ON NOVEMBER 29, 2015, the esteemed political commentator Mr Albert Brandford wrote a column that was headlined No Natural Justice In Politics, in which he sought to caricature our politics as a hellish, dystopian quagmire. However, this view is mightily flawed for a number of reasons.
Our politics is housed within the architecture of Westminster. Within this system there are systems of checks and balances.
To be sure, if Mr Brandford was strictly speaking to what takes place on a political platform or during a campaign, he would be correct, but it is when he treaded into the territory of legalism that he fell into error.
Natural law is known as the unwritten law (jus non scriptum) or the law of reason. It is the great humanising principle intended to invest law with fairness and to prevent miscarriage of justice.
Contrary to what some political commentators would have you believe, natural law has its genesis in natural law theory. It is an inherent right in man. Not a technical rule.
Viscount Haldane observed that “. . . those whose duty it is to decide must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties an opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice”.
Thus when the National Council of the Barbados Labour Party, in the exercise of a quasi-judicial administrative act, afforded Dr Maria Agard the opportunity to show cause why she should not be disciplined, the matter became a legal one and the decision-makers were mandated to adhere to natural justice. This is because their act would have affected the rights, liberties and privileges of Dr Agard.
Indeed, the holding of a “trial” proves to be antithetical to Mr Brandford’s argument since informing the “accused” of her charge and then affording her a hearing would be a first step to adhering to the tenets of natural justice. The other important tenet to this concept is the rule against bias. The decision-maker in the “trial” should be free of personal bias.
For Mr Brandford’s thesis to be correct therefore, it would mean that the “trial” held for Dr Agard was a farce and her expulsion was a fait accompli. In other words, the decision had been made before the “prosecution” opened its case.
Mr Brandford further suggested that “the Constitution does not mention any duty to act fairly as it relates to the removal of an opposition leader, or for that matter a prime minister”.
Really? The basic convention of the Westminster-modelled Constitution is that a prime minister must never be embarrassed. Even in the event that a sitting prime minister loses a motion of no-confidence, he still has the discretion to save face and advise the head of state to dissolve Parliament per Section 66 (2) of the Constitution.
Where a prime minister appointed after an election remains in office, the only way to remove him outside of an election is by way of a motion of no-confidence. This is no easy task. As Prime Minister Freundel Stuart explained, “a no-confidence motion . . . is an impeachment, it is a prosecution . . . . You are actually impeaching the political integrity of a minister of the Crown and you have a duty to lay out your case and to prove it”.
As such, natural justice is the essential cornerstone of a just society. Per Krishna Iyer J of the India Supreme Court, natural justice is “a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the bone of healthy government, recognised from earliest times, and not a mystic testament of judge-made law. Indeed, from the legendary days of Adam – and of Kautilya’s Arthasastra – the rule of law has had this stamp of natural justice which makes it social justice . . .”.
– OLIVER THOMAS, Attorney at law
