Dato' Dr. Mahmud Bin Mohd Nor v Dr.Mohd Ismail Bin Abdul Hamid (W-02(NCvC)(A)-1434-10/2020)

Content

1 IN THE COURT OF APPEAL, MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: W-02(NCvC)(A)-1434-10/2020

Subparagraph

(ii) a declaration that the decision of the PIC on 28 May 2014 is null and void. [2] Having considered the submissions of all parties, we have allowed the appeal and set aside the decision of the learned JC. The Salient Facts [3] The Respondent is a registered medical practitioner under the Medical Act 1971 ("Act 50"). [4] The First Appellant is the appointed Chairman of the PIC established by the Second Appellant, the Malaysian Medical Council (“MMC”). [5] Vide a letter dated 21 January 2005, a complaint was lodged with the MMC against the Respondent pertaining to the conduct and treatment a complainant had received from the Respondent ("the Complaint"). [6] The MMC had appointed the PIC, which composed of three members pursuant to Regulation 26, of the Medical Regulations 1974 (the "1974 Regulations"):-

Subparagraph

(ii) Dr Low Nan Hang ("Dr Low"); and

Subparagraph

(iii) Dato' Dr Ismail bin Saad ("Dr Ismail"). [7] The PIC was to conduct a preliminary investigation into the Complaint and make a recommendation to the MMC on whether to hold an inquiry or otherwise against the Respondent, depending on the findings of the PIC. The function of the PIC is not to make a finding of guilt against the Respondent, but merely a finding of whether there are sufficient grounds to recommend that the MMC hold an inquiry against the Respondent. [8] Following the preliminary investigation inquiry conducted by the PIC on 13 February 2006 ("1st Hearing"), 22 May 2006 ("2nd Hearing") and 23 April 2014 ("3rd Hearing"), it was found that there are grounds to support the charge against the Respondent and a recommendation was made for an inquiry to be held by the MMC against the Respondent ("Recommendation"). The Recommendation was communicated to the Respondent vide the MMC's letter dated 28 May 2014. [9] The Respondent then filed the OS, and the Appellants subsequently filed a Notice of Application dated 15 June 2016 to strike out the OS premised on the fact that there were four previous actions filed by the Respondent that constitute similar facts as the present matter. [10] The OS was struck out in the High Court vide Order dated 17 October 2016, and the Respondent filed an appeal against the said High Court Order, to which this Court had allowed the Respondent's appeal against the said High Court decision and the matter was remitted to the High Court on its merits. [11] The Learned Judicial Commissioner allowed the OS on 9 September 2020 and the Appellants subsequently filed a Notice of Appeal dated 2 October 2020 to appeal against the decision of the Learned JC in allowing the OS. Decision of the High Court [12] The Learned JC ruled that the composition of the PIC complied with regulation 26(2) when the PIC was formed in 2005. The PIC then consisted of 3 members namely the First Appellant, Dr Low and Dr Ismail. During the 1st Hearing and the 2nd Hearing, the PIC was properly constituted when all three members attended the meetings. However, Dr Ismail passed away on 7 March 2014, whilst the preliminary investigation by the PIC was still ongoing. [13] During the 3rd Hearing on 23 April 2014, only the First Appellant and Dr Low attended the hearing. The learned JC then held that this resulted in the PIC being not properly constituted and was irregular or invalid in law. Likewise, when the PIC made its Recommendation, the PIC was not properly constituted and, in the circumstances, the Recommendation was declared as null and void. Our Decision Disciplinary Proceedings [14] The MMC is a statutory body established under section 3 of Act 50. The MMC's functions under Act 50, inter alia, are to register medical practitioners, to regulate the practice of medicine and to regulate the standards of practice as well as the professional conduct and ethics of registered medical practitioners. [15] Being a registered medical practitioner under Act 50, the Respondent is subject to the disciplinary inquiry procedures provided under Act 50 and the 1974 Regulations, similar to other professional bodies who are subject to regulatory law of like manner. [16] The disciplinary proceedings are provided in the 1974 Regulations. Under regulation 27, if a complaint or information is lodged against a practitioner, alleging their conviction in Malaysia or elsewhere for a punishable offence, has been guilty of infamous conduct in any professional respect, has obtained registration by fraud or misrepresentation, or removal from a medical practitioners' registry outside Malaysia, the President of the MMC shall forward the complaint or information to a PIC Chairman. [17] The PIC may dismiss a complaint summarily under regulation 28. [18] If the PIC has reasonable grounds to suspect the complaint or information to be true, pursuant to regulations 29, the PIC will investigate:

