Nida and Itrat's blog

Meaning of natural justice:

The words ‘Natural justice’ means principles of natural law, justice, equity, and good conscience which is derived from a Roman word ‘Jus Naturale’. The use of the term “Natural Justice” is very important in the judicial context. The rules of natural justice have so much importance in modern administrative process.[1] Natural justice is also called as “substantial justice”, “fundamental justice” and ‘universal justice”. The principles through which the disputes between the persons and organizations can be adjudicated rightfully, the adjudication should not be biased and should be given in good faith, and both the parties should have equal access to the tribunal and should be aware of arguments and documents presented by the others.[2]

According to one definition “natural justice” means justice based upon the natural moral feeling of mankind. In UK and Canada, the concept of natural justice originates its place into the statue in 1969. [3]

According to de Smith the concept of natural justice in English law means the rules of natural justice which perform a function, within a limited field, similar to the concept of procedural due process as it exists in USA, a concept in which they lay embedded. [4]

According to Goodhart “natural justice express the close relationship between the common law and moral principles and it has an impressive ancestry.

The disputes among the individuals can only be adjudicated rightfully through the principle of natural justice; it is a principle that every person demand its protection regardless of their wish, it has universal application regardless of place, nation and time. The principle of natural justice is clear, impartial and fair, and is necessary for the peace, safety and welfare of every human being.[5]

Background:

The principles of natural justice are of very ancient origin and was known to Greek and Romans. The Principles were accepted as early as in the days of Adam and of Kautilya’s Arthashastra. According to the Bible, when Adam & Eve ate the fruit of knowledge, which was forbidden by God, the latter did not pass sentence on Adam before he was called upon to defend himself. Same thing was repeated in case of Eve. Later on, the principle of natural justice was adopted by English Jurist to be so fundamental as to over-ride all laws. The principles of natural justice were associated with a few ‘accepted rules’ which have been built up and pronounced over a long period of time.[6]

The word ‘Natural Justice’ manifests justice according to one’s own conscience. It is derived from the Roman Concept ‘jus – naturale’ and ‘Lex naturale’ which meant principle of natural law, natural justice, eternal law, natural equity or good conscience. [7]

Lord Evershed, in Vionet v. Barrett remarked, “Natural Justice is the natural sense of what is right and wrong. These principles have been explained by various jurists in a number of ways; such as unwritten laws or laws based on reason. Since their application varies according to the circumstances therefore these are principles rather than rules and are traditionally expressed in the form of two Latin maxims. Audi alteram partem translates as, Hear the other side‟, but essentially requires that a person affected by a decision must have a proper opportunity to put his case. Nemo judex in sua causa potest means literally, ‘No man shall be judge in his own cause‟, but acts as a requirement that not only must there be an absence of actual bias in decision making, but there must be an absence of an appearance of bias”.

Generally it may be said that the principles apply to the exercise of a decision-making power by a public body where this may have detrimental consequences for the person or persons affected. In a sense the rules perform a similar function to the due process clause in the constitution of the United States of America. They have been described as the „principles of fair play‟ by Maughan J, in Maclean v The Workers’ Union [1929].

Even the American and French revolutions increased its importance by deciding to make it an integral part of the future constitution. Hence these principles became a derived principle to support legislation from being sub versed with arbitrariness, unfairness and unreasonableness by decision-makers.[8]

Scope

Principles of Natural Justice are the rules laid down by courts for the purpose of protecting the right of an individual against adoption of arbitrary procedure in determining questions effecting his rights by a judicial or quasi-judicial authority. The principles of natural justice includes two rules: the rule against bias and the right to be heard. These two rules are characteristic of what is often called ‘natural justice’ which are known as Impartiality & Fairness.[9]

The principles of natural justice hold a special place particularly in administrative law because they provide the standards which focus attention on the important question that how far is it right for the courts to try to impart their own standards of justice to the administration. The principles of natural justice under the English Law perform the same function as the due process performs under the U.S law. The result is that these principles enjoy constitutional sanctity and even the legislature does not possess the authority to relieve administration from their demands.

