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 ...
hearing does not admit of a single answer applicable to all situations in which the issue may arise. Whilst it is difficult
to reconcile all the relevant cases, recent case-law indicates that the courts are increasingly favouring an approach
based in large part on an assessment of whether, in a particular context, the procedure as a whole gave the
individual an opportunity for a fair hearing, Thus, when a provision is made by statute or by the rules of a voluntary
association for a full re-hearing of the case by the original body (constituted differently where possible) or by some
other body vested with and exercising original jurisdiction, a court may readily conclude that a full and fair hearing will
cure any defect in the original decision ............." (pp 242-243)
Wade makes the following observations in regard to the same question:
" Whether a hearing given on appeal is an acceptable substitute for a hearing not given, or not properly
given, before the initial decision is in some cases an arguable question. In principle there ought to be an observance
of natural justice equally at both stages ; and accordingly natural justice is violated if the true charge is put forward
only at the appeal stage. If natural justice is violated at the first stage, the right of appeal is not so much a true right
of appeal as a corrected initial hearing : instead of fair trial followed by appeal, the procedure is reduced to unfair
trial followed by fair trial. This was pointed out by Megarry, J., in a trade union expulsion case, holding that, as a
general rule, a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in the
appellate body ..............................
According to the Privy Council, however, Megarry, J. 's 'general rule' was too broadly stated, since in some
cases members of organisations, whose rights depend upon contract, should be taken to have agreed to accept
what in the end is a fair decision, notwithstanding some initial defect. An appeal to the committee of the Australian
Jockey Club was held, for this reason, to cure an initial decision of the stewards which failed to observe the
principles of natural justice in disqualifying the owner of a horse found to have been raced improperly
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In the case of a public authority acting under statutory powers it would seem paradoxical to interpret the
provision of a right of appeal as meaning that the initial decision may be any less fair than it would have to be if not
subject to appeal. In Ridge v. Baldwin the House of Lords did not allow the chief constable's unsuccessful
administrative appeal to the Home Secretary to prejudice his right to a fair hearing before the watch committee. Nor
does a full hearing on appeal justify cancellation of a taxidriver's licence or dismissal of a school-teacher without an
initial hearing. Nevertheless it is always possible that some statutory scheme may imply that the 'appeal' is to be the
only hearing necessary. And an appeal may have greater curative effect where the appeal tribunal has original as
well as appellate jurisdiction." (pp 487-489)
The following are the principles which seem to me to be applicable. If an order is " provisional ", and is
subject to appeal or objection, antecedent hearing is probably not necessary. If it is final, but by statute or contract
there is provision (a) for a "full re-hearing ' by the same or another body having original jurisdiction, or (b) making the
decision and an appeal against it (especially if it is by way of " full re-hearing ") part of an integral scheme, it may be
that an initial hearing is dispensed with, or that the absence thereof is not fatal. Where the re-hearing is appellate in
nature, even if it has been partially successful (as in Ridge v. Baldwin) it will seldom cure the initial defect ;
particularly where the initial error is grave and the decision has serious consequences for the individual. It is vital that
the procedure as a whole must give the individual an opportunity for a fair hearing. What has been said above about
" re-hearing " and " appeals " does not apply at all to applications for judicial review or proceedings under Article 99
(13) (a). The fact that Certiorari lies in respect of a decision can never be a circumstance which will dispense with
the need for an antecedent hearing. The anomalies inherent in the Respondents' contention can be illustrated : if
disciplinary proceedings are taken against two Party members - one a Member of Parliament, the other not - it can
never be that an antecedent hearing is required for the latter, but not for the former, simply because of Article 99
(13) (a). Further the proceedings before us cannot in any way be considered a " re-hearing ", let alone a " full
re-hearing ". Procedural and time constraints prevented a full investigation by this Court. The precise charges relied
on by the
Respondents became clear only in the course of their Counsel's reply, and it was only then that the question
of the adequacy of the Petitioners' explanation for the lack of internal discussion could be properly appreciated. Had
we to determine, by way of a " full rehearing ", matters such as Party policy as to the system of government, the
relevant documents (decisions of Party Convention, Manifestos, etc) would have become necessary. I therefore hold
that the Constitutional remedy under Article 99 (13) (a) does not relieve the Party of the duty to afford an antecedent
hearing in disciplinary matters, and does not cure the lack of a hearing.
" No evidence " : Finally learned President's Counsel for the Respondents submitted that the Petitioners had
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