations”).
The notice of cancellation recited that the Director-General of Immigration was satisfied that Mr Berthelsen had contravened or failed to comply with the Immigration Act 1959 - 1963 and the Regulations, in that he had failed to comply with the conditions imposed in respect of that pass, and that his presence in the Federation was or would be prejudicial to the security of the country.
Mr Berthelsen then immediately took steps to apply to the High Court for leave to apply for an order of certiorari to quash the cancellation of his employment pass and for an order of prohibition against his removal from the country.
At the outset of the hearing of the appeal, the Supreme Court was of the view that leave should in fact have been granted by the High Court as the point taken by Mr Berthelsen was not frivolous to merit refusal of leave and justified argument on a substantive motion for certiorari. Leave was therefore granted to Mr Berthelsen to apply for an order of certiorari.
The Supreme Court then took occasion to refer to an English Court of Appeal case, Schmidt v Secretary of State for Home Affairs [1969] 2 WLR 337 where Lord Denning advanced the view that that an administrative body should give a hearing when a person’s liberty, interest or some ‘legitimate expectation’ was being affected.
In this case, the English Court of Appeal ruled that a foreigner whose permit to stay in Britain had expired did not have a right to be heard if he was refused an extension of time to stay longer, because a foreigner had no ‘legitimate expectation’ of being allowed to stay on after expiry of the permit. However, if the permit was being revoked before its expiry he ought to be given a hearing because he was deprived of a legitimate expectation of being allowed to stay on for the duration of the permit.
Thus, it was said, was introduced the doctrine of legitimate expectation into administrative law which the Supreme Court appears to approve without much difficulty. The Supreme Court’s approval is further evidenced by its reference to the case of Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 269 where Lord Fraser of Tullybelton in delivering the judgment of the board said:
“Accordingly ‘legitimate expectations’ in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis: see Reg.v. Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 QB 864. So it was held in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain (No. 2) [1979] 1 WLR 1041 that a prisoner is entitled to challenge, by judicial review, a decision by a prison board of visitors, awarding him loss of remission of sentence, although he has no legal right to remission, but only a reasonable expectation of receiving it.”
The case of Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain,which was decided by the English Court of Appeal, has in fact been accepted by the superior House of Lords in O’Reily v Mackman [1987] 2 AC 237. In that case the House of Lords ruled that remission of a prison sentence was not a matter of right but of indulgence. Nevertheless, a prisoner had a ‘legitimate expectation’ of obtaining remission, based on knowledge of general prison practice. Such a ‘legitimate expectation’ gave a prisoner sufficient standing to challenge disciplinary forfeiture of sentence remission if natural justice had not been abided with.
So, what is legitimate expectation? In broad terms, it ‘refers to an expectation that one would be conferred with a benefit even though one might not have a legal right to that benefit’. (see UDL Marine (Singapore) Pte Ltd v Jurong Town Corp [2011] SGHC 45). And the court will protect his expectation by judicial review as a matter of public law – so said Lord Fraser in Council of Civil Service Unions v Minister for Civil Service [1985] AC 374.
In short, legitimate expectation is what the word suggests: an expectation that one legitimately look forward to. And it is an expectation that our courts, since Mr Berthelsen’s case, have recognised as recently as in 2009 in the Court of Appeal case of Law Pang Ching v Tawau Municipal Council.
So, how does one make sense out of the above?
A convicted member of Parliament, pending the decision of a clemency petition, arguably has a legitimate expectation to attend parliamentary sittings.
The doctrine of legitimate expectation is rooted in fairness. And in all fairness, a democratically elected representative of the people can legitimately expect to attend parliamentary sittings when Parliament is in session.
- TMI

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