TOPIC III NOTES

This topic covers a discussion on the principles of a fair hearing and bias

AUDI ALTERAM PARTEM

AND 

NEMO DEBET ESSE JUDEX IN PROPRIA CAUSA’

Content

 Introduction
 Objectives
 Body
 Summary

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1.1 Introduction

Topic I under this Module(Module I) has taken us on the introductory part of the subject and has
introduced us to the meaning of natural justice while tracing its historical origin in the development
of law as we know it today. This topic shall now make a through discussion n the first principle
of audi alteram parte.

1.2 Objectives

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At the end of this topic you should be able to :

 Familiarize with the concept of parliamentary supremacy as differentiated from

parliamentary sovereign
  Establish the application of the two principles under the administrative machinery
  Identify the practical limitations impeding the legislature to legislate on any subject

1.3 Body

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A. Right to a fair hearing: audi alteram partem

A fundamental aspect of natural justice is that before a decision is made, all parties should be heard
on the matter. It has been suggested that the rule requiring a fair hearing is broad enough to include
the rule against bias since a fair hearing must be an unbiased hearing. However, the rules are often
treated separately. It is fundamental to fair procedure that both sides should be heard[Wade &
Forsyth(2004), “Administrative Law”, 9 th Edition at p. 402]. The right to a fair hearing requires that
individuals are not penalized by decisions affecting their rights or legitimate expectations unless they
have been given prior notice of the cases against them, a fair opportunity to answer them, and the
opportunity to present their own cases.[ 17  Thio Liann (1999), "Law and the Administrative State", in
Kevin Yew Lee Tan, The Singapore Legal System , 2 nd Edition at pp. 160–229 at 192–193]. Besides
promoting an individual's liberties, the right to a fair hearing has also been used by courts as a base
on which to build up fair administrative procedures

By definition, in simple terms, audi alteram paterm simply means ‘hear both sides’ and; ‘no man
shall be condemned unheard’ or ‘both sides must be heard before passing any order’. In practice, the
rule is an amplification of the expression stating that “justice should not only be done but must be
seen to be done”. 

That being the case, the rule has three elements which can be considered in justifying the
practicability of the same. These are;

  Notice

Natural justice allows a person to claim the right to adequate notification of the date, time, and place
of the hearing as well as detailed notification of the case to be met. [17 Wade & Forsyth, p.
405]. This information allows the person adequate time to effectively prepare his or her own case and
to answer the case against him or her. It has been suggested that the requirement of prior notice
serves three important purposes:

(i) The interest in good outcomes – giving prior notice increases the value of the proceedings as it is
only when the interested person knows the issues and the relevant information that he or she can
make a useful contribution.

(ii)   The duty of respect – the affected person has the right to know what is at stake, and it is not
enough to simply inform him or her that there will be a hearing.

(iii)  The rule of law – notice of issues and disclosure of information opens up the operations of the
public authority to public scrutiny

Thus, before any action is taken, the affected person must be given a notice calling him to show
cause against the alleged matter or proposed action or decision. This is the sine qua non of the right
to fair hearing. 

See: R v University of Cambridge [1723]1 Str. 757; in this case Dr. Bentley was deprived of his
degree by the Cambridge University on an account of alleged misconduct without giving him any
notice or opportunity of hearing. The court of King’s Bench declared the decision a null. According
to Fortescue, J

 “the first hearing of in human was given in the Garden of Eden...”

 His Lordiship further observed:

 “... [E] ven God himself did not pass sentence upon Adam, before he was called upon to make his
defense..”

 Legal representation/ Right of counsel

There is no inherent common law right to legal representation before a domestic tribunal. The right
of representation by a legal counselor is not in itself part of natural justice and it cannot be claimed as
of right unless expressly stated by a statute. However, the right to appear through a counselor is
recognized in administrative law; a tribunal, therefore, has the discretion to admit either a legally
qualified or unqualified counsel to assist the person appearing before it, based on the facts of the
case.[Kok Seng Chong v. Bukit Turf Club [1992] 3 S.L.R. (R.) 772, H.C. (Singapore)].  When
assessing whether a party should be offered legal assistance, the adjudicator should first ask whether
the right to be heard applies, and, secondly, whether counsel's assistance is needed for an effective
hearing given the subject matter, bearing in mind the consequences of such a denial.

In R. v. Secretary of State for Home Department (Ex-parte)[[1985] 1 Q.B. 251] Webster J. set out
six factors to be considered when deciding whether to allow representation by counsel, namely: 

(i)  the seriousness of the charge and the potential penalty; 

(ii)  whether any points of law are likely to arise; 

(iii)  whether the prisoner is capable of presenting his own case; 

(iv)whether they are any procedural difficulties faced by prisoners in conducting their own defense;

(v)   whether there is reasonable speed in making the adjudication; and 

(vi)   whether there is a need for fairness between prisoners or between prisoners and prison officers.

It has also been suggested that where a tribunal hearing concerns the individual's reputation or right
to livelihood, there is a greater need for allowing legal representation as this vindicates the idea of
equality before the law.[Doresamy v. Public Services Commission [1971] 2 M; High
Court (Malaysia)]

When one refuses legal representation, one cannot expect to receive a higher "standard" of natural
justice. This was enunciated in Singapore in Ho Paul v.Singapore Medical Council[2008] 2 S.L.R.
(R.) 780, H.C. (Singapore)]. In this case Dr. Ho, who had been charged with professional
misconduct, chose to appear before the Council in person and declined to cross-examine the
Council's key witness. Subsequently, he argued that he should have been warned of the legal
implications of not being legally represented. The High Court rejected this argument and held he had
suffered no prejudice. Dr. Ho had been given a fair opportunity of presenting his own case and, most
importantly, had not been deprived of his right to cross-examine the witnesses.

