Principles of Natural Justice relating to Nepal

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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 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 fairness has developed through courts in diverse ways, Lord Parkers says principle of natural justice is defined as duty to act fairly and Mr. Justice Bhagwati 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

·         Cross examination

·         Expert evidence cannot be tackled without knowledge of the specialties 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.      Institutional 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

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