Sivapalan A/L Govindasamy v Universiti Malaya (W-01(A)-362-06/2018)

This is the third time the appellant was in Court over substantially and essentially the same matter, that is, the result or outcome of a PhD degree course that he had registered with the respondent way back on 16.10.1996. The respondent had failed him and this latest decision was communicated vide letter dated 23.6.2017. 3

In the earlier two challenges, the Court had quashed the decisions reached by the respondent wherein the respondent had, also in essence, then, failed the appellant. Following those decisions of the High Court, the respondent once again considered the appellant’s result, and once again, failed him. When he approached the Court for the third time to quash the decision of the respondent, it was dismissed, inter alia on the ground that the matter was res judicata.

After hearing the respective counsel and upon consideration of the records of appeal, this is my decision, which differs from the majority.

This appeal cannot be properly considered without knowing and appreciating the full factual backdrop and the earlier two applications for judicial review. Much of the initial factual background may be found in the grounds of decision of Rohana Yusuf J [as Her Ladyship then was] who heard the first challenge. Those facts are adopted here for ease of reference.

On 16.10.1996, the appellant, a lecturer with the respondent, registered to pursue a PhD programme with the respondent; his thesis was on “The Philosophy of Cittars”. On 20.3.2006, he submitted his thesis for examination and on 28.9.2006, was called up for a viva voce examination before a Committee of Examiners. At the end of that viva voce, he was informed that he had passed his PhD and was congratulated by the Committee of Examiners. 4

Despite that, he was not conferred his PhD and so began a series of inquiries and reminders that took over three years before the respondent informed the appellant vide letter dated 4.12.2009 that his 1st viva voce was deemed invalid on the ground that the Senate rejected the Internal and External Examiners’ reports including the Board of Examiner’s result of 28.9.2009. The Senate decided to appoint a new internal and external examiners to examine the appellant’s thesis and to convene a board of examiners’ meeting upon receiving the new reports. The appellant could not accept the respondent’s decision, remonstrated with the respondent who then informed the appellant vide letter dated 24.12.2009 that the Senate had decided that the appellant had failed his PhD programme and was not permitted to continue with the programme.

On 27.9.2011, the appellant successfully had those decisions for a 2nd viva voce and of his failure, quashed – 1st judicial review proceedings.

In granting the orders of certiorari and finding the decision to be in breach of the rules of natural justice and the relevant procedures, of both substantial and procedural legitimate expectation, that “simply cannot stand to reason and good conscience”, Her Ladyship Rohana J [as Her Ladyship then was] in strong and no uncertain terms remarked:

From the factual matrix of the present case the time taken by the Respondent to issue the First Impugned Letter is simply unacceptable of any university. How could a candidate be made to wait for 3 years only to be told that the report of both Internal and External Examiners as well as the Board of Examiners report, all of whom were appointed by the Respondent itself, had been rejected for no good reasons? Such lack of sensitivity and candour must be embarrassing to the intellectual community while for the Applicant, it must be like bile stuck in his throat. 5

In as much as I tried to understand the Respondent’s acts and omission in this case, I find little or no comfort to know that a great university such as the Respondent could be so reckless, callous and totally insensitive in the conduct of its affairs. Its lackadaisical attitude is shown even in its affidavit filed herein. A university as the name suggests is where many of our dreams, ideals and intellect are shaped. It prepares students for productive and rewarding lives. It produces thinking and educated people; people who appreciate and understand how the work of our country has been performed in the past and will be performed in the future. The entire community, the state, the country, even the larger global community, shares the benefits that educated people bring to community life. It must therefore live up to its role and expectation. It must strive to achieve these purposes with honesty and integrity. It must therefore do justice to its students so that they can bring justice to the entire community.

Her Ladyship concluded that the decisions impugned there “simply cannot stand to reason and good conscience.” Her Ladyship was however, restrained from granting the PhD finding that she “must regretfully hold that the right to confer the degree should be left to the Respondent and its conscience.”

That did not materialize. That was in 2011. The respondent did not appeal against that decision.

