Natural Justice

Last week, we introduced the rule of natural justice, which could be considered a life line to citizens against the enormous powers of the state. An individual who has been adversely affected by the decision of a public body could go before the court for judicial review on the grounds that the rule of natural justice was breached in relation to an act or omission by that public authority. It is on the belief that the decision of the authority could affect the rights, interests and the legitimate expectations of persons that the rules of natural justice are grounded.{{more}} The Court has decided favorably to persons especially in actions relating to property, livelihood and employment. Many of the cases which have come up for review on the basis of natural justice in Caribbean Courts have been associated with licences that have been cancelled or withheld.

The Pillars of Natural Justice

Natural justice is built on two important pillars. These are the right to be heard, conveyed in the Latin phrase of audi alteram partem, and the rule against bias expressed in nemo judex in causa sua. Although many persons believe that the concept of fairness should constitute a third rule, one could discern the thread of fairness woven through the fabric of these rules. Fairness, in fact, is an important ingredient of our Constitution.

The right to be heard

This was dealt with at some length last week, but it may be further emphasized that anyone whose application for a license (for example, a fire arm license) is rejected has a right to be heard by that authority; in other words that person is entitled to a fair hearing before a decision is made. It is, however, appropriate to state that the right to be heard is not absolute, i.e, there are instances when it might not be available to the individual.

This rule would not allow for the dismissal of an employee “in the interest of the public”; so, too, it would not allow the Commissioner of Police to revoke a licence “if he thinks fit.” It may shed some light on the rule to bring to your attention a fairly well known Trinidad case of Katwaroo v Burroughs (1982) The defendant was granted a firearm user’s licence. He thereafter bought a shotgun but his licence was cancelled and the shot gun detained. He wrote twice to the Commissioner of Police for the reasons for the cancellation of his licence but the request was not granted. The Court of Appeal held that the failure to give reasons constituted a breach of the rule of natural justice.

The Rule against Bias

This rule against bias requires that the adjudicator, i.e, the persons who decides on a matter be unbiased. This means that if a person has a financial interest in a matter he cannot be the adjudicator. This interest need not be a direct one as long as there is some related interest. This rule therefore safeguards against the involvement of an adjudicator with a “pecuniary bias”. Thus, a shareholder in a company, serving in another capacity, can not adjudicate on a contentious matter in which the company has an interest. Certain relationships would also give the appearance of bias, and that is why a brother cannot be a juror in his brother’s murder trial.

To set aside a decision, the judge would apply a test of real danger of bias on the part of the decision maker. However, the rule against bias sometimes has to give way in the face of necessity.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com