Since these principles of natural justice according to English Judges having their base in morality and ethics which are embodied in the common law justice. However the position in Sub-Continent (Pakistan & India) is that these principles stand somewhere in between the English law and U.S Constitution because the due process clause has not been stated in the constitution in so many words but similar principles have been laid down in the constitution though couched in different words.[10]

The principles of natural justice in Pakistan are equally applicable to all proceedings whether they are judicial, quasi-judicial or administrative except where the Parliament excludes its application expressly.[11] Hence these principles are applicable to all administrative tribunals which are adjudicating on private rights unless expressly barred by law to apply.[12]

Nemo debet essc judex in propria causa and audi alterem partem are derived from the Roman Law and reasoned decisions is a modern principle due to the fast development of the administrative law and constitution.

Nemo debet essc judex in propria causa

The first principle means nobody shall be a judge in his own cause or in a cause in which he is interested. This principle is more popularly known as the Doctrine of Bias. That is the authority sitting in judgment should be impartial and act without bias. To instill confidence in the system, justice should not merely be done but seen to be done. [13]

Types of bias;

Pecuniary bias

Personal bias

Official bias

Audi alterem partem

The second principle of natural justice simply means, “to hear the other side” that is no man should be condemned, punished or deprived of property in any judicial or quasi-judicial proceedings unless has an opportunity of being heard. This is necessary for providing a fair hearing and no doubt the rule against bias would also be a part of the procedure. [14]

Elements of maxim

This maxim includes two elements

Notice and

Hearing

Reasoned Decision:

It is a principle of natural justice that a party is entitled to know why a matter has been decided against him/her. The courts in Pakistan and India described the principle as “speaking orders”. The requirement of reasoned decisions helps to widen the scope of judicial review. All decisions of administrative authorities are expected to include a statement of findings and conclusions along with reasons.In the absence of any reasons, it is difficult to define what considerations, if any, prevailed with the administrative body concerned in arriving at its decision on the various points involved therein.[15] Similarly the Supreme Court of Pakistan has held that orders passed judicially should be speaking orders.[16] In Pakistan, Section 24A of the General Clauses Act, 1897 requires that all executive authorities to give reasons for their orders wherever necessary or appropriate.

THE TWO LIMBS OF THE PRINCIPLES OF NATURAL JUSTICE:

The principles of natural justice comprise of the following two limbs:

The rule against bias (Nemo iudex in causa sua –no one should be a judge in his own cause).
The right to a fair hearing (Audi alteram partem –hear the other side).

THE RULE AGAINST BIAS (NEMO JUDEX CAUSA SU)

Natural Justice recognizes three principles:

Nemo debet essc judex in propria causa.
Audi alterem partem, and
Speaking orders or reasoned decisions.

The first two have come to us from the Roman Law and the third one is a recent Innovation due to the rapid development of the constitutional as well as administrative law.

NEMO DEBET ESSC JUDEX IN PROPRIA CAUSA:-

The main aim of this rule is that the principles of fairness and impartiality must be observed by treating all the parties to dispute fairly and equally. Hereby fairness is meant that all the parties to dispute be given equal opportunities to participate in the decision-making process without favoring anyone. The requirement under impartiality is that a judge should approach an issue without predisposition of a character or strength which prevents him/her from a conclusion against his/her previous position.

The rule against bias has its origin in the following principles, which are:

1).No one should be a judge in his own cause;

2). Justice should not only be done but manifestly and undoubtedly be seen to be done.

This principle is more popularly known as the Doctrine of Bias. That is the authority sitting in judgment should be impartial and act without bias. To instill confidence in the system, justice should not merely be done but seen to be done.

BIAS:

which can vitiate proceedings before a tribunal, may be divided into three kinds which are described as

Official bias,
Personal bias and
Pecuniary bias.

