PROCEDURAL FAIRNESS : RULES OF NATURAL JUSTICE : LAW OF TREATIES CONVENTION
SINCE TIME BEGAN : salus populi suprema est lex - the right of the people is the supreme law : IN TRUTH WE TRUST
ETC 2 3 4 5 as related to the void Hudson's Bay Company Charter Fitzgerald Examinations / Examine : 1613 : Plantagon : Yuquot : BC
FREE PRIOR INFORMED CONSENT : FUNDAMENTAL CIVIL, POLITICAL HUMAN RIGHTS
1. Natural Justice recognizes three principles: (i) Nemo debet essc judex in propria causa. (ii) Audi alterem partem, and (iii) Speaking orders or reasoned decisions
In English law, natural justice is technical terminology for the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem). While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the general "duty to act fairly".
The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of actual bias, imputed bias or apparent bias. Actual bias is very difficult to prove in practice while imputed bias, once shown, will result in a decision being void without the need for any investigation into the likelihood or suspicion of bias. Cases from different jurisdictions currently apply two tests for apparent bias: the "reasonable suspicion of bias" test and the "real likelihood of bias" test. One view that has been taken is that the differences between these two tests are largely semantic and that they operate similarly.
The right to a fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case. The mere fact that a decision affects rights or interests is sufficient to subject the decision to the procedures required by natural justice. In Europe, the right to a fair hearing is guaranteed by Article 6(1) of the European Convention on Human Rights, which is said to complement the common law rather than replace it.
____________________________________________________________________________________________
Prepared by Edwin S. Nkalani, Ronald J. Temba and Herbert Clipa
INTRODUCTION
Natural justice this is a principle of fair play that was originally developed by the courts of equity to control the decisions of inferior courts and then gradually extended (particularly in the 20th century) to apply equally to the decisions of administrative and domestic tribunals and of any authority exercising an administrative power that affects a person's status, rights, or liabilities. In line with this, in Vionet v. Barret[1] Lord Esher defined principle in its simplicity as the natural sense of what is right and wrong. In the event of infringement of natural justice, a decision reached will be rendered ultra vires thus void, also Chris Peter Maina[2], defined natural justice as is about fairness and justice in the society. They address how judicial, administrative and other organs are to function in the process of reaching a fair decision in determination of any issue before them.
Under common law tradition, the rules of natural justice were applied to judicial decisions taken by inferior courts and tribunals. They were not applicable in administrative actions and decisions. In the 19th century these rules started to be applicable to all types of administrative bodies as well. This application was derived in Board of Education v. Rice[3]where the judges recognized that decisions could not be expected to follow the procedures of courts of justice, but they nevertheless upon a statutory responsibility the duty to act judicially in certain situations in the manner prescribed by the rule of natural. Also In Dr. Bonham’s Case[4], where by the court held that the College had financial interest in its own judgment and therefore it was a judge in its own cause.
It was not until 1964 through the House of Lord’s decision in Ridge v. Baldwin and Others [5] that opened up the application of the rules of natural justice to a much wider range of circumstances. So the importance of this decision lies in the fact that natural justice applies to all decisions affecting a person’s rights irrespective of the form of the decision.
PRINCIPLES OF NATURAL JUSTICE
There are three principal rules when discussing the rule of natural justice and are as follows;
The first is the rule against bias. This entails against departure from the standard of even-handed justice required of those who occupy judicial office. Furthermore the latin maxim ‘nemo judex in causa sua or in propria causa’ express that no man may be a judge in his own cause as effect to this rule[6]. This means that any decision, however fair it may seem, is invalid if made by a person with any financial or other interest in the outcome or any known bias that might have affected his impartiality. In Dr. Bonham’s Case[7] the court held that the College had financial interest in its own judgment and therefore it was a judge in its own cause.
A word bias means, influence in an unfair way or a partiality that prevents objective consideration of an issue or situation[8] There are two types of bias which are pecuniary interest on the subject matter of the litigation and personal interest or also known as kindred or close relationships on the subject matter.
