Technically speaking, judicial power/function is the primary function of courts. As mentioned somewhere else, the FDRE Constitution expressly vested judicial power at the Federal and State levels in courts. This goes in line with the principle of separation of state powers. However, it does not necessarily imply that only regular courts shall exercise judicial power. There are possibilities where judicial power may be delegated to other bodies falling outside the structure of ordinary courts. As inferred from the wordings of Articles 37(1) and 80(4 & 5) of the Constitution, such possibilities are not prohibited. Having said this, let us discuss the arguments developed concerning the advantages and disadvantages of delegating judicial power to administrative agencies.
To begin with the advantages, judicial power is usually delegated to administrative agencies/tribunals with the purpose to provide cheap, accessible, informal, speedy and specialized justice. Concerning the paramount advantages of administrative adjudication over adjudication by ordinary courts, Philps, Jackson and Leopold: p886
…They (administrative tribunals) could offer speeder, cheaper and more accessible justice, essential for the administration of welfare schemes involving large number of small claims…. The process of courts of law is elaborate, slow and costly…it (court process) is to provide the highest standard of justice; generally speaking, the public wants the best possible article and is prepared to pay for it…. In administering social justice…the objective is not the best article at any price but the best article that is consistent with the efficient administration. Disputes must be disposed of quickly and cheaply for the benefit of the public purse as well as for that of the claimant. [Philips, Jackson and Leopold: p 886]
As can be inferred from this, the arguments asserted in favor of delegating adjudicatory power to administrative agencies can be summarized as follows:
- Expediency: administrative agencies are better than ordinary courts in disposing cases timely.
- Administrative adjudication is cheaper than court adjudication
- Administrative adjudication is more convenient and accessible to individuals compared to ordinary courts.
- The process of adjudication in administrative agencies is flexible and informal compared to the rigid, stringent and much elaborated ordinary court procedures.
- Another justification which is not included in the above suggestion, that is related to the special expertise knowledge administrative tribunals manifest as compared to ordinary court judges. Administrative tribunals are filled by a panel of persons vested with special skill and expertise related to the complicated dispute they adjudicate. Whereas ordinary court judges are generalists in law and lack such expertise knowledge on the needs of the administration in this technologically advanced world.
In short, due to the informal adjudication process, liberal standards of evidence in administrative adjudication and the special expertise administrative tribunals demonstrate the possibility of getting quality justice timely and cheaply is very high. However, administrative/tribunal adjudication is not free of critics. Of the prominent critics are:
- Lack of legal expertise: The argument here is that, as many of the members of the panel are selected from different walks of life with no or little legal background, they may lack the requisite legal expertise to adjudicate disputes.
- Partiality: The fear here is that, as many or all of the members of the administrative tribunals are at the same time employees of the various offices or agencies, they might not be free from bias and partiality towards the agency.
- Violation of the principle of separation of powers and rule of law: Adjudication is the primary business of ordinary courts. So, transferring this power to administrative agencies is argued by some authorities to be a violation to this principle.
5.5 The Organizational Structure of Administrative Tribunals
As was incidentally stated earlier, the organizational structure of administrative tribunals is different from jurisdiction to jurisdiction. In some countries like France, there are tribunals of general jurisdiction that are hierarchically organized in a way that corresponds to the three-tier ordinary court structure. But many other countries appear to form tribunals of special jurisdiction here and there to address specific problems. The Britain and Austrian models may be taken as a typical example. The subsequent subsections will devote to discussing these two models of administrative tribunals in turn and to appreciate whether or not the organizational structure of administrative tribunals in Ethiopia fits to any of such models.
As you may recall from the previous discussions, in French there is a clear demarcation between administrative law and private law on the one hand and between the institutions that interpret and apply these laws to resolve specific disputes, i.e., administrative courts/tribunals and ordinary/regular courts, respectively.
The French formed a three-tier administrative court system having general judicial jurisdiction on administrative matters. The structure of French administrative courts having general jurisdictions, just like the ordinary courts, has a pyramidal form. At the apex, there is one “Conseil D’Etat” (council of state) in Paris, below which are the seven intermidiary regional “Cours Administraives D’Appel”(administrative courts of appeal) followed by the thirty-five “Tribunaux Administratifs”(administrative tribunals) in metropolitan France. The Conseil D’Etat is the court of final resort on administrative matters. It exercises appellate and cassation powers over decisions of subordinate to administrative courts. It has also original jurisdiction on some administrative matters. The Cours Administratives D’Appel is the administrative counter part of the French high court. It entertains appellant jurisdiction over justiciable administrative disputes brought from lower administrative tribunals and original jurisdiction in certain matters reserved to it. The Tribunaux Administratifs is the administrative counter part of the French first instance courts. It hears administrative disputes at the first instance level. That is, it is the court of the first instance on administrative matters.
In addition to these administrative courts of general jurisdiction, there are a number of other administrative tribunals exercising judicial functions in particular spheres. They are referred to as specialized jurisdiction tribunals that entertain administrative disputes in particular fields of administration. Decisions of these specialized tribunals may be reviewed by the Conseil D’Etat by way of appeal or cassation. In general, the Conseil D’Etat(Council of State) plays advisory and judicial role on administrative matters.
