Lecture Note- 5 Principle of Natural Justice.pptx

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1. Principles of Natural Justice by: KAH

2. What is Natural Justice? Natural Justice is very often confused with or commonly mistaken to be Equity or Natural Laws to some Layman. However, Natural Justice is not Equity.

3. The doctrine of natural justice is founded in the notion that for a determination of a just and fair trial, certain processes in adjudication would be required. According to just and fair values, certain basic legal principles are required by nature, or are so obvious that they should be applied universally without needing to be enacted into law by legislation.

4. Principle of Natural Justice were derived from the Romans who believed that some legal principles were “natural” or self evident and did not require a statutory basis.

5. Natural justice operates on the principles that man is basically good, that a person of good intent should not be harmed, and one should treat others as one would like to be treated. In a nutshell, natural justice is about the concept of fairness when matters in dispute are referred to arbitration or the courts for redress : i.e. justice should be done and be seen to be done.

6. It is more concerned with the procedures that govern the adjudication of disputes between persons or organizations, chief among which are :- 1. that the adjudication should be unbiased and conducted in good faith, and 2. that each party should have equal access to the tribunal and should be aware of arguments and documents adduced by the other. The purpose behind natural justice is to ensure that the decision-making is made under a fair and unbiased environment

7. Principles of Natural Justice Rule against Bias Rules for the fair hearing. Reasoned decision.

8. Rule against Bias This means that the administrative authority, who exercises quasi judicial function should be impartial. He should be free from bias.

9. Rule against Bias The administrative authority, exercising, quasi judicial function, is said to be biased if He has pecuniary interest in the subject matter of the dispute. (Pecuniary bias) He is a relative or a friend or enemy of disputing parties. (Personal bias) He has general interest in the subject matter. (Official bias).

10. Rule against Bias Rules against bias are based on three maxims. -No man shall be a judge in his own cause. ( Nemo debet esse judex in propria causa ); - " Not only must Justice be done ; it must also be seen to be done .“ -Judges should be above suspicion.

11. Rules for the fair hearing The second important condition of natural justice is that the person whom an action is proposed to be taken, should be given a reasonable opportunity to defend himself. Before passing an order against any person, he must be heard.

12. Rules for the fair hearing For a fair hearing, the following two are necessary Notice. Opportunity of hearing.

13. Reasoned Decision (Speaking Order) Speaking order means on order which contains reasons for the decision. The administrative authority exercising quasi judicial function should give reasoned decision.

14. Reasoned Decision (Speaking Order) A party to the dispute has a right to know the result of the enquiry and the reason in support of the decision. The reasoned decision safe guards against possible injustice and arbitrary exercise of powers by quasi judicial authority.

15. Principles of Natural Justice in the Constitution of Bangladesh In Bangladesh the enforcement principles of natural justice are ensured by several provisions of our constitution. Article 27 of the Constitution of Bangladesh states 'all citizens are equal before law and are entitled to equal protection of law'. The Apex Court of our country has held that to treat a person in violation of the principles of natural justice would amount to arbitrariness and discriminatory treatment in violation of the right guaranteed by Article 27 of the constitution. In the case of Abdul Latif Mirza Vs. Bangladesh 31 DLR (AD) 33, the Supreme Court of Bangladesh held that the principles of natural justice are inherent in every society aspiring for a civilised living. It further observes that according to the third paragraph of the Preamble of the Constitution, the fundamental aim of the State is a society in which the rule of law, the fundamental human rights and freedom, equality and justice, political, economic and social shall be secured.

16. Cases on- A Man Cannot Be Condemned Unheard ( Audi Alteram Partem )   40 DLR (AD) 170; 48 DLR (AD) 20: The basic principle of fair procedure is that before taking any action against a man the authority should give him notice of the case and afford him fair opportunity to answer the case against him and to put his own case 40 DLR (AD) 170: Notice is considered to be the minimum obligatory condition.   17DLR (SC) 209; AIR 1978 SC 597: Where a statute requires notice to be given before taking action, service of notice to the party concerned is mandatory and failure to comply with the requirement renders the action ultra vires . Even when a statute is silent, notice has to be given if any person is sought to be affected in his right, interest, property or character.   31DLR (AD) 272: Its essential feature is no person should be deprived of his right without a hearing before an independent authority – Its purpose is to prevent miscarriage of justice.   49 DLR 108: When the statute requires service of notice the authority cannot absolve itself of his duty.