No one should be condemned unheard - Case Study Example

Administrative law Order 165721 a) Dear Paul, Paul the decision of the Institute of Complimentary Medicine (ICM), which regulates you as one of the practitioners, registered under it is for sure flawed, compromised and violative. First of all, I have taken note of the point that after receiving a complaint from a member of the public, I don't know if there was any intimation done from the Institute to you, but nevertheless, upon your application for renewal of your licence they refused on the ground of a complaint they received from a member of the public. I am assuming that you were given sufficient notice and if not, you ought to have been given so that you prepare against the allegations. But the main point which you need to take in mind is that you are entitled to a prior notice before the hearing is done and before you appear for the same. (www.wikipedia.org) At the same time Paul, you need to understand that the adequate notice you are entitled to under the principles of natural justice ought to be accompanied by an explanation of the allegations which were levelled against you in the complaint, and at the same time notice about procedure for determination of the alleged misconduct should have been communicated to you to constitute sufficient notice. The time and location of the hearing if it was mandatory information that should have been communicated to you. "According to Fortescue J, the first hearing was given in the Garden of Eden". (J.J.Upadhaya, Administrative Law, Central Law Urgency, 4th edition.2001, pg151). His Lordship observed in King vs. .Chancellor, University of Cambridge. "Even God himself did not pass sentence upon Adam, before he was called upon to make his defence" "Adam," says God "where art you Has though not eaten of the fruits of the trees whereof I commanded thee that thou shouldn't not eat"(ibid).In the above the lord is trying to state that before any condemnation is made or a decision, which is going to adversely affect the alleged, a hearing must be given. After having been given a notice, if at all it was given to you Paul, the Institute's disciplinary committee ought to have given you a hearing. As I mentioned above, you have the right to that hearing otherwise, this must have been unfair hearing simply because you were not given that right. Paul, I have based my argument on the principle that no one should be condemned unheard (www.welfare.i.e). Before any adverse action was taken against you they ought to have given you an opportunity of being heard. "In Cooper v.Wandersworth Board of works. The Board had power to demolish any building without giving an opportunity of hearing, if it was erected without prior permission. The Board issued order under which the house of the plaintiff was demolished. The action was brought against the board because it had used that power without giving the owner an opportunity of being heard. Although the action of the board was not in violation of the statutory provision, the court held that no man can be deprived of his property without having an opportunity of being heard". (Administrative Law, by J.J.Upadahaya, Central Law Urgency, pg 170,4th edition, 2001).In the above case Paul, statutory provisions provided that demolition be done if the structure was erected illegally but the court was not of the opinion that,such action be taken without the owner of the building being afforded an opportunity of being heard. As much as the regulatory body felt that your licence should not be renewed, simply because of a complaint, true or not true, the mistake committed hear is that they ought to have allowed you to defend your self by affording you a hearing. I have also had an opportunity to note that, upon reaching their decision, the regulatory body did not disclose the reason, which they relied on to arrive at their decision of not renewing your licence, Paul, and you ought to be given a reason for that. Every decision that adversely affects an aggrieved person must contain reasons supporting it. In their decision Paul, they never mentioned a reason as to why and how they arrived at that.Paul, according to the rules and principles of natural justice you are supposed/required to know not only the result of the inquiry or the hearing but also the reason in support of the decision. In City Corner vs. to Collector and Additional Magistrate. And Indian case, nearly relevant to yours, the appellant was given a licence under places of public Resort Act 1888 for conducting skill games and dance. He spent about Rs 21,195 and put up a temporary structure. On January 21, 1975 the additional District magistrate issued notice to him to show because why the licence should not be revoked because, the superintendent of police and two other local associations have raised objections against the grant of licence. The appellant received notice on January 25, 1975 and wrote back on January 27, 1975. For the supply of original adverse material because the summary received was misleading. Without waiting for a reply, the licence was revoked in January 28; 1975.The Supreme Court ruled that the order passed post haste without furnishing the copies of adverse material of informing that the summary supplied already was sufficient is violative of the fundamental of natural justice. (ibid).The above case, the aggrieved party was never supplied with the details of the materials. In your case Paul you were never furnished with the allegations levelled against you if the first place, they ought to have given you the facts to enable you make preparations on how to defend yourself. They did what they and you need to claim your right by being given the details of the allegations against you. Upon arguing on the two principles and citing the cases I have outlined, Paul you will be able to convince the court that you were unfairly treated. My argument is supported by the above cases and you need to claim to rights here, that you ought to be heard in the haring to present your case and that the decision of the body should not just be a decision but should have reasons which the body relied on at arrive at such a damning decision to your side. I wish you all the success in your intended appeal. b) Dear Sally, I have noted your predicament and your agonising moments after the unjustifiable decision and action of the Institute of Complimentary Medicine. As much as you have the requisite qualifications and every requirement needed, being denied a licence without being given any reason at all to the contrary is absolute denial of your rights. You