5.5.2 Britain and Australia
Unlike in France, there is no integrated administrative justice system in many countries following the common law tradition. In Britain, for example, there are numerous specialized jurisdiction tribunals that exercise jurisdiction in particular fields of the administration. Conversely speaking, there are no structured administrative courts of general jurisdiction. Rather, there are numerous specialized tribunals having specialized jurisdiction limited to particular sphere of the administrative fields of activity. Many tribunals/ adjudicating agencies having first instance jurisdiction over administrative disputes are found in almost all the particular spheres of the administration. There are also numerous specialized jurisdiction administrative review tribunals that are established to entertain cases appealed from lower adjudicating agencies or tribunals.
However, the system in Australia is a bit different from that of the Britain counter part. In addition to the several first instance and administrative review tribunals having specialized jurisdiction to entertain administrative disputes or to review administrative decisions in particular sphere like in the case of Britain, Australia has also established Administrative Appeal Tribunal (AAT) entrusted with a general jurisdiction to conduct merit review on administrative decisions and on the decisions of many of the specialized tribunals. After the time of the establishment of AAT in 1975, some existing specialized merit review tribunals were abolished and many review procedures were subsumed in the new AAT structure. But there are still several specialized administrative merit review tribunals that operate alongside the AAT. This kind of arrangement is absent in Britain where there are thousands of specialized jurisdiction administrative tribunals that operate in particular sphere of the administration. In Australia, in addition to the multitudes of specialized jurisdiction tribunals like in the case of Britain, there is Administrative Appeal Tribunal (AAP) having a general jurisdiction to conduct merit review on administrative decisions. But there are also some specialized administrative review tribunals that operate side by side with AAP and whose decisions cannot be subjected to review by AAP. The Administrative Appeal Tribunal is the highest merit review court on administrative matters subjected to its jurisdiction. However, disputes on points of law can be appealed to the Federal Court of Australia and in exceptional circumstances upon special leave to the High Court of Australia, which is the highest court in the Australian judicial system. The striking feature of Australian administrative system is that, unlike in the French system, technical review of administrative decisions including the decisions of the AAT can be carried out by the Federal Court of Australia and in exceptional situations by the High Court of Australia.
In Ethiopia, like in many common law countries, there is no integrated administrative justice system. There are some sector wise tribunal-like adjudicating agencies/ known by different names such as disciplinary committees, boards, commissions and so on that have the first instance (original) jurisdiction in particular aspects of the administration. There are also tribunals that exercise appellant jurisdiction in particular sphere of the administrative field. The Civil Service Commission Tribunal that assumes appellate jurisdiction on complaints of civil servants brought from the various government organs or bureaus governed by the civil service law, the Social Security Appellate Tribunal that entertains appellate jurisdiction on complaints related to social security benefits and the Tax Appeal Commission that hears tax related disputes on appeal are typical examples of the specialized jurisdiction administrative review tribunals. The Labor Relation Board that hears industrial/labor disputes of collective nature between employers and employees is another example of special jurisdiction tribunal, although it may not fall within the technical definition of the term “administrative” tribunal as it is dealing with disputes between two or more individuals based on the ordinary substantive law of the country as contrasted to the administrative law. Under the draft of the Federal Administrative Procedure Proclamation No. 2001, an attempt was made to establish “Federal Administrative Grievances Appellate Court”, which is a division within the Federal High Court that was intended to assume appellate jurisdiction over all final administrative decisions of all federal agencies. However, the document remained in the status of a draft for almost a decade. Regardless of whether such general jurisdiction administrative court/tribunal be established as a special division within or as an independent body outside the structure of ordinary courts, its existence would be quite important in developing standardized and integrated administrative justice system.
5.6 Qualification, Appointment and Dismissal of Administrative Judges
Needless to say, that competent and impartial tribunals are extremely important in promoting rule of law and good governance within the administrative system. Taking this fact into consideration, many countries formed administrative tribunals that are appropriate to their respective realities. As stated above, the organizational structure of the administrative tribunals varies from jurisdiction to jurisdiction. There are also differences concerning the qualification, composition, appointment and dismissal of the personnel of administrative tribunals from country to country. To appreciate the magnitude of the difference, comparisons are made below among three countries – France, Australia and Ethiopia.
France: As was discussed earlier, there is three-tier administrative justice system in France- the council of state at the apex, the administrative courts of appeal at the intermediary and administrative tribunals at the bottom of the pyramid. The council of state (Consel d’Etat) plays a double role both as an advisory body charged with advising ministers and the head of state on the drafting of legislation and regulations and on administrative matters generally, and as a judge of final resort of the administration. As the membership of the Conseil d’Etat, it is part of the French administration and staffed entirely by civil servants. As to the manner of recruitment, there are two distinct avenues of access to the Conseil d’Etat: examination and invitation.
