Natural Justice Essay

4) What is natural justice? Natural justice is a natural sense of what is right and wrong. It is a procedural concept and does not imposed any substantive restriction. Besides that, natural justice is also a fair administrative procedure to be followed by the administrative body in arriving at a right decision. Natural justice has two main components; the rule of hearing or rights to be heard or audi alteram partem and the rule against bias or nemo-judex in causa sua. 5) What are the main elements in nemo-judex causa sua? Nemo-judex causa sua means the rules against bias. It means that a man should not be a judge in his own cause. The principle that bias disqualified an individual from acting as an adjudicator flows from two fundamental maxims; a man should not be a judge in his own cause; and justice must not only be done but be seen to be done. The fountain of administration justice must not only be pure but it must also enjoy public confidence and credibility. The adjudicator must not only be free from bias but there must not even be appearance of bias. There are three types or elements of bias; Pecuniary bias, Personal bias and Policy bias. A pecuniary interest, however small, in a controversy disqualifies a person from acting as a judge. In DIMES v GRAND JUNCTION CANAL, a public limited company filed a case against a land owner in a matter largely involving the interests of the company. The Lord Chancellor who was a shareholder in the company heard the case and gave the desired relief to the comp any. The decision was quashed by the House of Lords because of the Lord Chancellor’s pecuniary interest in the company. Personal bias may arise in the adjudicatory right, or in favour of, one party to the dispute before him under many varied circumstances, for example relationship, friendship or business dealings with or hostility or animosity against a party may disqualify an official to act as an adjudicatory in a dispute. All these circumstances create bias either in favour of, against a party to the dispute. In AK KRAIPAK v UNION OF INDIA 1970 SC 150, a Selection Board was formed to select employee of state service to the Indian Forest Service was one of the candidates and he was a member of the Selection Board. The Supreme Court held that a member of a decision making body cannot be both a party and a judge in the same dispute. In the case of official bias, the adjudicatory is not influenced by any personal or pecuniary but he is so imbued with the desire to promote official policy of his department that he becomes blind to the existence of the interests of the private individual. When an administrator acts as decision maker to decide a dispute between an individual and his department, there is a tendency that he was an official or policy bias towards his department. In ALKAFF & CO v THE GOVERNER-IN-COUNCIL, the Commissioner of Law was a member of Singapore Improvement Trust (SIT). SIT approved certain scheme and applied to the Governor-in-Council for approval. The Governor appointed the Commissioner to inquire and to make report on the proposal. The commissioner recommended approval of the scheme. Therefore held, the appointment of Commissioner to inquire the merit of the scheme could result in suspicion that justice might not be done. The order was quashed. 6) What is the element in audi alteram partem? Audi alteram partem is the rule which requiring fair hearing. It has few elements. The first element is notice. Notice is a basic norm of natural justice is that before initiating adjudication proceedings, the party concerned should be given notice of the case against him so as to enable him to adequately defend himself. The right of hearing become illusory if the party has no knowledge of allegations which he need to meet. Notice thus regarded as the sine qua non of the right of hearing. The notice means an adequate notice as regards the details of the case against the party. Any proceeding taken against a person without adequate notice to him infringes natural justice and is thus invalid. It is necessary that all the grounds on which action is proposed to be taken must be communicated to the person concerned. If it transpires later that action was taken on a ground which had not been taken communicated to him earlier than the action will be invalid. In the case study of MARADANA MO SQUE TRUSTEES v BADI-UD-DIN MAHMUN [1967] 1 AC 13, the government took over the school on two grounds due to the failure to pay salaries of teachers and unable to manage the school, but the manager was asked to explain only one ground which is the failure to pay salaries. The managers had no notice of the other grounds, which influenced government’s decision. Privy Council held that the decision to take over the school was quashed as the managers were not given notice of one ground. The minister was acting in quasi-judicial capacity and was bound to observe the rule of natural justice. Relating to the case above, a notice must be served in order for the person concerned to know the charges he had to meet; and have a sufficient time to prepare his defence. For example, in the case of SURINDER SINGH KANDA v GOVT OF MALAYSIA [1962] MLJ 169, Lord Denning stated that if the right to be heard is to be real which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. The notice must be given a reasonable opportunity to comply with its requirements. Sufficient time must be given to the concerned person to prepare his defence. For example, in the case of RE LIVERPOOL TAXI OWNERS’ ASSOCIATION [1967] 2 MLJ 186, a letter was sent to the association to show cause by return of post against the issue of fresh taxi licenses. The notice was held to be