An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power

An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power â€Å"If judicial review of administrative decision is the heart of administrative law, then concept of natural justice is one of the suppliers of blood to that heart. It is inherent in rule of law and our thirst for justice. † Abstract Natural justice is considered to be as old as the system of dispensation of justice itself. Since its move toward administrative adjudication, it has been the defender of fairness and justice in exercise of discretionary power of administration. The artificial distinction between judicial and administrative adjudication has blurred. Natural justice ensures the minimum procedural fairness in administrative adjudication. Right to fair hearing before an impartial and unbiased forum has been the key to ensure fairness and diminish arbitrariness in exercise of discretionary power. This paper seems to propose that the battle between fairness and arbitrariness, however, has been a continuous one and natural justice keeps its role as diminisher of arbitrariness open to play. 1 Introduction Natural justice, as a concept relating to administrative adjudication, can be defined as the unwritten law of fairness. This age-old principle has been applied to administrative and adjudication process to ensure procedural fairness and to free them from arbitrariness. In Bangladesh, there is no statute providing for procedural fairness which administration should follow in exercise of discretionary power. It is natural justice which invokes the minimum fair procedures which should be followed in administrative decision making. This paper, in part two, will show that the concept of Natural Justice and its application in Justice delivery system is not new. It seems to be as old as the system of dispensation of justice itself. The Principles were accepted as early as in the days of Adam and of Kautilya’s Arthashastra. Then this paper will move to look into how concept of natural justice was invoked into the administrative decision making. It will be  shown that initially the principles of natural justice used to be applied to courts of law alone but later on from judicial sphere it extended, to the tribunals exercising quasi-judicial functions and then to the statutory authorities and the administrative authorities, who have upon them, the responsibility of determining civil rights or obligations of the people. After examining application of the concept in administrative adjudication, the paper will concentrate in examining two basic principles of natural justice to how these principles diminish arbi trary exercise of discretionary power. In this part, it will be revealed that natural justice ensures minimum procedural fairness in administrative decision making. It precludes a partial and biased tribunal from adjudicating. It obliges the tribunal to provide show reasons of its decisions with precisions. While fair tribunal is less probable to decide arbitrarily, showing reasons for the decision decreases significantly limits the scope of whimsical and arbitrary decision making. In at the end of the paper, it will be proposed that the Battle between fairness and arbitrariness has been a continuous one and natural justice has fought to defeat arbitrariness. Since its move toward administrative adjudication, natural justice has been the defender of fairness and justice in exercise of discretionary power of administration. 2 Natural justice: the ‘unwritten law of fairness’ Natural justice implies fairness, equity and equality. This age-old principle has been applied to administrative and adjudication process to ensure procedural fairness and to free them from arbitrariness. Different jurists have described the principle in different ways. Some called it as the unwritten law (jus non scriptum) or the law of reason. It has, however not been found to be capable of being defined, but some jurists have described the principle as a great humanising principle intended to invest law with fairness to secure justice and to prevent miscarriage of justice. With the passage of time, some principles have evolved and crystallised which are well recognized principles of natural justice. Today the question of control of administrative discretionary power is perhaps the most critical and crucial problem of administrative law. In modern democracies the role and jurisdiction of administrative agencies is increasing at a rapid pace. The concept of Rule of Law would loose its validity if the instrumentalities of the State are not charged with the duty of discharging these functions in a fair and just manner. However, there is no statute laying down the minimum procedure which administrative agencies must follow while exercising decision-making powers. This minimum fair procedure refers to the principles of natural justice. Lord Viscount Haldane outlined principle of natural justice in the following word: â€Å" those whose duty it is to decide must act judicially. They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must come to the spirit and with the sense of responsibility of a tribunal whose duty it is to meet out justice. † Natural justice, as a concept of common law, represents higher procedural principles developed by the courts, which every judicial, quasi-judicial and administrative agency must follow while taking any decision adversely affecting the rights of a private individual. The principles of natural justice were associated with a few ‘accepted rules’ which have been built up and pronounced over a long period of time. The word ‘Natural Justice’ manifests justice according to one’s own conscience. It is derived from the Roman Concept ‘jus naturale’ and ‘Lex naturale’ which meant principle of natural law, natural justice, eternal law, natural equity or good conscience. Lord Evershed, Master of the Rolls in Vionet v Barrett (1985, 55 LLJ QB, 39, Page 45) remarked, â€Å"Natural Justice is the natural sense of what is right and wrong. There is no statute laying down the minimum procedure which administrative agencies must follow while exercising decision-making powers. This minimum fair procedure refers to the principles of natural justice. Natural Justice is an expression of English common law. Lord Viscount Haldane outlined principle of natural justice in the following word: â€Å" those whose duty it is to decide must act judicially. They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must come to the spirit and with the sense of responsibility of a tribunal whose duty it is to meet out justice. † While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general duty to act fairly. Parpworth in his ‘Constitutional and Administrative Law’ views that linguistic difficulties with natural justice have forced the courts, in recent time, to use fairness as a concept to ensure minimum procedural propriety. Lord Parker C. J. in Re H. K. [1967] 2 Q. B. 617, 630 (C. A.) said that ‘[it] is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly’. Concept of natural justice has a close relation with fairness. The Supreme Court of India outlined the relation of fairness with natural justice in the following words: ‘Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the bone of healthy government†¦.. Thus ‘natural justice’, as a concept relating to administrative adjudication, can be defined as the unwritten law of fairness. In Bangladesh, there is no statute providing for procedural fairness which administration should follow in exercise of discretionary power. It is natural justice which invokes the minimum fair procedures which should be followed in administrative decision making. 3 The First Man’s experience with natural justice: A Twenty First Century Analysis The concept of Natural Justice and its application in Justice delivery system is not new. It seems to be as old as the system of dispensation of justice itself. The Principles were accepted as early as in the days of Adam and of Kautilya’s Arthashastra. According to the Bible and Quran, when Adam amp; Eve ate the fruit forbidden by God, the God did not pass sentence on Adam before he was called upon to defend himself. Concept of natural justice was known to Greek and Romans. Aristotle, before the era of Christ, spoke of such principles calling it as universal law. Justinian, in the fifth and sixth Centuries A. D. called it jura naturalia i.