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  • Sunday, 14 April 2024

PRINCIPLE OF NATURAL JUSTICE "AUDI ALTERAM PARTEM"

PRINCIPLE OF NATURAL JUSTICE

INTRODUCTION 

 

The term Natural Justice, In English Law is often retained as a general concept; it is also extended as “duty to act fairly (will be discussed later on)”. Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. It protects against the arbitrary exercise of power by ensuring fair play. "The content of these rules can be summarized in the maxim audi alterarn partern. Translated literally this means "no one shall be condemned unheard".

Natural justice is based on two fundamental rules: (1) Audi alteram partem (Latin for, hear the other side): no accused, or a person directly affected by a decision, shall be condemned unless given full chance to prepare and submit his or her case and rebuttal to the opposing party's arguments. (2) Nemo judex in causa sua (Latin for, no man a judge in his own case).

 

THE RISE OF NATURAL JUSTICE AS A‘FUNDAMENTAL RIGHT’:

Natural justice has a long history. The requirement was that people should receive adequate notice of decisions which may affect them. The concept of Natural justice was built up in the 17th Century but at that time Natural justice was not recognized as a Fundamental Right. Later on, in 20th Century, the rules of natural justice in administrative decision-making widened, questions arose about the basis of natural justice. The problem was highlighted in the seminal decision of Kioa v West (1985)159 CLR 550(‘Kioa’), where a majority of the High Court held that an administrative official had denied natural justice to two non-citizens by failing to put to them prejudicial allegations (and also failing to provide them with chance to respond to the allegations) before deciding to deport them as prohibited immigrants.

Rules of natural justice are not codified cannons. They are principles ingrained in the conscience of man. Justice is based substantially on natural ideas and values which are universal. What particular form of natural justice should be implied and what its extent should be in a given case must depend to a great extent on the facts and circumstances of that case and the framework of the statute under which an action is taken. Earliest expression of natural justice could be found in philosophical expression of roman jurists (jus naturale) and signified rules and principles for the conduct of man, which were independent of enacted law or customs and could be discovered by the rational intelligence of man and would grow out of and conform to his nature – which meant the whole mental, moral and physical constitution of man. The basis of the principles of natural justice is rule of law. The observance of these principles is demanded by our sense of justice to which the total system of governance must conform.

 

AUDI ALTERAM PARTEM:

Audi alteram partem is the basic concept of the principles of natural justice. It means that both sides must be heard before passing any order. It signifies that no man can be condemned without a hearing. It is a fundamental principle of natural justice that before an order is passed against a person, he should be given an opportunity to be heard in the matter. In administrative law, this is the principle which protects the individual from arbitrary administrative actions whenever his right to person or property is jeopardized. Thus, one of the objectives of giving a hearing in application of the principles of natural justice is to see that an illegal action or decision does not take place. Any wrong order may adversely affect a person, and it is essentially for this reason that a reasonable opportunity may have to be granted before passing an administrative order.

This principle has been applied to administrative actions to ensure fair play and justice to affected persons. However, the doctrine is not the cure to all ills in the process. Its application depends upon the factual matrix to improve administrative efficiency, expediency and to mete out justice. The procedure adopted must be just and fair.

The corollary deduced from this principle is qui aliquid statuerit parte inaudita altera, aequum licet dixerit, haud aequum facerit (he who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right.) As stated earlier, this principle is not of some importance but is of fundamental importance that justice should not only be done, but also manifestly ad undoubtedly seems to be done.

  •  Practically speaking, this maxim covers two things:

 

  • Giving notice to the affected person

 

  • Giving him a fair hearing

 

Duty to act judicially or to act fairly:

In cases classified as ‘quasi-judicial’, there is a ‘duty to act judicially’, i.e., to follow the principles of natural justice in full, but in cases which are classified as ‘administrative’ there is only a ‘duty to act fairly’, which simply means that the administrative authority must act justly and fairly and not arbitrarily or capriciously.

The only essential point that has to be kept in mind in all cases that the administrative authority concerned should act fairly, impartially and reasonably

The basic purpose behind developing the ‘fairness doctrine’ within the area of ‘administrative or executive’ functions of the administration, wherein the principles of natural justice are not attracted, is to reconcile ‘fairness to the individual’ with the flexibility of administrative action.

