Sunday 8 February 2015

IS THERE ANY POINT AT ALL TO HAVING A DISCIPLINARY HEARING ?................ ( Article by Professor Hu Chi Ku Chi )

Not when the committee believe the outcome is a foregone conclusion , it seems.
If say a person viciously attacks and injuries another member in front of dozens of witnesses , it would seem that under any rules of unacceptable conduct , this one-off unprovoked violent act warrants immediate expulsion and permanent loss of membership. So why afford the member the right to a hearing, when the obvious outcome is going to be a life ban ? 
Yet the answer is this : a hearing is an absolute requirement given that the committee is under a legal obligation to do so under its own regulations and/or the law of the land. To say " we didn't hold a hearing because there was no point " contradicts logic , commonsense , fairness, equity and justice , which all subscribe to the creed there is always a point to having a hearing. Justice in order to be done has to be seen to be done.
In one highly instructive case from America , La Gorce County Club v. Cerami , the judges were appalled to discover that the expelled member was denied a hearing : to present his version of events, raise counter-arguments , challenge his accusers , and/or make  pleas in mitigation.

The following pronouncements reflected the judges' determination to restrain club committees from subjecting members to disciplinary proceedings more in keeping with a kangaroo court  .  
" From the authorities before us , it appears to be the majority , and we think the better reasoned view , that if expulsion of a club member is accomplished without notice and hearing , the denial of these minimum safeguards is violative of the principles of natural justice , and judicial intervention is indicated. " 
" To accept this ingenious argument would result in usurpation of the prerogatives  which the club by-laws , and legal precedents , have delegated to its own governing body. And since this body is the final arbiter of the sufficiency of causes for expulsion , we cannot presume , under any circumstances which we are able to foresee at this moment , that a hearing before it would be vain and useless ." 
Moreover , these appeal court judges were quick to support the trial judge's ruling that Cerami was entitled to an opportunity to be heard ,  in order to give the hearing both credibility and value. Cerami should have been given notice of all the charges laid against him. This procedure need not have been formal, or in any way ponderous , but it was INDISPENSABLE as a matter of law. 
Although the club tried to argue that Cerami's petition was defective for failure to allege a demand for hearing , the court held the onus fell upon the committee to schedule a hearing date and give notice to Cerami of his right to attend. The club's responsibility-shirking argument was of course rejected out of hand in that the duty rests with the committee " to afford the member an opportunity to be heard , of which he may or may not avail himself , and to impose no requirement that the member must demand a hearing ".

And so for all club committees desperate to conduct disciplinary hearings within the law , I have one piece of advice. Make sure you go to great lengths to be over-accommodating , providing the member perhaps with more rights , benefits of doubt , and concessions that he/she is entitled to .  That way , should the outcome be a decision to expel the member, he or she will have no justifiable grounds whatsoever to challenge that decision ,  or the manner and way in which it came about.
Rules on natural justice apply worldwide. 


  

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