Natural Justice in Bangladesh: An Overview.

Introduction:

Natural justice terminology for the rule against bias and the right to a fair hearing.
While the term natural justice is often retained as a general concept, it has largely
been replaced and extended by the more general ‘’duty to act fairly’’

In Bangladesh there is no statute laying down the minimum procedure which

administrative authorities must follow while exercising decision making
power1.There is a bewildering variety of administrative procedure. Sometimes the
statute under which the administrative authority exercises power lays down the
procedure which the administrative authority must follow but at times the
administrative authority is left free to devise its own procedure. The courts have
always insisted that the administrative agencies must follow a minimum of fair
procedure. This minimum fair procedure refers to the concept of natural justice.
The concept of Natural Justice is an important concept in administrative law.

Definition of Natural Justice:

People have drawn their criteria of justice from many cources, i e from the nature
of things, from the nature of man and from the nature of God. Natural law is the
outcome of man’s quest from an absolute standard of justice.

Natural Justice has meant many things to many writers, lawyers and systems of
law. Professors H. W. R. Wade defines natural justice as ‘’the name given to
certain fundamental rules which are so necessary to the proper exercise of power
that they are projected from the judicial to the administrative sphere’’.

According to Roman law certatin basic legal principles were required by nature, or
so obvious that they should be applied university without needing to be enacted
into law by a legisletor. This was a seedbed for the growth of natural justice. The
principle of natural justice are now regularly applied by the courts in both common
law and Roman law jurisdictions.

The Principle and essential elements of Natural Justice:

a. No man shall be Judge in his own cause,
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b. Both sides shall be heard, or audi alteram partem,
The other principles which have been stated to constitute elements of Natural
Justice are:
i. The parties to a proceeding must have due notice of when the Court / Tribunal
will
proceed,
ii. The Court / Tribunal must act honestly and impartially and not under the
dictation of other persons to whom authority is not given by Law.

Advantages of the principles of natural justice in Bangladesh:

Bangladesh is a democratic country and hence the foremost object of this welfare
state is to protect the rights and interests of its citizens. And without complying
with the principles of natural justice it cannot be done. The principles of natural
justice ensure fair justice and through the principles of natural justice the rights and
interests of the citizens can be ensured also.
Natural justice can benefit the decision maker as well as the person or organization
whose rights or interests may be affected in the following ways:
1. Assists the decision maker in reaching the correct and preferable decision;
2. Provides the decision maker with relevant information, evidence or
interpretation of legislation or policy which he/she has not considered;
3. Provides a useful avenue for the decision maker to ensure that the facts or
information that he/she is relying on is correct;
4. Exposes any weaknesses in the decision-making process, information or
evidence on which a decision is to be based, which avoids later
embarrassment, including the need to re-make the decision.
Natural Justice in Constitution:
In Bangladesh the enforcement principles of natural justice are ensured by several
provisions of our constitution. Article 27 of the Constitution of Bangladesh states
'all citizens are equal before law and are entitled to equal protection of law'.

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The apex court of our country has held that to treat a person in violation of the
principles of natural justice would amount to arbitrariness and discriminatory
treatment in violation of the right guaranteed by Article 27 of the Constitution.
Case Law- Abdul Latif Mirza Vs. Bangladesh:
In the case of Abdul Latif Mirza Vs. Bangladesh 31 DLR (AD) 33, the Supreme
Court of Bangladesh held that the principles of natural justice are inherent in every
society aspiring for a civilized living. It further observes that according to the third
paragraph of the Preamble of the Constitution, the fundamental aim of the state in a
society in which the rule of law, the fundamental human rights and freedom,
equality and justice, political, economic and social shall be secured.

Maxim:
For the present purposes, to the first maxim Nemo debetessejudex in propria causa,
the principles on which this maxim is based include the following:
(i) No man shall be a judge in his own cause;
(ii) Justice should not only be done but manifestly and undoubtedly be seen
to be done;
(iii) Judges should be above suspicion and, therefore, anything which lends or
may be regarded as tending to cause such a person to decide a case
otherwise than on evidence must be held to be biased. The word 'bias' has
come to mean prejudice, show of favor or disfavor, antagonism, spite,
hostility, prepossession that sways the mind.
Bias which will violate the principles of natural justice may be:
(a) pecuniary bias,
(b) personal bias, and
(c) official bias or bias as to the subject matter, etc.

