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for the Saskatchewan Court o f Queen's Bench, said:

"Some procedural requirements, however, are considered to be so important that they will nearly always be held to be mandatory. Examples include prior notice, holding a hearing and making due inquiry.

In Gage v. Ontario (Attorney - General)^^^ the applicant police officer sought a review o f the decision by the Public Complaints Commission because the Commission had not given the applicant notice of the legal steps taken against him as required by the relevant statute. The General Division o f the Ontario Divisional Court held that the failure to comply with the relevant statutory provision in relation to notice was a denial o f natural justice resulting in a loss of jurisdiction. The court observed that "[njotice is an essential component o f natural justice. It is a question of mixed fact and law in each case whether or not notice is sufficient to meet the standard o f procedural fairness."

It is submitted, therefore, that the right to notice is an essential prerequisite of

ibid., at p. 196.

at p. 746. POD. I . Æ zW ., at p. 552.

procedural fairness and constitutes a manifestation o f fair play in action. The protection afforded to this right stems from the fundamental right to a fair trial. Thus, unless there are very compelling reasons for derogation, it is crucial that this right be protected.

(c) The Right to Make Representations.

The right to make representations lies at the heart of the audi alteram partem rule. It is a right which springs from the fundamental right to a fair trial. It is an elementary principle o f good administration.

The right to make representations ensures that the party affected can put forward his side o f the story so that the decision-maker can take it into consideration when arriving at his determination.**® However, the right to make representations does not necessarily imply that it encompasses a right to make oral representations.*** Certain circumstances may justify admitting only written representations - such as when the individual concerned admits of wrongdoing, but seeks to make representations so as to mitigate the sanction.**^

In General Medical Council v. Spackman,^^^ Viscount Simon, L.C., made the observation that "[w]hat matters is that the accused should not be condemned without

* *® See, e.g., Izadeen v. Director - General o f Civil Aviation, [1996] 2 Sri L. R. 348.

*** See, e.g., Selvarajan v. Race Relations Board, [1976] 1 All E. R. 12.

**^ See, e.g., R. v. Aston University Senate, ex parte Roffey, [1969] 2 Q.B. 538; Brighton Corporation v. Parry,[1972] 70 L. G. R. 576; Lloyd v. McMahon, [1987] A. C. 625.

being first given a fair chance o f exculpation." The right to make representations is, therefore, an important aspect o f fair treatment which cannot easily be jettisoned.''"^ Thus, in Dissanayake v. Kaleef^^ the argument was advanced that the urgency o f the matter required that the United National Party take prompt action to expel the petitioners from the party. Yet, this submission did not find favour with Fernando, J., who, referring to the case o f Socrates,"^ said:

"Surely the petitioners could have been given one day, in a capital cause ? Time till Sunday to show cause, may be in writing, thus enabling the Working Committee to take a decision on Sunday evening or early Monday morning. Greater urgency than that has not been established.

Similarly, the Canadian courts have on a number o f occasions upheld the right to make representations."^ In Forsythe v. Alberta (Administrator, Private Investigators & Security Guards A ct/^^ a private investigator and two investigative agencies which he operated had their licences suspended after he was charged with conspiracy and aggravated assault. He was not afforded an opportunity to make representations before the decision to suspend him was communicated. He applied to have the suspension quashed and to have the licences reinstated. His application was allowed. Lewis, J.,

See, e.g.. Ridge v. Baldwin, [1964] A.C. 40. [1993] 2 Sri L. R. 135.

" I cannot convince you, the time has been too short; if there were a law at Athens as there is in other cities, that a capital cause should not be decided in one day, then I believe that I should have convinced you. But I cannot in a m o m en t " {ibid., at p. 191).

ibid.

See, e.g., Shephard v. Colchester Regional Hospital Commission, (1995) 121 D. L. R. (4'^^} 451; Conway v. Attorney General fo r Ontario, (1991) 86 D. L. R. (4‘^) 655; Robert Brothers Farming Ltd. v. Alberta (Minister o f Agriculture, Food & Rural Development), (1994) 22 Alta. L. R. (3d) 32.

equating the denial o f a hearing with the denial o f a fundamental right, said:

"In this case, the applicants' fundam ental rights were violated when a hearing was not held and a suspension o f its licences granted by the administrator based only on the charges against Forsythe. In my view, this is a violation o f the principles offundam ental justice or the applicant's right to natural justice.

In Australia, the Federal Court has held, in a case involving persons to be extradited,'^’ that the rules o f natural justice required the Attorney General to give the applicants an opportunity to be heard on issues that were material to the exercise o f his discretion. That requirement was sufficiently met by the receipt and consideration o f the written submissions tendered by the applicant's s o l i c i t o r s . T h e Federal Court has also held that the rules o f natural justice would be applicable to any decision to terminate the appointment o f a special magistrate, and that this would require a substantial oral hearing o f an adversarial nature.