Instead, following repeated requests, reminders and discussions on the status of his PhD, the respondent informed the appellant vide letter dated 11.3.2014 that the Senate had decided that the appellant was required to attend a 2nd viva voce and for that purpose, the Institute Pengajian Siswazah [IPS] would form a Committee of Examiners, appoint 2 new External Examiners and 1 Internal Examiner. 6

Despite the appellant’s objections on the ground that this decision was “virtually identical” to the earlier impugned decisions which had already been quashed, the respondent set 19.12.2014 for the 2nd viva voce. The appellant did not attend. The 2nd viva voce proceeded in his absence. By letter dated 30.3.2015, the appellant was informed that the Committee of Examiners had proceeded with the 2nd viva voce on 16.3.2015 and had found that his thesis required major corrections which he had to attend to. The appellant was then to submit a Thesis Correction Report by 15.9.2015 failing which he would fail his PhD.

The appellant once again approached the Court to quash the decisions of 11.3.2014, 12.3.2015 and 16.3.2015 – 2nd judicial review proceedings.

On 27.6.2016, the High Court quashed those decisions and directed the respondent to proceed to make a decision on the appellant’s PhD based on the appellant’s submission on 20.3.2006, the reports of the internal and external examiners on his thesis and on the findings of the Committee of Examiners following the 1st viva voce convened on 28.9.2006.

This then brings us to the events that led to the 3rd judicial review proceedings and this appeal.

By letter dated 30.9.2016, almost 3 months after the 2nd judicial review proceedings, the respondent informed the appellant that the Senate had on 29.9.2016 decided that the appellant had achieved the necessary academic merit to be conferred with the PhD subject to him carrying out minor corrections as stipulated by the examiners within 6 months, i.e. on or before 7