Subparagraph

(ii) On the other hand, if the statements provide enough support for the allegation, the PIC may formulate the charge and inform the practitioner that they have the option to present their defence against the charge.

Subparagraph

(iii) If the practitioner decides not to respond, the PIC shall recommend that the MMC conduct an inquiry. [19] However, if the practitioner elects to make his defence before the PIC, his statement will be documented. If the PIC finds that there is insufficient evidence to support the charge, they may recommend to the MMC that no action be taken. However, if the PIC determines that there are valid grounds to support the charge, they may advise the MMC to conduct an inquiry. [20] From the PIC, the records of the inquiry before the PIC shall be transmitted to the MMC under regulation 30. [21] Regulation 31 governs the MMC inquiry process. If, upon concluding the inquiry, the MMC determines that there is no basis for a case against the practitioner, it will order the charge to be dismissed and inform the practitioner accordingly. However, if the MMC finds the practitioner guilty of any disciplinary matter stated in section 29 (2) of Act 50, it shall inform the practitioner of its finding and the grounds for its decision, and request the practitioner to present any plea in mitigation. After hearing any plea in mitigation, the MMC may exercise any of its powers specified in section 30 of the Act 50. [22] It is clear that there is a two-tier process in relation to a disciplinary inquiry against medical practitioners under Act 50 and the 1974 Regulations, whereby the first stage (the preliminary stage) is conducted by the PIC, prior to the second stage which is before the MMC. Only at the MMC stage would there be a ruling as to whether the Respondent is guilty or otherwise of the disciplinary charge. [23] From the decision of the MMC, section 31 of Act 50 provides an avenue of appeal to the High Court against the orders of the MMC, where subsection (1) reads: “(1) Any person who is aggrieved by any order made in respect of him by the Council in the exercise of its disciplinary jurisdiction may appeal to the High Court, and the High Court may thereupon affirm, reverse or vary the order appealed against or may give such direction in the matter as it thinks proper; the cost of the appeal shall be in the discretion of the High Court.” [24] In the present case, the application before the High Court is not an appeal from the decision of the MMC. The Respondent was challenging the process of the PIC, which is only tasked to make an inquiry into the Complaint lodged against the Respondent. The PIC is not statutorily empowered to make a decision on the complaint as only the MMC has the disciplinary jurisdiction under Act 50. [25] We are therefore of the considered opinion and we agree with the Appellants that section 31 of Act 50 provides a statutory guarantee of the right of the Respondent to appeal to the High Court against the decision of MMC in the exercise of its disciplinary jurisdiction. Until the MMC exercises its disciplinary jurisdiction under Act 50, any decision, order or direction given by the PIC is not an order which is appealable under section 31 of Act 50. [26] In the present appeal, the MMC has not heard nor made any decision yet. Unless and until the MMC makes an order/decision in the course of its own inquiry under section 31, the Respondent should not be allowed to challenge the PIC decision as the same is not appealable. Indeed, there is nothing in the Act 50 nor the 1974 Regulations that allows an appeal against the order made by the PIC. [27] The Respondent should not be allowed to challenge the early stages of the decision-making process, without awaiting the final decision of the MMC. In