Benefit of Applying Natural Justice:

Bangladesh is a democratic country and hence the foremost object of this welfare
state is to protect the rights and interests of its citizens. And without complying
with the principles of natural justice it cannot be done. The principle of natural
justice ensures fair justice and through the principles of natural justice the rights
and interests of the citizens can be ensured also.

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Natural justice can benefit the decision maker as well as the person or organization
whose rights or interests may be affected in the following ways:
(i) Assists the decision maker in reaching the correct and preferable
decision;
(ii) Provides the decision maker with relevant information, evidence or
interpretation of legislation or policy which he/she has not considered;
(iii) Provides a useful avenue for the decision maker to ensure that the facts or
information that he/she is relying on is correct.
Natural Justice in Separation of Judiciary:
Separation of judiciary from the executive, effective from 1st November, 2007, is a
positive step towards for fair trial in Bangladesh. Since the judicial body is no
longer under the executive, the executive body cannot trespass judiciary and a new
post is introduced by the name of judicial magistrate who are already working
under the judicial body. Fair trail of judiciary depends on some certain conditions
like mode of appointment of the judges, security of their tenure in the office and
adequate remuneration and privileges. The separation of judiciary ventilates all the
facilities as Masdar Hossain indicated in his case. But it does not absolutely
indicate that the judiciary is able to act without any pressure.

Recommendations:
From the above stated discussions the following recommendations can be drawn
for removing the judicial problems like unfairness or bias and to ensure the
principle of natural justice.
1. The appointment of judges (lower court to upper court) has to be neutral.
The present constitutional provision for the appointment of judges by the President
should be amended;
2. Remuneration of judges should be increased with other benefits, like; heir
of judges (son or daughter) has to be kept in the metropolitan area with a common
standard of dormitory for ensuring their proper and standard education by the
expense of government;
3. Residential arrangements should be proper and without any rent;

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 4. Professional activity of a judge should not be intervened with any internal
or external pressure, like unauthorized pressure from boss. It might hamper fair
justice;
5. Judges should be rewarded depending on their professional and other
performances;
6. They have to promote properly on the basis of seniority and experience;
otherwise they will be demotivated;
7. Appointment of judsges in the judicial field (lower to apex court) have to
be neutral / impartial, specially members of the judicial service commission have
to be selected impartially;
8. Lack of consciousness, lack of democratic culture, lack of popular access
to justice, lack of interaction with other court, lack of legal knowledge has to be
eradicated by sufficient training;
9. The higher educational institutions like public and private universities
have to be developed properly by adequate resources. Particularly legal education
has to be promoted;
10. A judge should apply his or her judicial mind and avoid any nepotism.
Conclusion:
Separation of judiciary was the main slogan in our society. It is considered to be
the custodian of formal judicial independence. Today, judicial body is separated
from the executive but still it does not ensure the fairness of judiciary at all. The
complete independence of judiciary is by no means possible without functional or
decisional independence, financial independence and independence of judges from
their judicial superiors and colleagues. Without independence of judiciary a judge
might be corrupt which eventually might result into havoc for the judiciary.
Only a proper judiciary can ensure human rights as well as fundamental rights as
granted by the constitution of the People’s Republic of Bangladesh. If the judicial
edifice weakens, the democratic system will not function, and the social fabric will
be broken down. So, at any cost, judicial bodies have to be kept far from bias;
otherwise, judiciary will not bring good and nutritional fruit for the suffering
masses seeking justice from a court of law.
References:

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 1. IP. Massey, the Administrative Law, 3rd Edition, 2005, 9.
2. Ck. Takwani, Lectures on Administrative Law, Lalbagh, Lucknow, Fourth
Edition, 2001, 223.
3. IP. Massey, the Administrative Law, 3rd Edition, 2005, 9.
4. Huchhanavar Shivaraj. Introduction to Natural Justice, 2018.
5. Dr SBM Marume, RR Jubenkanda, CW Namusi. International Journal of
Business and Management Invention. 2016; 5(1):22-24.
6. Ck Takwani, Lectures on Administrative Law, Lalbagh, Lucknow, Fourth
Edition, 2001, 223.
7. Ck Takwani, Lectures on Administrative Law, Lalbagh, Lucknow, Fourth
Edition, 2001, 224.
8. IP Massey, the Administrative Law, 3rd Edition, 2005, 9.
9. Ridge vs, Baldwin. 2 All England Report 66 (HL), 1963.
10. AK Kripak vs. Union of India All India Report 12 (SC), 1969.
11. Maneka Gandhi vs. Union of India AIR 9 (SC), 1956.

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