Procedural Fairness and or Natural Justice

 

 

Procedural Fairness and or Natural Justice

Procedural Fairness and or Natural Justice is a term that denotes specific procedural rights in the English legal system and the systems of other nations which may be based on this. While the term natural justice is often a general concept, it has largely been replaced and extended by the more general term: "duty to act fairly". What is required to fulfill this 'duty fairly' of course, depends on the context in which the matter arises.

There are two rules that natural justice should be concerned with.

• These are the rule against bias (nemo iudex in causa sua) and
• The right to a fair hearing (audi alteram partem).

The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of:

1.  actual bias;
2. imputed bias; 
3. apparent bias.  

 Actual bias is very difficult to prove in practice, while imputed bias, once shown, will result in a decision being void without the need for any investigation into the likelihood or suspicion of bias.
The inherent right to a fair hearing by the Judiciary, requires that individuals should not be penalized, for that reason affecting their rights or legitimate expectations, unless they have been first given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case.

The mere fact that a Judge's decision affects rights or interests is sufficient to subject the Judge's decision to the procedures required by natural justice.

Ex parte hearings cannot be considered fair!