Administrative Law and Human Rights
Every branch of law has incidental effects on the protection or infringement of human rights, whether by constraining or enabling actions which affect other people. Administrative law is, however, particularly vulnerable to the permeation of human rights claims, since, like human rights law, it primarily constrains the exercise of public power, often in controversial areas of public policy, with a shared focus on the fairness of procedure and an emphasis on the effectiveness of remedies.
At an abstract level, there is a consonance of fundamental values underlying human rights law and administrative law. Both systems of law aim at restraining arbitrary or unreasonable governmental action and, in so doing, help to protect the rights of individuals. Both share a concern for fair and transparent process, the availability of review of certain decisions, and the provision of effective remedies for breaches of the law. The correction of unlawful decision-making through judicial review may help to protect rights. The values underlying public law – autonomy, dignity, respect, status and security – closely approximate those underlying human rights law. Moreover, each area of law has been primarily directed towards controlling ‘public’ power, rather than interfering in the ‘private’ realm, despite the inherent difficulties of drawing the ever-shifting boundary between the two. A culture of justification permeates both branches of law with an increasing emphasis on reasons for decisions in administrative law and an expectation in human rights law that any infringement or limitation of a right will be justified as strictly necessary and proportionate. There is also an ultimate common commitment to the basic principles of legality, equality, the rule of law and accountability. Both administrative and human rights laws assert that governments must not intrude on people’s lives without lawful authority. Further, both embody concepts of judicial deference (or restraint) to the expertise of the executive in certain matters. In administrative law, for example, this is manifested in a judicial reluctance to review the merits, facts or policy of a matter.
There are also marked differences between the two areas of law. Human rights law is principally concerned with protecting and ensuring substantive rights and freedoms, whereas administrative law focuses more on procedure and judicial review attempts made to preserve a strict distinction between the legality and the merits of a decision. Human rights law protects rights as a substantive end in themselves, whereas administrative law focuses on process as the end and it may be blind to substantive outcomes, which are determined in the untouchable political realm of legislation or government policy. It is perfectly possible for a good administration to result in serious human rights violations (and conversely, compatibility with human rights law does not preclude gross maladministration).
Human rights law is underpinned by the paramount ideal of securing human dignity, whereas administrative law is more committed to good decision-making and rational administration. The three broad principles said to have underpin administrative law are largely neutral on substantive outcomes: administrative justice, executive accountability and good administration.
The traditional emphasis of administrative law on remedies over rights reverses the direction of human rights law, which may provide damages for the breach of a right, whereas this is not the natural consequence of invalid action in administrative law. At the same time, administrative law remedies may still guarantee essential human rights; an action for release from unlawful detention (habeas corpus) can secure freedom from arbitrary detention, and an associated declaration by the courts may provide basis for pursuing compensatory damages in a tortious claim for false imprisonment.
Administrative Law and Good Governance
Administrative law plays an important role in improving efficiency of the administration. The rules, procedures and principles of manner of exercising power prescribed by administrative law are simultaneously principles underlying good governance. They also share a common goal. One of the common destinations of administrative law and good governance is the attainment of administrative justice. The set of values of administrative justice which mainly comprises openness, fairness, participation, accountability, consistency, rationality, legality, impartiality and accessibility of judicial and administrative individual grievance procedures are commonly shared by administrative law and good governance.
Administrative justice is considered as having two themes. First, it comprehends the range of entities which deliver complaint and review services and assurances of those services to the citizen. Second, it comprehends the kind of resolution sought to be achieved. The attainment of administrative justice largely depends on the existence of efficient and effective institutions like the ombudsman, administrative tribunals and ordinary courts.
Review by the ordinary courts, judicial review, supports the legitimacy of the decision making process that it reviews. A decision-maker whose decisions are reviewable can claim that because the decision is reviewable for its legality, as determined by an independent judiciary, the decision has a legitimacy that it otherwise would not have. Its legitimacy lies on the fact that it is open to a dissatisfied person to challenge its validity.
It can also be said that a decision reached by a fair decision making process is likely to be a better decision. It is likely to be better because requiring the decider to hear both points of view can make a contribution to the soundness of the decision. But, beyond that, we have to acknowledge that judicial review does not have a great deal to contribute to the quality of decision making by the executive government. Its ultimate goal remains to be maintaining the rule of law.
