In this complex technological and democratic world, in addition to tribunals that investigate facts and apply laws to resolve specific administrative disputes, the formation of inquires that conduct fact and/or legal findings and provide recommendation to ministers or other agency heads to take policy considered action based on the findings of facts is becoming a paramount importance. Inquires are concerned with fact-finding directed towards making recommendations on questions of policy. The statutory inquiry is the standard device for giving a fair hearing to objectors before the final decision is made on some question of government policy affecting citizens’ rights or interests.
- Category: Administrative Law
- Hits: 78794
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.
Meaning and Nature of Tribunals
The attempt to provide a uniformly applicable single definition of the term tribunal is more than difficulty. Even where the subject of discussion is one and the same, there are situations where different authorities use different terminologies having regard to the diverse social realities surrounding them. This is also the case that one may appreciate while discussing the term tribunals in administrative law context. While discussing the forums where administrative disputes are being formally resolved different jurisdictions use different terminologies having regard to the social set up of their own systems. The Federal Administrative Procedure Act of America use the term Administrative Law Judges to connote those persons who adjudicate administrative disputes. Whereas the French uses “Conseil d’Etat”, “Cours Administrative d’Appel” and “Tribunaux Administratifs” to refer to their three-tier hierarchy administrative courts that adjudicate administrative disputes. Other authorities also use the term “tribunal” with or without the designation “administrative” to denote the same thing.
Despite the differences in the terminologies used and their organizational set-up from country to country, tribunals or administrative tribunals or administrative courts, as the case may be, refer to the forums where justiciable disputes that involve government agencies, in one or another form, are being adjudicated by a panel of impartial decision makers. So, instead of trying to define this fluid concept of tribunal, it seems convenient to state what tribunals usually do and how they proceed. Tribunals are bodies established outside the structure of ordinary courts to adjudicate disputes that involve the government as a party on matters pertaining to governmental functions. The dispute could be between two or more government agencies, or between government agencies or between one or more individual parties. Hence, the typical tribunal, like an ordinary court, finds facts and decides the case by applying legal rules laid down by statute or legislation. In many respects, the tasks performed by tribunals are similar to that of performed by regular courts. As the jurisdiction of these tribunals are restricted to adjudicating disputed cases involving administrative agencies as parties in their governmental functions based on the principles, rules and standards set under administrative law, it seems appropriate to call them with the designation “administrative tribunals” instead of simply “tribunals.” However, in using the term ‘tribunal’ together with the adjective “administrative”, care has to be taken in order to avoid the concerns raised by some authorities in using that designation. Two prominent administrative law authorities criticized the very designation of the term “administrative tribunal” for being misleading for the following four reasons:
In the first place, no tribunal can be given power to determine legal questions except by Act of Parliament. Normally a tribunal is constituted directly by the Act itself. Sometimes, however, the power to constitute a tribunal like may be delegated by the Act to a minister, but in such cases the act will make it clear a tribunal is intended. Secondly, the decisions of most tribunals are in truth judicial rather than administrative, in the sense that the tribunal has to find facts and then apply legal rules to them impartially, without regard to executive policy. Such tribunals have in substance the same functions as courts of law. These tribunals therefore have the character of courts, even though they are enmeshed in the administrative machinery of the state. They are “administrative” only because they are part of an administrative scheme for which a minister is responsible to parliament, and because the reasons for preferring them to the ordinary courts are administrative reasons. Thirdly, tribunals are not concerned exclusively with cases to which government departments are parties. Rent assessment committees and agricultural land tribunals, for example, are adjudicating disputes between landlords and tenants without any departmental intervention. Fourthly, and most important of all, tribunals are independent. They are not subject to administrative interference as to how they decide any particular case. No minister can be held responsible for any tribunal’s decision. Nor are tribunals composed of officials or of people who owe obedience to the administration. [Wade & Forsyth: pp. 907-908]
However, three of the critics labeled against the designation administrative tribunal as stated above do not stand valid. Of course, the term tribunal seems broader in meaning and scope than the term administrative tribunal as the former may embrace bodies formally instituted outside the structure of the ordinary courts to adjudicate disputes of private characters as contrasted to disputes that involve the agencies of the government. The Labor Relations Board that resolves collective labor disputes between employers and employees may be taken as a good example of these tribunals. But, the designation administrative tribunal is purposefully used to exclude the types of tribunals established here and there to resolve disputes between private individuals in their private relations. The adjective “administrative” as used in the above critics does not necessarily imply that the tribunal is created by the administration or that the tribunal resolves non-justiciable administrative disputes or that the tribunal is an appendix to the government agencies with no relative autonomy. It is simply to mean that the term administrative tribunal is a tribunal with all its attributes, but its jurisdiction is limited to resolving disputes of governmental nature as distinguished from disputes of private character.