granting the declaratory orders, the learned JC had allowed piece meal attacks on the disciplinary process, thereby delaying the actual process itself. This can be seen from the fact that as in 2023, nearly 10 years had lapsed before the MMC can deal with the complaint lodged against the Respondent. Therefore, we are of the considered opinion that it is premature at this juncture for the Respondent to seek a declaration from the court. The disciplinary process should be allowed to run its natural course in accordance with Act 50 and the 1974 Regulations, as the only decision that the Respondent will be adversely affected with is the final decision of the MMC pursuant to section 30 of Act 50. [28] In Dr Colin Lee Soon Soo v. Majlis Perubatan Malaysia [2011] 1 CLJ 907, the applicant was notified that an inquiry before the PIC, convened by the MMC under regulation 26 of the 1974 Regulations to investigate the complaint against him. During the inquiry, it was revealed that Dr. Mazlan had lodged the complaint on behalf of the respondent and not as an individual. In view of the fact that the respondent was the actual complainant, the applicant protested against the proceedings citing that they were unfair and violated the principles of natural justice. [29] However, the applicant was informed by the Chairman of the PIC that the respondent itself had considered and rejected the applicant's Preliminary Objection, and directed the PIC to proceed with the inquiry. No grounds of decision for the dismissal of the Preliminary Objection were given. The applicant therefore requested for the inquiry to be adjourned pending an application to court for judicial review against the respondent's decision. The applicant claimed that the respondent was the Complainant, Judge, Jury and Executioner and therefore there can be no fair and unbiased hearing for the applicant. In dismissing the application, Mohd Zawawi Salleh J (as he then was) held as follows: "[19] On the evidence before me, it is clear that the internal decisions making procedures have not been exhausted and the "ultimate decision/order" of the Council on the complaint is unknown. It is not for this court to speculate upon the outcome of such investigation might be.” [30] In Taylor's College Sdn Bhd v. Ketua Pengarah Kesatuan Sekerja Malaysia & Ors [2009] 5 CLJ 153; [2009] 3 MLJ 437 Suriyadi Halim Omar JCA (as he then was) at pp. 165-166 (CLJ); pp. 448-449 (MLJ) said: “[22] Apart from the reason as prognosed above, this appeal could also be dismissed on the ground that the judicial review application by the appellant merely served to fragment the decision-making process and hence premature. We were not convinced that a 'decision' existed here that was amenable to judicial review in the context of judicial or administrative proceedings. The decision of the first respondent could not be said to have effectively disposed of the matter whereby its decision was final and determinative of the issue under consideration. [23] The High Court in Australian Broadcasting Tribunal v. Bond & Ors 94 ALR 11 when considering whether a decision was amenable to judicial review under the provisions of the Administrative Decisions (Judicial Review) Act 1977 had occasion to remark: ... On the one hand, the purposes... are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of 'decision' is extended, there is a greater risk that the efficient administration of government will be impaired... To interpret 'decision' in a way that would involve a departure from the quality of finality would lead to fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process. [24] In Kaneka Paste Polymers Sdn Bhd v. Ketua Pengarah Perhubungan Perusahaan & Ors [2005] 1 LNS 276; [2005] 5 MLRH 86 at p. 89 Raus J (as he then was) had this to say:

Subparagraph

(DC) of the Malaysian Institute of Accountants has not conducted the hearing of the complaint against the Applicant. Before the DC, the applicant had raised a Preliminary Objection (PO) on the Charge against him and on the composition of the Investigation Committee. When the DC dismissed the PO, the Applicant had appealed to the Disciplinary Appeal Board, which had dismissed the Applicant's appeal. On an application to the High Court, the same was dismissed by the learned Judge on the basis of prematurity: "[18] In the present case, it is common ground that the DC has not conducted the hearing of the complaint against the Applicant. Before the DC, the Applicant had raised a PO on the Charge and the composition of the IC. When the DC dismissed the PO, the Applicant had appealed to the DAB, which had dismissed the Applicant's appeal. [19] Therefore, I am of the considered opinion that there is merit in the Respondents' preliminary objection on the grounds of prematurity. The DC's decision on the PO raised by the Applicant is only an interlocutory decision, not a final determination of the disciplinary proceedings against the Applicant. The Applicant should have allowed the disciplinary proceedings before the DC to conclude, and thereafter to appeal against the impugn decision to the DAB. To challenge an interlocutory decision, which is not the final determination of the disciplinary proceeding by the DC, is a premature challenge which should be dismissed. In Regina v. Chief Constable of Merseyside Police, ex parte Merrill [1989] 1 WLR 1077, the English Court of Appeal held that the normative rule is that an aggrieved party should await the final outcome of a disciplinary hearing prior to seeking judicial review. The Court held that: "There can be cases in which the evidence is so substantial that it is sensible to give separate consideration to a preliminary objection but these must be very rare and I do not think that this was such a case. It must be even rarer to have a situation in which judicial review should even be considered before a Chief Constable has reached a final decision on the complaint, if indeed one can be imagined. Normally, the time for judicial review would not arise, if at all, before the appeal tribunal has given its decision." (emphasis added) [33] In Datuk Dr Hj Hamid Sultan Abu Backer v. Pengerusi Jawatankuasa Etika Hakim-Hakim ('Chairman Of The Judges 1 Ethics Committee') & Anor [2021] 8 CLJ 708; [2021] 8 CLJ 708, the High Court held that judicial review is untenable because there was no final decision that has conclusively determined the rights of the applicant. The learned Judge held as follows: "[68] According to the facts of the case, it is the applicant's contention that the first respondent had examined both of the complaints against the applicant the first respondent then found that the complaints have merit and referred the matter to the second respondent. Subsequently, the first respondent through a notice dated 10 August 2020 informed the applicant of the alleged breach of JCE 2009. The respondents gave the applicant the opportunity to make a written representation. Furtherance to that, the applicant then sent his written reply. Upon examined the applicant's reply, the respondents found merits in the complaints. Consequently, the respondents invited the applicant to be heard. Throughout the entire process, the applicant is represented by a solicitor. However, the enquiry before the respondents are halted due to the interim stay granted by this court. The proceeding has yet to be completed. [69] Therefore, this court concedes with the Attorney General's Chambers' submission that there is no decision that has conclusively determined the rights of the applicant as the Judge of Court of Appeal. Nothing has affected the right of the applicant to pursue his defence in the ongoing proceedings before the second respondent. There has not been any decision made by the second respondent and the applicant has also not been affected by the decision of the respondent. The enquiry has not even taken place at this moment. Therefore, the respondents should be allowed to complete the enquiry in order to determine whether the applicant had breached the Judges' Code of Ethics 2009. [70] Suffice to say that the enquiry proceeding against the applicant is still at the early stage. The applicant has yet to appear before the respondents. Since enquiry has been postponed and the respondents have not heard and decide on the applicant's representation, then the court agrees with the Attorney General's Chambers' submission that the present proceeding is pre-mature. The applicant has not been found breaching the JCE 2009 as yet. The respondents might have dismissed the complaints if they find the breaches are not proven." (emphasis added) [34] In Ong Keh Keong v. Lembaga Tatatertib Peguam-Peguam [2020] 10 CLJ 181, the Disciplinary Committee (DC) made a finding that the applicant is guilty of dishonest and fraudulent conduct, in breach of s. 94(3) (c) Legal Profession