On pecuniary interest or financial interest is concerned, the amount involved is irrelevant[9], in the case of R. v. Farrant[10], Steven J. stated that the least pecuniary interest in the subject matter of litigation will be enough to disqualify any person from acting as a judge. On those who are kindred or any other relationships, it is important top show that a real likelihood of bias exists, this is because justice should not only be done, but should manifest and undoubtedly be seen to be done.[11]
The second rule is known as ‘audi alteram partem’, respectively meaning ‘hear the other side’. It is fundamental to fair procedure that both sides should be heard. A decision cannot stand unless the person directly affected by it was given a fair opportunity both to state his case and to know and answer the other side's case[12]. In Ridge v. Baldwin and Others[13] it was held that the power of dismissal could not be exercised without giving a reasonable opportunity of being heard and without observing the principles of natural justice, the order of dismissal was therefore held to be illegal. Also in the case of Nyirabu and three others V. The Board of Songea boys school [14] Samatta J as he was then said that the punishment of expulsion from school can have serious adverse consequences on the life of the students concerned, it would shock the right thinking members of the community that such a penalty can be properly imposed to the student when he had no word to defence.
Further more in the case of Mohammed Jawadi Mrouch V. Minister of Home Affairs[15] In this case, the Immigration Authority revoked a resident permit of application without affording an opportunity to be heard on the ground that the applicant is a foreigner. The High Court decided that ‘A foreign alien has no right to stay in a country without a permit, once a permit has been given to him, he can stay until it expires. If it is revoked by on expiry, the Immigration authorities have a duty to give reasons and opportunity to be heard because such a person has a legitimate expectation to leave in Tanzania until the expiry of his permit.’
The third rule is the right to know the reason for the decision by the parties. Its latin maxim is ‘nullum arbitrium sine rationibus’. It is upon the court to be responsible enough to adhere and uphold the rights given to both parties and provide reasons as to why they have brought forward their judgments in such a manner. In R. v. Immigration Appeals Tribunal ex parte Khan(Mahmud)[16] Lord Lane C.J. stated that a part appearing before a tribunal is entitled to know what is to which the tribunal is addressing its mind, also the appellant is entitled to know the basis of the fact of which the conclusion has been reached.
____________________________________________________________________________________________
Prepared by Edwin S. Nkalani, Ronald J. Temba and Herbert Clipa
INTRODUCTION
Natural justice this is a principle of fair play that was originally developed by the courts of equity to control the decisions of inferior courts and then gradually extended (particularly in the 20th century) to apply equally to the decisions of administrative and domestic tribunals and of any authority exercising an administrative power that affects a person's status, rights, or liabilities. In line with this, in Vionet v. Barret[1] Lord Esher defined principle in its simplicity as the natural sense of what is right and wrong. In the event of infringement of natural justice, a decision reached will be rendered ultra vires thus void, also Chris Peter Maina[2], defined natural justice as is about fairness and justice in the society. They address how judicial, administrative and other organs are to function in the process of reaching a fair decision in determination of any issue before them.
Under common law tradition, the rules of natural justice were applied to judicial decisions taken by inferior courts and tribunals. They were not applicable in administrative actions and decisions. In the 19th century these rules started to be applicable to all types of administrative bodies as well. This application was derived in Board of Education v. Rice[3]where the judges recognized that decisions could not be expected to follow the procedures of courts of justice, but they nevertheless upon a statutory responsibility the duty to act judicially in certain situations in the manner prescribed by the rule of natural. Also In Dr. Bonham’s Case[4], where by the court held that the College had financial interest in its own judgment and therefore it was a judge in its own cause.
It was not until 1964 through the House of Lord’s decision in Ridge v. Baldwin and Others [5] that opened up the application of the rules of natural justice to a much wider range of circumstances. So the importance of this decision lies in the fact that natural justice applies to all decisions affecting a person’s rights irrespective of the form of the decision.
PRINCIPLES OF NATURAL JUSTICE
There are three principal rules when discussing the rule of natural justice and are as follows;
The first is the rule against bias. This entails against departure from the standard of even-handed justice required of those who occupy judicial office. Furthermore the latin maxim ‘nemo judex in causa sua or in propria causa’ express that no man may be a judge in his own cause as effect to this rule[6]. This means that any decision, however fair it may seem, is invalid if made by a person with any financial or other interest in the outcome or any known bias that might have affected his impartiality. In Dr. Bonham’s Case[7] the court held that the College had financial interest in its own judgment and therefore it was a judge in its own cause.
