Gamini Dissanayake (Petitio... - Human Rights Commission of Sri ...

Gamini Dissanayake (Petitioner In Sc 4/91) V. Kaleel, M.C.M. And Others file:///C:/Documents and Settings/kapilan/My Documents/Google Talk ...
6. BREACH OF NATURAL JUSTICE : (a) audi alteram partem:
It is admitted that the Petitioners were neither informed of the allegations and the evidence against them, nor
afforded an opportunity (i) to submit an explanation (ii) to be heard in their defence or (iii) to make any submissions,
on the law or the facts, as to whether misconduct warranting disciplinary action had been proved, and, if so, whether
a lesser penalty than expulsion was appropriate.
The powers of public authorities, and of certain other bodies, are subject to control in two ways : what they
can do is circumscribed by legal rules relating to jurisdiction and so on ; how they exercise their powers and
discretions is governed by principles of natural justice, which are a code of fair administrative procedures devised by
the courts. These procedural rules are by no means merely technical, or of secondary importance ; or a tiresome
waste of time impeding efficiency. With the growing complexity of modern society, the citizen is constantly affected
by the exercise of powers of various kinds, and procedural fairness increases in importance.
" Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can
be endured if they are fairly and impartially applied......... due process of law is not for the sole benefit of an
accused. It is the best insurance for the Government it self against those blunders which leave lasting stains on a
system of justice but which are bound to occur on ex parte consideration." (Shauqhnessy v. U.S. (12) )
U.S. (13) )
" The history of liberty has largely been the history of observance of procedural saferguards." (Mcllabb v.
The most fundamental principle of natural justice is the audi alteram partem rule, which is an obvious
principle of justice applicable in all judicial proceedings. Natural justice is not now considered to be part of some
fundamental and immutable law, constituting a fetter on the legislative power ; today the courts presume, unless the
contrary appears, that the legislature intended that powers conferred by it be exercised fairly, for ' although there
are no positive words in a statute, requiring that the party shall be heard, yet the justice of the common law will
supply the omission of the legislature " (Cooper v. Wandsworth Board of Works (14) , Mersey Docks (etc) Trustees v.
Gibbs (15) . Whether this principle extends into non-judicial spheres was for long a matter of serious controversy, but
it can now be regarded as settled that -
" This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body
of persons invested with authority to adjudicate upon matters involving civil
consequences to individuals." Wood v. Wood (16) , cf Byrne v. Kinematograph Renters Society Ltd., (17) .
There was a series of decisions (e.g. Franklin v. Minister of Town and Country Planning (18) , Nakkuda Ali
v. Jayaratne (19) , R V. Metropolitan Police Commissioner ex p. Parker (20) , over a period of about three decades -
which Professor Wade labels " the retreat from natural justice " - which constituted a severe setback to the
development of this branch of the law. However, that period of confusion ended with Ridge v. Baldwin (21), when the
older authorities were re-affirmed.
It was uncertain at one time whether " purely administrative " powers were subject to the audi alteram
partem rule, or only " judicial " powers, and considerable judicial ingenuity was exercised to characterise
administrative powers as " judicial " or "quasijudicial " to justify intervention (as in Hall v. Manchester Crop (22) ,
Hopkins vi( 23) , Urban Housing Co. Ltd. V. Oxford City Council (24) .
However, the older authorities, particularly Cooper v. Wandsworm Board of Works, Wood v. Woad, and
Board of Education v. Rice (25) , recognised the universality of the audi alteram partem rule in its application to
administrative powers in general. In Cooper, a builder commenced erection of a building, without giving seven days
notice to the Board as required by statute ; the Board thereupon exercised its statutory power to demolish the
building ; the builder's action for damages succeeded on the ground that the Board had no power to act without
giving him notice and allowing him to be heard. While Erie, CA., considered the exercise of the Board's power to be "
in the nature of judicial proceedings ", Willes, J., thought that a tribunal invested with power to affect property rights
is bound to give an opportunity of being heard before it proceeds, and Byles, J., held that the Board was wrong
whether it acted judicially or ministerially. In Rice, Lord Loreburn, L.C., dealing with the Board's power to
discriminate between teachers in church schools and in its own schools, put it in much broader terms
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