HEARING AS A PRINCIPLE OF NATURAL JUSTICE

HEARING AS A PRINCIPLE OF NATURAL JUSTICE <!--[if gte mso 10]> HEARING AS A PRINCIPLE OF NATURAL JUSTICE By Ch. Irshad Ahmad Former Federal Law Secretary This notandum intends to identify the scope of "hearing" as a principle of natural justice in its application to administrative law proceedings. There are two aspects of the principle. One, that is well known, is contained in Latin quotation audi (hear) alteram (other) partum (side) [hear the other side St. Augustine, De Duabus Animabus, XIV.2.] and two, providing reasonable opportunity of hearing. The meanings of the quotation clearly exhibit that the first aspect is relevant only when in a public law proceedings initiated by a public authority a decision is made against a person who was not informed of the grounds on which the action was based and was not asked to rebut the grounds or when such an action is initiated on the petition of one person and a person other than the petitioner is not heard and a decision on the petition is made against that other person. The petitioner who has stated his case in writing in his petition cannot make complaint regarding violation of this aspect of the principle because he is not "the other side". The second aspect is what means "hearing". One does come across the complaint of the petitioner or appellant who had availed himself of the opportunity of stating his case in writing in his petition or appeal complaining that he was condemned unheard and in support of the complaint relying on the quotation audi alteram partam, if the decision on his petition or appeal was unfavourable to him. Obviously, reliance by the petitioner or appellant on the quotation is totally misplaced as he is not the other party. The second aspect of the principle that is to say "providing reasonable opportunity of being heard". is the most misunderstood aspect of the principle of natural justice. Although a person has availed himself of the full opportunity of stating his case in writing he complains that he has been condemned unheard if he was not heard orally. The question is: Does the hearing as a concept of natural justice necessarily include "hearing orally?" I have not been able to lay my hands on any authority from Pakistan delineating the question comprehensively. In certain cases it was decided that the appellant was entitled to be heard orally in support of his appeal but each said decision proceeded on the facts of the case, the applicable law and the nature of the proceedings and of the office of the authority established to decide the appeal. However, three judicial precedents of high value two decisions of the Privy Council and one decision of the English Court of Appeal have addressed and answered the question comprehensively. The object of this notandum is to take note of the said decisions as legal service to the judges, lawyers and others conducting administrative law proceedings. Although the two aspects of the principle of natural justice delineated above are quite distinct but their invocation in certain cases has been visibly imprecise. A petitioner or appellant was not heard orally in support of his written case in the petition or appeal. It has been held that he has been condemned unheard in violation of the principle of natural justice contained in the maxim audi alteram partem. Although the proper question that arose for determination in that case was: whether the applicable law required that the petitioner shall, in addition to stating his case in writing, be heard orally and in denying him oral hearing there has been violation of his right of natural justice of providing him reasonable opportunity of being heard. Being himself the petitioner he was not "the other side" referred to in the relied upon maxim. In Najar Singh v Government of Malaysia and others [1976] 1 MLJ 203 the Privy Council (Lord Wilberforce, Lord Morris, Viscount Dilhorne, Lord Hailsham and Lord Fraser all big names in law) held: that the word "heard" does not invariably connote an oral hearing. The Privy Council held that where a person has the opportunity of stating his case in writing there was no denial of natural justice. Article 135(2) of the Constitution of Malaysia provides that no member of such a service [the services listed in Article 132(i) of the Constitution] shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard. Regulation 27 of the Disciplinary Procedure, applicable to Mr. Singh provided that "in all disciplinary proceedings no person shall be dismissed or reduced in rank unless he has been informed in writing of the grounds on which it is proposed to take action against him and has been afforded a reasonable opportunity of being heard". Mr. Singh was a member of Police Service, a listed service. The Inspector General of Police sent him a letter dated July 5, 1971 asking him to show cause why he should not be dismissed from Police Service. Mr. Singh sent has reply forthwith. On August 18, 1971 he was dismissed from Police force. He started judicial proceedings in the High Court in which he sought a declaration that his dismissal from service was void. His claim was dismissed by the High Court. He appealed the High Court decision in the Federal Court. The appeal was also dismissed. He