Nat­u­ral jus­tice is para­mount

Sunday Express - - LEADER - Ut­loang Ka­jeno

LE­SOTHO is cur­rently ex­pe­ri­enc­ing ma­jor po­lit­i­cal up­heavals with the es­ca­lat­ing in­ternecine in­fight­ing within the Demo­cratic Congress (DC), the im­pend­ing ex­pul­sion, if it fi­nally comes to fruition, of 13 mem­bers of par­lia­ment (MPs) from the Au­gust house and the pur­ported with­drawal of the DC as the ma­jor po­lit­i­cal party in the sev­en­party coali­tion gov­ern­ment.

It is there­fore im­per­a­tive to ex­pound on the the­ory of nat­u­ral jus­tice that un­der­pins our ju­rispru­dence as it is crit­i­cally im­por­tant for the op­pos­ing sides to fully un­der­stand the foun­da­tional ba­sis of this prin­ci­ple.

The prin­ci­ple of nat­u­ral jus­tice has its foun­da­tional ba­sis on the rules of fair play.

It was orig­i­nally de­vel­oped by the courts of com­mon law to con­trol the de­ci­sion of in­fe­rior courts and grad­u­ally ex­tended, par­tic­u­larly in the 20th cen­tury, to ap­ply equally to the de­ci­sions of ad­min­is­tra­tive and do­mes­tic tri­bunals and of any author­ity ex­er­cis­ing an ad­min­is­tra­tive power that af­fects a per­son’s sta­tus, rights or li­a­bil­i­ties.

The rules of nat­u­ral jus­tice among oth­ers are de­signed to pre­vent the pow­er­ful from rid­ing roughshod over the night of the vul­ner­a­ble.

It fol­lows that any de­ci­sion that is reached is con­tra­ven­tion of nat­u­ral jus­tice is void as ul­tra vires. Ul­tra vires is a Latin word phrase mean­ing be­yond the power.

It de­scribes an act by a pub­lic author­ity, com­pany or other body that goes be­yond the lim­its of the powers con­ferred on it. Ul­tra vires acts are in­valid.

It is a doc­trine of law that ap­plies to all powers, whether cre- ated by statute or by a pri­vate doc­u­ment or agree­ment (such as a trust or con­tract of agency). In the field of pub­lic, (es­pe­cially ad­min­is­tra­tive) law it gov­erns the va­lid­ity of all del­e­gated, in­clud­ing sub-del­e­gated leg­is­la­tion.

It is ul­tra vires not only if it con­tains pro­vi­sions not au­tho­rized by the en­abling power but also if it does not com­ply with any pro­ce­dural re­quire­ments reg­u­lat­ing the ex­er­cise of the power.

sub-del­e­gated leg­is­la­tion that is within the terms of the del­e­gated leg­is­la­tion au­tho­riz­ing it may still be in­valid if the power to make the leg­is­la­tion did not in­clude power to sub-del­e­gate.

There are two prin­ci­pal rules of nat­u­ral jus­tice that we need to dis­cuss herein. The first is that: “no man may be a judge in his own cause.”

It is lit­er­ally trans­lated from its orig­i­nal Latin; how­ever, I need not re­pro­duce its Latin ver­sion herein.

Briefly this rule means that any de­ci­sion, how­ever fair it may seem, is in­valid if made by a per­son with any fi­nan­cial or other in­ter­est in the out­come or any other in­ter­est in the out­come or any known bias that might have af­fected his im­par­tial­ity. In short, a mon­key can­not be king in its own forest.

The sec­ond rule is that an ar­biter or the author­ity must hear the other side, it is pop­u­larly known as the audi al­teram partem rule.

It states that a de­ci­sion can­not stand un­less the per­son di­rectly af­fected by it was given a fair op- por­tu­nity both to state his case and to know and an­swer the other side’s case.

The ba­sis for the rule against bias or rather to act fairly is the need to main­tain pub­lic con­fi­dence in the le­gal sys­tem. Bias can take the form of ac­tual bias, im­puted bias, or ap­par­ent bias.

Ac­tual bias is very dif­fi­cult to prove in prac­tice while im­puted bias, once shown, will re­sult in a de­ci­sion be­ing void from the be­gin­ning with­out the need for any in­ves­ti­ga­tion into the like­li­hood or sus­pi­cion of bias. Cases from dif­fer­ent ju­ris­dic­tions cur­rently ap­ply two tests.

