Concept of Natural Justice:
An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power
“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.
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 arbitrary 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...