appealed the Privy Council on the ground that contrary to natural justice and the disciplinary regulation he was not afforded the reasonable opportunity of being heard before he was dismissed. The Privy Council too dismissed Mr. Singh's appeal. In delivering a unanimous judgment Viscount Dilhorne said: The appellant does not complain that he was not informed in writing of the grounds on which his dismissal was to be considered. He does not complain of a breach of regulation 27 in that respect. His complaint is that he was not, given an opportunity of being heard orally before being dismissed and he contends that Regulation 27, which in this respect follows Article 135(2) of the Constitution, requires that before being dismissed he should have been given such an opportunity. He contends that "being heard" means "being heard orally". The word "heard" does not invariably connote an oral hearing. It can be used and is not infrequently used in relation to something written. The question "Have you heard from X", often means, "Have you had a letter from X?" Its meaning must depend on the context in which it is used and the context in which it is used in these regulations shows that in regulation 27 it cannot have been intended only to mean an oral hearing. Regulation 27 has to be read with regulation 30 and that makes no provision for an oral hearing if the officer fails to make representations in writing or the representations he makes in writing do not exculpate him. It is only if a Committee of Inquiry is appointed that he will be given the opportunity of giving oral evidence. In their Lordships' opinion regulator 27 is not to be interpreted as imposing an obligation to hear an officer orally. In a number of cases the argument has been put forward that the omission to hear a party orally was contrary to natural justice. In Local Government Board v. Arlidge 1915 AC 120 evidence had been given on behalf of Mr. Arlidge at a public inquiry but he claimed to be entitled to be heard orally by the Local Government Board to which he was appealing before they decided his appeal. The House decided that he was not so entitled. Viscount Haldane L.C: saying at page 134: "I do not think the Board was bound to hear the respondent (Arlidge) orally, provided it gave him the opportunities he actually had." In The King v. Housing Appeal Tribunal [1920] 3 KB 334 the appeal tribunal, having received the appellant's notice of appeal and the local authority's statement applicable the appeal tribunal might dispense with an oral hearing but that they were bound to give the appellant a hearing in the sense of an opportunity of putting his case, Sankey J. as he then was saying at page 346." "Now a hearing in my view need not be an oral one, it may be on written representations." In Malloch v Alerdeen Corporation [1971] 1 WLR 1578 Lord Wilberforce at page 1594 said: "The appellant [a teacher] is entitled to complain if, whether in procedure or in substance, essential requirements, appropriate to his situation in the public service under the respondents, have not been observed, and, in case of non‑observance, to come to the courts for redress. The particular principle of administrative law to which he appeals is that, before his dismissal became effective, he ought to have been given an opportunity of making written representations to or of being heard by the education authority .... The appellant has first to show that his position was such that he had, in principle, a right to make representations before a decision against him was taken. But to show this is not necessarily enough, unless he can also show that if admitted to state his case he had a case of substance to make." In this passage which was cited by counsel on behalf of the appellant, the context shows that the words "being heard" meant "being heard orally" but this passage is no support for the proposition that unless there is an oral hearing, there is a denial of natural justice. Indeed it points in the opposite direction. What is important is that the officer concerned should have a full opportunity of stating his case before he is dismissed. The decision in Singh's case has also been followed by the Privy Council (Lord Wilberforce, Viscount Dilhorne, Lord Edmund Davies, Lord Russets and Lord Keith ‑ big names in law in Zainal Bin Hashim v Government of Malaysia [1980] 2 WLR 136 PC. In Zainal on December 28, 1971, Chief Police Officer wrote to the plaintiff, a constable, saying that he intended to take action to dismiss the plaintiff from the police, and that he could make any representation with regard thereto within fourteen days. On December 30, 1971, the plaintiff submitted representation. On January 20, 1972 a letter was sent to the plaintiff informing him that he has been dismissed from police w.e.f. 16.12.1971. The plaintiff was also informed that he could appeal from this decision within ten days to the Inspector General Police (IGP). The plaintiff did so and submitted written representation to the IGP. On 7.2.1972 the plaintiff was informed that his appeal has been considered and dismissed. He contended (so far as relevant) that his dismissal and appeal was contrary to natural justice that he was given no opportunity of making oral representation to the