PRINCIPLE OF NATURAL JUSTICE

BIAS - DEFINITION

• LEGAL - an operative prejudice, whether conscious or unconscious, as result of some preconceived opinion or predisposition, in relation to a party or an issue.

• DICTIONARY - anything which tends a person to decide a case other than on the basis of evidences.

PRINCIPLE OF NATURAL JUSTICE• Natural Justice (NJ) is a principle that intended to

ensure law with fairness and to secure justice. Fairness and justice should vest the manner of arriving of decisions by judicial process. The IC as the mechanism of arbitrating industrial dispute when dealing with matters referred to it.

• 2 essential elements of NJ:A. The rule against biasB. That of hearing both sides ("audi alteram

partem“)

A) The rule against bias• The rule against bias requires the adjudicator

to be neutral between the disputing parties and appear to be above board. This principle is based on two requirements:

I. No man should be a judge in his own cause ("nemo judex in cause sua“) and

II. Justice must not only be done, but manifestly and indubitably be seen to be done

The rule against bias has 2 main features:

1. the administrator exercising adjudicatory powers must have not have any personel or proprietary interest in the outcome of the proceedings.

2. There must be a real likelihood of bias. Real likelihood of bias is a subjective term which means either actual bias or a reasonable suspicion of bias. – difficult to prove the state of mind of person. Therefore, the courts see is whether there is a reasonable ground for believing that the deciding factor was likely to have been biased

Forms of bias:• Personel bias - It arises out of the personal or professional

relationship of friendship or hostility between the authority and the parties. It’s the human nature that we try to give favourable decision to our friends or relatives, whereas use the same as a weapon against the enemies.

• Pecuniary bias - Any financial interest howsoever small it may be is bound to vitiate the administrative action.

• Subject-matter bias - The situations where the deciding officer is directly or indirectly in the subject matter of the case.

Forms of bias (CONTINUED)

• Departmental bias - The problem of departmental bias is 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 proceeding.

• Pre-conceived notion bias - Bias arising out of preconceived notions is a very delicate problem of administrative law.

• Bias on account of obstinacy - The word Obstinacy implies unreasonable and unwavering persistence and the deciding officer would not take ‘no’ for an answer. This new category of bias was discovered in a situation where a judge of the Calcutta High Court upheld his own judgment while sitting in appeal against his own judgment.

B. The Rule of Hearing Both Sides

• This rule is expressed through 2 maxims: i. Hear the other side andii. No man should be condemned unheard (give

opportunity to be heard)

i. HEAR THE OTHER SIDEThe adjudicator (judge) must act in good faith and fairly listen to both sides, for that is the duty of the adjudicator who decides anything. They can obtain information in any way they think best. They must always give opportunity to those who are parties in the controversy for correcting any relevant statement.

•Any proceedings commenced must with prior notices to the parties in order to avoid vitiate the resulting decision. Therefore, the person should be given adequate notice of the proceedings so that they may be able to:a.Effectively prepare their case and to answer the case of the opponent.b.Make their representations andc.Appear at the hearing.

ii. Opportunity to be HeardThe parties involve must have a reasonable opportunity of being heard in their defence.•3 requirements of fair or reasonable opportunity:a.The adjudicator should receive all the relevant material, which a party wishes to produce in support of its case.b.The evidence of the opponent, whether oral or documentary, should be taken in his presence.c.Each party should have the opportunity of rebutting the evidence of the other by cross-examination or explanation.

CONCLUSION1. The rules of NJ are not inflexible principles – flexibility

is allowed however, they may vary in their content in the circumstances of each case and in their ambit in the context of their application.

• For example: The concept of fair hearing, particularly, varies significantly in different contexts such as whether it is a sophisticated full-fledged hearing or a brief and minimal one; hearing prior to the decision or post decisional hearing. i.e. depending on the circumstances of each particular case, this rule, in its application is flexible enough to range from minimum to rigorous standards

CONCLUSION (CONTINUED)

2. Flexibility of the rules of NJ is emphasized it should be noted that their fundamental importance should be stressed.

• For example: As long as notices were produced to the appellant or the disputing parties – the fundamental of adequate, clear, certain and unambiguous notice should be stressed. A vague notice is not a proper notice.

CONCLUSION (CONTINUED)

3. While it is important for administrative bodies to conform to natural justice in their proceedings, a mere fetish of those principles will not justify the interference by the review court.

• “ A breach of procedure, whether called a failure of NJ, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain”.

• Case: Tanjong Jaga Vs. Minister of Labor (1987) 1MLJ33.

• Tanjong Jaga argued that it was a nightclub and as such the NU of HB&R workers not the competent union to represent its workers. It challenged the unilateral decision of the Registrar to the contrary, complaining that he failed to give an opportunity to be heard on this contention.

• The Supreme Court held that the Registrar in this case was satisfied that the major business of the nightclub was in the operation of the bar – S.C. Judge Abdool Cadeer – ‘allowing a hearing to the night club would not have wide any difference’.

