By Ali Abdi
The character of every act depends upon the circumstances in which it is done – Oliver Wendell Holmes Jr.
From time to time, lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts, a word in common usage has acquired the trapping of legalism: “acting fairly” has become “acting in accordance with the rules of natural justice,” and on occasion has been dressed up with Latin tags… as expounded by Lawton LJ in Maxwell vs. Department of Trade and Industry  2 All ER 122 (CA). However, the courts, in using the language of “natural justice” and, more dramatically, “fairness”, have brought about a situation in which a broad range of statutory authorities are subject to the observance of at least a modicum of procedural decency.
Evidently, an approach to the question of procedural safeguards and administrative law has, with notable exceptions, been mundane and sometimes quite sterile, while the notion of natural justice has been undervalued by recent jurisprudence. Yet, to ignore the importance of procedural safeguards such as the principles of natural justice and fairness is to neglect the value placed upon process as a means of expressing the ideals inherent in the notion of fair administration and to evade the very kernel of the problem of administrative justice, that is, how far ought both judicial and administrative power to rest on common principles?
In the abstract, what does it mean to be fair? When is process fair, given the nature of the decision to be taken? What is the relationship between following written procedural rules and acting fairly in decision-making?
In attempting to explain the above perspective, one need not mean to argue that “fairness” and “natural justice” will inevitably produce wider reviews of the merits of statutory decisions. Their use could clearly be circumscribed as a result of judicial elaboration.
Rather, the argument is not only that they are open-textured but also that in so far as they have a content, it is one which would in any case suggest a broader scope for intervention than that provided by the present narrow grounds of judicial review on the merits. Moreover, to the extent that they might be narrowed in the course of judicial elaboration, one has to question the necessity for their usage. Do not the existing “merits grounds” of judicial review express adequately the limited scope for judicial review?
Nevertheless, this situation has provided a broadened opportunity for attacking decisions on procedural grounds therefore placing greater obligation than ever on the judiciary to be sensitive to the exigencies of the administrative process. In particular, the concept of “fairness” needs to be elaborated upon and provided with a framework so that judicial review of procedural impropriety does not degenerate into a mass of ad hoc decisions of little or no prescriptive or predictive value.
Natural justice, a principle in the administration of justice and which the courts of law are required to follow, brings with it varied implication in its understanding. Lord Esher in Voinet vs. Barrett (1885) 55 LJQB 39 at 41, stated that natural justice was “the natural sense of what is right and wrong”. Hamilton LJ, in R vs. Local Government Board  1 KB 160 at 199, was of the view that the expression, natural justice, is said to be “sadly lacking in precision”
On the other hand, procedural fairness is a more specific aspect of natural justice in its broadest sense. In respect, the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures that are appropriate and adapted to the circumstances of the particular case, as expressed in the case of SZBEL vs. Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at . The court held, “what is required by procedural fairness is a fair hearing, not a fair outcome”. Simply put, the concerned emphasis is with the fairness of the procedure adopted and not the fairness of the decision produced by that procedure.
In Kenya, the primary procedural safeguards of administrative law are guided and expressed by the twin principles of natural justice: audi alteram patem and nemo judex in causa sua. That is, that one should hear the other side, and that no one should be a judge in his own cause. Simply put that, the decision-maker should be free of bias. As a general rule, it may be said that these principles of natural justice apply whenever an administrative act is quasi-judicial, and an administrative act may be said to be quasi-judicial if it affects the rights, liberties and, perhaps, the ‘privileges’ of an individual. My view stems from the objection that classification of administrative acts into categories such as quasi-judicial is that the requirement that the act complained of affect existing rights is quite irrelevant to the true purpose of natural justice.
It is therefore trite to state that since the law is concerned with existing facts and circumstances, the categories that are created by the process of classification can, at most, be a synthesis of relevant material; the law, at least in practice, is not concerned with abstract concepts. Thus, for example, when proceedings are labelled “judicial”, the term is being used in a descriptive sense to describe proceedings that bear certain characteristics, in whole or in part, which have relevance for the purpose at hand. They are “judicial” for that purpose alone.
As expounded by the famous words of Jackson J. of the United States Supreme Court in Shaughnessy vs. U.S. 345 U.S. 206, 224 (1953), “Procedural fairness and natural justice are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied”. In other words, the law does not see any special relationship existing between procedural fairness and substantive justice; the reasons for insisting on fair procedure seem to be essentially programmatical within an adjudicative context. Therefore, this perspective can be viewed as characteristic of the ethical attitude which can be labelled as “legalism”, arising out of the notion, that which is just.