CPO and to the IGP. The Privy Council rejected the appellant's claim that his dismissal was contrary to the natural justice and followed Singh's decision. The scope of hearing in relation to deciding an appeal by the statutory tribunal in relation to the administration of immigration control has been considered by the English Court of Appeal (Kerr, Russets LJJ and Sir Denys Buckley) in R. v Immigration Appeal Tribunal and another, ex parte Jones. [1988] 2 All ER 65. In ex parte Jones, the appellant, a citizen of New Zealand, arrived at Heathrow Airport on 17 March, 1985. The immigration officer refused to give him leave to enter the United Kingdom. The immigration officer's decision was reviewed by the adjudicator and the adjudicator upheld the immigration officer's decision. Mr. Jones's appealed the adjudicator's decision before the Immigration Appeal Tribunal. The applicable Immigration Appeals (Procedure) Rules provided that the Tribunal may decide to determine an appeal without hearing. The Tribunal considered Mr. Jones's appeal on papers and rejected it. The appellant sought judicial review of tile Tribunal's decision on the ground that the regulation that gives the Tribunal discretion to decide an appeal without oral hearing was ultra vires. The Court rejected the ground. Russell LJ said: The question to be answered is whether the word `hearing' necessarily and in all circumstances involves an oral hearing. In my judgment it does not and in so concluding I derive support from the words of Hamilton LJ in R v Local Government Board, ex p Arlidge [1914) I KB 160 at 191. That case was concerned with a local government board which by virtue of the Housing, Town Planning & c Act 1909 was empowered to make rules of procedure in the determination of appeals made to it. The board dismissed an appeal without giving the appellant an opportunity of being heard. In a dissenting judgment subsequently upheld by the House of Lords Hamilton LJ said (at 191‑192): `I think, therefore, that this claim is only part of the general claim for a "hearing" coram judice, for a viva voce appeal, for the right to stand in person before the judgment seat. In my opinion, the question whether the deciding officer "hears" the appellant audibly addressing him or "hears" him only through the medium of his written statements, is in a matter of this kind one of pure procedure. The practice of the High Court, past and present, as to hearing motions on affidavits and taking evidence before special examiners or the examiners of the Court, shows that there is nothing universally essential in the judge's seeing and hearing the witnesses for himself... The fact is that for such appeals as are here in question one scheme of procedure may be better than the other, but both the oral and the written. Scheme remain rival procedures still and the Act leaves the Board free to elect between them.' Mr. Jones also submitted that since the Immigration Act provides that rule of procedure shall provide that any appellant shall have the right to legally represented this provision must necessarily mean that he will have the right to be heard orally. Russels LJ. disagreed with the submission and said: "There are many illustrations in our jurisprudence of decisions being taken and rulings made where parties are legally represented but present their respective cases on paper. " Mr. Jones further contended that the regulation‑making powers conferred by the Act were merely in general terms, and without any express reference to dispensing with oral hearing and that the provision of the Act which refers to the "hearing of appeals" by the tribunal states that it shall sit at such times and in such places and the Local Chancellor may direct, as a matter of statutory constructions, were inconsistent with any power to hear appeal without an oral hearing. Kerr LJ said: "these provisions are in no way necessarily inconsistent with each other". The principles of natural justice are enforced by the courts as fundamental rights. If oral hearing as a principle of natural justice is to be accepted as a fundamental right then it would involve rendering the various orders which Judges of the High Courts are empowered to make in chambers particularly in company matters, unconstitutional. Although this note concerns "hearing" in the context of administrative law proceedings and does not concern to identify the judicial proceedings in which hearing may be given only through papers but it may be useful to point out that hearing through papers is not also alien to judicial proceedings. Section 420 of the Code of Criminal Procedure provides that if the appellant is in jail he may present his petition of appeal and the copies accompanying the same to the officer incharge of the jail, who shall thereupon forward such petition and copies to the proper Appellate Court. Section 421 of the Code provides that on receiving the petition and copies under section 420, the Appellate Court shall pursue the same, and, if it considers that there is no sufficient grounds for interfering it may dismiss the appeal summarily. It is a matter of common knowledge that the convict who appeals from jail is not heard orally in support of his appeal by the High Court and his appeal is decided on papers.