Rules Of Natural Justice Research Articles

애덤 스미스와 민주주의

The name of Adam Smith is inextricably linked with modern economics. The most fundamental goal of his academic life, however, was the study of the principles of law and government. He formally declared this goal, pursued it throughout his life, and wrote The Wealth of Nations as a partial fulfilment, contributing to his immortality as a thinker. Although Smith was not a scholar dedicated to the study of democracy, he did explore the principles of law and goverment, and his writings contain rich discussions of political decision-making issues from which we can infer his understanding of democracy. This paper reconstructs them through the lens of realising and limiting majoritarianism.
 While Smith's view was that majoritarianism should be at the centre of political decision-making, and he emphasised the role of elections as a means of realising majoritarianism, this does not mean that the path to majoritarianism is limited to elections. Rather, this paper argues that Smith saw the role of public opinion in influencing public deliberation as an important means of realising majoritarianism. In this regard, Smith identified the problem of class bias in public opinion based on socioeconomic conditions as a reason for the adoption of mercantilism, and recognized the role of the state in addressing this problem. Smith's discussion has significant relevance to the problem of the limited political role of the people in today's democracies, and the need for the active exercise of political liberty to prevent the implementation of unjust policies that violate liberty.
 At the same time, Smith also touched on the possibility of the limiting majoritarianism. Majoritarianism is typically realised through representative legislation, and Smith recognized the existence of a higher normative content that guided statutory law by regarding such parliamentary legislation as aiming to be consistent with the rules of natural justice that arise from the sympathy of human nature. Smith also emphasized the existence of the state's duty of equal treatment as a normative principle that guides legislation in the area of police. Essentially, Smith recognized that representative decision-making is constrained by more fundamental norms. On the other hand, by locating the source of this limitation in the moral principles or political will emanating from the members of the state as a whole, Smith is credited with showing that the limitation of representative decision-making and the ideology of majoritarianism may not be incompatible. By viewing a constitution based on popular sovereignty as a product of the will of the majority, being higher democratic law-making than ordinary legislation, Smith's position has a similar logical structure to the current debate that even if a constitution appears to limit representative legislation, it can ultimately be reconciled with the ideology of majoritarianism.

Managing the Rules of Natural Justice amongst Teachers in Melaka

Everyone should know the law. Irrespective of your background, the law presumes that you should know the law. This is incompatible with the maxim “Ignorance of Law is No Defence”. Despite this maxim, there seems to be a significant number of individuals who appear to be in the dark with some basic laws in this country. This writing discovers whether teachers in public schools in Melaka know of one basic law namely the rules of natural justice (RNJ) before any action is taken against them because of disciplinary issues, misconduct or breach of rules and others. This doctrinal writing is delivered based on library research collecting secondary data from academic text books, online journals and reported cases. Topping that up were the surveys collected online amongst 126 teachers from three districts in Melaka making this study also empirical in nature. The finding of this study was also gathered from cases brought to courts in relation to teachers and it indicates that there is still room for improvement for managing the RNJ application in decision making in schools. The outcome of this study provides guidelines for the State Education Department to strategize a mechanism to convey the rules to teachers in Melaka so that they will be aware of their rights and responsibilities. It also serves as a path for researchers to further discover the status for teachers in other states as well as identifying other aspects relating to this law.

Carving Natural Justice into the Constitution of India

There is no carving more deeply rooted in us than the carving of justice. It is generally assumed that nature is the source of justice which gets manifested in the law of human beings. Justice is conceived as natural law. It is understood as a moral instinct common to all men or as a divine dictate written on their hearts. It was thus a vague character and a great difficulty in its realization of the concrete rules of conduct. Disputes often arose as to the actual content of this natural law. Nevertheless, the recognition of the existence of such a law is not at all an area of dispute. Natural law is a powerful influence in maintaining the ideals of justice in the form of moral commandments of life. Natural law is a synonym of moral law. It refers to the principles of right or wrong. Natural justice is an ethical-legal concept that is based on the natural feeling of the human being. Rules of natural justice have developed with the growth of civilization. It is not the creation of the Constitution or mankind. It originated along with human history. To protect himself against the excess of organized power, man has always appealed to someone who is not been created by him and such someone could only be God and His laws, Divine law or Natural law, to which all temporal laws must and actions must conform. It is a great principle of humanization which informs law and procedures with fairness and impartiality.

