|
The right to be heard depends
on the circumstances of each case
08/01/2008 The Star Articles of
Law By Bhag Singh
THE right to be heard is a principle of natural justice. If action is to be
taken against a person and he will face punishment or be deprived of his
rights, then he must be given an opportunity to defend himself.
Justice must not only be done but it must be seen to be done. As such, a
person who is presiding over a tribunal that hears a complaint must not have
an interest in the outcome or be biased. The rule on bias is interpreted
very liberally so that if it can be shown that there is likely to be bias,
this rule will be considered to be breached. One does not have to show
actual bias.
An opportunity to be heard would mean being informed before a response is
required to be given to the specific allegations, and charges are made
against the person.
In some cases, knowing what the allegations are may not be sufficient. The
person against whom action is to be taken may want to know who made the
allegations. To exercise the right to question the complainant effectively,
professional assistance may be required. The person in such a situation may
want to be represented by lawyer.
In an ordinary court of law, all evidence and witnesses must be made
available to give evidence and to be cross-examined by the person against
whom the allegations are made. Such cross-examination may not only be aimed
at getting answers to specific questions, but also to test the witness’s
credibility.
The common law courts provide an example of a scenario where the principle
of a right to be heard operates at its most liberal level. Of course, there
may be restrictions on disclosure of evidence or identification of
witnesses, but these are exceptions rather than the rule.
Otherwise the extent to which this principle can be relied upon depends on
the situation and the law that applies in the context of stated facts. In
such situations there may, on one hand, be restrictions against disclosure
and on the other hand, a measure of discretion vested in the tribunal
involved.
Where, for example, a person is detained under the Internal Security Act
1960 and the detention order is challenged in accordance with the rules
under the Act, legal representation may be allowed but disclosure of
evidence and witnesses may be restricted on grounds of national security or
public interest.
On the other hand, the right to be heard may be viewed in a different light
where the scenario involves a voluntary organisation such as a society under
the Societies Act 1966, and where the members have come together to promote
their interests.
In situations where action is proposed against a member, it is likely that
confidential aspects and sources of the information will not be an issue.
However, a question that often arises in such a situation is whether a
person is entitled to be represented by an advocate and solicitor.
For those involved in voluntary bodies, what is the approach to be taken
when a person faces a disciplinary committee or a committee is set up to
look into a complaint against him, and such person wants to be represented
by an advocate and solicitor?
The answer will depend on what the constitution or rules of the organisation
say, with regard to such legal representation. If the constitution or rules
provide for such representation, then it must be allowed. Failure to do so
could affect the validity of the proceedings.
However, if the constitution or rules are silent, then it is up to the
management committee to decide whether to allow the representation by an
advocate and solicitor.
If the committee decides not to allow legal representation in such a
situation, it would not be doing anything wrong. However, I feel that such a
committee should exercise discretion to allow a person to be legally
represented and to present his arguments.
Even though this is not a legal right, his being allowed to be represented
by counsel will show everyone that he has been allowed every avenue to
defend himself. Apart from that, this could provide the committee with a
more extensive consideration of the issues involved.
A third situation is where an employee is dismissed without being given a
reason and the employee goes to the Industrial Court, seeking to be
reinstated. It is often argued that if a domestic inquiry was not held
before such a person was dismissed, the dismissal should be declared null
and void.
However, this is an approach that has not been well received in recent
years. The courts have taken the view that even though the domestic inquiry
was not held before the dismissal, the employee still has the opportunity to
present his case in the Industrial Court where the full merits can be
considered. |