Act (LPA) and guilty of conduct which was unbefitting of an advocate and solicitor under s. 94(3)(o) LPA. The DC made a recommendation that the applicant be suspended from practice for one month and a fine of RM5,000. The respondent, (the Disciplinary Board/DB) affirmed the DC's finding on liability but disagreed with the punishment and consequently, issued a notice dated 4 November 2016 to the applicant to appear before it pursuant to s. 103D(2) and (4) LPA with a view to enhance the punishment. The applicant then applied for and obtained leave to apply for judicial review against the DB's ruling. [35] The High Court had struck out the judicial review application filed by the applicant on the grounds that the decision of the respondent was not amenable to judicial review and that the applicant's application for judicial review was premature and amounted to an attempt to short-circuit the statutory disciplinary and appellate process provided in the LPA. On appeal to the Court of Appeal, this Court made the following findings: "[24] It can be seen that the main reason which persuaded the learned High Court Judge to allow the striking out of the judicial review claim was the fact that the commencement of the judicial review proceeding was premature. .... [67] In our view, the act of the Disciplinary Board vide notice dated 4 November 2016 is itself not a reviewable decision but a step in the process which will ultimately lead to a decision which is reviewable after the Disciplinary Board imposed the punishment under s. 94 of the LPA 1976. [68] In this present case, the applicant has a right of appeal to the High Court pursuant to s. 103E of the LPA 1976 in respect of any decision made by the respondent in affecting the applicant. Thus, the applicant's remedy, if he is dissatisfied with the decision of the respondent dated 13 October 2016, is to wait for the respondent to make an order under s. 103D of the LPA 1976 after hearing the applicant on the issue of enhancement of punishment and then to file an appeal to the High Court pursuant to s. 103E of the LPA 1976. In this circumstance, the applicant's application for judicial review is premature and amounts to an attempt to short-circuit the statutory disciplinary and appellate process provided in the LPA 1976. ............. [72] Hence, from the reading of the then s. 103E(2) of the LPA 1976, it seems clear that the law as it then stood precluded the applicant from moving the respondent's decision of 13 October 2016 into this court for judicial review. [73] Therefore, we should not intervene at this stage until the Disciplinary Board has considered the form of punishment to be imposed on the applicant under s. 94 of the LPA 1976. Accordingly, this appeal should be dismissed, but without prejudice to such further application as the applicant may desire to make in the light of the proceedings taken and the orders to be made by the Disciplinary Board." (emphasis added) [36] Therefore, in all the cases above, the courts have elected not to intervene in the various stages of the proceedings, unless and until a final or determinative decision was reached by the relevant authority pursuant to the relevant statutory provisions. Except in peculiar and exceptional circumstances, we are of the considered opinion that where statutes have provided the decision-making process, this should be adhered to, so that the relevant authority is allowed to complete the process and make a final determination. Thereafter, the authority’s final determination can be challenged in the courts [37] In the present appeal, similar to the position in Ong Keh Keong (supra), we find that where there is a disciplinary process that provides due process to be observed, the Respondent is not entitled to skip that process and use the Courts as a means to seek what he wants, but to avail himself of the said due process. The proper process/procedure is for the Respondent to undergo the remaining steps of the disciplinary process, before the MMC makes the determinative/final decision. At the stage of the PIC, there is no actual decision nor sanction that can be imposed by the PIC. The Respondent is not adversely affected by the Recommendation made by the PIC. [38] In the present case however, instead of participating in the disciplinary inquiry to be conducted by the MMC, the Respondent had attempted to short-circuit the statutory disciplinary process provided under Act 50 and the 1974 Regulations by filing the OS seeking a declaration. What the Respondent is seeking here is to challenge the decision and/or the process of the PIC which does not finally dispose of the rights of the Respondent. Therefore, it is our considered opinion that the application seeking a declaration against the decision of the PIC should not be allowed on the basis that it is premature at this stage. Substantive appeal [39] The Respondent’s complaint in the OS is premised on an alleged non-compliance with the procedures set out in regulation 26, which reads as follows: “26. Preliminary Investigation Committee