inadequate. It is against natural justice to call upon the concerned person to show cause immediately and to permit him no time to consider the charges against him. If the notice is inadequate, the decision will be invalid as it is against the natural justice. The second element is hearing. Natural justice requires an adjudicatory body to not to make a decision adverse to a party without affording him an affective opportunity of adequately meeting the allegations against him and presenting his own case. There is no fixed hearing procedure which has to be followed in all cases. It varies from situation to situation. It is ultimately for the court to decide whether the procedure adopted in a specific situation accords with natural justice or not. In the case stu dy of PHANG MOH SHIN [1967] 2 MLJ 186, the inquiry officer embarked on the inquiry immediately after reading the charge to the officer against whom the inquiry was being held. His request for an adjournment to enable him to prepare his defence was refused. It was held that there was a denial of natural justice. The third element is reasonable opportunity of being heard. There are certain elements need to be observed. The first element is the adjudicating authority should disclose all information, evidence or material which the authority wishes to use against the individual concerned in writing at its decision. The general rule is that all the relevant material which is being relied upon by an adjudicating authority for giving its decision against a person, should be brought to his notice and he be given an opportunity to comment, criticise, explain or rebut the same. For example in the case of AZIZ BIN ABD RAHMAN v ATTORNEY GENERAL SINGAPORE [1979] 2 MLJ 93, the court held that as vital and relevant evidence had not been disclosed to him, there was breach of natural justice insofar as he was denied an opportunity of correcting or controverting the medical evidence considered relied upon by the medical board. The second element is the authority should receive the evidence and all relevant material which the party concerned may wish to produce before it in its defence. In an oral hearing, the adjudicatory authority is obligated to give the person concerned opportunity to produce evidence on behalf of the affected person may amount to breach of natural justice by the authority concerned. Based on the case MALAYAWATA STEEL BHD v UNION OF MALAYAWATA STEEL WORKERS [1978] 1 MLJ 87, the company challenged an award of the Industrial Court on the ground of breach of natural justice as the company was denied the opportunity to call witnesses. The High Court held that there had been a denial of natural justice when the applicant was not allowed to call his essential witnesses to adduce evidence at the hearing and was therefore denied a reasonable opportunity of presenting his case. The third element is the authority should give to the individual concerned an opportunity to rebut the material against him. In oral hearing, cross-examination of witnesses testifying against a party should be permitted. It is actually not regarded as an obligatory part of natural justice in all cases. Whether an opportunity for cross-examination is to be given or not depend upon the circumstances of each case. Based on the case CEYLON UNIVERSITY v FERNANDO, the argument of the appellant that he had not been given an opportunity to cross-examine witnesses testifying against him was rejected by the Privy Council on the ground that he never claimed such right. Even where cross-examination of witnesses is allowed, the authority may refuse to permit unnecessary cross-examination of a witness. Even if cross-examination of witnesses is not an obligatory part of natural justice, it is still necessary for the decision-making authority to give the party concerned a fair opportunity of comment ing on the evidence produced against him and of contradicting the same. The fourth element is reasoned decision. Traditionally, the British courts had taken the view that natural justice does not obligate an adjudicatory body to give reasons for its decisions. In BREEN v A.E.U. [1971] 2 Q.B. 143, Lord Denning did emphasize that the giving of reasons is one of the fundamentals of good administration. The obligation to give reason avoids unfair or arbitrary decisions by adjudicatory bodies; search for reasons for their decisions is bound to make these bodies alert and careful. Reasoned decisions ensure that decision-making bodies apply their mind to the facts and circumstances of the matters they decide and that they do not act in a mechanical manner. In India, however, the Supreme Court has insisted time and again that natural justice obligates decision-making bodies to give reasoned decisions. The fifth element is the right to be counsel. Generally, appearance of a lawyer is not claimable as a matter of right in a quasi-judicial hearing. But in a case where complicated questions of law and fact arise, where the evidence is elaborate and the party concerned may not be in a position to meet the situation himself effectively, denial of legal assistance may amount to denial of natural justice. In PEET v GREYHOUND RACING ASSOCIATION [1968] 2 ALL ER 545, the Court of Appeal ruled that natural justice required that the plaintiff should be presented through a lawyer as he was facing a serious charge concerning his reputation and livelihood. However in the case of FRASER v MUDGE [1975] 3 ALL ER 78, the court ruled that in a disciplinary matter there was to be hearing but no legal representation. In this case, a prisoner with an offence against prison disciplines sought legal representation before the Board of Visitors while enquiring into the charge before him.