TI Source Book 2000

Chapter 19: Administrative Law--Judicial Review of Official Actions

Far more has been accomplished for the welfare and progress of mankind by preventing bad actions than by doing good ones.
-- William Lyon Mackenzie King

Far more has been accomplished for the welfare and progress of mankind by preventingbad actions than by doing good ones.

In simple terms, the Rule of Law requires that government operate within theconfines of the law; and that aggrieved citizens, whose interests have beenadversely affected, be entitled to approach an independent court to adjudicatewhether or not a particular action taken by, or on behalf of, the state is inaccordance with the law. In these instances, the courts examine a particulardecision made by an official, or an official body, to determine whether it fallswithin the authority conferred by law on the decision-maker. In other words,the courts rule as to whether or not the decision is legally valid. In so doing,the judges do not substitute their own discretion and judgement for that of thegovernment. They simply rule whether the government or its officials haveacted within the ambit of their lawful authority. Thus, the judges do not "govern"the country and, do not "displace" the government when governmentdecisions are challenged in the courts.

With the increasing dominance of the private sector in many countries, andthe emphasis of government activity shifting from direct participation(through government-owned corporations) to regulation (as often as not, of privatised activities),the role of the courts is, if anything, becoming even more important. Decisions of governmentregulators impact directly on the private sector interests that they are regulating, andthe private sector will look to the courts with greater frequency to shield it from excessive orabusive use of regulatory powers. At times the courts will be expected to go further, and actuallyreview the legality of decisions being made in the private sector itself, applying the principlesof administrative law (previously applicable only to official institutions), where thesedecisions impact significantly on the public interest.^[1]

What is "administrative law"?

In general terms, administrative law is the law governing the administration of governmentbusiness. It governs both central and local government and public bodies in their exercise ofstatutory or other public powers, or when performing public duties. In both civil and commonlaw countries in Europe, these types of functions are sometimes called "public law functions"to distinguish them from the "private law functions", which govern the relationships betweenindividual citizens and some forms of relationships with the state. For example, if a citizenworks in a state-owned factory and is injured, he or she would sue as a "private law function".If residents of the surrounding community were concerned about a decision to enlarge thestate-owned factory because of environmental pollution, the legality of the decision may bereviewed by the courts as being a "public law function".

In terms of administrative review, the basic question asked is not whether a particular decisionis "right", or whether the judge, had he been the minister or the official, would have cometo a different decision. The questions are: what the power or discretion which the law has conferredon the official is? And has that power has been exceeded, or otherwise unlawfully exercised?For example, in England, a local authority was given the statutory power to providewash houses where people could come and do their own laundry. A court decided that thispower was not sufficiently broad to permit a local authority to open a fulllaundry service which was trading for profit.^[3]

The Rule of Law in most countries consists of written constitutions underwhich the government is required to operate. However, there is inevitably atension between politicians who are generally interested in exercising powerand extending their influence, and constitutions which must seek to containthat power in order to protect the citizen from arbitrariness. In the middle ofthis tug-of-war are the courts. The courts are asked to decide whether a disputeddecision is in accordance with the Rule of Law. Of course, this isresented, at times very deeply, by some elected politicians. They see themselvesas being elected by the people, and as having their authenticity (andpower) derived from an exercise of political will. When confronted with acritical Judiciary they are inclined to ask: Who appointed you? The answermay well be the elected politicians. However, the role of the courts is not toimpose the political views of the majority on minorities, but to protectminorities against the exercise of what some call "majority tyranny." Themajority may, in a political system, have a right to make a decision, but thatdecision must be in conformity with the law.

The formulation of principles of good public administration

The law expects public officials to exercise their administrative functions justly and fairly. The1994 Constitution of Malawi states that every person shall have the right to:

(a) lawful and procedurally fair administrative action, which is justifiable in relation toreasons given where his or her rights, freedoms, legitimate expectations or interestsare affected or threatened; and(b) be furnished with reasons in writing for administrative action where his or herrights, freedoms, legitimate expectations or interests are threatened, if those interestsare known.

In Malawi, not only is good public administration rendered a constitutional rather than just acommon law right, it is also made clearly accountable. An unequivocal duty is placed onadministrators to provide reasons behind their actions. This last requirement holds the key togood governance; without reasons, decisions can be rendered more difficult to challenge. Whenreasons are stated--and under the Malawi model they must be--the argument comes out ofthe shadows and the court can examine the reasons given and judge their legal sufficiency.Given the wide impact administrative decisions can have on broad sections of the community,it is vital that the overall framework exposes public decisions to review as to their legality whencitizens are aggrieved or particularly affected by their outcome. Thus, public officials--withoutexception--must have appropriate training in the principles of good public administration.