As suggested by Garner and Jones (Administrative Law), tribunals have the following five hallmarks:
- Independence from administration;
- Capacity to reach a binding decision;
- Decision taken by a panel of members (as opposed to a single judge);
- A simpler procedure than that of a court; and
- A permanent existence.
5.3.2 Jurisdictional Issues
On the basis of the nature and scope of their jurisdiction, administrative tribunals can be classified into two. These are tribunals having general jurisdiction (general tribunals) and tribunals having special jurisdiction (special tribunals). The French model is a typical example of the tribunals having general jurisdiction on administrative matters. In France, there is a clear dichotomy between administrative law and private (ordinary) law, on the one hand, and between the machineries applying these laws, that is, administrative courts and civil courts also known as regular courts or ordinary courts on the other hand. Administrative courts adjudicate cases falling within the domain of the administrative law. These courts are, thus, the focus of the discussion in this section.
In France, judicial control of the administration is entrusted to a special corps of judges who sit in special courts- known as administrative courts. These courts form a three-tier hierarchy headed by the Conseil d’Etat (Council of State) in Paris, below which are the regional intermediary Cours Administratives d’Appel (Administrative Courts of Appeal) and the Tribunaux Administratifs (Administrative Tribunals) in metropolitan France. They respectively correspond to the Supreme, Higher and First Instance ordinary courts in structure. These three-tier administrative courts have general judicial jurisdiction on administrative matters falling under their respective material and/or local jurisdictions.
In addition to these courts of general jurisdiction, there are a number of other administrative tribunals exercising judicial functions in narrowly defined fields of activity. These are administrative courts of special jurisdiction that are established in special circumstances where the appropriate expertise does not exist in a general tribunal. But these specialized administrative tribunals are still under the supervision of the Conseil d’Etat as the supreme administrative court. Thus, the French administrative justice system has two striking features: firstly, there is a full-fledged system of administrative law that regulates the relationship between the administrative agencies and citizens and the interrelationship among the various organs of the government. Secondly, there is a full-fledged administrative court system. All administrative disputes are finally resolved within the system of the three-tier administrative court of general jurisdiction as supplemented by those relatively fewer (for example, compared to U.K.) administrative tribunals of special jurisdiction. The Conseil d’Etat is the court of final resort on administrative matters. There is neither possibility of lodging appeal nor possibility for invoking judicial review against the administrative decision before regular courts in France. Inspired by Montesquieu’s theory of separation of powers, the French strictly prohibits interference of regular courts on the affairs of the administrative organs of the government on whatever ground. In French, it is a criminal offence for the judges of the ordinary courts to interfere in any manner whatsoever with the operation of the administration, or to call administrators to account before them in respect of the exercise of their official functions.
Most of the common law jurisdictions do not have the French type system of administrative law and tribunals; but tribunals of special jurisdiction proliferated here and there in response to particular circumstances. The same thing seems true in Ethiopia, where there is neither full-fledged corpus of administrative law, nor structured system of administrative court. Of course, this does not mean that Ethiopia has no administrative law and administrative tribunals. As it has been explained earlier, there are diverse sources of administrative law such as the constitution, pieces of primary and delegated legislation. So, the law is there and also the tribunals are there. But what is missing there is that unlike the French system of administrative justice, here in Ethiopia there is that is no generally defined administrative law jurisprudence. We do not have general principles of administrative law that govern the jurisdictional dichotomy between the adjudicatory powers of administrative agencies/tribunals on the one hand and regular courts, on other hand, Thus, for academic purpose it would be quite important to appreciate the French experience where there is a unified system of administrative justice.