(d) The Right to Cross-examine.

The right to cross-examine is considered to be a minimum right which must be satisfied in order to ensure fairness in a criminal tria l.C ro ss-e x a m in a tio n performs the valuable function o f testing the evidence and assisting in the determination o f the weight

ibid., sx p. 291. 1 2 1

1 2 2

See, e.g., Hempel v. Attorney General, (1987) 77 A. L. R. 641.

See, e.g, Daguio v. Minister fo r Immigration and Ethnic Affairs, (1986) 71 A. L. R. 173.

123

124

See, e.g.. O' Neil v. Mann, (1994) 121 A. L. R. 524.

See, e.g., article 6 (3) (d) of the European Convention on Human Rights; see also. article 14 (3) (e) o f the International Covenant on Civil and Political Rights.

to be attached to a particular piece o f evidence. In an administrative law context the right to cross-examine is not regarded as an indispensable: the seriousness of the matter would determine whether the right should be made available. The denial o f this right, in contexts where it is not intrinsically proper, results in a failure o f natural justice, occasioning a decision which is devoid o f legal effect. Thus, where a decision affects a person’s rights or interests in a significant manner, then, it would be necessary to ensure that the right to cross-examination be provided. This would help to promote principles o f good administration and would also ensure that there is fairness in the process o f decision-making.

What is o f fundamental importance, however, is that the right to cross-examine must be available even though it may not have been exercised. Thus, in University o f Ceylon v. Fernando, a science student o f the University o f Ceylon, was accused o f having prior knowledge of the contents of a Zoology paper. The Vice- Chancellor, acting on the information supplied by a Miss Balasingham, set up a commission o f inquiry and, consequent to the findings o f the said committee, suspended Fernando from the university upon being "satisfied" that Fernando had acquired prior knowledge o f certain parts of the question paper. Fernando sought a declaration, which was granted by the Supreme Court o f C e y l o n , t h a t the suspension was null and void inasmuch as he had been denied a fair hearing because he had not been afforded an opportunity to cross-examine Miss Balasingham. On appeal to the Privy Council, where Fernando was unrepresented, it was held that the Vice-Chancellor had sufficiently complied with the requirements o f natural

67 TV. I. Æ jO J; ^TPdOj 7 IT. I . 7(. 22J.

Fernando v. University o f Ceylon, (1956) 58 TV. L. R. 265.

justice. The Privy Council was o f the view that the right to cross-examine was available to Fernando if he had requested such a right. The committee o f inquiry was under no obligation to provide such a right if it was not sought.

The decision o f the Privy Council, in Fernando can be cogently criticized as falling short o f the standard o f fair treatment and principles o f good administration. In the first place Fernando was not represented at the appeal to the Privy Council, perhaps for financial r e a s o n s ; s e c o n d l y , he was not afforded an opportunity to cross-examine Miss Balasingham who was a vital witness for the case against him and whose credibility was in issue; thirdly, the relevant passage carried only ten marks, out o f which he had been awarded eight, and he had performed extremely well in respect o f the other sections o f the paper; fourthly, no weight was attached to the fact that the ability to predict a passage is not an uncommon occurrence, particularly, where a student can legitimately predict certain passages (when the textbook from which the passage is drawn is known, if it is on the reading list); fifthly, Fernando was a very clever student who had fared extremely well in his other papers and even if he had been deprived o f the eight marks for the Zoology paper, he would have done sufficiently well to have earned a first class; finally, there was evidence to indicate that Miss Balasingham could have been motivated by academic jealousy when she made her complaint against Fernando.

Whilst, we do not seek to argue that the Privy Council should have considered the merits o f the case, we do feel that the procedural irregularities in the case were sufficiently serious to have warranted the granting o f the declaration sought. The

sufficient compliance criterion, in respect of the requirements o f natural justice, adopted by the Privy Council, falls short of the standards o f procedural fairness and due process, particularly, when the charge is so serious and the consequences so grave.

In Nanayakkara v. University o f Peradeniya^^^ where an inquiry was being held to determine whether a student had been guilty o f breaches o f discipline, Seneviratne, J., delivering the judgment of the Court o f Appeal o f Sri Lanka, said that "this was an instance in which the Committee should have volunteered the suggestion that the plaintiff might wish to question the witnesses or in other words [tender] the witnesses unasked, for cross-examination by this petitioner. The failure to do so has caused irreparable prejudice to the petitioner at this i n q u i r y . " I t is submitted, therefore, that the reasoning adopted by Seneviratne, J., in Nanayakkara, is superior, in terms o f advancing rights consciousness in Sri Lanka, to that adopted by the Privy Council in Fernando.