Natural justice and the Court’s supervisory jurisdiction

Abstract The Court’s supervisory jurisdiction over the administration of trusts is a cornerstone of the law and well known to practitioners. However, although there are countless decided cases in which Courts around the common law world have made decisions and exercised powers that have their footing in the supervisory jurisdiction, and the topic is addressed in detail in Daniel Clarry’s excellent “The Supervisory Jurisdiction over Trust Administration”,1 there is surprisingly little consideration in the authorities of the juridical foundation of the jurisdiction and the ways in which the role of the Court differs from that played in ordinary adversarial litigation. One point that has not, until recently, been considered in the decided cases is the extent to which rules of natural justice apply when the Court exercises its supervisory jurisdiction and in particular whether a trustee has a right to be heard prior to being removed. The purpose of this article is to consider this issue and the Court of Appeal of Bermuda’s recent decision in St. John’s Trust Company (PVT) Ltd v Medlands (PTC) Ltd.2

Https://uet.edu.al/jus-justicia/articles/adr-and-domestic-courts-in-albania/

Practice has shown that the western democratic legal systems have developed several alternative dispute ways for resolving disagreements between the parties other that national courts. The article aims to explore and highlight the differences between peaceful means of conflict resolution and to provide a clear framework of the necessity of their promotion and further development. Depending on the different jurisdictions of the states, the opinion regarding the duties, rights and obligations of the parties in the process of ADR is different between each of this means and different regarding the domestic courts. In most legal systems the role of the conciliator, arbitrator or mediator it is simply to try to bring the parties together. For example, the proposed possibility of arbitration to withdraw the disputes from the jurisdiction of national courts is extremely beneficial to investment attractiveness. All this led to the exponential growth of bilateral and regional agreements for the protection and promotion of foreign investment, where one of the main provisions is the possibility of transmitting disputes between investors and the state of international arbitration. The sources of the law of ADR lie in a number of international conventions, international model laws and model rules, and institutional rules. To these may be added domestic legislation, reports of awards and academic writings. An arbitrator or mediator is described as ‘a disinterested person, to whose judgment and decision matters in dispute are referred and must act in accordance with the rules of natural justice. Mediation practitioners point to a number of advantages which the mediation process has over the domestic court. In fact, it must be acknowledged that ADR usually takes place when at least one of the parties is unreasonable. Helping the parties to see the reason is a useful social role. The difference between this methods of resolving disputes would be so that the purpose of a conciliator, mediator or arbiter, would be to encourage the parties themselves to understand what benefits they can get from resolving the case out of court in which way they deem most appropriate. Historical scientific methods are used in this research. The theory part it is presented with concrete cases from practice of both judicial and non-judicial ways of resolving conflicts, logical system, method of analysis and synthesis. In this paper as well are used formal-legal and comparative-legal methods. The writing is guided by the provisions of the conceptual theory of international arbitration law and domestic law. Research methods were used, of simple presentation of facts to argue the concrete point of view and the characteristics of the clarification of this research.

An Arbitral Tribunal’s Dilemma: The Plea of Financially Impecunious Parties

An arbitral tribunal faces a unique dilemma when a party to an arbitration agreement asserts that it is financially impecunious. While the principle of pacta sunt servanda justifies binding parties to arbitrate regardless of their financial situation, this is challenged by practical access to justice concerns resulting from impecuniosity. A party’s impecuniosity may result in serious consequences such as the inability to vindicate its rights or effectively present its defence in the arbitration. It is questionable whether an arbitration agreement can still be fairly performed in those situations. While there have been conflicting national jurisprudence regarding the impact of impecuniosity on the validity of an arbitration agreement, there is a lacuna in arbitral jurisprudence on this point. This article seeks to fill that lacuna by suggesting a principled approach that arbitral tribunals and institutions should follow in the face of such pleas. While impecuniosity should not render an arbitration agreement automatically ‘incapable of being performed’, an exception should be recognized when the impecuniosity results in a breach of the rules of natural justice. However, the party asserting impecuniosity must prove its impecuniosity on a high threshold and show that it has alternative recourse to national courts. Financial impecuniosity, Invalidity of arbitration agreements, Incapable of being performed, Effective defence, Unable to present its case, Access to Justice, Natural Justice, Pacta Sunt Servanda, Inseparability of counterclaim, Separate Advances on Costs

Property Rights of Women Married under Customary Law: Review of Arajulu v. Monday

Under customary law, women are regarded as subordinates to husbands and are deprived of equal rights to the matrimonial property where a dissolution marriage occurs. This practice of denying women equal property rights is repugnant to the principles of natural justice. This article adopts the desktop research to examine the decision in Arajulu v. Monday where ownership of property acquired during the subsistence of a customary law marriage was determined. It examines if adequate monetary consideration is sufficient alone to determine the legal ownership of property acquired during the subsistence of marriage. It found that in determining ownership rights under customary law marriage, strict rules of ownership or proofed title should not be adopted. This case addressed for the first time owner of the property for women married under customary law. It concludes by advocating that courts rely on the rules of natural justice when determining ownership of matrimonial property. Keywords: Customary law; Property; Rights; Married women; Marriage

University students' right to fair trial: how adequate is legal protection

The right to fair trial of a student who is standing trial before disciplinary committee either for disciplinary or for academic violation is born out of his academic freedom, which stipulates that he may not lose his enrolment as a student except he has been tried before a panel. The laudable comprehensive provisions of international and regional instruments, as captured in the constitution of a state are not so replicated in the rules and regulations of most universities. On account of this, universities are able to treat compliance with the rules of natural justice as optional rather than obligatory. The law courts are supposed to be the last hope of the students; most of the students however, do not have access to the courts. For those who have access, the courts are most times not helpful. They are enmeshed in the volume of cases before them, leading to delay in justice dispensation and eventually, denial of fair trial rights.

