WEB DESK: Procedural fairness and conforming to rules of natural justice are the two important elements of judicial review of administrative actions. Cognisance of the said issues has been taken by the courts.1 The jurisprudence in this regard stands settled and courts now struck down administrative actions where procedural fairness is absent.
That is why fairness and impartiality have become important considerations for the decision makers. These are in fact the basic norms to decide issues in a judicious and independent manner.
Recently, a senior public manager responsible for determining fair values of imported goods observed that one of his considerations for deciding valuation issues was to consider protection to the domestic industry. He elaborated that he follows this policy in his decision making process by disregarding the legal provision on the subject.
Unfortunately, however, the said manager did fail to comply with the existing regulations governing the determination of fair values.2 As per law, he could either accept a declared transaction value [being sacrosanct] or could reject it where he had reasons to believe that the declared value was untrue or false. Where he rejects the value, fair value is to be determined either on the basis of market investigations or by comparing the values of similar goods or on the basis of prevailing past values of similar or identical goods imported during proceeding 90 days.
The regulations in this regard provide to conduct a factual inquiry3 and the considerations like injury if any to the domestic industry is not a relevant factor under the law. And where one determines import values arbitrarily or beyond the considerations provided in the law, the act of doing so constitutes non-tariff barrier to the trade under the WTO law.4 Such considerations do fall within the domain of ‘Bias’, and ‘Prejudice’, and both these factors constitute a very strong ground for a judicial review.
A person who under the law determines rights and obligations of citizens is not expected to use ‘Bias’ against a citizen. Impartiality and fairness are important considerations for judicious decision making. In this background, this write-up seeks to define and determine impartiality and fairness as being the fair tools for decision making.5 The purpose of this write-up is also to enlighten the readers about the faulty approaches which many public authorities take to their decision-making processes.
Impartiality A duty stands casted upon the decision makers [being the creation of law] to implement the public policies within the fore corners of law, and by following the general principles of fairness and impartiality.
In order to comprehend importance of these aspects of decision making, we begin by defining and analysing the terms like impartiality and fairness. Impartiality demands a fair trial by an independent decision maker which means that the decision maker must be not partial, not favouring one party more than another, non-prejudiced, disinterested, equitable, and just, and that the merits of the case are not be prejudged.
Impartial is a decision maker who works in an impartial frame of mind right from the very beginning of the trial, and he is influenced only by legal and relevant evidence available on record, and bases its verdict upon evidence connecting the accused with the commission of offence.6
Fairness Fairness demands honesty, one being free from prejudice, favouritism and self interest. Impartiality demands treating all alike, unbiased fair and just. By ‘fairly’, we mean administrative powers are to be exercised by following the principles of natural justice.7 Natural justice is nothing else but fairness judicially done. That is why administrative powers which affect citizens’ rights are to be exercised in accordance with the principles of natural justice. Lord Diplock in this regard observed:8
“Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decisions.”
General aspects of fairness
1. A decision maker must act fairly, just in the same way as anyone else and his actions are just.9
2. It is expected from the public authorities that they themselves extend the benefit of natural justice.10
3. In the application of the concept of fair play there must be real flexibility.11
4. There is no such thing as a merely technical infringement of natural justice.12
5. It may be observed that in order to preserve flexibility, the courts frequently quote and follow general statements.13
6. The requirements of natural justice are dependent on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth.
7. The well attested flexibility of natural justice does not mean that the court apply different standards at will, rather the application of the principles is based on objective criteria subject to known exceptions, and the factors like standards and consideration remain constant, obviously they vary with the situations in which they are invoked.14
8. The decision makers are required to apply standard principles even in different situations.
9. The classic situations in which the principles of natural justice become applicable include situations where some legal rights, liberty or interest is affected, for instance, where a building is demolished or an office-holder is dismissed or a trader’s license is revoked. But good administrations always follow and apply standard principles in different situations, where the citizens may legitimately expect to be treated fairly. A doctrine of legitimate expectation15 has been developed, both in the context of reasonableness, and application of standard practices.
Bias Where a decision maker has preconceived opinion and a predisposition to decide a cause or an issue in a certain way, or where one does not leave the mind perfectly open to conviction, and one’s inclination clearly appears bending towards one side, it all shows an attitude of bias. The presence of bias thus leaves a reasonable person in doubt as to the impartiality of the decision making process. In these circumstances courts have quashed such decisions where it is obvious that a decision maker stood tainted by bias.16
Bias occurs where a case is prejudged. What constitutes a bias consider the following situations:
(a) Lack of impartiality; (b) Pre-judgement; (c) Hostility; (d) Pecuniary interest; and (e) Discrimination.