If administrative tribunals and ordinary courts are required to confine themselves within the domain of their respective sphere of powers, a clear demarcation has to be made between the jurisdictions of administrative courts and that of the ordinary courts. This is especially important for countries that adopt the French model of administrative system that provides a clear dichotomy between the provinces of administrative law and private law. It is also important for countries where tribunals of special jurisdiction are proliferated here and there like ours. But the problem is that how this ideal line can be drawn. As it was discussed in the previous chapters, the concerns of the administrative law are governmental activities that administrative agencies carry out. There is a possibility where a given administrative agency may involve in activities that are governmental in nature; for example, regulating private business such as issuing or canceling of license, or rate fixing, or setting safety standards and so on, or in activities that are private in nature such as owning and administering property and producing goods and services for gain. There is a general opinion that when the dispute arises from activities of the first category, it falls within the domain of the administrative law- thus it is the jurisdiction of the administrative tribunals. But when the disputed act arises from activities of the second category, that is, activities private in nature, it falls within the province of private law-subjected to the jurisdiction of ordinary courts. This general criterion, homers, may not be always true.
French administrative law writers and practitioners have been engaged in searching for general principles and criteria which make a clear demarcation between the jurisdiction of administrative courts and ordinary courts. According to Brown and Bell, in the period before Blanco (TC 8 February 1973), the following criteria were developed:
- The first was that of the state as a debtor, under which the Conseil d’Etat denied the ordinary court’s competence to condemn the state to any money payment.
- The second was the criterion of ‘the act of public authority’ that drew a distinction between those actions of the administration, which involved its public authority and mere acts of management that did not: the former were outside the jurisdiction of the ordinary courts, the latter were within it.
- The third criterion and the one favoured by the ordinary courts, was that of ‘public administration’ as distinct from ‘private administration’; in the latter the administration used the same process as the private citizen and therefore came within the scope of the ordinary courts. On the other hand, disputes arising out of its public administration belonged to the administrative courts.
These early criteria, tentative and overlapping, were discarded in Blanco in favour of a new principle, that of ‘public service’. The child Agnes Blanco was injured by a wagon, which was crossing the road between different parts of the state-owned tobacco-factory at Bordeaux. The question then arose, to which court, civil or administrative, the claim for damages should be brought. The Tribunal des Conflits, adopting the analysis proposed by Commissaire du gouvernement David, held that the injury arose out of the activities of a service public and that for this reason the administrative court had jurisdiction. Such influential doctrinal writers as Duguit…Jeze, and Rolland subsequently approved this approach. According to this last criterion, ‘a public service is any activity of a public authority aimed at satisfying a public need’. This definition stresses that for a public service two elements must both be presented: the activity of a public authority, and satisfying a public need. [Brown and Bell: pp125-126] A ‘public need’ is not only that defined by statute; it can simply be identified by a decision of public authority. The second element in the concept of service public, namely, that the activity in question must be carried on by a public authority, has been extended almost to vanishing point in recent decades. In particular, it is necessary to distinguish between the public authority’s role as creator or director of the public service from its role as provider. For a public service to exist, it is not necessary for a public body actually to provide the service.
A third element may be distinguished in the concept of service public, in addition to the meeting of a public need and the participation of a public authority. The authority must have recourse to methods and prerogatives which would be excluded in relations private parties. For example, it may operate as the service concerned as a monopoly, or may finance it by compulsory contributions from those it benefits.
But even where the activity has the appearance of a service public, it may not come under the supervision of the administrative courts sime the special regime of administrative law is excluded. Such exclusion may be expressed by statute, or implied because the interests involved are ones traditionally within the protection of civil courts, or because the public authority decides to function under the same conditions as private operators.
In short, the choice of criterion has been swung back and fro between the concept of public service and public authority. However, the latter seems currently the preferable test for the competence of administrative judge. The basic principles for separating the functions of the administrative courts and the ordinary courts as indicated above would lead to giving jurisdiction to the ordinary courts only when the activity of public body was private in character. However, these principles are subject to a number of exceptions based on convenience more than principle. So, some disputes, although they arise from acts of public authorities, may in exceptional circumstances be left to the jurisdiction of ordinary courts. Hence, a watertight demarcation of jurisdiction cannot be made based on a single principle only.
