Fairness As A Leading Principle Of Law

FAIRNESS AS A LEADING PRINCIPLE OF LAW FAIRNESS AS A LEADING PRINCIPLE OF LAW By Ch. Irshad Ahmad [Additional Secretary, Federal Ministry of Law and Justice, Islamabad.] As a principle of natural justice.‑‑The administrative law thus far evolved has established that executive action will be the subject of judicial review on three separate grounds. The first is where the authority concerned has been guilty of an error of law in its action, as for example purporting to exercise a power which in law it does not possess. The second is where it exercises a power in so unreasonable a manner that the exercise becomes open to review on what are called, in lawyers' shorthand, Wednesbury principles expounded by Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223. The third is where it has acted contrary to what are often called `principles of natural justice'. We know that cardinal principles of natural justice are: that no one shall be condemned unheard, and no one shall be the judge in his own cause. But, in a recent decision of the House of Lords in case Council of Civil Service Unions and others v. Minister for the Civil Service (1984) 3 All ER 935 Lord Roskill has said: that the use of this phrase (principles of natural justice) is no doubt hallowed by time and much judicial repetition, but it is a phrase often widely misunderstood and therefore as often misused. The phrase perhaps might now be allowed to find a permanent resting place and be better replaced by speaking of a duty to act fairly. As a rule of construction of statutes.‑‑In the subject of the construction of statutes the most intriguing chapter is regarding the prospectivity or retrospectivity of statutes. The starting point‑ is that there is presumption against retrospectivity. The leading English textbooks are agreed that the rule has a place in English law. Bennion, 2nd ed (1992), Statutory Interpretation, p.214, states: "Unless the contrary intention appears, an enactment is presumed not to be intended to have, a retrospective operation". Maxwell on Interpretation of Statutes, 12th ed. (1969), at p.215, states the principle in a way described by Scarman, J. In Carson v. Carson and Stoyek (1964) 1 W.L.R. 511, 516, as "so frequently quoted with approval that it now itself enjoys almost judicial authority:" "Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication." Craies on Statute Law, 7th ed. (1971), at p.387, describes as retrospective a statute: "which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past." This text cites Lindley L.J. in Lauri v. Renad (1892) 3 Ch. 402, 421: "It is a fundamental rule of English law that no statute shall be construed so as to have a retrospective operation unless its language is such as plainly to require such a construction; and the same rule involves another and subordinate rule to the effect that a statute is not to be construed so' as to have a greater retrospective operation than its language renders necessary." In modern times the above passages, principles or statements have received high judicial endorsement: for example in Yew Bon Tew v. Kenderaan Bas Mara (1983) 1 AC 553, 588, the Judicial Committee of the Privy Council stated: "Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past. There is however said to be an exception in the case of a statute which is purely procedural, because no person has a vested right in any particular course of procedure, but only a right to prosecute or defend a suit according to the rules for the conduct of an action for the time being prescribed." In Arnold v. Central Electricity Generating Board (1987) 3 All ER 694 (H.L.) Lord Bridge said: "Consistently with the presumption that a statute affecting substantive rights is not to be construed as having retrospective operation unless it clearly appears to have been so intended, it seems to me entirely proper, in a case where some retrospective operation was clearly intended, equally to presume that the retrospective operation of the statute extends no further than is necessary to give effect either to its clear language or to its manifest purpose." Certain authorities have drawn distinction between statutes affecting substantive rights and those which only affect the procedure. In Wight v. Hale (1860) 30 L.J. Exch. 40 Pollock C.B. said:‑‑ "I always understood that there is a considerable difference between laws which affect the vested rights and interests of parties, and those laws which merely affect the proceedings of Courts." In Cardner v. Lucas (1878) 3 Appeal Cases 582 Lord Blackburn said: "Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be:" Bennion in Statutory Interpretation (2nd ed., p. 218) suggests that the reason for the exception in favour of procedural law may be that‑‑ "a procedural change is expected to improve matters for everyone concerned:' Or it may be that suggested by Mellish L.J. in Republic of Costa Rica v. Erlanger (1876) 3 Ch. D. 62: "No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done." The Courts have, however, found that the expressions' vested right, matter of procedure and impairment or taking away of vested right, though useful in a context, are equivocal and therefore can be misleading. The distinction between a right and matter of procedure generally overlaps. In Yew Bon Tew v. Kenderaan Bas Mara (1983) 1 AC 553 Lord Brightman said: "an act which is procedural in one