Administrative law also helps to realize the three underlying principles of good administration: i.e. accountability, transparency and public participation. Accountability is fundamental to good governance in modern, and open societies. A high level of accountability of public officials is one of the essential guarantees and underpinnings, not just of the kinds of civic freedoms enjoyed by the individual, but of efficient, impartial and ethical public administration. Indeed, public acceptance of agovernment and the roles of officials depend upon trust and confidence founded upon the administration being held accountable for its actions. The administrative law system, when working properly, supplements and enhances the traditional processes of ministerial and parliamentary accountability in any system of government.
Accountability does not have a precise meaning. The underlying notion is that of giving an account or an explanation to a person or body to whom one is responsible. That part of it is clear enough. But the form or process of accountability, as that term is used in debate, varies widely. The process of accountability ranges from merely being subject to comment or criticism, through to loss of office, to personal liability for damage caused by a poor decision, and to prosecution for criminal offences. The discussion in which accountability is an issue is often confused because of the different processes and meanings of accountability. There is often a silent assumption that only certain processes of accountability, such as loss of office, represent true accountability. But, it is suggested that the underlying idea of accountability is that of giving an account or an explanation, and that it is necessary to recognize that the process of accountability can vary widely.
The accountability of the executive government for decisions made in the exercise of public powers may be manifested through different ways. By public powers it is to mean powers conferred by statute, and when the power is exercised in the public interest. This typically refers to decisions that are amenable to judicial review i.e. reviewable decisions.
Executive government refers to Ministers and public servants or government employees. Ministers are accountable to the electorate. They are called upon to explain their decisions, and can lose their parliamentary seat and hence their ministerial position. However, in practical terms, they are accountable to the electorate only as a group, not as individuals. If the party of which a minister is a member loses an election, the minister will lose office along with all other ministers. In that respect, the fate of the ministry is closely tied to the performance of the Prime Minister or Premier of his or her role. But this form of accountability cannot really be described as accountability for reviewable decisions. The link is too distant. This process of accountability is, in reality, not linked to the making of reviewable decisions.
Ministers are accountable to Parliament for reviewable decisions. They can be called upon to provide an explanation for, and account of their decisions. But, there is no convention these days of ministerial responsibility for reviewable decisions made by public servants. And, even at the level of reviewable decisions made by ministers, the control that the executive government exerts over parliament means that, in the ordinary sense, there is no effective accountability to parliament for particular reviewable decisions. Whether an adverse consequence flows from the making of a reviewable decision by a minister, or by a minister’s department,it depends upon political aspects of the decision, and the process of parliamentary accountability is a highly political one. This is not an effective form of accountability for decision-making. A similar comment applies to the accountability of an individual minister to the prime minister or premier who leads the Government of which the minister is a part.
Public servants are accountable to a departmental head, and sometimes to a minister, for reviewable decisions that they make. But, in a system in which most public servants can be punished or dismissed only for a case, erroneous reviewable decisions do not lead to sanctions against the decision-maker, unless the decision involves misconduct as distinct from mere error. Accountability involving loss of office or some formal punishment has only a slender link to decision making by ministers and public servants. To treat the executive government as accountable for the making of reviewable decisions, by a process involving loss of office, is erroneous. Neither ministers nor public servants are usually required to submit their decision-making processes to contemporaneous public scrutiny. There can be contemporaneous comment upon a decision that is being made or is anticipated. A comment may take place in parliament, or on the media, or elsewhere. There can also be retrospective scrutiny, in particular through judicial review, by merits review when legislation so provides, by an Ombudsman or use of freedom of information legislation. However, it remains true to say that the decision-making process of the executive government is not transacted in public.