Subsection

(1) The President of the Council may from time to time appoint a committee from among practitioners who are willing to act, which committee shall be known as a Preliminary Investigation Committee (hereinafter referred to as "Committee") whose function shall be to make a preliminary investigation into complaints or information touching any disciplinary matter.

Subsection

(2) A Committee shall consist of such number of members not being less than three nor more than six as the President may from time to time think fit and shall be appointed in connection with one or more than one complaint or information touching any disciplinary matter.

Subsection

(3) The President may at any time revoke the appointment of any member of any Committee or may remove any member of a Committee or fill any vacancy in any Committee or, subject to sub-regulation (2), increase the number of members of a Committee: Provided that no act done or proceeding taken under these Regulations shall be questioned on the ground of any vacancy in the membership of or any defect in the constitution of such Committee.

Subsection

(4) The quorum of a Committee shall be two.

Subsection

(5) The President shall nominate a practitioner from among members of a Committee to be the Chairman of such Committee.

Subsection

(6) The Chairman shall preside at all meetings of such Committee: Provided that in the absence of the Chairman the most senior practitioner present at that meeting of such Committee shall preside.

Subsection

(7) The decision of a Committee shall be unanimous or by a majority. [40] Regulation 26(2) provides that the composition of a PIC shall be not being less than three and not more than six members. Regulation 26(4) deals with the quorum of the PIC, that the “quorum of a Committee shall be two”. Sub-regulation 26(2) is directory [41] It is not in dispute that pursuant to sub-regulation 26(2), three (3) persons have been appointed as members of the PIC. However, during the 3rd Meeting on 23 April 2014, only the First Appellant and Dr Low attended the hearing, following the demise of Dr Ismail. The issue here is whether the quorum of two (2) members attending the 3rd Meeting which made the Recommendation is valid under the 1974 Regulations. [42] We agree with the learned JC that sub-regulation 26(2) provides that the composition of the PIC must not be less than three (3) members. However, the learned JC then dismissed the Appellants’ contention that the PIC and its Recommendation was valid as the requisite quorum of two (2) members was met during the 3rd Meeting. The learned JC’s reasoning is as follows: “Quorum of the PIC

Subsection

(21) of the Grounds of Judgment, the Learned JC took the view that the usage of the word “shall” in sub-regulation 26(2) of the 1974 Regulations is mandatory and imposed an obligation to comply with the minimum number of the members in the PIC, being three, ignoring the Proviso to sub-regulation 26(3) and sub-regulation 26(4) of the 1974 Regulations. [44] We are of the considered opinion and we agree with the Appellants that if the word “shall” is read restrictively in its literal meaning and enforceability, it would result in some form of incongruity to the entirety of regulation 26 of the 1974 Regulations. This is because the Proviso to sub-regulation 26(3) expressly provides that no act done or proceeding taken under these Regulations shall be questioned on the ground of any vacancy in the membership of or any defect in the constitution of the PIC. [45] In NS Bindra's Interpretation of Statutes (9th Ed) at p 950, it is stated that: "The ultimate rule in construing auxiliary verbs like 'may' and 'shall' is to discover the legislative intent; and the use of words 'may' and 'shall' is not decisive of its discretion or mandates. The use of the words 'may' and 'shall' may help the courts in ascertaining the legislative intent without giving to either a controlling or a determining effect. The courts have further to consider the subject matter, the purpose of the provisions, the object intended to be secured by the statute which is of prime importance, as also the actual words employed." (emphasis added) [46] In Md Yusoff bin Ahmad v Siti Hajar bt Sarkawi & Anor [2013] 1 MLJ 329 it was held that although the word “shall” is used, the Court ought to exercise reasonable discretion in adherence to the legislative intent: “[30] Ordinarily the use of the word 'shall' implies a mandatory obligation but that is not an absolute rule in all cases. In Bindra, Interpretation of Statutes (8th Ed), at p 1029–1030 it is stated as follows: The word 'shall' in its ordinary signification is mandatory though there may be considerations which influence the Court in holding that the intention of the Legislature was to give discretion. But this word is not necessarily mandatory, nor always mandatory. Whether the matter is mandatory or directory only depends upon the real intention of the Legislature which is ascertained by carefully attending to the whole scope of the statute to be construed. The use of the word 'shall' would not by itself make a provision of the Act mandatory. It is to be construed with reference to the context in which it is used. Similarly, mere use of the word 'shall' or the absence of it, does not decide the question whether a provision is directory or mandatory. When a statute uses the word 'shall' prima facie, it is mandatory, but the Court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature, the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provision, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow there from, and, above all, whether the object of the legislation will be defeated or furthered. [31] In the case of State of Haryana v Raghubir Dayal [1995] SCC