sense may in particular circumstances do far more than to regulate the course of proceedings because it may, on one interpretation, be reviewing or destroying the cause of action itself'. His Lordship further stated: "a statute which is retrospective in relation to one aspect of a case (e.g. because it applies to a pre‑statute cause of action) may at the same time be prospective in relation to another aspect of the same case (e.g. because it applies only the post‑statute commencement of proceedings to enforce that cause of action)". The Courts having found that the statement: "that a statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past" as equivocal have started to approach the question regarding retrospectivity of statute on the basis of fairness. In a quite recent decision of the Court of Appeal Reg. v. Secretary of State ex parte Mundowa (1992) 3 All ER 606‑613 Staughton L.J. stated: "the statement seems to me, if I say so, an excellent discription of the general notion of retrospectivity, but I doubt if it was intended to be treated as the language of a statute. If one does that, one becomes involved in discussion as to what precisely is a vested right, and whether it has been taken away or impaired". Staughton L.J. adhering to the principle that he had earlier expounded in Secretary of State v. Tunnicliffe (1991) 2 All ER 712 said: "that the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree ‑‑ the greater the unfairness, the more it is to be respected that Parliament will make it clear if that is intended". The House of Lords in L'Office Cherifen v. Yamashista Ltd. (1994) 1 All ER 20 has also examined the question regarding retrospection of a statute. In the above case Lord Mustill recognised that‑the Courts are required to approach questions of statutory interpretation with a disposition that a statute is not intended to have retrospective effect. But, his Lordship owned reservations about the reliability of generalised presumptions and maxims when engaged in the task of finding out what Parliament intended by a particular form of words for they too readily confine the Court to a perspective which treats all statutes, and all situations to which they apply as they ware the same. His Lordship stated that "this is misleading, for the basis of the rule is no more than simple fairness, which ought to be the basis of every legal rule. True it is that to change the legal character of a person's acts or omissions after an event will very often be unfair; and since it is rightly taken for granted that Parliament will very often be unfair; and since it is rightly taken for granted that Parliament will rarely wish to act in a way which seems unfair it is sensible to look very hard at a statute which appears to have this effect, to make sure that this is what Parliament really intended. This is, however, no more than common sense, the application, of which may be impeded rather than helped by recourse to formulae which do not adapt themselves to individual circumstances, and which tend themselves to become the subject of minute analysis, whereas what ought to be analysed is the statute itself. According to his Lordship the approach to the problems of retrospection by reference to a distinction between vested rights and procedural rights unnecessarily calls up a discussion of whether a right affected by a statute is vested or procedural. His Lordship remarked that "I believe that such a discussion would be unprofitable, partly because the distinction just mentioned is misleading, since it leaves out of the account the fact that some procedural rights are more valuable than some substantive rights, and partly because I doubt whether it is possible to assign rights such as the present unequivocally to one category rather than another. Thus, whilst keeping the distinction well in view, .I prefer to look to the practical value and nature of the rights presently involved as a step towards an assessment of the unfairness of taking them away after the event". "The conclusion, therefore, is that the answer to the question regarding the retrospection of a statute is to be found in the principle of fairness rather than by reference to whether the statute affects vested or substantive rights or only it relates to the procedure of the Court. As a rule of administration of justice: ‑‑Lord Donaldson M.R. in Reg. v. Leicester City Justices (1991) 3 W.L.R. 368 said: "The Courts exist in order to give effect to and enforce rights, duties and liabilities as between citizens (including juridical persons) and as between citizens and the State. In performing this function, Courts have a duty to act in accordance with the law, whether it be the common law or statute, and everyone is `entitled' to expect the judges (including magistrates) to discharge this duty to the best of their ability and they do. This is not to say that they always succeed and the hierarchy of the Courts with their appellate process is designed to correct the inevitable errors. When it is said, as it is said in this case, that a Court has denied a citizen a `right' which is his, what is really meant is that the Court has failed to perform its function in accordance with the law. That the citizen has a `right' to expect a Court to do its duty is not in question, but it is not the same kind of `right' as those upon which Courts adjudicate as between the litigants appearing before them." There are