28.3.2017. The appellant did so. Thereafter, the thesis had to be printed and bound for final submission. [17] In the course of his preparation, the appellant was informed that he would have to print the date “2017” on the cover of his thesis as that was the date of the final submission of his thesis. The appellant however, maintained that his thesis should be dated “2006” for numerous reasons, some of those reasons are highlighted below: i. materials used for his thesis only reflect developments in the field as at some time before the submission date on 20.3.2006 and do not take into account matters/sources from that date to 2017, a period of some 11 years; ii. since that date, there have been many studies, articles and papers published on or relating to the subject matter of the thesis; iii. conferences on or relating to the subject matter of the thesis have also been held in Malaysia and elsewhere during the intervening period; iv. thesis would be rendered outdated and unreliable if dated in 2017; v. thesis will thus not be able to serve as a source for other publications; vi. the appellant’s standing and credibility as a whole and as a supervisor to other post-graduate students who may wish to do research under his supervision will be affected; vii. the credibility of the respondent as a premier university would also be affected if it were to allow the publication of an outdated thesis; viii. an outdated thesis can also be misleading to persons unfamiliar with the subject matter and who may be unaware of recent developments or publications; 8 ix. the thesis would not be in conformity with the respondent’s new guidelines issued on the preparation of research reports, dissertations and thesis. [18] Over and above these reasons, the appellant maintained that dating his thesis in 2017 would affect his integrity and the quality of his thesis and tarnish his reputation. [19] For these reasons, the appellant submitted his final thesis on 27.3.2017 but the publication was printed with the date of “2006”. [20] The respondent through IPS, rejected the thesis. [21] On 28.3.2017, the appellant appealed, urging the respondent to treat his case as a “special case” and resubmitted his thesis. [22] On 30.3.2017, IPS informed the appellant that although his submission was once again rejected, it would treat his letter of 28.3.2017 as an appeal to be considered as a “special case” and refer the matter to the Senate. [23] On 2.5.2017, the appellant was informed that the Senate was agreeable to conferring on him the PhD subject to the appellant submitting on or before 27.5.2017 his final thesis printed with a publication date in 2017 and verified by his supervisor. [24] On 16.5.2017, IPS emailed the appellant to remind him to submit his final thesis printed with the publication date in 2017. The appellant replied that 9 that requirement was preventing him from submitting his final thesis and requested that IPS provide some other manner to resolve the issue. [25] Unfortunately, an impasse ensued. On 23.6.2017, the appellant was informed that the Senate had decided on 22.6.2017 to fail him on the ground that his final thesis was not printed with a publication date in 2017. The 3rd judicial review proceedings [26] The appellant filed the 3rd judicial review proceedings seeking: i. to quash the decisions of 2.5.2017 and 23.6.2017 on the basis that such decisions were neither reasonable, rational or proportionate for the respondent to fail the appellant entirely from the degree of Doctor of Philosophy merely on the basis that his final thesis was printed with a publication date in 2006 instead of 2017; ii. a declaration that the guidelines governing the dating of a final thesis of a candidate are directory in nature and should not result in the appellant failing his degree of Doctor of Philosophy when the respondent has already agreed that the thesis has academic merit to be awarded the degree of Doctor of Philosophy; iii. a declaration that the appellant is entitled to date his thesis in 2006 given that – a. thesis was submitted for examination on 20.3.2006; b. methodology, literature review and research component of the thesis was up to sometime before 20.3.2006; 10 c. the appellant was examined by viva voce with reference to his thesis on 28.9.2006; iv. a declaration that the appellant be conferred the degree of Doctor of Philosophy without the condition that his final thesis be specifically printed with the publication date in 2017. [27] The appellant premised his application on the following, that in arriving at the two impugned decisions, the respondent had: i. failed to fully appreciate the effect of printing the final thesis with the publication date 2017 on the quality and integrity of his thesis and on his reputation given that the thesis was submitted for examination on 20.3.2006; the methodology, literature review and research component of the thesis were up to sometime before 20.3.2006; and that he was examined by viva voce with reference to his thesis on 28.9.2006; ii. failed to duly consider that it was unreasonable, irrational and disproportionate for the respondent to fail him entirely from the PhD degree merely on the basis that his final thesis was printed with a publication date in 2006 instead of 2017; iii. failed to give due regard to the fact that his thesis had been assessed on its academic merit and that it had agreed to confer the PhD on him; iv. acted unreasonably, in bad faith and unfairly when it insisted that his final thesis be printed with the publication date 2017; v. acted in violation of his legitimate expectation to be treated fairly, impartially and with good faith; 11 vi. took into account irrelevant considerations including but not limited to guidelines governing the dating of a candidate’s final thesis which were merely directory in nature; vii. failed to comply with substantial and procedural fairness; viii. completely disregarded the spirit and intent of the two earlier decisions of the High Court in respect of the 1st and 2nd judicial review proceedings; ix. acted unreasonably and in excess of its jurisdiction when it acted and conducted itself in a manner inconsistent with any other reasonable university of its standing; and when it arrived at decisions which no other university similarly circumstanced would have arrived at. [28] In response, the respondent contended that the challenge on the dating of the thesis was caught by the doctrine of res judicata as the appellant was well aware of this requirement from the outset, yet had failed to raise the matter in the earlier two judicial proceedings. It was further contended that although the Committee of Examiners found that the thesis was of sufficient academic merit to be conferred the PhD, it still required corrections in which case legitimate expectation does not arise. In any case, the thesis could not be dated 2006 as it was still subject to corrections and had yet to be approved by the Senate. Finally, it was the respondent’s position that it was always its right to confer the PhD, and this was so decided in both the earlier judicial review proceedings. Decision of the High Court in 3rd judicial review proceedings [29] The application was dismissed for the following reasons: 12 i. the respondent and the Senate have exclusive power to award the appellant his PhD under the University and University Colleges Act 1971 and the University of Malaya Constitution; ii. Guidelines applied; iii. Guidelines were issued pursuant to the Senate’s powers; iv. Guidelines were internal matters where the respondent has exclusive rights over which the Court should not interfere; v. Guidelines required the spine of the manuscript should state the year of submission; vi. the High Court in the 2nd judicial review proceedings had held that “the decision to award the PhD degree remain with the respondent” in which case the doctrine of res judicata prevents the appellant from re-ventilating the same issue. [30] In short, the learned Judge did not find the decisions unlawful, irrational, or disproportionate – see paragraph 35 of the grounds.

