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1. Introduction.

'Natural justice' is a concept o f great antiquity; it has even been used as a synonym for natural law.' "Jus naturale or natural law was originally the Stoic philosophical conception o f a universal ideal of good conduct upon which all law should be founded and which, as some asserted, ought not to be overridden by any other laws however made."^ Consequently, y naturale, in the Roman law, was regarded as a desirable ideal to which law should conform.^

The rules o f natural justice, as they are presently conceived, are o f comparatively recent origin. Broadly, natural justice is regarded, today, as an aspect o f procedural fairness; it encompasses the twin principles nemo judex sua causa - no man should be a judge in his own cause, and audi alteram partem - no man should be condemned unheard. The modem formulation o f natural justice appears to be wide enough to admit o f yet another principle, i.e., a duty to give reasons for a decision.'' This chapter will endeavour to examine, what in our opinion constitutes, the three most important

' See, e.g., Marshall, H. H., Natural Justice [London: Sweet & Maxwell, 1959], at p. 6 et seq.

^ ibid., at p. 6.

^ See, e.g., Buckland, W. W., Manual o f Roman Private Law [Cambridge: Cambridge University Press, 2"^ edn., 1947], at p. 29; see also, Lee, R. W., The Elements o f Roman Law [London: Sweet & Maxwell, 4*'’ edn., 1956], at p. 38.

principles o f natural justice in terms o f advancing rights consciousness.

Natural justice, as the term is presently understood, is an important tool for advancing rights consciousness: it entails the protection o f certain process rights o f the subject. The process rights, which the rules o f natural justice seek to protect, spring from certain core values in public law. The right to due process, o f which natural justice undoubtedly is an integral part, provides protection for certain public law values but does not, however, treat these values as rights. These key public law values encompass autonomy, dignity, respect, status and security.^

The principles o f natural justice, which ensure due process, in essence, spring from these public law values. The value 'autonomy' refers to the ability to live under one's own laws,^ or self-regulation. In essence, it refers to one's capacity to have a certain measure o f freedom within one's sphere or zone o f influence. The rules o f natural justice, particularly the right to a hearing before one is deprived o f a right, interest or legitimate expectation can be said to be rooted to this value.

'Dignity' as a value refers to a person's honour or reputation. The fact that, for instance, a person should be given a fair hearing prior to a prejudicial decision being made, which affects his rights, interests or legitimate expectations, is consonant with this important value of dignity. This value ensures that a person must be given an opportunity

York; Columbia University Press, 1941], at pp. 1 2 2 - 123.

^ See, Oliver, Dawn, The Underlying Values o f Public and Private Law' in The Province o f Administrative Law edited by Taggart, Michael [Oxford: Hart Publishing, 1997] pp. 2 1 7 - 2 4 2 , at p. 225.

o f protecting his honour and reputation.

'Respect' for the person is a measure o f individual worth. According to Birks, "[a] society which holds out to its members the promise that they do all have equal worth must allow them to vindicate that interest against those who treat them as having little worth and flout the restraints which allow each life an equal chance to fiilflll itself."^ The emerging rule o f natural justice, which appears to encompass a duty to give reasons for a decision, may spring from this value.

'Status' as a value relates to a person's position or standing in society. Here too, the rules o f natural justice are aimed to protect this value. A person should not be allowed to suffer a loss o f standing in society without due process: standing in society is in essence, therefore, a value which must be preserved.

' Security' as a value is a condition o f being protected from or not exposed to danger. The rules o f natural justice ensure that an individual is protected from unwarranted intrusions into his personal liberty or sphere o f influence without due process. Thus, the public law value o f security' is also linked with the rules o f natural justice in a very significant manner. It is submitted that the requirements o f natural justice or procedural fairness could be considered to be an aspect o f practical reasonableness

^ at p. 225.

^ Birks, P., Harassment and Hubis: The Right to an Equality o f R espect, John Maurice Kelly Memorial Lecture, University College Dublin, 1995, at p. 54, cited in Oliver, Dawn, The Underlying Values o f Public and Private Law' supra., note 5, at p. 255.

"that one is to favour and foster the common good o f one's communities." According to Finnis, the concept o f justice refers to situations where three elements are found together.^ The first element is “other- directedness”. “ [JJustice has to do with one's relations and dealings with other persons; it is 'inter-subjective' or inter-personal. There is a question o f justice and injustice only where there is a plurality o f individuals and some practical question concerning their situation and/or interactions vis-a-vis each other.” **^ The second element o f the concept o f justice is that o f duty. The term duty refers to what is owed or due to another and “correspondingly o f what that other person has a right to”. ' ' The third element in the relevant concept o f justice is that o f equality which, to avoid misunderstandings, could more appropriately be thought o f as

proportionality', or even equilibrium or balance.''^

The principles o f natural justice, as developed by the judiciary, very clearly encompass all the elements of Finis's formulation o f justice. Thus, the right to due process is just as important as substantive rights to achieve the objectives o f justice. A society which denies or substantially curtails the process rights o f its subjects would fail to satisfy the ideals of justice. Dworkin,*^ referring to process rights in the criminal law, states:

Finnis, John, Natural Law and Natural Rights [Oxford: Clarendon Press, 1980], at p. 164.

