until it reaches the DC , although , strictly , the Act does not require a complaint or complainant for the Board to exercise its disciplinary powers ( Lembaga Jurutera Malaysia v Leong Pui Kun [ 2009 ] 2 MLJ 36 ) as such requirement would limit the Board ’ s regulatory powers . The journey of a complaint is markedly set out in the Regulations and the Act .
It begins with the Board determining whether “ it is satisfied that there may be sufficient grounds for the complaint ” before appointing an Investigating Committee ( IC ) to investigate the complaint . The IC then submits a report , its recommendations and a draft charge if it “ is satisfied that there are grounds for the complaint ”. The DC sends the charge and conducts a hearing , giving the impugned engineer an opportunity to be heard before making an order to cancel or suspend one ’ s registration , to fine and / or to issue a reprimand . Thereafter , such a decision by the DC may be appealed to the Appeal Board ( AB ) whose decision shall be final and non-appealable .
Put very simply , a complaint goes through the Board , the IC , the DC , and the AB , assuming the Board finds grounds for the complaint or the alleged misconduct . Otherwise , the complaint or alleged issue may be dismissed at an early stage . The exact procedures taken by each committee or board appointed are at their discretion as long as they do not contradict the Act or the Regulations .
The wide discretion given to the Board by the enabling legislation in determining its procedures is in line with the fact that it is the best authority to carry out the functions it was created to do ( Keith Sellar v Lee Kwang And Tennakoon v Lee Kwang [ 1980 ] 1 LNS 36 ). However , the power or discretion is not unfettered and must be exercised reasonably .
The Role of the Court : The Overseer
It may be observed that a public or disciplinary body is not always right or properly exercising its powers . Being a legal entity which may sue as well as be sued , the Board ’ s decisions can be challenged in court under a process called judicial review , a process under which public actions are reviewed by the judiciary , i . e ., the courts . The impugned decision may be quashed by the court and the case may be ordered to be redetermined by the public authority if the judicial review is successful . A declaratory order may also be sought . These reliefs are not exhaustive .
This is the only way to ‘ appeal ’ against a decision of the Board , in a limited sense , as Section 22 ( 5 ) of the Act provides that the decision of the AB shall be final and Section 28 of the Act provides that no court action can be taken against the Board , IC , DC , or AB for any such decision , act or omission taken in good faith in discharging their functions , power or duties under the Act or Regulations .
The law also does not generally allow any party to make an application for relief against a public authority concerning an infringed public law right except by way of judicial review ( Robert Cheah Foong Chiew v Lembaga Jurutera Malaysia [ 2009 ] 1 MLJ 676 ). The provision of judicial review protects the public as well as the public authorities themselves – the public , by leaving an avenue for decisions of public bodies to be challenged when they are ordinarily non-appealable , and the public authorities , by restricting ordinary legal actions and limiting the scope of review of the authorities ’ actions to prevent an influx of claims ensuing from the mere exercise of statutory public duties . One should take care not to use the wrong procedures lest his case be deemed an abuse of the court ’ s process and be struck out . Otherwise , a judicial review is available to an aggrieved engineer or practice due to a decision of the Board .
The bar to a successful judicial review application is , however , high . The law of judicial review is governed by Order 53 of the Rules of Court 2012 which imposes stringent conditions . The Board ’ s procedures or processes in determining a dispute or complaint relating to the professional conduct of a registered person or practice which ultimately leads to the making of any decision , action or omission may be subject to judicial review by a party who can show that he is adversely affected by the Board ’ s decision , action or omission in relation to the exercise of the public duty or function under the laws . Such decision , action or omission must be final and conclusive .
A registered engineer whose license to practise has been cancelled by the Board pursuant to a finding of professional misconduct may show that he is adversely affected by such
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