Monday, 27 January 2014

HOW NOT TO CONDUCT A DISCIPLINARY HEARING......  ( Article by Professor Hu Chi Ku Chi )

Members who believe that they have been wrongfully suspended by their clubs, usually have a
strong case if the initial disciplinary hearing was flawed in any way.
In a most sensational American case the court went out of its way to highlight the factors which would seriously undermine any claim , by a social or sporting club , that the hearing was carried out properly , with due process , impartiality and fairness. The following observations made by the learned judge simply outlined  the essential " DO NOT " rules when it comes to conducting disciplinary hearings. 

1. DO NOT impose an automatic or mandatory suspension based on an unsubstantiated charge as it might well be considered arbitrary and a violation of basic due process rights

2. DO NOT allow a hearing to become nothing more than a pro forma recital of the accusation 

3. DO NOT allow the permitted use of discretion to be applied in an unreasonable way

4. DO NOT undertake a hearing where the exercise of responsible discretion is just a sham, being wholly illusory in its application

5. DO NOT ignore the fact that the accused member has rights just as valid as those conferred upon the committee to act in the best interests of the club

6. DO NOT ignore the fact that the accuse should be presumed innocent of the alleged charge , except upon proper proof of guilt

7. DO NOT ignore the fact that the accused member has a right to a prompt and fair hearing , and a right not to be dealt with in a hasty and arbitrary way

8. DO NOT allow the hearing to be corrupted by bias, lack of due process , or lack of fundamental fairness , for all these factors add up to a violation of justice

9. DO NOT under any circumstances conduct a hearing , unless the person charged is accorded a meaningful opportunity to respond to the charge and to rebut them , before any decision is taken

10. DO NOT allow a hearing to be a mere formality in that nothing presented there at , either by the accused or someone  acting on his behalf , would alter the predetermined result. 

11. DO NOT present a hearing which at best only protrays a shadowy semblance of fair play.

12. DO NOT schedule a hearing unless the accused has received proper notice for the hearing. This must list all the charges he/she is likely to face , who his accusers are , the likely consequences should guilt be established , along with notice of how to access all relevant documents regarding the incriminating evidence , which need to be looked at in advance of the hearing

13. DO NOT deny the accused the opportunity to establish his/her credibility

14. DO NOT believe that a full adversarial hearing is required , but similarly do not conduct one on the lines of a kangaroo court

15. DO NOT exhibit documents that have no bearing on the alleged charge , or only those which infer guilt or wrongdoing. This is to avoid too much weight being attached to evidence supporting the charge. Fairness requires equal consideration to be given to evidence that negates the indictment

16. DO NOT by means of clever masquerades  conduct a hearing with vestments of fairness , when in reality the opposite is true

17. DO NOT choose to take on the burden of explanation , exculpation and mitigation because this responsibility should be properly placed on the member charged , so that an authentic opportunity to refute the charge(s) is given

18. DO NOT conduct a hearing where the result appears to be pre-ordained once the accusation is made

19. DO NOT attempt to scurry around afterwards in an attempt to cover up actual failings and shortcomings within the hearing itself   

20. DO NOT be seen to act in a way reminiscent of the old western movies , where the tough sheriff said " we have to get the trial over with first , and then we'll hang him "

So not surprisingly then that in this particular case the court concluded that the determination by the club suspending the members was arbitrary and capricious , and imposed without a meaningful hearing and in the absence of substantial evidence with respect to the alleged charge. As for the charge.....well that was shooting valuable horses , allegedly with the intent to perpetrate an insurance scam.

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