Natural justice and its principles

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 Natural justice is a foundation principle that advocates for rule of law. This principle has varieties of  roles in many branch of law, such as substantive law, procedural law, fundamental rights, and  administrative law as well. Overall, it support the fairness, impartiality and rule of law eventually in  each action of state authorities, either that is legislative, executive or judiciary. All these organs have  to be abided by the principle of natural justice in the process and well as their decisions, so it acts as  filter to make their process and decisions valid in the eye of rule of law.  

In simple language, when a defendant is declared as guilty person without providing chance to speak  and without providing time for collection of evidence, the procedure of such judicial proceeding is  against the principle of natural justice and it is universally compulsive principle. Muluki Criminal  Procedural Code 2074 and Muluki Civil Procedural Code 2074 have embedded this principle.  Similarly the constitution of Nepal has provided right relating to justice as fundamental right under  Article 20, which clearly provide the right to fair trial by impartial, independent and competent court  or authority and presumption of innocent until proven guilty.  

In administrative law, the principle of natural justice filter the decisions of administrative authorities,  it is fundamental rules of procedure for administrative actions , systematic pattern of ideas and  values had to be evolved out of the doctrine of natural law. The norms of faireness has developed  through courts in diverse ways, Lord Parkers says principle of natural justice is defined as duty to act  fairly and Mr. Justice Bhagawati has taken it as fair play in action. The definition itself provide diverse  horizon of natural justice. Evolving by courts, the principle of natural justice have developed as a  great significance in modern administrative process. 

Fairness in the proceeding and decision making power is a force backed by rule of law against the  abusive authority. Overall countries have incorporated this principle, expressly or impliedly. It also  has many names, such as universal justice, procedural due process, fair playing action, fundamental  justice etc. It has many functions such as protection of human rights, fundamental rights, make a  systematic proceeding to take a decision, verifying the decision taken. Hence natural justice can be  defined as a test for all the actions and decision taken, with valid process as pronounced by law.  

Natural justice refers to an implied mechanism that check whether the public authorities are  functioning in accordance with law, whether they are independent, impartial, unbiased and  competent to take the decision. Carrying these functions, the principle of natural justice has  enlarged theories underlying in it. They are as follows: 

Theory of Bias:  

No authority shall be biased during the procedure of taking the decision and decision itself. It  doesn’t question upon the competency of authority, but it question upon the conflict of interest.  There are three types of bias; namely Pecuniary Bias, Personal Bias and Departmental Bias. 

Pecuniary Bias: Pecuniary bias refers to such a knot that show that relation between the conflict  between the different roles, such as A man as a member of judicial committee take decision against  the worker where the matter of disputes is related to a not payment of wages in which the house  owner is he himself. There is a financial nature of conflict of interest , that can confirm the existence  of pecuniary bias.  

Personal Bias: Personal Bias refers to any kind of bias comes from near person, it can be relatives,  friends, relationships, teacher and students, any personal relationship in which one gets attached to  the level of denying to see and accept the mistakes of other which makes the authority depend on,  and such authority can not be independent and impartial to take decisions.  

Departmental Bias: The departmental bias refers to something which is inherent in the  administrative process and if it is not effectively checked, it may negate the very concept of fairness  in the administrative process. Any interest or prejudices can be harmful for the decision making  process that’s why law restrict in such situation which are likely cause conflict in interest.  

Theory of Audi Alteram Partem: 

The theory means the rule of fair hearing or no one is to be condemned without his/her voice. This is  basic concept of the principle of natural justice. Ridge verses Baldwin is a landmark case which  reinstated the right to a fair hearing as a rile of universal application in all cases of administrative  acts to declare affecting rights. Right to present case and evidence, right to rebut, right to counsel,  reasoned decision, speaking order institutional decision or on who decides must heard, right against  dictation, financial in capacity to attend the inquiry, officers, report etc are important steps to have  fair hearing and trial process. Fair hearing ensures the scruples administration of justice and fairness,  it is relative concept, not a rigid, ritualistic or sophisticated abstraction. 

The Process of fair hearing must includes following rights: 

∙ Right to notice 

∙ Right to know evidence against him 

∙ No evidence should be taken at the back of other party 

∙ Right to rebut adverse evidence 

∙ Corss examination 

∙ Expert evidence cannot be tackled without knowledge of the specialities concerned ∙ Report of the enquiry to be shown to the other party 

∙ Reasoned decision of speaking order 

Law is the only one which declare which act to be punished, and what types of punishment to be  given, what shall be the procedure law. All these steps are in accordance with law not the authority.  The decision given by authority has to be reasonable, the reasonableness comes from laws too.  

There are essential elements of reasoned and decision: 

I. Use of judicial Mind or conscience 

II. Insitutional decision or one who decides must hear 

III. Rules against Dictation  

IV. Financial Incapacity to Attend the enquiry 

V. Post haste  

Therefore, these are the theories of natural justice which have came across many steps and each  step is equally important to get valid reasoned decision.


Contributer
sassyrai889@gmail.com

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