EMPLOYEES’ PRE-DISMISSAL RIGHT TO BE HEARD: THE MALAYSIAN AND THE ISLAMIC PERSPECTIVE

It seemed to be a settled principle of law that before an employee can be dismissed from his job for misconduct, he must have a notice of the allegation against him and accorded a reasonable opportunity of being heard. However, this principle should be revisited in the light of two conflicting Federal Court’s decisions pertaining to the mandatory issue of this right especially in the private sector employment in Malaysia. The curable principle as enunciated by Dreamland Corporation (M) Sdn. Bhd. v Choong Chin Sooi & Anor [1988] 1 MLJ 111 has watered down the right of the employee to be heard as it was held in that case that the irregularity in holding a domestic enquiry is not fatal to the employer. He may justify the dismissal at the Industrial Court. Despite the existence of this principle, it should be emphasised that the right to a pre-dismissal hearing should be interpreted to be mandatory and not discretionary as there are two statutory provisions and constitutionally recognised rules of natural justice which may support this proposition. The mandatory effect of the domestic enquiry should be consistently upheld. With a view to enhance the employee’s right and to ensure harmonious employer-employee relationship, it would be the purpose of this article to comparatively examine and learn how the same right is treated and regulated under the Islamic principle of justice and its application in two Islamic countries, namely Kingdom of Saudi Arabia and the UAE. Apart from narrowing down the gap in the Islamic knowledge on the administration of justice in dismissal cases, this article may also contribute in idea on how to harmonise the current employment laws and the Sharia.

JUDICIAL REVIEW OF DECISIONS OF DISCIPLINARY TRIBUNALS OF VOLUNTARY ASSOCIATION: THE POST-1994 INTERPRETATION

The relationship between a voluntary association and its members is founded on a contract. The constitution of the association regulates the acquisition and termination of the membership of the association. The courts have always had the jurisdiction to hear disputes between members of the association, and they can also interfere with its decision if it has acted ultra vires, or in an instance where its decision was vitiated by bias. After the dawn of the new constitutional democracy, the Constitution became the supreme law of the Republic, and it enshrined the transformative clauses. Thus, the process of transforming the adjudication of disputes in the private sector has to be aligned with the values embedded in the Constitution. This article explains the review of the decisions of a disciplinary tribunal prior to and after the 1994 constitutional dispensation. This it does by discussing the effect of transformative constitutionalism on the review of disputes in the private sector. The relevant transformative clauses in the Constitution are discussed. More particularly, the article concentrates on the effect of the just administrative clause in the Constitution and the Promotion of Just Administrative Act (PAJA) in transforming the rules of natural justice. Furthermore, instances where the PAJA is applicable with regard to the decision of a tribunal of voluntary association, are explained. Finally, a conclusion is drawn on the post-1994 courts’ reviews of decisions of disciplinary tribunals of voluntary associations.

Challenging awards before national courts for a denial of natural justice: lessons from Australia

International arbitral awards can be set aside or not enforced under Australian federal law where a breach of the rules of natural justice (or procedural due process) occurs in connection with the making of that award. At state levels, Australian awards can be set aside or not enforced following misconduct by an arbitrator or where an arbitrator misconducts proceedings, which includes where the rules of natural justice have been breached. This article considers how these legislative provisions have been judicially construed. It concludes that a breach of the rules of natural justice is a very limited ground for setting aside or refusing to enforce an international or local arbitral award. Drawing on orthodox public law principles, Australian courts have formulated useful tests for applying several of these rules. Successful applicants have to clearly demonstrate real unfairness or practical injustice. Asserted breaches of natural justice cannot be used to revisit the merits of a dispute. Although the parties have the right to establish the arbitral procedure, fundamental notions of equality and fairness must also be observed. Australian jurisprudence offers valuable lessons to international tribunals and national courts in circumstances where international arbitral awards are increasingly being challenged for an alleged denial of natural justice.