For ap­par­ent bias the rea­son­able sus­pi­cion of bias and the real like­li­hood of bias test. One view that has been taken is that the dif­fer­ences be­tween these two tests are largely se­man­tic and that they op­er­ate sim­i­larly.

The right to a fair hear­ing re­quires that in­di­vid­u­als should not be pe­nal­ized by de­ci­sions af­fect­ing their rights or le­git­i­mate ex­pec­ta­tions un­less they have been given prior no­tice of the case, a fair op­por­tu­nity to an­swer their case and the op­por­tu­nity to present their own case.

The mare fact that a de­ci­sion af­fects rights or in­ter­ests is suf­fi­cient to sub­ject the de­ci­sion to the pro­ce­dures re­quired by nat­u­ral jus­tice.

since the right to fair trial, a nat­u­ral com­po­nent of nat­u­ral law and the com­mon law em­anate since time im­memo­rial it is guar­an­teed in var­i­ous in­ter­na­tional con­ven­tions and do­mes­tic laws.

In Le­sotho, for in­stance, these rules of nat­u­ral jus­tice have been guar­an­teed in our ju­rispru­dence un­der count­less de­cided cases and in­struc­tively in our Con­sti­tu­tion un­der sec­tion twelve (12) un­der the sub-head­ing: “Right to fair trial.”

I will how­ever, ow­ing to lim­ited space, not at­tempt to re­pro­duce this sec­tion herein save to men­tion that these rules of nat­u­ral jus­tice are en­cap­su­lated more or less fully un­der this sec­tion.

Any dero­ga­tion from these rules as ear­lier stated by an ad­min­is­tra­tive tri­bunal, author­ity or court, ren­ders their acts in­valid and of no le­gal force and ef­fects from the be­gin­ning.

This is trite law. The right to fair trial as ear­lier stated has been de­fined in nu­mer­ous re­gional and in­ter­na­tional hu­man rights in­stru­ments.

It is one of the most ex­ten­sive hu­man rights and all in­ter­na­tional hu­man rights in­stru­ments en­shrine it in more than one ar­ti­cle.

The right to a fair trial is one of the most lit­i­gated hu­man rights and sub­stan­tial case law that have been es­tab­lished on the in­ter­pre­ta­tion of this hu­man right.

De­spite vari­a­tion in word­ing and place­ment of the var­i­ous fair trial rights, in­ter­na­tional hu­man rights in­stru­ments de­fine the right to a fair trial in broadly the same terms.

The aim of the right is to en­sure that proper ad­min­is­tra­tion of jus­tice is ad­hered to at all times.

It im­poses on a tri­bunal, pub­lic author­ity or a court to ad­here to cer­tain ba­sic re­quire­ments of nat­u­ral law so that in­di­vid­u­als are not treated un­fairly and that if so un­fairly treated, re­course to the courts is avail­able, to en­gen­der pub­lic con­fi­dence in our pub­lic in­sti­tu­tions and pro­mote a cul­ture of hu­man rights ob­ser­vance as a corner­stone of our ju­di­cial sys­tem and demo­cratic dis­pen­sa­tion.

As ear­lier stated ob­ser­vance of the rules of nat­u­ral jus­tice by pub­lic bod­ies, tri­bunals, au­thor­i­ties and courts is manda­tory as in any dis­pute or broadly-speak­ing, where there is a dis­agree­ment that im­pinges on the rights, sta­tus and in­ter­ests of the in­di­vid­ual the play­ing field has to be level as much as pos­si­ble.

In keeping with these fun­da­men­tal im­per­a­tives of our con­sti­tu­tional and le­gal dis­pen­sa­tion it is trite that jus­tice should not only been done but must man­i­festly be seen to be done, as the old adage goes.

In the light of the un­prece­dented ma­jor po­lit­i­cal up­heavals that cur­rently be­set our coun­try, a fac­tor which un­der any demo­cratic dis­pen­sa­tion such as our is a nec­es­sary “evil,” it is im­per­a­tive to ob­serve these para­mount rules of nat­u­ral jus­tice in ad­di­tion to the en­abling statutes.

Newspapers in English

Newspapers from Lesotho

© PressReader. All rights reserved.