Further, the danger with the classification process is that legal categories tend to become rigid and inflexible. So inherently flexible categories such as “administrative” and “quasi-judicial” may become rigidly distinguished from one another, as if there were really only one type of category into which any administrative act could fall. And, inevitably, classifications made for one purpose will be used inappropriately in other contexts. For example, an act classified as administrative because it is performed by the state may later be thought not to be quasi-judicial for the purpose of observing natural justice.
Therefore, under the rubric of natural justice on the expanded role of judicial review, decisions perceived to be inappropriate on their merit will be set aside. This move in the long run raises the policy question implicit to the view that, if such a rule were recognised, it would enable the courts to interfere with any decision, which they disliked and it further goes beyond any idea of natural justice as a standard for the application of rules.
However, with the increased use of the very same terminology of “natural justice” and “fairness” as a justification for either directly attacking the substance of administrative, i.e., statutory or prerogative decision making, or developing the scope of review in the grey areas where substance and procedure meet or intersect, any countenance or further expansion of these terms in the procedural domain ought to be approached with added caution regardless of the view that justice and fairness are fundamentally different ideas.
The emphasis on a distinction between “natural justice” and “procedural fairness” in the context of administrative decision-making is more appropriate to speak of a duty to act fairly or to accord procedural fairness. This is because the expression “natural justice” has been associated, perhaps too closely, with procedures followed by courts of law. In Australian Broadcasting Tribunal vs. Bond (1990) 170 CLR 321 at 366, Deane J said that to avoid the potential for confusion between the relevant common law requirements of fairness and detachment and the jurisprudence of wider perceptions of natural law.
There is no doubt that at times the terms “natural justice” and “fairness” have been used as standards of substantive justice, particularly in the private law field. This is amply demonstrated in the use by law Courts of the term, natural justice, either as a justification for a substantive rule of law or to defeat a substantive argument. Lord Denning Master of Rolls in Wallis’s Clayton Bay Holiday Camp Ltd vs. Shell-Mex and B. P. Ltd,  Q.B. 94, 104 (C.A.) stated, it was “contrary to equity and natural justice” to take advantage of one’s own wrong to acquire title to land.
On the above view by Lord Denning, one can conclude that the phrase natural justice has been used by courts of law to imply the existence of moral principles of self-evident and unarguable truth. Therefore to justify the adoption, or continued existence, of a rule of law on the ground of its conformity to natural justice in this sense conceals the extent to which a judge is making a subjective moral judgment and suggests, on the contrary, an objective inevitability. Natural justice, used in this way is devoid of implications of that concept.
On the other hand, as a standard for the measurement of whether substantive justice has been accorded, fairness lacks most of the implications of natural justice and appeals to “equity”, which as expressed by Lord Denning in Shell Mex (supra), is almost as deceptive as invocations of “natural justice” in that it tends to suggest the existence of a clear set of precise principles which justify particular outcomes. Therefore it can be said that the use of fairness language involves less of an attempt to disguise what in fact is the making of a “subjective moral judgment” by the judge.
Given the general restrain by the judiciary to ever acknowledge such subjective considerations as the real basis for decision-making, and the continued assertion of the fiction that the law always simply await discovery, it is perhaps surprising to find “fairness” used as a standard of measurement of substantive justice. However, in Canterbury Pipe Lines Ltd vs. Christchurch Drainage Board,  2 N.Z.L.R. 347,357 (C.A.), Cooke J. held, “Duties expressed in terms of fairness are being recognised in other fields of law also, such as immigration. Fairness is a broad and even elastic concept, but it is not altogether the worse for that. In relation to persons bound to act judicially fairness requires compliance with the rules of natural justice. In other cases this is not necessarily so. But we do not think it can be confined to procedure. Its use in the authorities in combination with ‘impartiality’ suggests that it is not meant to be a narrow concept”. This can in one way be viewed as the court imposing a good faith in performance obligation upon a contract.
Notwithstanding these examples, it would be incorrect to think that “natural justice” and “fairness” are in frequent use in the private law field as explicit standards for the measurement of substantive justice. That does not mean that notions of what is “just” and “fair” do not underlie much private law judicial thinking. Instead, they tend to be expressed more commonly in terms of “reasonableness”. Alternatively, explicit reference to underlying standards is in many cases rendered superfluous by the prior formulation of specific rules, which can be argued from by way of analogy, or by the development of more precise standards by which a rule or conduct can be substantively gauged in a particular case.