Most members of the Conseil d’Etat are recruited from the National School of Administration (l’Ecole Nationale d’Administration) which was founded by the Provisional Government of General de Gaulle in 1945 to serve as a graduate staff college for the higher ranks of the administration. Admission to l’Ecole Nationale Administration (l’ENA as it is popularly called) is by a stiff concours, or open competitive examination, one being conducted for recent graduates of universities and other comparable institutions (only a minority being law graduates), and a second for those who are already members of the civil service. After two years of intensive studies, the outgoing class is arranged in order of merit according to their performance in the final examination and over the course as a whole. Depending on this placement, each successful graduate from l’ENA then chooses from among the administrative posts which happen to be available at the time. The double sieve imposed by the concours on entry and the placing at the end of the course guarantees that entrants to the Conseil by way of l’ENA are necessarily of the highest intellectual quality. In addition, the nature and content of their strenuous course at l’ENA ensures that they have a thorough training (both theoretical and practical) in the field of public administration.
The other method of recruitment is by way of the ‘active administration’ or invitation. It is a long-standing practice to recruit about a quarter of the entrants to the Conseil d’Etat ‘from outside’, that is from the rank of those who have already distinguished themselves in the practice of public administration. Recruits of this second category will necessarily be considerably older than those in the first and will usually enter at the higher levels of Conseiller (the highest grade) or Maitre des requetes (the intermediate grade). Currently, one Conseiller out of every three and one Maire des requete out of every four must be recruited externally. This mixed system of entry provides the Conseil with a remarkable combination of young intellect and mature experience. It ensures that the Conseil has within its ranks both theoretical and practical expertise in public administration. Recruitment to the lower courts (Cours Administrtives d’Appel and Tribunaux Administratifs) resembles Conseil d’Etat that tdiscussed above.
Membership of the Conseil is divided into three basic grades: Conseiller (the highest grade) Maitre des requetes (the intermediate grade) and the Auditeur (the lowest grade or ‘Auditorat’, which is in turn subdivided into Auditeur de premiere classe and Auditeur de seconde classe). There are also certain posts of special responsibility. Members of the Conseil are civil servants (fonctionnares) with the usual safeguards, which French law confers in matters of promotion and discipline. In matters of discipline, the reform of 1963 has provided a number of new safeguards, but members of the Conseil still lack that status of irremovability, although practically it is unthinkable that a member should be dismissed or otherwise disciplined by reason of political consideration. However, members of the lower tiers of administrative courts are conferred with the status of irremovability; they cannot be transferred to a new post without their consent, even by way of promotion.
Australia: The Australian Legal and Judicial System is based on the common law tradition. As discussed earlier, there are multitudes of the first instance jurisdiction and the second instance (appellate) jurisdiction specialized administrative tribunals on the one hand, and a merit review Administrative Appeal Tribunal (AAT) having general jurisdiction over the majority of cases decided by lower administrative tribunals and other similar administrative bodies, on the other hand. Decisions of the AAT related to the merit of the case are final. But disputes on points of law can be appealed to the Federal Court of Australia and upon leave further to the High Court of Australia, which is the court of highest judicial resort in the Australian Legal System.
The AAT of Australia is a federal merit review tribunal. Merits review is usually performed by tribunals set up explicitly for that purpose. The Federal tribunal is known as the Administrative Appeals Tribunal (the AAT) and its equivalent in NSW is the Administrative Decisions Tribunal (the ADT). Victoria also has an administrative tribunal known as the Victorian Civil and Administrative Tribunal (VCAT).
Members of the Tribunal consist of a president, presidential members (including judges and deputy presidents), senior members and members. The President must be a judge of the Federal Court of Australia. Some presidential members are judges of the Federal Court or Family Court of Australia. All Deputy Presidents must be lawyers. Senior members may be lawyers or those who have special knowledge or skills relevant to the duties of a Senior Member. Members have expertise in areas such as accountancy, actuarial work, administration, aviation, engineering, environment, insurance, law, medicine, military affairs, social welfare, taxation and valuation.
A President, who must be a judge of the Federal Court of Australia, is appointed by the Attorney-General to head the Tribunal. Members are appointed for a term that extends up to seven years.
The NSW ADT has a similar structure and purpose, but it is concerned with government decisions made at the states rather than at the federal level. The expertise of non-judicial members can be of considerable value, particularly in technical areas where lawyers might not be the most appropriate decision-makers. Lawyers and judicial officers who sit on a tribunal are not performing a judicial role.
Ethiopia : As was discussed earlier, there are different tribunals and tribunal-like adjudicating agencies of special jurisdiction. In the Federal Democratic Republic of Ethiopia Many of the first instance jurisdictions adjudicating agencies are found within the umbrella of many different administrative heads known with different names such as disciplinary committees, boards, and so on.
There are also second instance (reviewing agencies/tribunals) that are formed by statutes to hear grievances on appeal in different areas of the administration activities. As indicated earlier, the Federal Civil Service Commission Appeal Tribunal, the Social Security Appeal Tribunal and the Tax Appeal Tribunal are the prominent ones. There are also regional tribunals that are operating in the respective regions of the federal units. There is no general requirement set governing the qualification, appointment, composition and tenure of the personnel of administrative tribunals in Ethiopia.