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

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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 24 of 56 4/20/2011 1:18 PM 179 180
Gamini Dissanayake (Petitioner In Sc 4/91) V. Kaleel, M.C.M. And Others file:///C:/Documents and Settings/kapilan/My Documents/Google Talk ... 181 ".......... what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind ; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and listen fairly to both sides, for that is a duty lying upon every one who decides anything .........." Ridge v. Baldwin settled that question. Lord Reid explained how the mere fact that the power affects rights or interests makes natural justice applicable to its exercise, and re-affirmed the older authorities which clearly showed how the courts engrafted the principles of natural justice on to a host of provisions authorising administrative interference with private rights. Lord Hodson was explicit : ".........the answer in a given case is not provided by the statement that the giver of the decision is acting in an executive or administrative capacity as if that were the antithesis of a judicial capacity. The cases seem to me to show that persons acting in a capacity which is not on the face of it judicial but rather executive or administrative have been held by the courts to be subject to the principles of natural justice." (at p. 130) These views were later affirmed in no uncertain terms. Lord Denning, M.R., observed (in R v. Gaming Board for G.B. (26) that the heresy that the principles of natural justice only apply to judicial proceedings, and not to administrative proceedings, was scotched in Ridge v. Baldwin. In Schmidt v. Home Secretary (27) , he held that an administrative body may be bound to give a person who is affected by its decision an opportunity of making representations, if he has some right or interest, or even some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say. Lord Diplock (in A.G. v. Ryan (28) ) held that a person having legal authority to determine a question affecting the rights of individuals is, by necessary implication, required to observe the principles of natural justice when exercising that authority, and that if he fails to do so, his purported decision is a nullity. A decision made by an unbiased tribunal, after duly considering the views of those likely to be affected by it, is not only more likely to be correct, but will be more acceptable and of better quality. Fairness to the individual facilitates a better decision by the tribunal. The duty to give a fair hearing is as much a canon of good administration as of good legal or judicial procedure. Thus today natural justice controls the exercise not only of judicial power but of practically all powers and discretions. In public law areas, it applies to powers conferred by statute relating to property, office or status (e.g. to demolish buildings ; Cooper v. Wandsworth ; Urban Housing Co. v. Oxford City Council, to dismiss a public officer Ridge v. Baldwin ; Cooper v. Wilsom (29) ; Kanda v. Federation of Malaya (30) , Chief Constable (North Wales) v. Evans (31) ), but not in respect of an office held " at pleasure ", where dismissal without cause being assigned is authorised, or where the relationship is simply that of " master and servant " : Ridge v. Baldwin ; cf. Vidyodaya University v. Silva (32) ; to register an applicant for citizenship : A.G. v. Ryan; to dissolve a local authority ; Durayappah v. Fernando (33) , to make zoning orders regulating the supply of dairy products: Jeffs v. N.Z. Dairy Products (etc) Board (34), to suspend or dismiss registered dock workers : Barnard v. National Dock Labour Board (35) , cf. Vine v. National Dock Labour Board (36). Natural justice applies in many other areas, such as membership and office in trade unions (Lawlor v. Union of Post Office Workers (3 Burn v. National Amalgamated Labourers Union (38) , Abbott v. Sullivan (39) , Lee v. Showmen's Guild (40) , Taylor v. National Union of Seamen (41) , Annamunthodo v. Oilfield Workers Trust Union (42) , Stevenson v. United Road Transport Union (43) ), societies (Wood v. Woad, at p. 196 ; Byrne v. Kinematograph Renters Society Ltd; Innes v. Wylie (44) , (Andrews v. Milchell (45) ), social clubs (Fisher v. Keane (46) , Labouchere v. Wharncliffe (47) , Dawkins v. Antrobus (48) , Gray v. Allison (49) ), and other private associations : (R v. Saddlers' Company, ex. p. Dinsdale (50) , Johnson v. Jockey Club of South Africa (51) , DArcy v. Adamson (52) , Graham v. Sinclair (53,) . Although the rights in question arose essentially from contract, a fair hearing was a pre-condition to deprivation of rights or to imposition of penalties and disabilities being an implied term of such contract (Dawkins v. Antrobus (54) , Wood v. Woad, at p. 196 ; Lee v. Showmen's Guild, at p. 342 ; Burn v. National Amalqamated Labourers Union), any agreement or practice to the contrary being invalid (Abbott v. Sullivan (55) , per Denning LJ., dissenting ; Edward v. SOGAY (56) , Lee v. Showmen's Guild, at p. 342). It 25 of 56 4/20/2011 1:18 PM 182 183
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