A good example of the guiding principles of administrative law can be found in the LusakaStatement on Government Under the Law (1992) endorsed by both Commonwealth Law Ministersin 1993 and by successive meetings of senior judges in various regions. The statementreads as follows:

An administrative authority, when exercising a discretionary power should:

pursue only the purposes for which the power has been conferred;

be without bias and observe objectivity and impartiality, taking into account only factors relevant to the particular case;

observe the principle of equality before the law by avoiding unfair discrimination;

maintain a proper balance between any adverse effects which its decision may have on the rights, liberties or interests of persons and the purpose which it pursues;

take decisions within a time which is reasonable having regard to the matters at stake; and,

apply any general administrative guidelines in a consistent manner while at the same time taking account of the particular circumstances of each case.

Procedure

Availability of guidelines: Any general administrative guidelines which govern the exercise of a discretionary power should either be made or communicated (in an appropriate manner and to the extent necessary) to the person concerned, at his or her request, whether before or after the taking of an act concerning the person;

Right to be heard: In respect of any administrative act of such a nature as is likely to affect adversely his or her rights, liberties or interests, the person concerned should be entitled to put forward facts and arguments and, in appropriate cases, submit evidence which should be taken into account by the administrative authority; in appropriate cases the person concerned should be informed, in due time and in an appropriate manner, of these rights;

Access to information: Upon request, the person concerned should be informed, before an administrative act is taken and by appropriate means, of all factors relevant to the taking of that act;

Statement of reasons: Where an administrative act is of such a nature as to affect adversely the rights, liberties or interests of a person, the person concerned should be informed of the reasons on which it is based either by stating the reasons in the act itself or, upon request, by communicating them separately to the person concerned within a reasonable time;

Indication of remedies: Where an administrative act is given in writing and which adversely affects the rights, liberties or interests of the person concerned, it should indicate the specific remedies available to the person as well as any time-limits which may be involved.

Review

An act taken in exercise of a discretionary power should be subject to judicial review by a court or other competent body; however this does not exclude the possibility of a preliminary review by an administrative authority empowered to decide both on legality and on the merits;

Where no time limits for the taking of a decision in exercise of a discretionary power have been set by law and the administrative authority does not take its decision within a reasonable time, its failure to do so should be open to review by a competent authority;

A court or other independent body which controls the exercise of a discretionary power should possess such powers of obtaining information as are necessary for the proper exercise of its functions.

Implementation

In their implementation, the requirements of good and efficient administration, the legitimate interests of third parties, and major public interests should be given due weight. But, where these requirements make it necessary to modify these principles in particular cases or specific areas of public administration, every endeavour should be made to conform with these principles and to achieve the highest possible degree of fairness.

Reasons why a specific decision may be unlawful

A decision may be rendered unlawful in a variety of situations. For example, a statute mightgive the Minister a very wide discretion, but the question can still arise as to whether or notthat discretion was exercised properly. Was it exercised in a manner which promoted the intentionand objectives of the statute that created it? Was the power exercised for the purpose forwhich it was conferred?

However wide a discretion may appear to be on the face of a statute, where administrative lawhas developed, the courts will try to limit the use of discretionary power to properly reflect thepurpose for which it was created. The right questions must have been asked; consultation,where appropriate, must have taken place; and irrelevant considerations must not have beentaken into account.

A more contentious situation can occur when a court is asked to upset a decision because itis "irrational." The courts generally state that administrative powers must be exercised "rea-sonably"and few would quarrel with that. However, in practice, the courts generally refuse tointerfere on the grounds of "reason", unless a particular decision is outrageous in its defianceof logic or accepted moral standards.^[4]

Another common challenge to an administrative decision is "procedural impropriety". Thisusually involves a claim that the people affected by a particular decision were not given anadequate or fair hearing. Precisely what does, and what does not, constitute a "fair hearing"will depend on the circumstances. In some cases, an unfair hearing will occur if lawyers areeither not retained and or not allowed to cross-examine witnesses at a public hearing. At theother extreme, a fair hearing may comprise no more than the authority placing an advertisement notifying the public that a particular proposal is under consideration, and that any writtenrepresentations that may be made, will be taken into account.

An administrative decision can also be questioned on the grounds of its being "fettered"; i.e.when a decision is made automatically, and without any consideration of the unique facts ofthe case. The courts always support--and at times enforce--a policy of equality of treatment,with like cases being treated alike. However, equality does not overrule equity, and equitydemands that each case be treated on its individual merits.

