Ahmed Zaker Chowdhury and Arafat Hosen Khan
It is believed that the principles of natural justice have been accepted as early as the time of Adam and Eve. According to the Holy Bible, when Adam & Eve ate the forbidden fruit of knowledge, God passed sentence on Adam only after he was called upon to defend himself. Same was repeated in case of Eve.
It is said that the principle of natural justice is of very ancient origin and was known to the Greeks and the Romans. The essential characteristics of natural justice' was put by Romans in the two following maxims:
(1) Nemo debet esse judex in propria causa (No man can be a judge in his own cause);
(2) Audi alteram partem (No man shall be condemned unheard).
This may be put in two words 'Impartiality' and 'Fairness', although things are not as simple. The concept of natural justice is comprised of many colours and shades and many forms and shapes, it is easy to proclaim, but very difficult to define. While it is true that the concept of natural justice is not very clear, yet the principles of natural justice are universally accepted and enforced.
In Bangladesh the enforcement principles of natural justice are ensured by several provisions of our constitution. Article 27 of the Constitution of Bangladesh states 'all citizens are equal before law and are entitled to equal protection of law'. The Apex Court of our country has held that to treat a person in violation of the principles of natural justice would amount to arbitrariness and discriminatory treatment in violation of the right guaranteed by Article 27 of the constitution.
In the case of Abdul Latif Mirza Vs. Bangladesh 31 DLR (AD) 33, the Supreme Court of Bangladesh held that the principles of natural justice are inherent in every society aspiring for a civilised living. It further observes that according to the third paragraph of the Preamble of the Constitution, the fundamental aim of the State is a society in which the rule of law, the fundamental human rights and freedom, equality and justice, political, economic and social shall be secured.
For the present purposes, we limit our discussion to the first maxim-- Nemo debet esse judex in propria causa. The principles on which this maxim is based include the following:
(i) no man shall be a judge in his own cause,
(ii) justice should not only be done but manifestly and undoubtedly be seen to be done,
(iii) judges should be above suspicion and, therefore, anything which lends or may be regarded as tending to cause such a person to decide a case otherwise than on evidence must be held to be biased.
The word 'bias' has come to mean prejudice, show of favour or disfavour, antagonism, spite, hostility, prepossession that sways the mind. Bias which will violate the principles of natural justice may be: (a) pecuniary bias, (b) personal bias, and (c) official bias or bias as to the subject matter.
Some cases decided in India shed further light on the issue of bias. It is well settled that as regards pecuniary interest, the slightest trace will disqualify any person from acting as a judge. The Supreme Court of India in Secretary to Government Transport Department vs. Munuswamy, 1988 (Suppl) SCC 651 (AIR 1988 SC 2232), held that a predisposition to decide for or against one party without proper regard to the true merits of the dispute is bias.
The Supreme Court of India in International Airport Authority vs. K. D. Bali AIR 1988 Supreme Court 1099 observed, "the purity of administration requires that the party to the proceedings should not have apprehension that the authority is biased and is likely to decide against the party. But it is not every suspicion felt by a party which must lead to the conclusion that the authority hearing the proceedings is biased. The apprehension must be judged from a healthy, reasonable and average point of view and not on mere apprehension of a whimsical person.
The Supreme Court of India in Ashok Kumar Yadav vs. State of Haryana AIR 1987 SC 454 observed, 'It is one of the fundamental principles of our jurisprudence that no man can be a judge in his own cause and that if there is a reasonable likelihood of bias it is in accordance with natural justice and commonsense that the justice likely to be so biased should be incapacitated from sitting.' The question is not whether the judge is actually biased or decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the minds of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to have been done. It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone, it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies vital to the maintenance of the rule of law in a welfare state where the jurisdiction of administrative bodies is increasing at a rapid pace requiring the instrumentalities of the state to discharge their functions in a fair and just manner.
It appears from the above cases that the principle that no man should be judge in his own cause has developed into a universal jurisprudence for a number of good reasons. Firstly, the age-old principle has been applied to administrative and adjudication process to ensure procedural fairness and to free them from arbitrariness. Secondly, application of this principle helps bolster public confidence in the judiciary by ensuring that no one having any interest or bias in respect or any matter takes part in the decision-making relating to that matter. Thirdly, it is often said that it 'is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly seen to be done'. By ensuring that the judge is not interested in the outcome of any adjudication, the parties can 'see' that justice is being done to their cause. In this regard, it should be noted that whether a judge gave an actually biased judgment by judging his own cause is not material; the judgment is vitiated if there is a real likelihood of the judge being biased, which can be easily presumed if the judge himself is the aggrieved party.
The superior courts of Bangladesh, most notably the Honourable High Court Division, have consistently refused to hear matters which may remotely give rise to any conflict of interest by either being embarrassed to hear the matter or by referring the matter to some other competent bench. This approach of the court is undoubtedly commendable and will help strengthen public confidence in the judiciary. However, recently there have been some cases in the High Court Division which appear to have not strictly adhered to this age-old cardinal principle of law.
Principles of natural justice are the very essence of dispensing justice and should be adhered to in order to make the adjudication process just and fair. The principles are well settled and need to be complied with by all courts, authorities and tribunals.
The writers are Barristers and work as Associates at
Dr Kamal Hossain and Associates. barrister.
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