^ ibid., at p. 161.

" ibid., at p. 162. ibid., at p. 162 - 163.

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Dworkin, Ronald, A Matter o f Principle [Oxford: Clarendon Press, 1985], at p. 72.

"People have a profound right not to be convicted o f crimes o f which they are innocent. I f a prosecutor were to pursue a person he knew to be innocent, it would be no justification or defense that convicting that person would spare the community some expense or in some other way improve the general welfare. But in some cases it is uncertain whether someone is guilty or innocent o f some crime. Does it follow, from the fa c t that each citizen has a right not to be convicted i f innocent, that he has a right to the most accurate procedures possible to test his guilt or innocence, no matter how expensive these procedures might be to the community as a whole? ’’

Dworkin's reference, to the importance o f protecting process rights in the criminal law, is also relevant to our present discussion in relation to process rights in administrative law. The foundation of the rules o f natural justice, as we know them today, is deeply rooted to notions o f due process in the criminal law. Thus, whilst it is undoubtedly important that due process is followed in criminal trials it is equally important that administrative action also satisfies the requirements o f due process, albeit, at a lower level.

The right to due process, where criminal trials are concerned, has received constitutional protection, as a fundamental right, in Sri L a n k a .H o w e v e r , the Sri Lankan constitution does not accord fundamental right status to process rights where civil rights and obligations are determined. The European Convention on Human Rights (ECHR), in contrast, protects the procedural right to a fair trial in relation to the determination o f a person's civil rights and obligations or any criminal charge against him or her.’^ The ECHR is, therefore, wider in scope than article 13 (3) o f the Sri Lankan Constitution.

See, e.g., article 13 (3) o f the Constitution of the Democratic Socialist Republic o f Sri Lanka: 'Any person charged with an offence shall be entitled to be heard, in person or by an attomey-at-law, at a fair trial by a competent court.'

It should be noted, however, that even though process rights may be given constitutional protection or convention status they are often qualified Yet, article 6 o f the ECHR has been subjected to less controversy than other articles.’^ Article 6 o f the ECHR has, therefore, helped in advancing rights consciousness, in administrative law, by facilitating the adoption o f common standards in evaluating administrative action in terms o f whether such action satisfies the requirements o f procedural fairness o f which natural justice is an important component. Additionally, article 13 o f the ECHR ensures that everyone whose rights and freedoms, as set forth in the Convention, are infiinged has the right to an effective national remedy. This Convention right is also important for the advancement o f rights consciousness in society.

It is o f relevance to observe that the Universal Declaration on Human Rights (UDHR) provides a sound rubric for the advancement o f rights consciousness in society.

For instance article 10 o f the UDHR provides as follows:

“Everyone is entitled in fu ll equality to a fa ir and public hearing by an independent and impartial tribunal, in the determination o f his rights and obligations and o f any criminal charge against him. ”

Thus, article 10 o f the UDHR explicitly spells out the need for procedural fairness in the determination o f a person’s rights and obligations and in circumstances when there is a criminal charge against that person.

See, e.g., article 6 o f the European Convention o f Human Rights.

See, for e.g., article 15 o f the Constitution o f the Democratic Socialist Republic o f Sri Lanka; see also articles 15- 18 o f the ECHR which place certain restrictions upon the rights protected by the Convention.

See, e.g., Harris, D. J., O'Boyle M. and Warbrick, C., Law o f the European Convention on Human Rights [London: Butterworths, 1995], at pp. 272 - 273.

Additionally, article 12 o f the UDHR seems to implicitly recognize that intrusions into a person’s sphere o f autonomy, which encompasses privacy, family, home, correspondence, honour and reputation, can only be condoned if it is in accordance with standards o f fairness. It is submitted, therefore, that principles o f natural justice have a very important role to play in the protection o f such fundamental rights. The failure by a decision-maker to comply with standards o f procedural fairness can, it is submitted, result in arbitrary action which may fall short o f the requirements posited by article 12 o f the UDHR.

Article 14 o f the International Covenant on Civil and Political Rights also accords fundamental right status to process rights. Similarly, article 8 o f the American Convention on Human Rights'^ explicitly accords fundamental rights status to the right to a fair trial. In addition the right to p riv a c y ,rig h ts o f the family,^^ the right to property^^ and equal protection^^ are also recognized as fundamental human rights. The recognition o f such rights as fundamental rights necessarily implies that a person is not to be deprived o f such rights without adequate procedural safeguards. Consequently, process rights are in built into the fundamental rights that have been explicitly spelt out.

In this chapter we argue that the right to due process should be protected not because it enjoys constitutional protection, protection which is invariably qualified; not

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection o f the law against such interference or attacks.”

American Convention on Human Rights, 1969. Article 11.

Article 17. Article 21.

because it enjoys convention status, because derogation is permissible: the right to due process transcends such constitutional or convention rights. It deals with an issue which is much more fundamental. Lying at the core o f our submission is our view that the protection o f process rights is necessary for the common good o f mankind. It is a sign that our civilization has come o f age.

It is now apposite to examine certain incidents o f natural justice so as to consider how they help to advance rights consciousness. For the purpose o f our present discussion we will examine the rule against bias, the right to a fair hearing and the newly evolving principle o f the duty to give reasons.