Rule against bias
1. There is a clear relationship between the objective test of bias and the home grown principle that justice must be seen to be done. Indeed, the importance of the appearance of impartiality has often been stressed by the courts by stating that all alike cases be decided on settled standards in an impartial and fair manner and the treatment extended must inspire the society as a whole.17
2. Any indication by an adjudicator showing a pre-judgement of the case, or an indication that he might do so, will automatically disqualify him as being an arbitrator. For example, a magistrate preparing a statement of the sentence half-way through the trial.18
3. Where a decision maker joined in a decision making process of refusing a license, and he being belonging to a strict temperance sect, and who admitted afterwards that he would have been a traitor to his position if he had voted in favour; this clearly indicates bias from the outset.19
4. Among other obvious cases of prejudice, factors like personal friendship or hostility20 including the family or commercial relationship stand included. A decision maker stands disqualified from his duties where he was a friend of the mother of one of the parties and that party had let it known that the justice would be on their side.21
Effects of prejudice
1. Where an administrative act or decision is subject to a judicial review, as opposed to appeal, the court can intervene simply on the ground of action being ultra vires.22
2. Where an action is void and a nullity in the eyes of law, the same is to be struck down.
Conclusion The above review of the potential impact of impartiality and fairness has revealed that questions relating to impartiality and fairness are very relevant factors for judicial review of the administrative actions. There are several factors which may lead to the absence of impartiality and fairness, for example discrimination which leads to ‘Bias’ and ‘Prejudice’, thereby making the decision of public authority more vulnerable before the courts of law.
The raised questions reveal that the judicial review on the grounds of impartiality and fairness will though vary according to the facts and circumstances of the case, yet the substantive areas within which the process of decision making is conducted remains important from the perspective of judicial review.
(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates Karachi)
1. See Naukunda Ali v. Jayaratue,  A.C. 66 [HI]; Ridge v. Baldwin,  A.C. [H.I].
2. See Section 25 of the Custom Act, 1969.
3. See Sub-Section (5) and (6) of Section 25 Id.
4. A prohibited practice under WTO 1994.
5. It is noteworthy that where administrative decisions violate the rules of natural justice, it is difficult to defend such actions in the courts of law, see Farid Sans Case 1961 S.C.
6. Houston v. Satte, Tenn., 593 S.W. 2d 267
7. Which after all is only fair play in action
8. R v. Commissioner for Racial Equality exp. Helling don LBC  AC 779.
9. These actions obviously are subject to control by the courts Buckoke v. Greater London Council  Ch. 655 (Lord Denning MR).
10. Basically the principle is confined by no frontiers.
11. Re Pergamon Press Ltd  Ch. 388 at 403 (Sachs LJ).
12. George v. Secretary of the State for the Environment (1979) 77 LGR 689.
13. Russell v. Duke of Norfolk  1 All ER 109 at 118 (Tucker LJ).
14. R. v. Home Secretary ex p. Moon (1996) 8 Admin LR 477 at 480.
15. For discussion, with European comparisons, see  CLJ 238 (Forsyth). See also Jowell and Oliver (eds.), New Directions in Judicial Review, 37 (P.Elias); (1992) 108 LQR 79 (P. P Craig). For criticism of the doctrine by the High Court of Australia see Annetts v. McCann (1991) 97 ALR 177.
16. R.V. Governor of John Basco School  C.O.D 414
17. Fey v. Austria A 255-a Para. 30 (1993).
18. R. v. Romsey Justices ex p. Gale, The Times, 24 January 1992.
19. R. v. Halifax Justice ex p. Robinson (1912) 76 JP 233; cf. Goodall v. Bilsland 1909 SC 1152. In M’Geehen v. Knox 1913 SC 688 the facts were nearly as strong, yet the order stood.
20. As in R. v. Handley (1921) 61 DLR 656; CF. White v. Kuzych  AC 585. The statement to the contrary in Maclean v. Workers’ Union  Ch. 602 goes too far.
21. Cottle v. Cottle  2 All ER 535
22. Formerly there was the ground of error on the face of the record: above, p. 274. See also the general discussion: above, p. 35.
Source: Business Recorder