A word bias means, influence in an unfair way or a partiality that prevents objective consideration of an issue or situation[8] There are two types of bias which are pecuniary interest on the subject matter of the litigation and personal interest or also known as kindred or close relationships on the subject matter.
On pecuniary interest or financial interest is concerned, the amount involved is irrelevant[9], in the case of R. v. Farrant[10], Steven J. stated that the least pecuniary interest in the subject matter of litigation will be enough to disqualify any person from acting as a judge. On those who are kindred or any other relationships, it is important top show that a real likelihood of bias exists, this is because justice should not only be done, but should manifest and undoubtedly be seen to be done.[11]
The second rule is known as ‘audi alteram partem’, respectively meaning ‘hear the other side’. It is fundamental to fair procedure that both sides should be heard. A decision cannot stand unless the person directly affected by it was given a fair opportunity both to state his case and to know and answer the other side's case[12]. In Ridge v. Baldwin and Others[13] it was held that the power of dismissal could not be exercised without giving a reasonable opportunity of being heard and without observing the principles of natural justice, the order of dismissal was therefore held to be illegal. Also in the case of Nyirabu and three others V. The Board of Songea boys school [14] Samatta J as he was then said that the punishment of expulsion from school can have serious adverse consequences on the life of the students concerned, it would shock the right thinking members of the community that such a penalty can be properly imposed to the student when he had no word to defence.
Further more in the case of Mohammed Jawadi Mrouch V. Minister of Home Affairs[15] In this case, the Immigration Authority revoked a resident permit of application without affording an opportunity to be heard on the ground that the applicant is a foreigner. The High Court decided that ‘A foreign alien has no right to stay in a country without a permit, once a permit has been given to him, he can stay until it expires. If it is revoked by on expiry, the Immigration authorities have a duty to give reasons and opportunity to be heard because such a person has a legitimate expectation to leave in Tanzania until the expiry of his permit.’
The third rule is the right to know the reason for the decision by the parties. Its latin maxim is ‘nullum arbitrium sine rationibus’. It is upon the court to be responsible enough to adhere and uphold the rights given to both parties and provide reasons as to why they have brought forward their judgments in such a manner. In R. v. Immigration Appeals Tribunal ex parte Khan(Mahmud)[16] Lord Lane C.J. stated that a part appearing before a tribunal is entitled to know what is to which the tribunal is addressing its mind, also the appellant is entitled to know the basis of the fact of which the conclusion has been reached.
It should not for once be considered that these rules of natural justice are there for onlyornamental purposes or that they are mere niceties to titillate the mind. They are there for thevery important purpose of ensuring good and lawful government as it was stated by Kyando J inthe case of
FelixBushaijaandanothervInstituteofDevelopmentManagementandOthers
[1]It is impossible to exclude judicial review when we are talking about the natural justiceprinciples. This jurisdiction of judicial review has respectable history dating back to medievaltimes. The court of King’s Bench at Westminster was concerned in the nature of the sovereignto ensure that the inferior bodies and courts observed law fulfilled public duties and did not actbeyond the scope of their powers.This jurisdiction of the King’s Bench vested in the high court as a result of the 19th century courtreforms and is now exercised by a single judge or the divisional court of the Queen Benchdivision. This jurisdiction is inherent in the sense that it does not owe its origin to statute. It isgeneral power to review the legality of the exercise of any statutory function. From that junctureis where the natural justice principles developed in order right to a person feels that he issuffering from some grievance at the hands of some other citizen or body performingadministrative functions he may pursue a certain course of action.