For the convenience of classification, bias resulting from prejudgment on issues of law and policy is called an „official bias‟.
Where the mind of the judge is influenced in favor of one party or against another party, it is described as „personal bias‟.
Where the decision-maker has some financial interest in the subject-matter before him/her for adjudication, his/her decision is also said to suffer from bias.

PECUNIARY BIAS:-

It is obvious that the decision of the adjudicator would be affected if he is having pecuniary interest in the subject matter of the proceedings.

In Mohapatra vs. State of Orissa (AIR 1984 S.C. 1572), it was held that when the author of a book was a member of the committee set up for selection of books, and his book was also under consideration by that committee, the possibility of bias could not be ruled out and the selection by that committee cannot be upheld.

A decision-maker with a direct financial interest is disqualified and decisions made by the same are thereby rendered void. Actual bias need not be shown. The existence of the financial interest is sufficient.

In Dimes v Grand Junction Canal Proprietors (1852), a decision of the Lord Chancellor was set aside for bias because he had a financial shareholding in the canal company.

Thus, in addition to the direct personal interest, the test laid down by the court is to consider the real likelihood of bias. In other words, probability of bias is sufficient to invalidate the right to sit in judgment and there is no need to have the proof of actual bias.

PERSONAL BIAS:

This is another kind of bias, where a decision-maker may be motivated by personal like or dislike against or in favor of one side or another. Such type of business may due to personal relations of friendship or animosity or profession.

In Cottle v Cottle (1939), a magistrate who was a friend of the mother of one of the parties was disqualified[17].

Personal bias may arise out of friendship, relationship, professional grievance or even enmity. Here again likelihood of bias is to be given more credence than for the Principles of Natural Justice actual bias. It is difficult to prove the state of mind of a person. Therefore, we have to see whether there is reasonable ground for believing that he was likely to have been biased‖. For example, in Tata Motor Challenge vs. Government of West Bengal, on the constitutional validity of Singur Land Rehabilitation and Development Act, Justice Saumitra Pal rescued himself from the case, citing that he knew some of the people in relation with the case personally.

where Parliament has provided that a person or body performs a dual role. So,

In R.v.Frankland Prison Visitors ex parte Lewis (1986), a prison visitor was not disqualified from acting as chairman in disciplinary proceedings when he had previously taken part in determining the same prisoner’s application for parole.

In R v Manchester Metropolitan University ex parte Nolan (1993), the presence of invigilators at a meeting of the Common Professional Examination Board to consider the penalty to be imposed on a student who had taken unauthorized notes into an examination did not invalidate the Board’s decision. Similarly, where only one person is empowered to act, necessity will dictate that natural justice gives way.

OFFICIAL BIAS:

The third type of bias, namely, official bias may arise in cases where an administrator who enunciates and then has to carry out official policy, is entrusted with the duty of hearing objections from the concerned persons as to the implementation of the policy.

In such type of bias, the decision-maker has no mala-fide intention against the party but may wish to defend a particular departmental policy that may stop him/her from an adjudication of the issue based on fairness and impartiality[18]. Although the courts in Sub-Continent initially applied the rule against bias to the decision-making process by the administrative bodies (entrusted with policy formulations), now adopting the position prevailing in Anglo-America, i.e. that having preconceived views on policy matters does not disqualify a person from adjudication[19].

Here the general rule is that the bias that may be said to be likely to arise because the adjudicator has a general interest in the subject matter and administration of the policy in his official capacity, would not operate as a disqualification.

(Viraj vs. State of Orissa 1967 SC 158)Thus, no official bias arises while senior officers adjudicate the Customs or Central Excise or Service Tax cases even though the investigations in the case might have been conducted by their subordinates.

THE RIGHT TO A FAIR HEARING

The fair hearing requirement means that the people affected are given a reasonable opportunity to present their point of view and to respond to facts presented by others and that the decision-maker will genuinely consider what each person has told them when making the decision.