Therefore, it is not altogether clear whether the duty to act fairly has subsumed the principles of natural justice or is merely a parallel procedural safeguard, nor is it at all certain exactly what is meant by ‘fair’. This view has, in the long run, presented considerable difficulties of meaning. For uncertainty is inevitable with the use of an ethical concept such as ‘fair’, and the judges themselves have been far from consistent in their use of the term by failing to distinguish between the substantive connotations of fairness and its procedural connotations. As Lawton LJ in Maxwell vs. Department of Trade and Industry,  2 All ER 122 (CA) stated, “… there are, in my judgment, two facets of fairness: what is done and how it is done.”
The sentiments of Lawton LJ, bring the view that the most obvious justification for good procedure is its efficiency in achieving just results with emphasis on the process which is deemed to make fair and reasonable decisions more likely and the rationale underlying a procedural maxim such as audi alteram partem is, partly at least, to ensure that certain facts have been found to exist before a power is exercised.
Equally, it is sometimes impossible to measure the “correctness” of a decision by means of any fixed, objective standard, because the standards involved in the decision-making process are subjective in nature. It is where the outcome of an administrative decision is not measurable by any fixed, objective standard that procedure plays its most important role in ensuring justice.
However, when the courts are exercising their powers of review and they are confronted with the question whether procedural standards have been observed, they will regard any act that failed to observe the standards of fair procedure required as void. In General Medical Council vs. Spackman  AC 627, Lord Wright held, “If the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.”
Yet the modem duty to act fairly, if expressed as a general duty of fairness, conceals with it danger and carries within it an inherent contradiction. In the first place, the ambiguity of the term “fair”, which fails to distinguish between procedural and substantive fairness, may encourage judges to ignore procedural faults if the outcome of the decision was “substantially fair”. There is already an element of this form of thinking in Lord Devlin’s dicta concerning natural justice in In re K (Infants)  AC 201 at 238, thus: “But a principle of judicial enquiry, whether fundamental or not, is only a means to an end. If it can be shown… that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed….” and the temptation will be greater with the flexible and ambiguous terminology of fairness.
Secondly, in view of the relationship of procedure to substance, there is something inherently contradictory about the general duty to act fairly. If an unfair procedure has produced, by chance or otherwise, a fair result, how can the court review for unfairness? For if it declares the decision void for failure to observe procedural fairness, it does violence to the ‘fairness’ of the result. The truth is that a duty to act fairly which incorporates substantive issues creates a review of the merits, not just the boundaries of the administrative action. This in itself is not unusual, since decisions must be reasonable, but it is unobjectionable provided only that review of procedural fairness and review of substantive fairness are clearly distinguished.
Thus the question as to whether one accepts the need for far greater judicial precision as to the incidents of procedural fairness, the fact remains that the introduction of the “fairness” terminology did not emerge in a vacuum. “Natural justice” as a standard developed by the courts had many good things to be said for it and this wisdom did not disappear but rather came to serve as a basis for judicial decision-making about procedural fairness.
It therefore suffices to say that adjudication by reference to such open-ended standards as natural justice and fairness – the judge’s “gut” reaction to the merits of a particular case – is fraught with danger to many of the values that we aspire to in our legal system. Such methods of adjudication can become an excuse for a failure to think through complicated problems and they also raise the spectre of inconsistent decision-making and the complete breakdown of any predictive value based on the outcome of previous cases.
Natural justice is entirely a creation of the common law. In its vigour and especially in its newfound vitality, as clothed in the duty to act fairly, it is little short of a miracle of judicial creativity. Provided the temptation to resort to a form of ‘bush justice’-a temptation which it is conceded becomes more real when the fairness approach is employed-is resisted, my view is that the duty to act fairly affords scope for the development of urgently required procedural safeguards against arbitrary administrative action such as has not been available under the orthodox approach to natural justice; natural justice, unfortunately, accumulated a mass of dead wood which held up any development.
For when the fairness approach is combined with the spirit of natural law, provided that, being part of our legal system, they are reviewed to meet the needs of our rapidly developing and expanding society which is continually being subjected to an increasing degree of administrative and bureaucratic regulation and control. Then, I believe, our administrative law will enjoy major advancement at the hands of our capable Judiciary.