It is suffice say that disputes involving administrative agencies, which arise out of the conducts of public authorities, are in principle falling under the jurisdiction of administrative courts. But the French administrative law gives a room for some exceptions to this principle.
As was stated somewhere else, one of the striking features of adjudication is the existence of predetermined procedures that guide the decision-making process. The decision may be preceded by full-blown formal hearings that are similar to court trials or an informal process, which is just like a summary proceeding where the participation of the parties is very minimal. Normally, adjudication process begins either with a complaint filed against a private person, a business, or even another agency. The party charged in the complaint is the defendant (called the respondent). The respondent has the right to file an answer to the complaint. In principle, respondents are entitled to a hearing before the agency adjudicating the case. However, the depth of the hearing may vary from circumstance to circumstance.
1.1.1 Informal Adjudication
The vast majority of administrative adjudications involve informal actions. As will be discussed in the subsequent sub-sections, the informality of the process of administrative adjudication is among the justifications behind the delegation of judicial power to administrative agencies. The informal mode of adjudication, although it may vary from county to country and from case to case in terms of content, tries to provide the minimal statutory safeguards for the protection of fundamental rights of individuals.
The United States Administrative Procedure Act (APA) can be cited as a typical example. In the USA, the Administrative Procedure Act (APA) governs federal agency adjudicatory procedures in general. However, most states have their own counterpart to the APA. The APA requires the most basic elements of due process, that is, notice and hearing. Regarding notice, APA provides that “persons entitled to notice of an agency hearing shall be timely informed of the time, place, and nature of the hearing; the legal authority and jurisdiction under which the hearing is to be held; and the matter of fact and law asserted. As to the hearing, the agency is required to give all interested parties opportunity for …the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit…” The APA requirements for administrative hearings are minimal, allowing agencies to operate rather informally. Although hearing in this sense may be treated as important elements of the procedural due process of law, it does not necessarily mean that a full-blown oral hearing is to be conducted. Depending upon the nature of the case in hand, a written submission of opinion, argument, data, or otherwise may suffice. So, in the majority of cases, APA dictates administrative agencies to fulfill the minimum requirements of notice and hearing before proceeding to act on matters that affect the rights of others. Indeed, the notice has to be adequate enough in terms of time, place and content. But hearing could be informal such as written submissions and interview like oral communications. In all cases, the due process clauses of the fifth and fourth amendments to the US constitution dictate that neither the federal nor state governments shall deprive of “life, liberty, or property, without due process of law.” The notion of due process of law connotes two things: the substantive aspect of the action that the decision of the agency must be backed by lawful authority and the procedural aspect that the process of decision making must be guided by predetermined procedures, or in default by the minimum requirements set under APA. To put it simply, a person cannot be deprived of his entitlements to life, liberty and property except for strong reasons expressly provided under the relevant substantive laws and in accordance with the procedures set under the related laws.
The ordinary rules of procedure and evidences that govern court proceedings are not fully applicable to administrative/tribunal proceedings in their entirety. Courts in the common law tradition, therefore, have developed general principles that are expected to ensure fairness in agency adjudication. These principles are known as the rules of natural justice and fairness. The rules embody two concepts. First, audi alteram partem- that means a person should not be condemned without a fair hearing. Second, nemo judex in causa sua–which means that no one should act as judge in any matter if he or she has some kind of vested interest in the decision since all decisions should be free from bias. In the United Kingdom, there is an established precedent on the application of the rules of natural justice in the following types of situations:
- Where someone is dismissed from office; or
- Where someone is deprived of membership of a professional or social body;
- Where someone is deprived of property rights or privileges.
Where the rules of natural justice apply in their entirety, a fair hearing will be expected to consist of the following elements:
a) Adequate notice must be given to the person affected;
b) The person affected must be informed of the full case against him or her;
c) Adequate time must be allowed for that person to prepare his or her own case;
d) The affected person must be allowed the opportunity to put forward his or her own case;
e) The decision maker may be required to give reasons for his or her decision;
f) The affected person may be able to cross-examine witnesses;
g) The affected person may be entitled to legal representation.
