Constitution: It’s Scope, Fundamental Legal And Political Rules.

Populus "are different from one another. Law is there to set those differences aside and control them all alike. This idea of ‘controlling all alike’ gives birth to the concept of Administration. It must be fair, equal, and justifiable for all. Ladies and Gentlemen; walk with me, we are going to take a journey on “The Rules of Natural Justice and its applicability in Administrative Law”

 

Natural Justice (Principle, Purpose, Origin, and Application of the concept)

Natural Justice is a principle developed by Roman and Greek philosophers to deal with ‘procedural justice’ in judicial acts. Though it was established by Romans with Jus-Naturale it was not an alien concept. The first procedural justice application, according to the Holy Bible, was initiated even before the era of mankind when Adam and Eve ate the fruit of Wisdom. God, before banishing them from heaven, had given them a chance to justify their action by presenting their case (Audi alteram partem) by setting the ground on procedural justice by himself.

Absolute power leads to absolute corruption. Since the judiciary is also led by people it cannot be excluded from this phrase. Therefore, justice should vest in the manner of arising decisions by judicial process to protect against the arbitrary exercise of power. For this Natural Justice had come up as two universal rules,

1. Audi alteram partem

This means “listen to both parties” or the fair hearing. To satisfy this parties to the dispute must have 

• A right to know the charges 
•  The right to cross-examine witnesses.
• Right to legal representation.
• Right to an oral hearing. 

2. Nemo judex in causa sua

This means no man shall be the judge of his own case or the rule against bias. The minimum requirement for justice is that authority must be exercised by impartial persons who act responsibly and without bias. 

For a long time, these rules were used in courts and quasi-judicial acts.

‘Acts in judiciary’ have been adopted traditionally by English courts as a request for remedies for breaching Natural Justice. This assumption was made in a series of judicial decisions that the requirement of compliance with the rule of Natural Justice is compliance to the ambit of judicial and quasi-judicial as distinguished from administrative function. Therefore, according to the traditional point of view, Natural justice is only applicable in courts when they act in their judicial capacity. Knight v Indian Head School Division is one of the cases that expressly adopted this view. In Sri Lanka, the same approach was taken in Nakkuda Ali v Jayaratne which we are going to elaborate on in detail later. Also, in the case of Hassan v Controller of Imports and Exports, though the judge was happy to take a broader definition of duty to act judiciary and Natural Justice Application in Administrative law, still took the traditional definition (see annexes 01) of Rule of natural justice only applies only for court judicial function executed by the courts. 

The Law of Administration

According to Wade and Forsyth, Administrative law is “the body of principles which governs the exercises of power and duties of public authorities”. In a welfare state, an administrative authority has received enormous power to perform its duties. This power has to be regulated properly so that the general public can enjoy its benefits while protecting their fundamental rights against the arbitrary use of the power of Administrative authorities. Enforcing laws and Regulations, Making New regulations, and Adjudicating violations of those regulations are the main functions of an Admin Authority. Earlier, all these actions were recognized as ‘taking executive actions’ by courts. Hence, they were reluctant to accept the application of the Rules of Natural Justice in administrative functions, because authorities are exercising legislative actions and not determining a question.   

 

Natural Justice Application in Administration Action

In Sri Lanka, the case Nakkuda Ali V Jayarathen was one of the most famous cases in Sri Lanka which was criticized and cited in many cases. It has taken the traditional approach when a controller of textiles canceled the licenses of a dealer only with the belief that he is not fit for business, was considered an Administrative action, and neglected the fact by refusing to hear the dealer's case which is a violation of Audi alteram partem by the courts. The same approach can be seen in the earlier English case R v Metropolitan Police Commissioner when the police commissioner revoked a Driver's license also considered an administrative action. These decisions were subjected to many scholarly criticisms. (footnote) These actions resulted because of the traditional approach to the term “duty to act judiciary”.

Ridge v Baldwin is where the view of “act in the judiciary” had changed positively and was held authoritatively. It held that ‘the exercise of any power which affects the rights or interest of person makes it ‘judicial’, and process must be aline with Rules of Natural Justice. This makes administrative authorities act ‘judiciary’ when exercising power affects human rights. With this new interpretation, authorities are now expected to follow the Rules of Natural Justice in Administrative actions. Sharvananda J. in the case of Fernando V Jayarathne followed this interpretation by stating that “if the purpose of Natural Justice is to prevent miscarriage of justice why cannot it be applied for administrative justice.”  

The Constitution of Sri Lanka has identified equality before the law from Article 12(1) (see Annexes 02) and Article 13(3) it identified the right to have a fair trial before the law (see Annexes 03) and Article 13(05) is recognized the presumption of innocence (see annexes 04). Since we have necessary constitutional provisions to adhere to natural justice and as a country follows Stare Decisis there is a possibility of building up a well-established principle of natural justice application locally. Inter alia cases like University of Ceylon V Fernando where the court accepted the right to have written notice of charges and Izadeen V Director General Of Civil Aviation where the court recognized the right to have a fair trial would uphold the Audi alteram partem and help to establish a firm practice. 