many basic rules covering the administration of justice by the Courts, but they can be summed up by saying that it must be administered fairly and, unless the interests of justice otherwise require, it must be administered openly and its administration must not only be fair but be seen to be fair". It will be useful to give the background facts of the case in which the above finding was recorded. The applicants appeared before the City Justices in answer to summonses issued by local authority for liability orders in respect of alleged non‑payment of community charges. At the outset of the hearing the applicants wished to be assisted by a person as a "McKenzie friend" which term has come to be used in legal circles since the decision of the Court of Appeal in McKenzie v. McKenzie (1970) 3 All ER 1034 holding that every party had the right to have a friend present in Court beside him to assist by prompting, taking notes and quietly giving advice. The Justices refused the request. The applicants challenged the Justices' decision on the ground that they acted unfairly. The Divisional Court of the High Court concluded that the applicants had no right to claim assistance. The appeal by the applicants was allowed by above‑noted judgment. The Divisional Court held that no party to Court proceedings has a right to the assistance of a "McKenzie friend", it being a matter for the Judge or Justices to decide whether or not such assistance should be permitted as an exercise of discretion having regard to all the circumstances of the case. The Court of Appeal however held that the basic rule covering the administration of justice by Courts was fairness that the issue is to be decided on the basis of fairness, Regarding the right of a party to Court proceedings to present his case Lord Donaldson said: rule covering the administration of justice by Courts was fairness that the issue is to be decided on the basis of fairness. Regarding the right of a party to Court proceedings to present his case Lord Donaldson said: "A party to proceedings has a right to present his own case and in so doing to arm himself with such assistance as he thinks appropriate, subject to the right of the Court to intervene. Thus he can bring books and papers with him, pens, pencils, his spectacles, a hearing aid and any other form of material assistance which he thinks appropriate. Subject to them not being of extraordinary volume and unusual nature, there is no need for the matter to be mentioned to the justices or their clerk. If he wishes to have an adviser, as contrasted with an advocate, it is convenient that he should mention this act to the justices or to their clerk in order that they may know why the person concerned is sitting next to the defendant, rather than in the space reserved for the general public. Furthermore the justices or their clerk may reasonably wish to know whether this adviser is likely to be called as a witness and should not hear the evidence of other witnesses, if exclusion from Court whilst that evidence is being given is usual in that class of case. They may reasonably also wish to know that the adviser is not claiming rights of audience or proposing to exercise them on behalf of the party and that he is not a party to another case or a member of the public who has lost his way. But if a party arms himself with assistance in order the better himself to present his case, it is not a question of seeking the leave of the Court. It is a question of the Court objecting and restricting him in the use of this assistance, 'if it is clearly unreasonable in nature or degree or if it becomes apparent that the `assistance' is not being provided bona fide, but for an improper purpose or is being provided in a way which is inimical to the proper and efficient administration of justice by, for example, causing the party to waste time, advising the introduction of irrelevant issues or the asking of irrelevant or repetitious questions." The Court concluded that since the justices seemed to have approached the matter on the basis that the applicants could be assisted by a friend only of permitted by the Court, they were in error. The matter should have been decided on the basis of fairness keeping in view the party's right to present his case as stated above. The Court remarked that any unfairness, whether apparent or actual and however inadvertent, strikes at the roots of justice. However, the Court expressed a fervent hope that they shall hear no more of "McKenzie friends" as if they were a form of unqualified legal assistant known to the law. Such terminology obscures the real issue which is fairness or unfairness. Let the 'McKenzie friend' join the "Piltdown man" in decent obscurity. MR JUSTICE SAJJAD ALI SHAH, CHIEF JUSTICE OF PAKISTAN Born on 17th February, 1933 at Karachi, schooled at Sindh Madressa tul‑Islam and passed Matriculation V, 1951. Joined D.J. Science College, Karachi and after passing 1st Year Science Biology Group switched over to arts. After graduating in Political Science and General History from Sindh Muslim College in 1956 left for England and was admitted in Lincoln's Inn. Called to the Bar in 1959 and was enrolled as an Advocate of the erstwhile High Court of West Pakistan in January, 1961. In 1963 was appointed as District Public Prosecutor and Government Pleader, Lasbella, with Headquarters at Karachi and was allowed private practice at Karachi: In 1967 