have repeatedly applied citing every relevant fact and issue that the regulatory body need to hear from you but all in vain. First of all, on the same breath that the committee has taken to decide upon your fate in the adverse, they should afford you every opportunity to express yourself and direct the reason as to why they should not licence you. Right to be heard is your right under the rules and principles of natural justice. The action of the regulatory body, I, view it as having been done with a lot of bias in it. "Even Lord Denning said in Metropolitan Properties vs. Lannon, that the maxim justice is not only to be done but seen to be done"(J.J.Upadhaya, Administrative law, Central Law Urgency,4th edition,pg 168) should hold some water on the body. Sally the Institute of Complimentary Medicine, upon requesting them to state why they could not award you a licence; they said, due to many applications they received, they could not give a reason for their action. That one alone should not compromise a right of an individual whose profession is practising medicine that equally rivals the denial of livelihood wholly enshrined in the constitution as a basic right. I totally disagree with their observation. You are entitled to be given a reason as to why you can not be licinced to practice. The rules of natural justice allow one to be afforded a reason where a decision upon him/her will adversely affect him/her. "The requirement that reasons be given does more than merely vindicate the right of the individual to know why a decision injurious to him/her has been given" (J.J.Upadhaya, Administrative Law, central Urgency.4th edition) Sally reasons for the denial of licence to you are links between the materials on which certain conclusions like those that your case is based and the actual conclusion, which you ought to be told. In Siemens Engineering and Manufacturing Co vs. Union of India. The requirement to give reasons has been raised to the pedestal of "a basic principle of natural justice" like the principle of Audi alteram partem i.e. hear the other party. In the case speaking for the court Bhagwati J. observed. "It is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them .Then alone administrative authorities and tribunals exercising quasi-judicial functions will be to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process". Sally none of the above was ever accorded to you. You need to claim your total rights and ask for a hearing. Their decision entirely affects your carrier and your need to express that by way of hearing. (J.J.Upadhaya, Administrative Law, Central Urgency, 4th edition.2001) Sally you need to insist that the decision to deny you a licence should be accompanied with a reason to that effect. I wish all the best in you argument to be allowed to practice. c) Dear Rodney, Rodney I totally feel that you were unfairly treated and a lot of short-changing done to you without any valid reason at all. The decision of the regulatory body was arrived at to my understanding after affording an opportunity of being heard to you. However, there are some of your rights that were violated and you need to base your argument on those issues for you to succeed in your appeal. The fact that the Institute or the board did not allow you to be represented by a solicitor is a point you need to take seriously because you are entitled to legal representation as a rule and principle of natural justice. They ought to have allowed you to be represented by a solicitor. In Pett v.Grehound Racing Association. Lord Denning observed. "When a man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth, he has also a right to speak by a counsel or solicitor .Even a prisoner can have his friend". Smith also said "Legal representation of the right quality before the statutory tribunals is desirable, and that a person threatened with social of financial ruin by a disciplinary body in a purely forum may be gravely prejudiced if he is denied legal representation".(J.J.Upadhaya,Administrative Law, Central Urgency,4th edition,2001) Rodney it's clear from the references as above that you can claim comfortably that you were denied legal representation in the hearing. It is also clear that the conduct and composition of the panel was too much compromised and was completely against your favour, the principles of natural justice provide that rule against bias is one first principle of natural justice. The rule also provides that the deciding authority must be impartial and neutral, in your case the same partiality was witnessed in the hearing. One Charles runs a rival acupuncture in a neighbouring town. The rule of bias disqualifies him from acting as a panellist for this can be depicted from two principles of bias, 1) No one should be a judge in his own cause, and 2) Justice should not only be done but also be seen to be done Rodney, you should argue that the deciding authority was vitiated because Charles had /has an interest in the case. In Franklin vs. .Minister of town & Countery planning .Lord, Thankerton defined bias as "My lords I could wish that the use of the word 'bias' should be confined to its proper sphere. Its proper significance in my opinion is to denote a departure from the standard of even handed which the law required from those who occupy judicial office, or those who are commonly regarded as holding a quasi-judicial office, such as arbitrator".(J.J.Upadhaya,Administrative Law. Central Law Urgency.4th edition, 2001) "In Dimes v, Grand Junction Canal in the case a public limited company filed a suit against a landowner in a matter largely involving the interests of the company. The Lord Chancellor who was a shareholder in the Company decided the case and gave the company the relief, which was claimed. His decision was quashed by the House of Lords because the interest of Lord Chancellor in the company". (J.J.Upadhaya, Administrative Law, Central Law Urgency, 4th edition, 2001, pg 163).In the above case the Lord had a clear interest in the case so it could not be expected of him to rule against his interest, just as Charles could not rule in your favour because you were rivals in business and by having you denied the licence, he could claim some your clients In the case Mr.Charles interest as a rival practitioner deciding prejudiced your position and compromised the constitution of the panel as that of partiality and no element of neutrality. Bibliography. 1. J.J.R.UPADJHAYA: ADMINISTRATIVE LAW 2nd edition 2002, Central Law Agency, New Delhi 2. www.welfare.i.e 3. Wilkipedia (www.wikipedia.org) 4. www.oal.ca.gov Read More