The rule against bias or Nemo Judex causa Sua is also a well-established principle. Bias could be varied depending on the situation. It could be personal bias, pecuniary bias, or subject matter bias. According to the Gamini Dissanayake V M.C.M Kaleel case, the actual bias need not be proven. One of the two tests for bias, The real likelihood of bias was introduced in the case of Simon V The Commissure of National Housing (footnote about the case) where the court held that the commissioner was biased on facts arising in the court. English case R v Sussex justices ex. p McCarthy is where the court adopted the reasonable suspicion test. Here the test is whether a reasonable man would reasonably suspect that the tribunal might be biased. Both these cases have identified and recognized the application of Nemo Judex causa Sua in administrative actions just as they are used in judicial action in Sri Lanka. These examples and arguments show that Sri Lanka has practiced and accepted the Natural Justice Rules with a firm constitutional foundation to be used in Administrative actions.        

However, there are deviations and inconsistencies in the approach of Sri Lankan courts to accepting Natural Justice Rules. Chulasubadra V University of Ruhuna and others which was criticized by Dr. Mario Gomaz because the approach was taken with reluctance to adhere to the Rules of Natural Justice. Though this is a clear deviation from cases that have been discussed so far, it is possible to justify this approach with the decision of the English case Loyd V McMohan which stated, “the Rule of Natural Justice is not graved on the tablet of stone and it depends on characters”. The above case was again cited in the Rajakaruna V University of Ruhuna (footnote) and built up an argument that the application of Rules of Natural Justice depends on the seriousness of allegations.  

Henceforth, it is clear that Sri Lanka, although has appreciated the approach of accepting Natural Justice principles in administrative inquiries, at the same time has introduced many limitations. Inter alia Exemption on Legislative actions can be taken as an exception for the application of the Rules of Natural Justice, in 2013 DR. Shirani Bandaranayake was Impeached by a parliamentary select committee. According to DR. Bandaranayake, she was not given adequate time to present her evidence and it is against the rule against bias since the trial was taken by a committee of MPs from the governing party. Though this is against Natural justice it is an exception. Also, Necessity cases of contempt of court have to be heard without considering the Natural justice principle of Nemo judex in causa sua. Ranjan Ramanayake V AG is one of the examples of this. Impracticability such as mass copying in a university entrance examination and no rights of a person being infringed are some other grounds where the administrative authorities or the courts are not forced to apply the Rules of Natural Justice.

Conclusion 

Rules of Natural Justice, as mentioned in Loyd V McMahon, is a flexible concept that can be applied accordingly. But as mentioned in the case of Cooper V Wandsworth Board of Workers, Rules of Natural Justice are so fundamental. Because, irrespective of whether it is mentioned somewhere the necessity to follow them, that failure to apply them leads to Ultra Vires. With the new interpretation of the ‘Act in Judiciary’, Administrative authorities are also forced to make decisions, that will affect the rights and interests of humans in accordance with the Natural Justice Principle is a positive step in a Welfare state, since in a welfare state Administrative authority hold a massive power.  In Sri Lanka, this application, as mentioned in the above paragraphs, is limited in many ways. Codification of the Rule of Natural Justice would not be practical since they must be freer than rigid for better function. But some kind of systematization is proposed by the writer since there is a huge discretion on the part of the judge (to decide whether to apply these rules or not). To achieve nearly complete success application the Rule of Natural Justice must be equitably applied to equal scenarios equally. Finally, I would like to propose, As mentioned in Visal Bashitha Kavirathna V commissioner-general of Examination case, equality among equals must be applied to the Rule of Natural Justice when applied in Administrative actions and inquiries to make it consistent and fair application.

 

Annexes 01 

“While I would welcome the day when the Rule of Natural Justice is observed even in the performances of pure executive action, I cannot overlook the circumstances that the law has hitherto not recognized the existence of such duty”   

Hassan v Controller of Imports and exports (1967) 70 NLR 149 at 152

 

Annexes 02 

12. (1) All persons are equal before the law and are entitled to equal protection of the law.

 

Annexes 03 

(3) Any person charged with an offense shall be entitled to be heard, in person or by an attorney-at-law, at a fair trial by a competent court. 

 

Annexes 04 

(4) No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with the procedure established by law. The arrest, holding in custody, detention, or other deprivation of personal liberty of a person, pending investigation or trial, shall not constitute punishment. (5) Every person shall be presumed innocent until he is proved guilty: Provided that the burden of proving particular facts may, by law, be placed on an accused person.