 Fair Hearing
Every person has the right to have a hearing and be allowed to present his or her own case. Should a
person not attend the hearing, even with adequate notice given, the adjudicator has the discretion to
decide if the hearing should proceed. In

Ridge v. Baldwin (supra), a chief constable succeeded in having his dismissal from service declared
void as he had not been given the opportunity to make a defense. So, a party must be given an
opportunity of hearing where he can defend before any adverse action is taken against him. This
takes with it also the right for a part to know the reasons for the decision reached (nullum arbitrium
sine rationbus). With this, reasons for the decision must also be given.

B. Nemo debet esse judex in propria causa/ Nemo judex in causa sua

A person is barred from deciding any case in which he or she may be, or may fairly be suspected to
be, biased. This principle embodies the basic concept of impartiality(23 Surinder Singh Kanda v.
Government of the Federation of Malaya [1962] UKPC 2, [1962] A.C. 322 at 337), and applies to
courts of law, tribunals, arbitrators and all those having the duty to act judicially. A public authority
has a duty to act judicially whenever it makes decisions that affect people's rights or interests, and not
only when it applies some judicial-type procedure in arriving at decisions.

The basis on which impartiality operates is the need to maintain public confidence in the legal
system. The erosion of public confidence undermines the nobility of the legal system, and leads to
ensuing chaos.(Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board [2005] 4
S.L.R[Singapore Law Reports (Reissue)] 604)

The essence of the need for impartiality was observed by Lord Denning, the Master of the Rolls,
in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon.[1969] 1 Q.B. 577] "Justice must be rooted
in confidence and confidence is destroyed when right-minded people go away thinking: 'The judge
was biased.'"

  Meaning

This is a Latin maxim which expressly states that no man can be a judge in his own course. The
very case of Thomas Bonham v College ofPhysicians[1610] 8 Co. Rep .113] best explains
this principle

 In this case, a doctor of physics (Bonham) at Cambridge University was fined and imprisoned by the
College of Physicians for practicing in the City of London without licence issued by the said College
of Physicians. The statute under which the College acted provided that:

“a fine should go half to the King and half to the College.”

Held:

“…as the College has financial interests in its own judgement, it is improper for the College to
determine the matter as doing so amounted to the College to be a judge in its own course (Justice
Coke)
Generally the principle requires a judge to be impartial and neutral and must be free from
bias. Bias means an operative prejudice, whether conscious or unconscious in relation to a party or
issue.

 Types of Bias

 1. Pecuniary bias

The least pecuniary interest in the subject-matter of the litigation will disqualify any person from
acting as an adjudicator9it be in an ordinary court or an administrative tribunal). In Thomas
Bonham v College of Physicians([1610] 8 Co. Rep .113), Dr. Bonham, a doctor of Cambridge
University was fined by the college of physicians for practicing in the city of London without the
license of the College. The statute, under which the College acted upon, provided that  “a fine should
go half to the King and half to the college”. The claim was disallowed by Coke, C.J as the College
had a financial interest in its own judgment and was a judge in its own cause.

 2. Personal bias

This refers to the way the adjudicator (either in an ordinary court or an administrative tribunal) is
related to one of the parties in dispute and the way such relationship might influence decision making
of the particular adjudicator. Such relationship need not be positive only but even
a negative relationship (enemity) between a judge and one of the parties may disqualify a judge from
the proceedings

3. Bias as to subject-matter

This arises where a judge has an interest in the subject matter. Only rarely will this bias invalidate
proceedings as it is with for the case of personal bias because there must be some direct connection
of the said bias with the litigation. Hence, a mere general interest in the general object to be
persuaded would not disqualify a judge from deciding the case.

  Test for bias (real likelihood of bias)

It is easy to ascertain and even prove the existence of pecuniary bias. Here the rule is simple, that,
pecuniary interest, however small it may be, disqualifies a person from acting as a judge.  However,
difficulties arise where the matter in dispute is an allegation as to personal bias or bias as to the
subject-matter. Thus, In order to determine as to whether there is personal bias or bias as to the
subject-matter, the test to be applied is that of real-likelihood i.e whether there is real likelihood of
bias. In R. v. Gough (1993) AC 646 the House of Lords chose to state the test in terms of a "real
danger of bias", and emphasized that the test was concerned with the possibility, not probability, of
bias. Lord Goff further stated in that case that: 

“…the court should look at the matter through the eyes of a reasonable man, because the court in
cases such as these personifies the reasonable man"

In Porter v Magill[2002] 2 AC 357 the Court adjusted the Gough test by stating it to be

"whether the fair-minded and informed observer, having considered the facts, would conclude
that there was a real possibility that the tribunal was biased". This case therefore established the
current test in the UK to be one of a "real possibility of bias".

 Exceptions to the rule against bias

 1. Necessity

There are cases in which a disqualified adjudicator cannot be replaced, as no one else is authorized 
to  act.  It has  been observed  that "disqualification of  an adjudicator will not be permitted to
destroy the only tribunal with power to act". In such cases, natural justice has to give way to
necessity in order to maintain the integrity of judicial and administrative systems.

 2. Waiver

The court normally requests that an objection be taken as soon as the prejudiced party has knowledge
of the bias. If an objection is not raised and proceedings are allowed to continue without disapproval,
it will be held that the party has waived his right to do so.

1.4 Summary

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The concept of nemo judex in causa sua should not, in as far as administrative law is concerned, be
applied the same way it applies under constitutional law. In our context, the concept is used more
when dealing with administrative tribunals or Commissions.

Last modified: Friday, 20 January 2017, 3:00 PM