CONCLUSION (CONTINUED)

4. There is the emerging concept of fairness, which is larger in context than the rules of natural justice.

• Fairness – the duty to act fairly – does not mean it to be a substitute for NJ – the administrative bodies in exercising their discretion owe a constitutional duty to perform it fairly and honestly to the best of their ability -–rather than to use the phrase as NJ – the procedure must be fair to all those who have an interest in the decision.

• C. V. Das – Administrative Law & the Citizen, MLJ No.1981• The principles of NJ do not apply to administrative bodies when the Nature of function

they discharge is not analogous to judicial or when the nature of complaint does not fit into any of the recognized rules of NJ.

• Case: The management receives a complaint on 6 workers for misconduct. The immediate respond is to suspend the allege workers for 1 week. Then the mgmt. Call for a meeting of the representative of the workmen in the CO’s employment to decide future fate of there 6 suspended colleagues. Based on the discussions/arguments as well as giving the rep. Opportunity to voice their opinion the mgmt decided a judgement to be passed on the 6 workers to be terminated.

– Suspension of the 6 workers from work for one week was within the ambit of IR practice.– To hold domestic inquiry – to determine cause for the co. to order suspend the employee– whether there are just & proper– to determine what further action should be taken

NATURAL JUSTICE AND EXECUTIVE AUTHORITIES

Shamsiah Bte Ahmad Sham V. Public Services Commission (1990) 3 MLJ – illustrates how a disciplinary authority could be violating the principles of natural justice when it is perfectly entitled to take into account the employee’s record of past conduct in considering her guilt or the appropriate punishment.

NATURAL JUSTICE AND EXECUTIVE AUTHORITIES(CONTINUED)

• Shamsiah was a book binder in the Government Printing Department, who was dismissed by the Public Services Commission after she had been found guilty of negligence and dereliction of duty. She applied to the High Court for a declaration that her dismissal was null and void. Her application was dismissed by the High Court, and she appealed.

• • The core of the complaint in the Supreme Court was that the Public

Services Commission, in arriving at its decision to dismiss her from service, had taken into account extraneous matters, namely the record of her past conduct, which had been entered in her record of service and produced by her departmental head to the Public Services Commission without giving her an opportunity to explain or controvert her record of service, which played a part in influencing its decision to impose the severest punishment under the relevant regulations.

NATURAL JUSTICE AND INDUSTRIAL COURT

Section 23A of IRA 1967 – a person is qualified for appointment as president or chairman of the IC only if, for the seven years preceding his appoinment, he has been an advocate and solicitor… or a member of the judicial or legal service of the Federation or of the legal service of the state ..

•the professional background of the presiding officers of the IC in Malaysia makes them keenly aware of the need for the quasi- judicial bodies to observe the principles of natural justice in their proceedings.•The IC allows legal presentations to the parties and the representatives must facilitate the observance of natural justice during the proceedings in the IC.• •Case: Minister of Labor, Malaysia V. National Union of Journalist, Malaysia (1991) 1 MLJ 24• •Minister of Labour(MOL) refused to refer a dispute to the IC – The IC strictly observe and support the view of rules of fairness.• •Yaqzid Othman, a reporter of Utusan Melayu, who was dismissed for misconduct, the MOL refused to refer the dispute to the IC though he was well aware that no domestic enquiry was done. However, the Minister listed in his affidavit several facts and circumstances he took into account in arriving at his decision.•The Supreme Court allowed the Union ‘s application for an order of certiorari to quash the decision of the Minister and an order to refer the dispute to the IC• •Industrial Court •Yazid Othman was not give the opportunity of being heard in his own defence .•Ordered his reinstatement with back wages • •

NATURAL JUSTICE AND INDUSTRIAL COURT (CONTINUED)

Case: Minister of Labor, Malaysia V. National Union of Journalist, Malaysia (1991) 1 MLJ 24

•Minister of Labour(MOL) refused to refer a dispute to the IC – The IC strictly observe and support the view of rules of fairness.•Yaqzid Othman, a reporter of Utusan Melayu, who was dismissed for misconduct, the MOL refused to refer the dispute to the IC though he was well aware that no domestic enquiry was done. However, the Minister listed in his affidavit several facts and circumstances he took into account in arriving at his decision.The Supreme Court allowed the Union ‘s application for an order of certiorari to quash the decision of the Minister and an order to refer the dispute to the IC.•Industrial Court:

– Yazid Othman was not give the opportunity of being heard in his own defence– Ordered his reinstatement with back wages

Benefits of complying with the Principles of NJNatural justice can benefit the decision maker as well as the person or organisation whose rights or interests may be affected in the following ways.

• Assists the decision maker in reaching the correct and preferable decision;

• Provides the decision maker with relevant information, evidence or interpretation of legislation or policy which he/she has not considered;

• Provides a useful avenue for the decision maker to ensure that the facts or information that he/she is relying on is correct;

• Exposes any weaknesses in the decision-making process, information or evidence on which a decision is to be based, which avoids later embarrassment, including the need to re-make the decision;

• The comments or submissions made by the person or organisation may provide advance warning of the basis on which the decision is likely to be challenged.