Principles of natural justice and their application in Bangladeshi context
The apex court of the 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
Dr Kudrat-E-Khuda
Man lives in society. But he cant do anything to his sweet will here. He has to maintain the peace and order of the society he lives in, has to obey its established laws. If he does otherwise or disobeys any law or disturbs the peace and order of the society, he is punished. But still he possesses some rights naturally that he has to be given prior notice of the case, a fair opportunity to answer it, the opportunity to present his own case, the ruling must be made by someone free of bias and the judgment must be based on evidence, not on speculation or suspicion, and the decision must be communicated in a way that makes clear what evidence was used in making the decision.
These are called the principles of natural justice. Natural justice is an important concept in administrative law. The principles of natural justice of fundamental rules of procedure are the preliminary basis of a good administrative set-up of any country.
Natural justice represents the higher procedural rules developed by judges, which every administrative authority must follow in taking any decision adversely affecting the rights of a private individual. The principles of natural justice have come out from the need of man to protect himself from the excesses of organized power man has always appealed to someone beyond his own creation. In the absence of any other law, the principles of natural justice are followed. However, the principles of natural justice are considered as the basic human rights because they attempt to bring justice to the parties naturally. This justice concerns procedural fairness and ensures that a fair decision is reached by an objective decision maker. The aim of the natural justice is to maintain public confidence in the legal system.
The principles of natural justice have come out from the need of man to protect himself from the excesses of organized power man has always appealed to someone beyond his own creation. Natural law is of the higher law of nature or natural law. Natural law does not mean the law of the nature or jungle where lion eats the lamb and tiger eats the antelope but a law in which the lion and lamb lie down together and the tiger frisks the antelope. Natural law is another name for common-sense justice. Natural laws are not codified and are based on natural ideals and values which are universal. According to English Law, natural justice means the technical terminology for the rule against bias and the right to a fair hearing. The term natural justice normally refers to duty to act fairly.
Natural justice is identified with the two constituents of a fair hearing, which are the rule against bias (nemo iudex in causa sua, or no man a judge in his own cause), and the right to a fair hearing (audi alteram partem, or hear the other side). The requirements of natural justice or a duty to act fairly depend on the context. Of course, the laws of nature are designed to promote survival rather than justice. Nature is governed by principles such as the survival of the fittest and prevalence of might over right. When a herd leaves its weak members behind there is no question of the weak being supported or protected. Therefore, natural justice is not justice found in nature; it is a compendium of concepts which must be naturally associated with justice, whether these concepts are incorporated in law or not.
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 civilized living. It further observes that according to the third paragraph of the Preamble of the Constitution, the fundamental aim of the state in a society in which the rule of law, the fundamental human rights and freedom, equality and justice, political, economic and social shall be secured.
For the present purposes, to the first maxim Nemo debetessejudex in propria causa, the principles on which this maxim is based include the following: (i) No man shall be a judge in his own cause; (ii) Justice should not only be done but manifestly and undoubtedly be seen to be done; (iii) Judges should be above suspicion and, therefore, anything which lends or may be regarded as tending to cause such a person to decide a case otherwise than on evidence must be held to be biased. The word bias has come to mean prejudice, show of favour or disfavour, antagonism, spite, hostility, prepossession that sways the mind. Bias which will violate the principles of natural justice may be: (a) pecuniary bias, (b) personal bias, and (c) official bias or bias as to the subject matter, etc.
Bangladesh is a democratic country and hence the foremost object of this welfare state is to protect the rights and interests of its citizens. And without complying with the principles of natural justice it cannot be done. The principle of natural justice ensures fair justice and through the principles of natural justice the rights and interests of the citizens can be ensured also. Natural justice can benefit the decision maker as well as the person or organisation whose rights or interests may be affected in the following ways. (i) Assists the decision maker in reaching the correct and preferable decision; (ii) Provides the decision maker with relevant information, evidence or interpretation of legislation or policy which he/she has not considered; (iii) Provides a useful avenue for the decision maker to ensure that the facts or information that he/she is relying on is correct.
Separation of judiciary from the executive, effective from 1st November, 2007, is a positive step towards for fair trial in Bangladesh. Since the judicial body is no longer under the executive, the executive body cannot trespass judiciary and a new post is introduced by the name of judicial magistrate who are already working under the judicial body. Fair trail of judiciary depends on some certain conditions like mode of appointment of the judges, security of their tenure in the office and adequate remuneration and privileges. The separation of judiciary ventilates all the facilities as Masdar Hossain indicated in his case. But it does not absolutely indicate that the judiciary is able to act without any pressure.
The following recommendations can be drawn for removing the judicial problems like unfairness or bias and to ensure the principle of natural justice: (i) the appointment of judges (lower court to upper court) have to be neutral; (ii) remuneration of judges should be increased with other benefits, like heir of judges (son or daughter) has to be kept in the metropolitan area with a common standard of dormitory for ensuring their proper and standard education by the expense of government; (iii) residential arrangements should be proper and without any rent; (iv) professional activity of a judge should not be intervened with any internal or external pressure, like unauthorized pressure from the boss. It might hamper fair justice; (v) judges should be rewarded depending on their professional and other performances; (vi) judges have to be promoted properly on the basis of seniority and experience, otherwise they will be de-motivated; (vii) appointment of judges in the judicial field (lower to apex court) have to be neutral/impartial, especially members of the judicial service commission have to be selected impartially; (viii) lack of consciousness, lack of democratic culture, lack of popular access to justice, lack of interaction with other court, lack of legal knowledge have to be eradicated by sufficient training; (ix) the higher educational institutions like public and private universities have to be developed properly by adequate resources. Particularly legal education has to be promoted; and (x) a judge should apply his or her judicial mind and avoid any nepotism.
The writer is an Associate Professor, Department of Law, Daffodil International University; International Member of Amnesty International. Email: [email protected]