[31] What is of concern in this appeal is the Senate’s specific power to grant a Degree of Doctor of Philosophy and the power to fail a person, the appellant, from a course leading to a Degree of Doctor of Philosophy for the reason(s) given, that is, the failure to print the publication of the thesis to be of 2017. That decision was conveyed in the respondent’s letter dated 23.6.2017: Adalah dimaklumkan bahawa Senat Universiti pada 22 Jun 2017 telah memutuskan bahawa tuan telah gagal keluar daripada program Doktor Falsafah. 13 Ini adalah kerana tuan gagal menyerahkan tesis akhir yang dicetak sebagai penerbitan pada tahun 2017 dalam tempoh yang ditetapkan sepertimana yang diputuskan oleh Senat pada 27 April 2017. [32] This letter must be read together with the earlier impugned decision of 2.5.2017 which reads as follows: PENYERAHAN AKHIR TESIS DOKTOR FALSAFAH Dengan hormatnya saya merujuk kepada perkara di atas dan surat tuan bertarikh 28 Mac 2017. Setelah menimbang dengan teliti, Senat Universiti pada 27 April 2017 telah BERSETUJU supaya tuan dianugerahkan Ijazah Doktor Falsafah tertakluk kepada penyerahan akhir tesis tuan dicetak sebagai penerbitan pada tahun 2017 dan disahkan oleh Penyelia dalam tempoh satu (1) bulan mulai sehari selepas tarikh mesyuarat Senat. Sehubungan itu, tuan dikehendaki menyerahkan tesis akhir tersebut selewat-lewatnya pada 27 Mei 2017 kepada Unit Tesis, Institut Pengajian Siswazah mengikut prosedur yang ditetapkan. Sekiranya tuan gagal menyerahkan dalam tempoh yang disebutkan di atas, tuan akan dianggap gagal dalam peperiksaan tesis berkenaan. [33] What seems to be seriously overlooked is the fact that the appellant failed all three times. Each time, it was not because of the academic content of his thesis. On the contrary, his thesis was/is of sufficient merit, and this was acknowledged or admitted by the respondent even in the 1st judicial review proceedings in 2006, that subject to minor corrections and verification by his supervisor, the Committee of Examiners [Committee] had determined that the appellant had achieved sufficient merit to be conferred a PhD, and a resubmission was not required. Such a decision was found to be within the powers of the Committee under regulation 27(1)(e) of the Regulations by 14 Rohana Yusuf J [as Her Ladyship then was] in the 1st judicial review proceedings and also acknowledged by His Lordship in the present appeal – see paragraph 15 of the judgment; see also the recommendations of the Committee dated 28.9.2006. Following its recommendations, the Committee congratulated the appellant. [34] The appellant also did not fail because his thesis was submitted late or outside the timelines stipulated by the Senate, or because there was no verification by a supervisor. Instead, he failed almost for the 3rd time if one were to consider the respondent’s decisions in the 2nd judicial review proceedings as good as failures too. Each time, it was in respect of the same thesis. In the present appeal, he failed this time because he did not submit a final thesis printed with the year of 2017 as the year of publication as required in the respondent’s letter dated 2.5.2017, the 1st of two impugned decisions in the present appeal. [35] The learned Judge held that it was inter alia the exclusive prerogative of the respondent whether or not the appellant should be conferred the Degree of Doctor of Philosophy; that the respondent was entitled to insist on compliance of the Guidelines for the Preparation of Research Reports, Dissertations and Thesis 2015 [the Guidelines]; that it was reasonable that the thesis be dated 2017 as that was when the corrections were made and; that the issue of his PhD was res judicata. The learned Judge also decided that the Guidelines applied to the appellant. [36] With respect, I must disagree. 15 [37] The relevant question that is frequently asked in judicial review proceedings is whether the impugned decision is reviewable by the Court; and if the answer is in the affirmative, is the decision liable to be quashed on the grounds complained of, and ought the Court grant the orders sought. [38] Having examined the applicable legal principles against the factual backdrop and the reasons for His Lordship’s dismissal of the application, I am satisfied that there is appealable error in this appeal warranting intervention. I find the impugned decisions reviewable and liable to be set aside on the grounds complained of. These are my reasons. [39] It is opportune to be reminded that the respondent is not a sacrosanct or omnipotent entity whose decisions are not subject to or is beyond the scrutiny of the Court. The respondent is a statutory body. It is established and incorporated under the University of Malaya Act 1961 which repealed the University of Malaya Ordinance of 1949. 1.1.1962 is its Foundation Day.