It is also true that responsibility for reviewable decisions made by the executive government is often diffused. This is to mean that reviewable decisions made by the executive government are often made by a process of consideration and advice at various levels. Responsibility for a given decision may be diffused downwards to various advisers, or upwards to a departmental policy. For this reason, it is often difficult to identify a reviewable decision made by the executive government with a particular decision-maker. That can be a limit upon accountability. Ministers and public servants are not routinely required to give full reasons for a reviewable decision. Ministers and public servants are usually not personally liable for damage or loss caused by a poor decision. If a decision that goes beyond power is made, the decision-maker might then be liable in damages, but even then would usually be indemnified by the executive government. Decisions made by the executive government are, of course, subject to judicial review to determine whether they are made within power (jurisdiction), whether they are in compliance with the law, and whether they fair or natural justices. Some governments have also provided a process of review on the merits. Many reviewable decisions made by the executive government are subject to scrutiny by parliamentary committees, by an Ombudsman, or other institutions such as the Auditor General and the Ethics and Anti-corruption Commission.
Administrative law also ensures transparency in the conduct of government administration and the decision making process. One of the requirements of an open government is the right of individuals to obtain and have access to information. Government has to implement the right to get information through specific legislation. Freedom of information act, adopted in most democratic countries, affords citizens the right to have access to public documents and the right to be timely informed of decisions affecting their interests. Government cannot be held accountable and hence, subject to criticism unless it opens its door to citizens. The existence of freedom of information legislation by itself does not guarantee open government, rather a developed system of administrative law is needed for its proper implementation. Courts, through judicial review should be able to compel public officials denying citizens of their right to get information as provided by law. Institutions, like the ombudsman should also be able to give redress to the aggrieved parties whose rights are denied or violated by the administration.
In addition to this role of administrative law enabling citizens have access to government information, it also ensures openness in the decision-making process. Administrative adjudication should be conducted openly. An interested party should get prior notice detailing the nature of the case, time and place of hearing. The concerned agency proposing a certain measure should disclose all relevant evidence to that party. Such adjudication procedure allows the party to prepare his defense and generally create public confidence in the fairness of the decision- making process.
Similarly, the administration should be transparent in the rule-making process. Before an agency, through its delegation power issues a certain rule or regulation having a binding effect, it is required to make the proposed rule or regulation accessible to concerned parties for commenting and criticism. Once an administrative rule is legally issued, it should be officially published so that the public could know its content, and if necessary challenges its legality and validity.
Such adjudication and rule making procedures fall within the proper scope of administrative law. Some countries such as America, have introduced a comprehensive and detailed administrative procedure to make the decision-making process open and fair. Other countries, without adopting a comprehensive administrative procedure, have introduced specific procedures for the respective administrative action by the agency.
Such procedures do not only make the conduct of government open to the citizen, but also facilitate public participation in the administrative process. In a state founded on democratic principles, it is axiomatic that the basic human right (beyond access to the necessities of life) is the right to participate in civil society. Indeed, the very notion of representative democracy is predicated upon people exercising their civil rights.
In any system of government representative, democracy, for its lifeblood depends upon the participation of the public. Anything, therefore, which is likely to increase public participation in government, or in governmental decision-making processes is a good thing regardless of the merits or demerits of an individual decision. Obviously, public confidence in the institutions of government is a central concern, for without it, there is likely to be little inclination to participate. And without a public perception that one will be treated fairly by the government, it is doubtful that the confidence necessary to engender a keenness to participate will exist. Fairness in the decision-making process creates public confidence and motivates citizens to engage in active and meaningful participation in government administration.
Administrative law lays down the legal framework by which public’s participation is recognized and practically implemented. The principle of public participation as an element of good administration allows citizens to have their say or their voice be heard in the conduct of government administration. In a developed system of administrative law, agencies are required to observe minimum procedures while making judicial decisions or issuing rules and procedures. The principle of natural justice which mainly requires an individual’s defence be heard and get an impartial and fair treatment in the adjudication process acts as a stimulant for public participation indirectly creating public confidence. Unless the public gets a positive impression that the decision making process is fair and impartial, it will be discouraged to participate in other aspects of public affairs seriously.
The rule making procedure, on the other hand, it directly affords an opportunity to participate in the legislative process. One of such procedural requirements is the obligation to conduct consultation with concerned parties. Such consultation may be manifested through conducting an open hearing, collecting suggestions, comments and criticisms on the proposed rule or regulation. The concerned agency is further required to take comments and suggestion from interested parties as an input in the proposed rule. In some cases, it may be required to prepare a statement of reason indicating those comments incorporated, or submit a justification for the reason that were disregarded.