Statutory Exclusion of Natural Justice: Possibility and Improbability

Despite the finding in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 ('Aala') that a breach of the rules of natural justice is a form of jurisdictional error, it is not uncommon for it to be excluded by statute. In the first section of this paper I look at how such exclusion fits into the scheme of jurisdictional error, identifying grounds which can and cannot be excluded from judicial review. In the second section I turn to statutory interpretation, using the judgment of Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 ('Miah') to analyze judicial interpretation of statutes according to the principle of legality, Dworkin’s model of the 'best' interpretation and Gadamer’s hermeneutics. On any of these accounts, exclusion can be achieved by Parliament expressly stating that natural justice is excluded, but absent these precise words, the requisite level of clarity is unclear and the courts avoid such a finding. I therefore argue that the statutory exclusion of natural justice as a ground of jurisdictional error is possible, but on courts’ current approach, improbable.

Immigration detention in Northern Ireland

Abstract Equality before the law is a fundamental legal principle. In the context of globalisation, it becomes even more so: in a world of moving people, individuals who are not citizens of the state in which they find themselves – women trafficked in the sex trade, for example – may otherwise fall into a legal black hole. Yet, when it comes to those seeking asylum in the UK, a system of shadow law has developed in recent years, to which normal rules of natural justice do not apply.

Medical student fitness to practise hearings: ensuring procedural fairness

Medical schools are responsible for determining the fitness to practise of individual medical students. The General Medical Council (GMC) does not have any direct authority to deal with or advise on individual cases of undergraduate student fitness to practise or disciplinary issues. Each medical school or its associated university must have its own procedures to consider the fitness to practise of medical students, and this has resulted in local variations. Medical student fitness to practise hearings are managed by universities rather than by teams of lawyers, but whoever is involved and whatever the precise procedures, those involved must make sure that students are dealt with fairly. This article sets out the governing principles to ensure fairness, namely Article 6 of the European Convention on Human Rights and the rules of natural justice.

Can a Good Mediator also be a Good Arbitrator?: Reflections on the role of Mediators and Arbitrators

This Article considers whether a good mediator can also be a good arbitrator. It provides examples of domestic legislation which allow mediators to serve as arbitrators, even in the same dispute. The requirements of natural justice, which are integral to the arbitration process, are largely ineffective in mediation proceedings. It is argued that, because of the ineffectiveness of the application of the rules of natural justice in mediation proceedings, the roles of mediators and arbitrators are distinct and incompatible.

Rules of Natural Justice as Applied in Sports

Rules of Natural Justice as Applied in Sports

The Use of Official Notice in a Refugee Determination Process

Official notice allows members of administrative tribunals to take into account on their own motion a large scope of information in the decisionmaking process. With this rule of evidence, it is possible to reach a double objective of fairness and expeditiousness. In this article, the author examines the rule of evidence. She also studies the practice of the Convention Refugee Determination Division of taking official notice of « standardized country files ». These files compile information on conditions prevailing in refugee-producing countries. This study is important because the content of these files can be used to determine whether each of the 20 000 and more claimants for refugee status in Canada has a well-founded fear of persecution. The author concludes that standardized country files can be officially noticed as long as the Convention Refugee Determination Division discloses the information in conformity with the rules of natural justice.

Breaching the Right to Social Security

Under Australia’s current social security breach penalty regime, harsh monetary penalties are imposed on income support recipients who commit (often very minor) breaches of their mutual obligation requirements. The current regime offends a number of provisions of international human rights law, including the rights to social security, an adequate standard of living, free choice of employment and rest and leisure. In addition, the regime contravenes certain provisions in the Social Security Act 1991 (Cth) and offends established rules of natural justice required under administrative law. Further, the penalty regime breaches a number of established principles of common law, including freedom of contract, the presumption of innocence and the principle that the best interests of the child should be considered paramount in decisions affecting children. The recently passed AWT Act 2003 (Cth) will go some way towards rectifying some of these contraventions; however, further reforms will be required before it can be said that the government’s breach penalty regime does not amount to a breach of the law.

The appointed surveyor as arbitrator

This paper considers the legal status of a surveyor appointed under section 10 of the Party Wall etc. Act 1996. By reference to that Act as well as to the Arbitration Act 1996, the European Convention and to rules of natural justice it argues that the section 10 procedure is a statutory arbitration. It therefore argues that the appointed surveyor is an arbitrator who must be independent, act impartially, and be immune from suit. It also suggests that surveyors’ awards can be adopted as judgments by the courts and that they can only be appealed against provided the strict appeals criteria of the Arbitration Act are met.

Die kerkregtelike toepassing van die reëls van 'natuurlike geregtigheid’ op grond van die Skrif

Church polity is not the exercising of justice apart from justice in general, but merely the application of justice in another sphere using other procedures. Therefore the principles of fundamental justice, which underlie by far most legal systems, also apply to church polity. The principles of fundamental justice, which are unfolded in the rules of natural justice, are also found in Scripture. These principles include the following aspects: the right to be heard; the meeting of legitimate expectations; the provision of the reasons for the judgements; and the fact that no one may judge his own case.