THECONCEPTOFNATURALJUSTICE
Generally the concept of natural justice is about fairness and justice in the society. Theyaddress how judicial administrative and other organs are to function in the process of reachinga fair decision in determination of any issue before them. The rules of fair play in theadministration of justice are regarded as universal and rules of the wise. They are intergral partof the doctrine of rule of law its is in that light that lord
Esher,MRinVionetVBarret
[2]referred to them as indicator of the natural sense of what is right and what is wrong. They arerules to be followed by a person or body charged with the daily of adjudicating upon disputesbetween parties[3]Originally there were only two main principles of natural justice which were Nemo Judex incausa sua which prohibit a man from being a judge in his own case and the second principles
was Audi Alterm Partenm that is right to be heard before condemned overtime the court of lawhave developed a third principles of natural justice which is Arbitrium Sine Rationibus that isthere should be a reason for every decision
THEAUDIALTERUMPARTEM
Audi Alter Partem is the second principles of the natural justice principle. This rule requires thatbefore any action is take, the affected party must be given a notice to show cause against theproposes action and seek his explanation. It is a sine qua non of the right of fair and seek hisexplanation it is a sine qua of the right of fair hearing any order passed without giving notice isagainst the principle of natural justice and is void ab initio . in the case of
Rv.UniversityofCambridge
[4] Dr Bentley was deprived of his degree by Cambridge university on account of hisalleged misconduct without giving any notice or opportunity of hearing. And the court of KingsBench declared decision as null and void.Hearing, this is the second requiremnent of audi alterum Parlem, in this the person concernedmust be given an opportunity of being heard before any adverse action is taken against him .Inthe case of
CoopervWandiworthBoardofWorks
[5] the defendant Board had power todemolish any building without any opportunity of hearing if it was erected without priorpermission. The Board demolished the house of the plaintiff under this provision. The action ofthe board was not in violation of the statutory provision, The court held that the Board’s powerwas subject to the qualification that no man can be deprived of his property without having anopportunity of being heard
THEBRODERORWIDESCOPEOFAUDIALTERAMPARTEM
The scope of application of this rule has not been such narrow as most of scholars try toconfine it in actual tact the rule of Audi Alteram Partem covers a wide scope of the process ofhearing . In order to have a fair hearing the following grounds should be present.The person should be given sufficient notice of the charge or case he is facing. This will enablehim to know the nature of the accusation made against him thus get prepared to the caseincluding ability to examine the witness who might be brought before the hearing officer. Thiswas seen in the case of
Sarcetv.CommissionforRegistrationofIndiaandPakistanResidents.
[6] Whereby it was held that a person can not effectively re examine witnesses whohave been questioned by hearing officer on the basis of undisclosed reportThe second ground is that the person should be given a fair opportunity to face his accusers bymaking presentation of his own side of the story and contradict any statement or evidenceprejudicial to his interest. In the case of
Ndesamburov.AttorneyGenera
l[7] the court held theprinciple of natural justice which required that a person had to be afforded an opportunity todefend himself necessarily implied that the person determining the matter would consider theparty’s defence before making a decision which affected the right of the party. Failure toconsider such defence was as bad as not affording the party the opportunity of a hearing.
CRITICISMASTOWIDEAPPLICATIONOFTHERULEAUDIALTERAMPARTEM
On the other hand concerning the rule of Audi Alteram Partem the scope of application of thisrule has been such narrow as most of scholars tried to confine it. This means not always thisrule is applicable in cases.The following are circumstances where such rule may not be appliedOral hearing an adjudicating authority must observe the principle of natural justice and mustgive a reasonable opportunity of being heard to the person against whom the action is sought tobe taken but absence of statutory provisions an administrative authority is not bound to give theperson oral hearing. This is because oral hearing is not regarded as sine qua non of natural justice. This was seen in the case of
A.KGopalanv.StateofMadras
[8] where by the court heldthat the person is not entitled to an oral hearing unless such right referred by statute. Also I thecase of M P Industries v. Union of India[9] the court provide a person can have writtenpresentation instead of oral hearing if statute does not provide right for oral hearing.Right of counsel the right of representation by a lawyer is not considered to be part of natural justice and it cannot be claimed as right unless it is conferred by the statute. This was seen inthe case of
Pettv.GreyhoundRacingAssociation
[10] the court held that it is difficult to saylegal representation before tribunal is an elementary feature of fair dispensation of justice.CONCLUSIONTo sum up the discussion generally it is the rule of Audi Alteram Partem cover a wide scope ifprocess of hearing simply because statute and case law recognize it as an important rule in anycase though this rule has its limitation but this does not affects much on its wide application.©
datiuced115@gmail.comAvailable at:https:// works.be press.com/DATIUCE DIDACE /