was directly appointed as District and Sessions Judge against a vacancy reserved for members of the Bar and was confirmed from that day as such. Served as District and Sessions Judge in various Districts in the Punjab during One Unit period and after its disintegration, in Sindh. In January, 1974 was appointed as Joint Secretary in the Federal Ministry of Law and Parliamentary Affairs. In 1977 was posted as Registrar of the Supreme Court of Pakistan. . Elevated to Bench as Judge of High Court of Sindh in 1978. Held extra assignments as Custodian of Evacuee Properties in the Province of Sindh, Chairman, Special Court under Suppression of Terrorist Activities (Special Courts) Act, 1975; Special Appellate Court (Customs) and Chairman. Provincial Election Authority, Sindh (for elections to the local bodies), Member Syndicate, Senate and Election Board of Mehran University of Engineering and Technology, Member of the Aga Khan University Board of Trustees, Election Tribunal appointed by Election Commission of Pakistan in respect of General Elections held in the year 1985. Participated in a programme entitled "Introduction to Computer and Technology in Courts" (from 21‑9‑1986 to 26‑9‑1986) at National Judicial College, Reno, Nevada, U.S.A. Acting Chief Justice High Court of Sindh from 15‑10‑1989 to 22‑10‑1989. Chief Justice, High Court of Sindh, Karachi frcun 13‑12‑1989 to 4‑11‑1990. Judge, Supreme Court of Pakistan from 5‑11‑1990 to 4‑6‑1994 and appointed as Chief Justice of Pakistan on 5‑6‑1994. JUSTICE MS. MAJIDA RIZVI JUDGE, SINDH HIGH COURT Justice Ms. Majida Rizvi, before her elevation to the Bench of Sindh High Court, has had an illustrious career as a lawyer and a social reformist. After her MA.,LL.B. from Karachi University she was enrolled as an Advocate of erstwhile High Court of West Pakistan in 1963 and of Supreme Court in 1981. By her talents, integrity and devotion to her professional work, she soon distinguished herself among her colleagues and made her mark in the profession and earned respect and high regards both from the Bench and the Bar. Though during her past thirty years in the profession she has concentrated her energies mainly on the profession, but that did not prevent her from indulging in various socio‑legal activities. During long period of her professional life, she has attended numerous law conferences, seminars, workshops etc. in various European and Asian countries including Conventions of International Federation of Women Lawyers at New Delhi, Teheran, Penang (Malaysia), Hamburg and made her valuable contribution there. She has been taking keen interest in various socio‑legal problems faced especially by women and children resulting from existing socio‑economic set‑up and has been instrumental in providing free legal aid to that needy downtrodden segment of our society through renowned social ‑organizations. She has widely travelled in Europe and Asia to study different NGOS working. She now enjoys a unique distinction of being the first woman Judge of a High Court in Pakistan. MR. JUSTICE MUHAMMAD ILYAS, JUDGE, SUPREME COURT OF PAKISTAN Mr. Justice Muhammad Ilyas who, has been recently elevated as a Judge of the Supreme Court has a lustrous trail of marvellous record‑breaking academic achievements behind him. Born on 1st October, 1931 in Village Chak Fazil, District Gujrat, he graduated at the young age of 17 from a local college. He joined Punjab University Law College from where he passed his LL.B. Examination in 1951 standing first in the University and getting University Gold Medal. He secured first position in the Provincial Civil Service (Judicial Branch) Competition and being under age the relevant rule had to be relaxed to appoint him as a Civil Judge in 1953. He thus earned the unique distinction of being the youngest Civil Judge of the World which fact has also been acknowledged in the Guinness Book of Records. He was the only judicial officer from the then West Pakistan to be selected to attend a course of legal studies at the Stanford University in U.S.A. where he received training in legislative drafting also. He has held various judicial and administrative posts including Senior Civil Judge, Judge Small Causes Court, District and Sessions Judge, Special Judge (Anti‑Corruption), Officer on Special Duty in the Lahore High Court and in the Provincial Law Department as Joint Secretary to Government of Punjab and as Chairman Federal Services Tribunal. His services were requisitioned by the Federal Government in 1972 for the purpose of assisting the National Assembly in preparing the Constitution where he rose to the rank of Additional Secretary to the Government of Pakistan. He was appointed a Judge of the Lahore High Court in 1978 where he became Senior Puisne Judge and acted as Chief Justice of High Court on different occasions. In November 1992 he was appointed as Judge of the Federal Shariat Court and thus became the first ever Judge of Federal Shariat Court to be directly elevated as Judge of the Supreme Court. His outstanding achievements have also been recorded in the well‑known book "Men of Achievements" published by the International Biographical Society Cambridge, U.K. He has extensively travelled abroad and was also member Pakistan Parliamentary Delegation to Australia and Newzealand. He has not confined his talents to legal and judicial pursuits alone but has also made himself known as a writer and poet.