Legal "bias" is another common form of challenge to an administrative position, as is "legitimateexpectation". A good example of legitimate expectation occurred in Britain. A trade unionclaimed, successfully, that it had a legitimate expectation arising from long-established practice,to be consulted in the future, unless and until, it was given reasons for the withdrawal ofthis right, and the opportunity to make representations against any change in existing practice.

The concept of "abuse of power" involves the courts looking beyond the ways in which a particulardecision was reached, and to examine what the decision actually ought to be. This challengeto administrative law occurs only in the rarest of cases. One example involved a taxpayerwho claimed that the revenue authorities had told him that, should he withdraw certainclaims for tax deductions, they would not pursue another matter against him. The courtdecided that had there been a proper agreement to this effect (which in the circumstances therewas not), it would have been an abuse of power for the revenue authorities to reopen the othermatter.^[5]In addition, the concept of "proportionality" is currently being given more considerationas an integral component of an administrative decision. Common law has tended tostress remedies rather than principles, and judges have been reluctant to express basic notionsof fairness as being fundamental principles of law. Instead, they opt for pragmatism. However,recent trends signal that judges are becoming more adventurous and are prepared to look atwhether a particular decision was "wholly out of proportion" to what was required, as forexample, in the case of a local council that banned one member of the public from all localauthority meetings because of the way he had behaved at various private gatherings.^[6]

Giving reasons for administrative decisions

Public officials are generally not compelled by the courts to give reasons for their decisions.However, the courts will sometimes decide that the relevant statute requires that reasons begiven, and at times, a requirement to do so may be written into the law. This can occur, forexample, where someone is given a right of appeal against a decision and so must be entitledto know the reasons behind the decision in order to support the appeal. There is also the dangerthat in the absence of information to the contrary, a court may conclude that there are, infact, no good reasons for a decision, and a decision is not warranted. To challenge this conclusion,the public official must defend the decision. Thus, providing the reasons for decisionsis desirable and should be encouraged. If nothing else, the mere act of writing down the factsand the reasons for a certain decision can help an official see the situation more clearly.

Decision makers must ask themselves...

It cannot be said too often that "an ounce of prevention is worth a pound of cure". Every timean official has to make a decision, he or she must ask themselves a series of questions or elserun the risk of falling foul of the Judiciary through the process of administrative review. Thesequestions are:

Have I got the power to do what I want to do? Or am I adopting a particular interpretation of my statutory powers in a way which happens to suit me?
Am I exercising the power for the purpose for which it was given?
Am I acting for the right reasons? Have I taken into account all relevant information and excluded all irrelevant considerations?
If I am to give reasons for the exercise of the power, are these reasons correct and will they withstand independent and informed examination by a judge?
Will I hear and consider the points of view of people likely to be affected by the decision? Have I sufficiently informed them of what is being proposed so as to ensure that they have had a fair opportunity to make representations if they disagree?
Have I allowed sufficient time for consultations and representations?
Have I really made up my mind in advance or given that impression without considering the circumstances of the particular case?
Do I or anyone else involved in making the decision have any conflicting interest which might lead someone to suppose that there is bias involved?
Are there any grounds for someone to think that I might not be acting fairly? Have I led anyone to suppose that I will be acting differently from the way in which is now intended?
Has the decision-making power been wrongly delegated? Should I seek legal advice on this point?
Do I propose to act in a way which a court might regard as an abuse of power or as being generally so unreasonable that it is likely to rule against me? ^[7]

A review of administrative law is essential to ensure that anti-corruption efforts can have animpact on the highest levels of corruption within a system of governance, and that reformefforts do not bounce off a virtual brick wall of legal ambiguity.

Above all, the citizen must feel that the administrative law fully supports and enforces transparencyand accountability in decision-making on the part of all public officials.

Indicators as to the effectiveness of judicial review as an integrity tool

Do courts have the jurisdiction to hear cases in which citizens claim that official decisions have been made unlawfully?
Is this remedy used?
Do citizens have confidence in the independence of the judiciary when they are hearing such cases?
Is there a conscious effort on the part of officials to comply with good administrative practice and make decisions fairly and justly (i.e. seeking the opinions of affected citizens before decisions are taken; affording them an opportunity to be heard; giving due weight to opinions expressed; giving reasons for decisions; staying within the bounds of the powers conferred by law etc.)?
Are relevant rules and procedures readily available to members of the public?
Are members of the public aware of their rights?