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Fair Hearing of a Suit/Impartiality of the Courts

There are certain factors against which impartiality of courts is evaluated or through which “fair hearing of a suit” is ensured. The following are the major ones.

A. Neutrality of the Presiding Judge

Any person who sits in judgment over the interests of others must be able to bear an impartial and objective mind to the question in the controversy; i.e. he/ she should impart justice without fear or favor. That is, the authority empowered to decide dispute between opposing parties must be one free from bias-by which is meant an operative prejudice ; i.e., predisposition towards one party or against the other without proper  regard to the true merits of the case. Bias or prejudice has been defined as a leaning, inclination, bent or predisposition towards one side or another or a particular result.

 In its application to judicial proceedings, it represents a predisposition to decide an issue or cause in a particular way which does not leave the judicial mind open to conviction.  Bias is a condition or state of mind, an attitude or point of view, which sways or colors judgment and renders a judge unable to exercise his or her functions impartially in a particular way.

There are two attributive features of impartiality. The first feature is subjective impartiality, which refers to the impartiality of the judge himself and second is objective impartiality of the tribunal; i.e., the tribunal/ court or bench should provide the public with the guarantee that it operates impartially; i.e., conditions that avoids suspicions of impartiality.  In other words, the impartiality of the judge (the subjective one) alone is not sufficient- there must be conditions that warrant the impartiality of the court (the objective one). Of course impartiality is not only about just ends, it also is concerned about just means. Consequently, where a person who is entrusted with discharging such judicial function has, by his conduct, shown that he is interested, or appears to be interested in the case, that should disentitle him from acting in that capacity.

In this regard, there are some common sources of bias that should disqualify a person from acting as a judge.

I. Personal Bias

Although with the ever-growing interdependability of human relations, this factor has always been a matter of judicial interpretations; there are, in fact, a number of scenarios that may create a personal bias in the judges’ mind. It usually arises from friendship, relationship (either personal or professional) or hostility or animosity against either of the parties; or, negativity from personal prejudices; or even political rivalry.

II. Pecuniary Bias/ Bias as to the Subject- Matter.

[No one should be a judge in his own case!]

The rule against pecuniary bias originates from the legal maxim: “nemo judex in cause sua”, implying that no one should be a judge in his own case; and, it arises from monetary interests in the subject matter of the dispute, no matter how small or insignificant it might be. Where the judge himself is a party or has some connection with the litigation so as to constitute a legal interest that should disentitle him from being a ‘judge in his case’. Generally, even if in some cases there may be no real likelihood of bias of any sort, one may still be disqualified from assuming the judicial position for justice should not only be done, but must appear to be done to the litigating public . Thus, the requirement of the rule against bias (whose observance is recommended in the name of impartiality) goes to the extent of imposing the duty upon the presiding judges to withdraw themselves from the proceedings  where it causes ( or, appears to cause )  the violation of the rule (see, for instance, Art 27 of Proc No 25/1996).

B. Right to be Heard: Nobody should be condemned unheard!

Any one against whom an action is taken or whose right or interest is, thereby  being affected should be aware of the information against him and should also be granted a reasonable opportunity to defend him self. The governing maxim in this case runs: ‘audi alter am par tem’; meaning ‘Hear the other side’– no body should be condemned unheard. Two of the facets of the maxim are:

  1. Notice has to be given to the party before the proceedings start and,
  2. A party has to be given an adequate and reasonable (effective) opportunity to explain (hearing).

Moreover, a party should have the opportunity to adduce all relevant evidence on which he relies and opportunity for rebuttal of evidence submitted against him.

C. Equality of Treatment Every one is prima-facie equal before the law

This principle implies equal subjection of all persons to the ordinary laws of the land as administered by the regular courts of law; and, law extends protection to everyone. Hence, each party to a law suit should be treated equally without discrimination of any sort (i.e., sexual, religious, status, ethnic origin, political affiliation, etc). This rule is so grand that it is considered an approximate synonym for and equated with the entire notion of justice. 

Moreover, the degree to which procedural rules facilitate equal opportunities of participation for the litigants to influence the judgment may be taken as the most important criterion by which procedural fairness is evaluated. In sum, there are three fundamental pillars used as ultimate test of procedural fairness (equality) i.e., sine qua non for even, handed dispensation of justice:

I. Equipage Equality

This implies equality between the litigants in preparing their respective pleadings in getting legal aids (services) in searching for evidence etc, irrespective of their differences in income levels. If a party, for example, is allowed to amend or alter his pleading same opportunity should be granted, when the circumstance so requires, to the other party (as per Art 91 of the Cv. Pr. Cd.).

II. Rule Equality

Under similar circumstances, each party should be subjected to and protected by, similar rules. Same issues should be resolved through similar legal rules. If, for instance, by virtue   of Art 58 (a) of the Cv. Pr. Cd, representation is allowed for a ‘brother’, the same rule should apply for a ‘sister’s’ representation-though not expressly articulated therein.

III. Outcome Equality

Similar issues, under same grounds /circumstances, should have similar outcomes for example instance, in such instances wherein ‘class action’ is allowed-pursuant to Art 38 of the Cv. Pr. Cd. Generally, speaking like cases should be treated alike.

Public Hearing of a Suit

                     Justice must not only be done but must also be seen being done ‘Hearing’, here, refers to the consideration by the court of the allegations and defenses of either side before rendering the final decision. In principle when the court undertakes such a hearing, the public at large, must have access to the litigation process (court-room) without, of course, negating exceptional situations  of inherently confidential nature-wherein courts may consider cases in a closed chamber (“in Camera”). Accessibility to the media-which serves as a bridge between the two-is another important aspect of transparency. In this regard, Art 12 Sub-Art 1 of the FDRE Constitution, for instance, expressly stipulates that “the conduct of the government shall be transparent”.   Such an open court proceedings ensures transparency of judicial activities and secures the acceptability and reliability (credibility) of the judiciary. It is in this sense that it is often said that justice must not only be done, but must also be seen being done!

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