But it has to be noted that the concept of fair hearing may not imply the same thing in all circumstances. The requirements listed from (a) to (d) are made mandatory- the minimum requirements of fair decision, whereas those listed from (e) to (g), are discretionary in the sense that their application may be required having regard to the nature of each particular type of case. In McInnes v Onslow-Fane  1 WLR 1520, Megarry V-C said that natural justice was a flexible term which imposed different requirements according to the nature of the case. The closer a decision came to being termed ‘judicial,’ the more applicable the full elements of the rules of natural justice. However, the closer a decision came to being ‘administrative’ in nature, it was more appropriate to talk about the requirements of ‘fairness’. [Cumper & Waters: P. 311]. Normally, the consideration of an application for a license is an administrative task - the full rules of natural justice do not apply - the requirement is only that of fair consideration of the application. In contrast, the revocation of a license is more of a judicial decision – it is taking away someone’s rights – therefore they are entitled to the full protection of the rules of natural justice. [Id.]
It has to be noted further that fair hearing does not always necessitate oral hearing. Sometimes, written representations will comply with the rules of natural justice or the duty to act fairly. Case law suggests that written representation will suffice when the facts of a case are not in dispute. However, where this is not the case, the requirements of natural justice may require that there be an oral hearing.
To put it in nutshell, informal adjudication does not involve full-blown trial type hearing. Unless otherwise statutes or case laws (in common law practice) dictate the agency to follow a full-fledged formal hearing process, agencies are usually at liberty to adopt their own decision-making procedures having regard to the minimum requirements of due process of law or natural justice or fairness as such terms may be differently known in different jurisdictions. The more the process of administrative adjudication is highly formalized, the less would be the resultant advantages sought from the delegation of adjudicatory powers to administrative agencies. The more administrative adjudication process is made highly informal, the more would be the possibility for administrative arbitrariness and the threats posed on the rights of individuals. Thus, while it is important to dispense administrative agencies/tribunals from the highly formalized and stringent ordinary court procedures so that laws and policies will be enforced, it is equally important to device the minimum procedural safeguards for the protection of individual rights from arbitrary violation for such powerful agencies. These are the two apparently conflicting and actually competing important interests what APA and the doctrine of fairness as developed from case laws try to strike balance.
1.1.2 Formal Adjudication
As mentioned above, informal administrative adjudication offers only the minimal statutory safeguards of notice and hearing; and hearing in the majority of cases does not involve oral hearing, but written submission of opinions, arguments, data, and so on. But formal adjudication involves an almost full-blown trial type hearing. Having regard to the magnitude of the individual interest at stake, the enabling legislation (parent act) or other statutes may dictate the concerned administrative agencies to hold a formal hearing before passing decisions. Formal adjudication, among other things, may provide the following procedural safeguard to the respondent:
- Notification of charges;
- Notification of hearing;
- Representation by an attorney;
- An impartial tribunal/administrative law judge;
- Presentation of evidence;
- Cross examination of the witness of the agency;
- A decision based on the regulation.
In a formal adjudication, the respondent has the right to confront an agency witnesses. Hence, oral hearing must be always there. Even where the statutory requirements regarding agency adjudication process appear inadequate to ensure fairness or to protect the fundamental rights of individuals, the US Supreme Court has applied the Due Process Clause of the Fifth and Fourth Amendments that dictate neither the federal nor the state governments shall deprive persons of “life, liberty, or property, without due process of law.” Regarding the notion of administrative due process, authorities are noted as follows:
In administrative due process cases, the Court must make two determinations. First, it must decide whether the Due Process Clause is applicable. Administrative decisions are constrained by the Due Process Clause only if, they in some meaningful way, deprive an individual of “life, liberty or property.” Of course, today those interests are broadly defined. Second, assuming that the Due Process Clause does apply, the Court must determine what “process” is in order to ensure fundamental fairness. Here, the Court has been reluctant to adopt a one-size-fits-all approach to administrative due process. In Mathews v. Eldridge, the Court said, “due process is flexible and calls for such procedural protections as the particular situation demands.” Beyond the general requirements of fair notice and fair hearing, it is difficult to say precisely what due process requires in a specific administrative context. But one guiding principle is that the greater the magnitude of the individual’s life, liberty or property interest, the greater the requirement for procedural protections.