AUDI ALTEREM PARTEM:

The second principle of natural justice literally means ―to hear the other side‖. This is necessary for providing a fair hearing and no doubt the rule against bias would also be a part of the procedure.

This principle goes back to several centuries and has been applied in various circumstances; it is recognized as one of the foundations of English justice. Therefore it is considered one of the fundamental requirements of adjudication that, whenever the interest of a person is affected by a judicial or administrative decision, that person be provided the opportunity to know and to understand the allegations made against him/her, and to make representations to the decision-maker to confront those allegations.

For instance, a fair adjudication of a matter requires the following steps:

i. The right to be informed in advance of the case to be met–i.e. the factual basis on which the decision-maker may act;

ii. The right to a reasonable time in which to prepare a response;

iii. The right to be heard verbally or in writing;

iv. The right to cross-examine persons who may have made prejudicial statements to the decision-maker;

v. The right to be legally represented;

vi. The right to reasons for the decision.

A corollary has been deduced from the above two rules and particularly the Audi alteram partem rule, namely “qui aliquid statuerit parte inaudita alterem act quam licet dixerit, haud vacuum face”‘that is he who shall decide anything without the other side having been heard, although

he may have said what is right, will not have been what is right‘or in other words, as it is now expressed justice should not only be done but should manifestly be seen to be done.

The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this Principles of Natural Justice principle found its way into the Magna Carta. The classic exposition of Sir Edward Coke of natural justice requires to vacate, interrogate and adjudicate‖.

In the celebrated case of Cooper. Wandsworth Board of Works, the principle was thus stated:-

“Even God did not pass a sentence upon Adam before he was called upon to make his defense. “Adam” says God, “where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat”.

It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. The time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated.

Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is, after all, an approved rule of fair play. 14. When it is said that hear the other side. It means that hearing should not be reduced to mere formality and it does not remain confined to only auditory hearing. It should be effective hearing.

Irrespective of the nature of the body making the decision whether that is judicial/quasi-judicial or administrative, the main aim is that a person should be treated fairly[20].As has been indicated, however, the right to a fair hearing is a flexible concept. This means that its requirements are not fixed or constant –i.e. it is not possible to state that whenever the rule applies its content must always consist of all the elements listed above. The case law illustrates that the requirements of a fair hearing will vary from case to case depending on the circumstances of each case.

PAKISTAN’S JUDICIAL PRECEDENTS

In Hashwani Hotels vs. Sindh Insurance Tribunal [2016 CLD 1790], the High Court while exercising its supervisory jurisdiction under the Constitution, was fully competent in respect of orders passed by subordinate courts or tribunals passed in violation of the principles of justice. In a case, a student was not given the chance to present his statements, and sentenced guilty without hearing him; this was a violation of the principles of natural justice.[21]

[1] Principles of Administrative Law by M.P. Jain p. 300, 6^th edt 2007

[2] Principles of Administrative Law by Hamid khan p. 199, 2000

[3] https://www.jstor.org/stable/43952389

[4] https://www.jstor.org/stable/43952389

[5] https://www.textroad.com/pdf/JAEBS/J.%20Appl.%20Environ.%20Biol.%20Sci.,%204(9)68-72,%202014.pdf

[6] https://www.linkedin.com/pulse/principles-natural-justice-dr-g-p-naik

[7] http://www.legalservices.com/article/1528/Origin-and-Development-of-Principles-of-Natural-Justice.html

[8] https://www.textroad.com/pdf/JAEBS/J.%20Appl.%20Environ.%20Biol.%20Sci.,%204(9)68-72,%202014.pdf

[9] https://www.linkedin.com/pulse/principles-natural-justice-dr-g-p-naik

[10] Principles of Administrative Law by Hamid khan p. 198

[11] Ghulam Mohammad v. Collector, PLD 1973 Lah. 528

[12] Abdul Sabur Khan v. University of Karachi, PLD 1966 SC 536