A candidate shall submit in print format of at least five copies of his thesis or such numbers as maybe determined by the Faculty for examination. The thesis shall be-

prefaced by-

an abstract that does not exceed five hundred words in Bahasa Malaysia and English. Where the language of the thesis is other than Bahasa Malaysia or English, an abstract in that language must also be included; and

(ii) a declaration of the originality of the writing in accordance with a format as may be determined by the University;

typed and printed in double spacing on A4 size paper except for drawings or maps for which there is no size limitation. A margin of four centimetres shall be left on the left-hand side; and

bound in rexine red soft cover with the title or an abbreviation thereof and the name of the author printed in block letters on the spine and the cover. [61] Regulation 19(11) further provides that-

(11). Any thesis submitted for examination shall be in accordance with the regulations and procedures prescribed under these Regulations or any amendments thereof as maybe made from time to time. The Dean of the Faculty may reject any thesis not submitted in accordance with any prescribed regulations and procedures. [62] The appellant’s thesis was never rejected but it would appear from the respondent’s letter dated 2.5.2017 that it had passed the appellant subject to the condition that the final copies of the thesis be printed with the year of 2017 as its year of submission is also without merit. However, a reading of 23 regulation 19(14) shows that three copies of the thesis in print format as well as the electronic copy or version of the thesis are only prepared after the examination of the thesis and the final result. The format and requirement of these copies of the thesis cannot, in my view, form the subject of conditions for passing the PhD. These are matters ancillary or post examination and final result. In any case, regulation 19(14) does not require the year of submission to be printed or carried. The appellant had already passed his examinations and it was no longer open to the Senate to say otherwise on account of disagreement over the format of the thesis. [63] These provisions of the Constitution, Rules and Regulations are firm and arguably mandatory on the submission requirements; but quite clearly, there are no provisions whatsoever on the printing of any date of the thesis. Indeed, if the date of the publication is critical or absolutely vital to the success or failure of a candidate, surely such a requirement must be expressly and clearly stipulated in the Regulations. The stark absence of this requirement confirms for me at least, that the respondent’s ground for failing the appellant is very much wanting and clearly devoid of merit. [64] None of the matters discussed above were considered by the learned Judge. Instead, because sections 4(1)(c) and 22(5) and regulation 35(1) provide that it is the respondent, through the Senate, that is empowered to confer awards and degrees, His Lordship accepted the relevance and application of the Guidelines without more. As shown, this is unfortunately incorrect. [65] Over and above these observations and findings is the fact the Guidelines do not apply to the appellant. The Guidelines were made in 2015, 24 whilst the thesis was submitted in 2006; and it has always been the same thesis which formed the subject matter of repeated examination and consideration by the respondent, whether in 2006, 2015 or 2017. It is still that same thesis examined by the Committee back in September of 2006, which was examined by another Committee of Examiners in 2015, and by IPS in

In 2005, the Committee had concluded after the 1st viva voce, that the appellant had attained sufficient academic merit for the award of the PhD subject to minor corrections without resubmissions. [66] This recommendation stands to this date and the decision in the 2nd judicial review proceedings where the learned Judge inter alia granted a “declaration that the Respondent proceeds to make a decision on the Applicant’s PhD Degree based on the thesis submitted on 20-3-2006, the internal and external reports on the Applicant’s thesis and the opinion of the Examination Committee after the first viva voce held on 28-9-2006 as documented in Exhibits MA-1 / MR1, and a mandamus to compel the Respondent to make the decision within 2 months from the date of the order (the decision to award the degree remains with the Respondent)”, fortifies this conclusion. [67] In my further opinion, the appellant’s resubmission on 27.3.2017, after the 2nd judicial review proceedings, does not alter the basic fact of unfinished business on the respondent’s part; which Her Ladyship Rohana Yusuf J [as she then was] in the 1st judicial review proceedings had said that she “must regretfully … left to the Respondent and its conscience”; but which till to date is appallingly, still not attended to. Instead, the conduct of the respondent clearly illustrates utter refusal of the respondent to confer upon the appellant the PhD despite his successful and meritorious completion of the most 25 important component of the degree which surely must be its academic content. [68] Moving thence to the matter of passing and by necessary implication, graduation and this is where the respective Part IX of the Rules and the Regulations come into play. In my view, a proper reading of these Rules and Regulations show that the Senate and thereby the respondent is not entitled to deny the appellant his PhD where he has satisfied all the requirements set down by the Rules and the Regulations. Any requirement in the terms now required by the Senate must have been indicated early or contemplated at the commencement of the course, and not at or upon the completion of the course. This changing of goalposts reeks of unfairness and injustice. [69] Further, the Senate plays a role of approving the conferment of the PhD which it cannot do without the recommendations of the Committee. Conversely, the Senate cannot unreasonably and without proper grounds, either withhold or refuse to approve where the Committee has recommended conferment. This is what is stipulated in the Rules and Regulations. Rule 14 of Part IX of the Rules reads as follows:

A Degree shall be conferred on a candidate who has-

fulfilled all the requirements of these Rules and any regulations made thereunder;

satisfied and been recommended to be conferred the Degree by the Committee of Examiners and approved by the Senate; and

paid all his fees and other payments as prescribed by the University. [emphasis added] 26 [70] In Part IX of the Regulations, also dealing with the subject of graduation, it is provided as follows:

A candidate shall fulfill the following requirements for the purpose of graduation for a programme of study by Research:

achieve a pass in the examination of his thesis;

pass the viva voce;

fulfil any other requirements set by the Faculty where the candidate is attending his programme of study; and

fulfil the language requirements as may be prescribed. [71] It is not suggested, neither can it be validly argued, that the requirement of dating or printing the year 2017 as the year of submission was a requirement of the Faculty under regulation 36(c). It was clearly a condition set by the Senate when approving the conferment of the PhD on the appellant under rule 14. [72] For the reasons already discussed earlier, the Senate is not entitled to approve the conferment of the PhD on the terms that it had set; more so when the Committee had already recommended that the appellant be conferred a PhD. Where the appellant has satisfied the requirements in regulation 36, as it did in the circumstances of this appeal, under rule 14, the respondent shall confer the Degree of Doctor of Philosophy on the appellant. 27 [73] It was thus erroneous on the part of the learned Judge to find that the Senate and thereby the respondent had exclusive power to confer the PhD on the appellant. It has power, no doubt, but it is not exclusive to the extent that it is beyond the scrutiny of the Court. It is a statutory power which is not unbridled. Instead, it is circumscribed with terms and conditions. This statutory power must thus be exercised according to the law as passed. Quite clearly, from the facts enunciated and for the reasons discussed, the respondent has not exercised its powers in accordance with the relevant statutory provisions. Such decisions must be quashed and the appropriate remedies ordered. [74] I can only conclude with the chequered history and for the reasons relied on by the respondent to deny the appellant his PhD after 11 years, through no fault of his but entirely that of the respondent, is appalling and deplorable. To borrow the words of Rohana J [as Her Ladyship then was], [36] Even more shameful is the fact that no explanation was given by the Respondent for having taken over 3 years to come to a decision. The attempt by affidavit of Professor Dato Ghauth Jasmon to explain the decisions, of course, made it worse for the Respondent. [37] In the final analysis there is no explanation on the time taken by the Respondent and no reason at all was given in the First Impugned Letter as to why, the Senate rejected the Internal and External Examiners reports including the Board of Examiners result on 28.9.2009. Surely a world renowned university like the Respondent cannot take well over 3 years to inform the Applicant that the viva-voce was deemed invalid, even if it had the power to do so. Decision such as these in my view do not augur well for a university and is so perverse. 28 [75] Similarly, the reasons offered by the respondent in this appeal, are completely devoid of merit, irrational and of Wednesbury unreasonableness, not to mention, perverse and unlawful as expounded in Associated Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223. The failure of the respondent to follow its own Constitution, Rules and Regulations clearly amount to procedural impropriety which render the two impugned decisions unlawful and liable to be quashed. See Akira Sales & Services (M) Sdn Bhd v Nadiah Zee Bt Abdullah & Another Appeal [2018] 2 MLJ 537, R Rama Chandran v Industrial Court of Malaysia & Another [1997] 1 MLJ 145; Council of Civil Service Unions & Ors v Minister for Civil Service [1985] AC 374 as well as the decision of Rohana Yusuf J [as Her Ladyship then was] in the 1st judicial review proceedings. [76] Finally, a quick examination of the appellant’s reasons for not agreeing to the respondent’s requirement. Aside from the reasons already deliberated above, the appellant’s reasons of the inaccuracy and impact of such dating would bring to the integrity of his thesis not only make good sense but are valid and reasonable concerns. The appellant’s thesis submitted in 2006 cannot be ignored as the 1st viva voce, in fact the only viva voce ever conducted, was over that one and only thesis. The