The greater an agency’s action tends to encroach to the fundamental constitutional rights of individuals, the greater should be the procedural protections provided to such individuals. This is also what the principle of natural justice and the doctrine of fairness as discussed in the previous subsection dictate. Thus, there are circumstances where administrative agencies/tribunals are required to conduct a full-fledged formal administrative adjudication. They may be dictated to do so in the majority of cases by the enabling legislations or other related statutes, by the constitutional principles guarantying due process of law, the principles of natural justice and fundamental fairness.
To date, Ethiopia has not come up with an instrument that provides uniform standards or guidelines that regulate administrative agencies’ adjudication process. Both at the federal and the regional levels, there is no uniform legislative guidance that dictates administrative agencies concerning the procedural steps they must go through while adjudicating cases. So, if there are any, such procedures have to be searched in each of the pieces of enabling legislations that create the respective agencies. At the federal level, a fruitless attempt was made in 2001 to adopt a federal administrative procedure proclamation that was intended to regulate the process of rulemaking and adjudication by federal administrative agencies. But for unknown reason, it has remained as a draft for almost a decade. Federal administrative agencies can refer to this draft document like any other an unbinding legal literature at their discretion; the draft document cannot dictate such agencies decisions for it is not yet adopted in the form of law.
However, this does not necessarily imply that administrative adjudication in Ethiopia is completely arbitrary. You can see some procedural requirements dispersed here and there in the enabling legislations that create and empower particular agencies. Even where the procedural safeguards provided in such particular legislations are found, inadequate to protect the fundamental constitutional rights of individuals, recourse has to be made to the principles of due process of law enshrined under the FDRE Constitution. Our constitution expressly protects, among other things, the right to life, liberty and property. These rights cannot be restricted or taken away arbitrarily by any individual or administrative authority. Rather, all citizens and organs of the federal and regional government have the duty to ensure the observance of the constitution and obey it. Thus, as it happens in the United States of America, there is a wide room for our courts to play active role in ensuring the principles of due process of law incorporated in our constitution. Implicit in the concept of due process of law are there always the core requirements of fair notice and fair hearing.
In an attempt to provide a procedural safeguard to the protection of individual rights from administrative agencies, the draft federal administrative procedure proclamation of Ethiopia (herein after referred to as the draft) incorporates the core principles of due process of law such as notice and hearing. The joint reading of Articles 24 and 26 of the draft indicates notice and hearing as requirements. Before an administrative action that affects the right of individuals is taken, adequate notice and a fair hearing opportunity shall be given by the agency to such concerned individuals. The general requirement of notice under Article 24 of the draft dictates administrative agencies to notify the cause of action of the case they intended to take, the time, place and nature of the hearing. The purpose of notice is to let individuals aware of the action an agency actually plans or intends to take on cases that involve their legitimate interest. The right to hearing before an administrative measure is taken is also provided under Article 26 of the draft. Unless otherwise hearing is dispensed in those circumstances expressly provided under the law for different reasons, an agency is obliged to conduct a public hearing (Article 26 cum Article 28). The hearing enables the party to the case voice his objections and arguments against the decision. Article 28(3) of the draft confers parties to administrative proceedings the right to submit documentary and other evidences to request agencies to summon witnesses, and to cross-examine the allegation of the other side. Article 25 of the draft allows parties to administrative proceedings the right to counsel and represent by a licensed advocate, or any other person.
In the conduct of the hearing, agencies are required to maintain the record to all proceedings carried out in rendering decision, and upon request to give the copy of the record to the parties or their representatives. Furthermore, Article 32 of the draft dictates administrative agencies to reduce their decision into a written form and to include disputed facts under consideration including the substance and source of the evidence, the findings of facts made and the evaluation of the evidence which bases the decision, the determination of the issue and action to be taken on the basis of such decision.