In Harrison v. Pattison,^^^ the plaintiff, who was an officer of the Department of Technical and Further Education, lodged a complaint against the principal o f a particular college with the Anti-discrimination Board. Certain members o f the college set up an ad hoc committee in support o f the principal. The plaintiff was charged with breaches o f discipline under the Education Commission Act 1980. At the inquiry, which was commenced by the Director-General, under and in terms o f the Act, counsel for the plaintiff sought to cross-examine the witnesses on matters relating to their credibility in

[1985] I Sri L. R. 174. ib id , at p. 195.

130

7^^. I. D. J70.

order to establish that their evidence was tainted with bias, malice or ill-feeling towards the plaintiff. The objection was raised that the witnesses were respectable people and that their testimony and demeanour indicated that they were telling the truth. The chairman o f the inquiry upheld the objection made, regarding cross-examination, and ruled that the topics o f cross-examination did not relate directly to the incidents into which he was inquiring. Bryson, J., delivering the judgment of the Supreme Court o f New South Wales, granted a declaration to the effect that the restriction o f the right to cross examination was a procedural impropriety that vitiated the decision o f the committee o f inquiry. Bryson, J., observed:

"However, when I have regard to the nature o f the defendant's case and to the particulars before the p la in tiff to answer, it does seem to me that the credibility o f witnesses is o f basal importance, both fo r a decision whether the events were as reported and also fo r an assessment o f the colour and importance o f events.

It is submitted, therefore, that the right to cross-examine should be regarded as an important human right, which must not be jettisoned if good administration is to be achieved. The right is an important process right, which must be protected in all situations where witnesses are examined. This process right is invaluable in advancing the frontiers o f rights consciousness and is conducive towards developing the principles o f good administration. The right to cross-examination permits an aggrieved party to test the evidence against him or her. Consequently, it affords the decision-maker or administrative agency, that has to adjudicate upon a matter, an opportunity to decide upon the appropriate weight that should be attached to the evidence before it. This would facilitate better quality decisions and, thereby, help develop principles o f good

131 , L -

administration.

(e) T h e R ig h t to L egal R ep resen ta tio n .

The right to legal representation is widely acknowledged as an aspect o f fair procedure and as a fundamental human right, particularly, where criminal trials are c o n c e r n e d . T h e r e has also been an increased willingness for tribunals to permit legal representation. It is important, however, to draw a distinction between situations where legal representation has been denied and situations where the right exists, but has not been availed of. The latter type of situation is clearly illustrated by the appeal to the Privy Council in University o f Ceylon v Fernando. The former type o f situation can, however, occasion a failure o f natural justice resulting in a decision being amenable to challenge.

The right to legal representation can be denied by s t a t u t e a n d by private associations which may exclude the right to legal representation before disciplinary c o m m i t t e e s . H o w e v e r , where a serious charge, affecting a person's reputation or livelihood, is made, then, the refusal to allow legal representation could result in a fatal

See, e.g., article 6 (3) (c) o f the European Convention on Human Rights; article 14 (3) (d) o f the International Covenant on Civil and Political Rights; article 10 o f the Universal Declaration o f Human Rights.

rVPdO; dV Æ T. R. jOJ; /"yPdO/ 7 IE I. Æ 223.

See, e.g., M aynard v. Osmond, [1977] Q.B. 240.

See, e.g., Enderby Town Football Club v. Football Association Ltd., [1971] Ch. 591,

where the Court o f Appeal upheld the validity of the Football Association's decision to prohibit legal representation in cases before it.

procedural impropriety vitiating the decision re a ch e d .F u n d a m e n tally , the right to legal representation, unless protected by statute or necessary in view o f the interests at stake for the individual concerned, is a discretionary right which can be denied in appropriate circumstances. Thus, a prisoner appearing before a prison board o f visitors, on disciplinary charges, does not have a right to legal representation, ^^^but the board has a discretionary right to allow such representation in appropriate circumstances.'^*

The purpose o f legal representation is to facilitate fair procedure; to ensure that a party is able to put forward his defence as effectively as possible. According to Hotop,'^^

"[T]he question o f legal representation before administrative and domestic tribunals does raise a difficult problem o f reconciling two conflicting policies. On the one hand, persons who are likely to be seriously affected by the decision o f a tribunal can cogently argue that they have received less than justice i f they are not perm itted to have their case presented to the tribunal by an expert who can ensure that the case is properly presented and considered. On the other hand, i f expert legal representation is perm itted to a party, it will be necessary to perm it other parties, i f any, to be similarly represented; and the tribunal itself will then require legal assistance or a legally-trained member - in the result, the whole process will become more protracted, more formal, more technical, and more costly. In any given case, these conflicting interests should be balanced against each other with a view to deciding what fairness requires in the particular circumstances. It would, however, serve the interests o f natural justice i f there were, at least, a presumption that legal representation be perm itted in any case, the onus being on the person or body opposing this to

demonstrate that fairness did not require it. ”

Thus, if the facts o f the case clearly indicate that a party was handicapped by the lack o f

See, e.g., Pett v. Greyhound Racing Association Ltd. (No I), [1969] 1 Q.B. 125.