Subsection

(1) 133, the Supreme Court of India had occasion to observe as follows: The word 'shall' is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, or consequences to flow from such construction would not so demand. Normally, the word 'shall' prima facie ought to be considered mandatory but it is the function of the court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word 'shall' therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be ascribed to the word, 'shall’ as mandatory or as directory, accordingly.” (emphasis added) [47] As such, we are of the considered opinion that the mere use of the word ‘shall’ is not necessarily obligatory but may be considered directory pursuant to the legislative intent. We find that the strict usage of the word “shall” in sub-regulation 26(2) of the 1974 Regulations would simply render the saving provision useless, even though the proviso also uses the word “shall”. [48] The existence of the proviso is clearly to cater for and to regularise situations which would result in the vacancy of the membership of the PIC or defect in the composition of the PIC. As such, having construed regulation 26 as a whole and the purpose of the proviso to sub-regulation 26(3), we find that the word ‘shall’ is not mandatory, but directory and the non-compliance of the same is saved by the proviso. Regulation 26 be read as a whole [49] The learned JC had failed to appreciate that the provision of sub-regulation 26 (2) cannot be read in isolation, and that all the provisions thereof must be read together as a whole and construed harmoniously with one another to avoid leading to ambiguity or absurdity in the application of law. [50] In Majlis Perbandaran Seremban v Tenaga Nasional Bhd [2020] 12 MLJ 1, the Federal Court held that it is a rule of statutory interpretation that statutes cannot be read in isolation and the provisions of a statute must be read together as a whole and construed harmoniously with one another to avoid leading to ambiguity or absurdity in the application of law. The Federal Court held as follows:- "[30] The importance of reading an Act as a whole has been emphasised in many cases. In Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd and another appeal [2019] MLJU 742; [2019] 8 CLJ 433 this court referred to the case of Reserve Bank of India v Peerless General Finance and Investment Co Ltd 1987 SCR(2) 1 wherein Chinnappa Reddv J said: Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when the object and purpose of its enactment is known. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. It a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. [31] It is beyond dispute that each provision or part of a provision must be read in its immediate context and in the context of the Act as a whole. When words are read in their immediate context, the reader forms an impression as to their meaning. Any impression based on immediate context must be supplemented by considering the rest of the Act, including all other provisions of the Act and their various structural components (see: Ruth Sullivan, Driedger on the Construction of States (3rd Ed) Butterworths). [32] Therefore, we say, s 144 of Act 171 cannot be read in isolation from the rest of the provisions in Part XV of Act 171. This is because the legislative scheme provided under Part XV under the heading of 'Rating and Valuation' reflects the whole scope of the Act and the real intention of the enacting body in dealing with this issue. As such. the court must not only consider one section but all sections in Act 171, including the relation of one section to the other sections. The relation of a section to the general object intended to be secured by the Act. This is in consonance with the doctrine of harmonious construction as explained by this court in Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v Muziadi bin Mukhtar [202011 MLJ 141; [202011 CLJ 1. where this court held: [78] In this regard, it would be convenient for us to discuss the doctrine of harmonious constructions. To put it simply, the doctrine of harmonious construction means a statute should be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. Such an interpretation is beneficial in avoiding any inconsistency or repugnancy either within a section or between a section and other parts of the statute. The five main principles of this doctrine/rule are as follows:

Subsection

(7) No act done or proceeding taken by the Preliminary Investigation Committee or the Disciplinary Board, as the case may be, shall be invalid on the ground of-