 

Right to Notice:

The term ‘notice’ originated from the Latin word ‘notitia’ which means, being known’. In the legal sense, it embraces knowledge of circumstances that ought to induce suspicion or belief, as well as direct information of the fact.

Notice is the starting point of any hearing. Unless a person knows the formulation of subjects and issues involved in the case, he cannot defend himself. It is not enough that the notice in the case is given, but it must be adequate also. The adequacy of notice is a relative term and must be decided with reference to each case. However, generally in order to be adequate must contain the following:

·        Time, place and nature of hearing.

·        Legal authority under which the hearing is to be held.

·        Statement of specific charges which the person has to meet.

 

Right to know the evidence against him:

Every person before an administrative authority exercising adjudicatory powers has the right to know the evidence to be used against him. Whatever mode is used, the fundamental remains the same that nothing should be used against the person which has not been brought to his notice. 

 

Right to present case and evidence:

The adjudicatory authority should afford a reasonable opportunity to the party to present his case. This can be done through writing or orally at the discretion of the authority, unless the statute under which the authority is functioning directs. The requirements of natural justice are fulfilled only if the person is given an opportunity to present his case in view of the proposed action. The demands of natural justice are not met even if the very same person proceeded against, has been furnished information on which the action is based in a casual way or for some other purposes.

The administrative authority must provide full opportunity to present evidence either testamentary or documentary. Not giving a chance to produce material evidence violates the rule of fair hearing.

 

Right to rebut adverse evidence:

The right to rebut adverse evidence presupposes that the person has been informed about the evidence against him. As stated earlier, the original material need not be supplied in all cases; a summary of the contents of the adverse materials shall suffice, provided that it is not misleading.

It is not enough that the party should know the adverse material on file but it is further necessary that he must have an opportunity to rebut the evidence. Rebuttal can be done either orally or in writing at the discretion of the administrative authority provided the statute does not provide otherwise.

           The opportunity to rebut evidence mainly involves two factors, i.e.

·        Cross-examination

·        Legal representation

 

Cross-examination:

           Cross-examination is a most powerful weapon to elicit and establish the truth. However, courts do not insist on cross-examination unless the circumstances are such that in the absence of absence of it, a person cannot put up an effective defence.

           The right to cross-examine has never been considered to be an integral element of the audi alteram partem rule. The court can decide, in each case, as to whether such an opportunity ought to have been given to the person against whom action is being taken.

 

Legal representation:

The right to be represented by a legal practitioner has not been considered to be a part of natural justice. However, if such a right has been expressly conferred by a statute, an order may be set aside if this right is denied.

 

CONCLUSION:

It is to be understood that the ultimate objectives of departmental/domestic probe is to determine or to draw inference whether punishment should or should not be awarded to on employee and so the principles of Natural Justice are applicable to domestic enquires even though there may not be any rule or provision to that effect.

The principles of natural justice are easy to proclaim, but their precise extent is far less easy to define. The rule against bias is one thing. The right to be heard is another. These two rules are characteristic of what is often called ‘natural justice’. They are twin pillars supporting it. They have been put into two words- Impartiality & Fairness. The Principles of natural justice are considered to be more important to ensure justice to the workman whose conduct is being enquired into.

Hence, it is essential to understand its scope and extent and implications for purpose of domestic enquiry. We come across new cases every day but basic structure about the machinery entrusted with the task of holding departmental enquiry and coming to a decision, remains the same. Therefore, the employer should give proper attention to this aspect of the disciplinary action so that pit falls on this score could be avoided.

 

Copyrights © All Rights are Reserved with Ata Ur Rehman, Advocate (LLB, BTC, London) and PakistanLawyer.com. Use of this information is only/solely permitted for educational purposes. Copying, publishing and recreating the same, in any manner and form, without prior permission/consent from the owner/researcher of this article, is illegal and strictly prohibited. Any person found infringing the copyrights, shall be liable to be dealt in accordance with the provisions provided in the Copyright Ordinance, 1962. 

 

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