Natural justice is paramount
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.