respondent’s suggestion that the appellant make his reservations in the abstract were only suggested after the appellant had already filed the 3rd challenge; but when pressed, the respondent was however, not prepared to reconsider. [77] It is also observed that the respondent had been totally inconsistent on the question of whether minor or major corrections were called for by the Committee. In the 1st judicial review proceedings, the Committee first concluded that the appellant’s thesis only required minor corrections whereas 29 in the 2nd judicial review proceedings, major corrections were required. Yet, when it came to the 3rd judicial proceedings, once again, it was minor corrections. This suggests presence of arbitrariness and puts the respondent’s conduct under the microscope, and where its delay in action, responding to a thesis which had already undergone a successful viva voce remains until this day, unattended to until and unless pushed, without conscience. [78] The learned Judge had ruled that the doctrine of res judicata applied to deny the appellant his remedies and his right of complaint. I cannot with respect, see how that principle applies; but even if it does, surely it must operate against the respondent in view of the two previous decisions already made in respect of the appellant’s one and only thesis. The Court has repeatedly ruled that the respondent’s decisions in failing and in putting unreasonable requirements on the appellant before he is conferred his PhD are irrational, unreasonable and unlawful. As a learning institution, the oldest in our modest Nation, it is most unfortunate to see the respondent imposing unnecessary roadblocks to success; and doing it repeatedly. [79] I further do not see the issue at hand as one concerning the academic judgment of the respondent. Any question of academic judgment must surely be in relation to or on the appellant’s thesis. The Court is not required nor is it invited to examine the thesis and make any judgment of that nature. In any case, there is no need to even examine the thesis for that purpose as the respondent itself as well as the Committee have consistently found the appellant’s thesis to have attained sufficient academic merit to be conferred a PhD. The results of the viva voce conducted by the Committee empaneled by the respondent way back on 28.9.2006, stands to this date. 30 [80] On a true analysis, this is a case of challenge of failure to observe process as laid down in the Rules and Regulations by the respondent. Such a challenge is eminently suited for scrutiny by the Court and the Court must never shy away from such tasks. Just as the Court in R v (on the application of Persaud) v Cambridge University [2001] EWCA Civ 534 was satisfied that the process by which the applicant in that case was determined on the question of her reinstatement to the Register of Graduate Students on account of the course of research which the applicant had been admitted had ceased to be viable, I am amply satisfied that the process of deciding and the decision on the conferment of PhD on the appellant following the completion, submission of and viva voce of his thesis have been extremely wanting. [81] Even on merits, this appeal would invite the exceptional exercise of discretion to intervene in his case as the factual matrix clearly illustrate the decisions of the respondent to be so devoid of reason and good conscience, irrational and unreasonable while the legal reasoning is seriously flawed. Put simply, the impugned decisions are unlawful and must be quashed with necessary consequential orders as sought, granted. [82] A note on the respondent’s submissions where amongst others, it rationalized why appeals were not filed against the two earlier decisions; and why and what their affidavits filed in those earlier judicial proceedings meant or supposed to mean. I can only say that this is far too late and cannot be condone by any Court. Judgments and decisions of the Court must be respected and there cannot be any backdoor or collateral appeal against those decisions. 31 [83] Consequently, the appeal is allowed with costs and the decision of the High Court is set aside. I further allow the orders sought against the respondent as set out at pages 46-49 of the Record of Appeal. Dated: 12th March 2020 sgd (MARY LIM THIAM SUAN) Judge Court of Appeal Malaysia Counsel/Solicitors For the appellant: Shireen Selvaratnam (Lim Wei Jiet with her) Messrs Sreenevasan Tingkat Bawah, Blok B Kompleks Pejabat Damansara Jalan Dungun Bukit Damansara 50490 Kuala Lumpur For the respondent: Porres Royan (Edwin Tan with him) Messrs Tuck-Jeong & Lee Menara Etiqa, Jalan Melaka 50100 Kuala Lumpur