THE CONCEPT OF NATURAL JUSTICE IN CIVIL LAW
(Msgr. Stanislaus lobo)
Disciplinary action in part of administration. The one who appoints a worker has the right and power to remove or punish. But this right cannot be used in an unjust or arbitrary manner. Over the years, with the growing awareness of this, the right has been circumscribed in various ways:
- by proper procedure: in which both the substantive and procedural laws have to be scrupulously observed;
- by avoidance to what have been defined as “Unfair Labor practices.”
- by “Natural Justice.”
“Natural Justice” is not defined in any Law of this country, yet it is fundamental and basic to all legal procedures. It involves a number of elementary principles and was first formally defined by Justice Bowen of the Calcutta High Court as requiring:
- that the accused be informed of the charges;
- that the accused be given an opportunity to defend himself;
- that the accused be assured of a fair hearing and just decision.
These requirements seem simple enough in their wording, but in the light of legal decisions a great deal has been imported into the phrases used above. Thus:
- No one can be said to have been “informed of the charges” if he does not understand the language of the Notice or charge sheet: it should be translated or explained to him in his mother-tongue. Nor would it serve the purpose if vague phrases or general expressions are used, eg “You are often absent” or “You had been asleep” if the day, date, time and/or place is not mentioned or if there has been undue delay in asking his explanation (for it is not easy to remember incidents clearly enough to defend oneself after the lapse of many days). The evidence (letters of complaint, name of person making the accusation, etc., should also be made available to him.
- To be given “an opportunity to defend himself would include time to prepare a defense, assistance of a friend, interpreter or peer (though not a practicing Advocate) if he desires one in an Enquiry.
- As far as possible witnesses must be examined in the presence of the workman involved. If the accused is not present, the record of the witnesses examined in his absence must be given early enough, so that the workman may prepare his cross-examination of the witnesses:
- he must be given an opportunity to cross-examine witnesses;
- he must be given an opportunity to present his defense;
- he must be given an opportunity to bring witnesses for this defense and examine them;
- if expert, after the recording of evidence, the workman just e given a copy of the record (or a chance to read the record of evidence and all the documents relied on);
- In order to be assured of “a fair hearing and just decision” a number of principles of “air play” are involved;
- “nemo iudex in causa sua”, where the victim (or aggrieved person) is prosecutor and judge;
- Absence of prejudice: violations of this would include unnecessary recalling past misdeeds, extraneous factors like religion, caste, community, continuous harassment for minor matters, and “no person is guilty until proved guilty” (thus prior to the “order” or “findings” to have committed some misconduct – care has to be taken to use these words);
- Absence of discrimination in applying the law impartially and equally for all – both in accusation and in the punishment meted out.
Although these principles have been developed in the context of disciplinary action in labour law, they find wider applications increasingly. Thus, in “Confidential Reports” any adverse remark must be brought to the notice of the worker/employee, and the concerned person must have a chance to record his/her remarks. If this is not done the remark remains “null and void”. This does not apply to suggestions for improvement where no failure or misconduct is implied. Even in the case of Probationers, any semblance of arbitrariness, whim, discrimination mala fide or prejudice should be avoided by having proper, periodical assessments, though it is entirely for the “management” to decide who it will have permanently on its staff and such assessments are not to be taken as adverse charges or accusations.
In the Church, in Diocesan Administration and in Religious Congregations, there are situations which would need to be reviewed in the light of the above to see if the principles of natural justice are violated. Not only where any judicial or quasi-judicial process is involved but also where any superior- subject relationship exists, there can be violations of natural justice.