ZAMBIA OPEN UNIVERSITY
SCHOOL OF HUMANITIES AND SOCIAL SCIENCES DEPARTMENT OF GOVERNMENANCE AND PUBLIC ADMINISTRATION
NAME OF STUDENT: ANNETY KALYANGILE
STUDENT NUMBER: 21730179
PROGRAMME: BACHELOR OF PUBIC ADMINISTRATION
COURSE: NATIONAL GOVERNMENT AND
COURSE CODE: GPA 201
LECTURER: PROF. GERVASE MAIPOSE
YEAR: SECOND YEAR
ASSIGNMENT NO: 1
DUE DATE: 30TH MARCH, 2018
PHONE NUMBER: 0976840775
POSTAL ADDRESS ZIMBA TOWN COUNCIL
The following academic piece of writing presents a concise discussion of the salient dimensions of administrative justice and the various rights associated with administrative justice.
Administrative law covers a very wide range of issues, including expropriations, urban planning, civil registration, issuance of business licenses, protection of the environment, operation of public utilities and access to information. Administrative authorities are the main interfaces between private persons (natural or legal) and the state and, as such, they effectively determine rights, entitlements, duties and responsibilities. For example, the processes of civil registration (issuing of birth, death and marriage certificates) create legal documents that authorize access to entitlements connected to the full exercise of civil, political, economic and social rights (such as health care coverage, social security and tax benefits, and the ability to vote). Thus, administrative acts have a pervasive impact on daily life and, as such, it is important that private persons have the right to appeal administrative decisions that affect their rights, liberties or interests (Asimow, M. 1996).
The existence of administrative justice is a fundamental requirement of a society based on the rule of law. It signifies a commitment to the principle that the government, and its administration, must act within the scope of legal authority. It also signifies the right of private persons to seek legal redress whenever their rights, liberties or interests are negatively affected when the public administration exercises its duties in an unlawful or inappropriate manner. 4 In such cases, meaningful redress should be obtainable through the initiation of an administrative proceeding in a court or tribunal. The court or tribunal should have the power to exercise judicial review to determine the lawfulness or appropriateness of an administrative act, or both, and to adopt suitable measures that can be executed within a reasonable time. A balance should be struck between the legitimate exercise of authority.
This broad definition is useful because it delimits a coherent field of inquiry and enables discussion of administrative justice to respond to the full range of citizens’ concerns about their interaction with public services. It covers the full range of public services and activities that take decisions affecting citizens. It covers both procedural and substantive justice, i.e. the concern is not limited to questions of the appropriate procedures for taking and reconsidering decisions, but extends to the correctness of decisions, and even, to some extent, the merits of the rules and policies according to which decisions are made. It also covers both grievances which consist of believing that a specific decision is wrong and grievances which arise from other administrative failings such as undue delay and insensitive treatment. The following are the main dimensions of administrative justice.
First and foremost, the first dimension is internal complaint procedures. The subject matter of a complaint may be either a specific decision which is believed to be wrong or other administrative failings such as undue delay and insensitive treatment. All public bodies are expected to have set up their own in-house complaints procedures. Most such procedures are set up on a voluntary basis in that there is no legal requirement to review decisions once taken or to have a complaints procedure. However, it has been clear government policy at least since the 1991 Citizens’ charter that effective complaints procedures should exist in all public sector bureaucracies. In some cases, statute requires that a complaints procedure be set up for a particular function, for example, there is a statutory scheme for complaints about local authority social work. 1 Subject to any constraints in the relevant legislation, a public body will generally have power to change a decision it has made previously, and to uphold a complaint of service failure.
Therefore, many public bodies will have the freedom to consider and ‘put right’ most grievances whatever their nature. Where the in-house complaints procedure is non-statutory, it is for the public body itself to decide. It is likely to be an investigative procedure than an adjudicative procedure. Such complaints will, in practice, often be considered by someone other than the person who made the decision complained of. However, this is not independence in the legal senses as the decision on the grievance is being taken by the public body who took the decision or action complained of. In-house complaints procedures were not in the past standardised it is recommended that there be a common set of principles for devolved public administration based on the existing guidance which should form the basis of all public service complaints handling processes, and that there should be a standardised complaints handling process for each public service sector based on these principles. There is also substantial guidance on complaints-handling available for devolved public services (Craig, P.P, 1994).
The second prominent dimension is tribunals. Tribunals are machinery for adjudication and resemble the ordinary courts in many ways. They are designed to be independent of the agencies whose decisions are appealed to them, and indeed of the appellants. They have the power, to make binding decisions and procedure usually includes an oral hearing at which parties are able to present proofs and argument. Where they are different from courts is that most tribunals take a more inquisitorial approach at the hearing, although this varies from context to context. Some tribunals, are however, relatively more adversarial, notably, employment tribunals and immigration tribunals. Tribunals have been perceived by policy-makers as having a number of advantages over courts, notably that they are assumed to be quicker, cheaper, more expert, more informal in tone and more accessible to the citizen. The extent to which these advantages are actually realized in practice varies. Tribunals deal with a wide range of disputes including those concerning criminal injuries compensation, asylum and immigration control, child support, social security and taxation. Although most deal with citizen v state disputes, some deal with party v party disputes (Brisk. D, 1995).
In addition, the courts also play a prominent dimension of administrative justice. Disputes between citizens and public bodies get into court in one of three ways: judicial review; statutory appeals; and ‘private law’ actions such as delictual or contractual claims. Judicial review is a general purpose remedy for unlawful acts by public bodies. It may be used to challenge a wide range of administrative decisions. To be successful, a petition for judicial review must show that one of the grounds for judicial review applies. These may be summarized by saying that the decision maker must not exceed its legal powers or fail to perform its statutory duties; must not abuse its discretion or fail to exercise its discretion; and must not make decisions by an unfair procedure. Courts are independent of the public bodies whose decisions are challenged and have the power to make binding decisions. Court procedure includes both written and oral elements and oral hearings can be lengthy. Court proceedings tend to be relatively formal and adversarial
Additionally, we have public enquiries. Public inquiries differ from the other institutions and processes described above in that they cannot be classified as exclusively machinery for redress of grievances. In fact, they are used for a variety of functions and may be classified into four groups: processes for large scale planning of certain activities; the ‘post-mortem’ or ‘scandal’ inquiry; initial decision making inquiries and appeal inquiries. An example of the first type is where public inquiries have been used as part of the process for developing structure plans and local plans. In that context they are a stage in a process for making a type of policy decision. The second type is the ex post facto inquiry triggered by an untoward event or events. The only automatic outcome of such inquiries is a report (often very lengthy) on the inquiry. They often make recommendations for the future but those to whom they report (often Ministers) are under no obligation to act on the recommendations. It is the third and fourth type that can be regarded as administrative justice mechanisms. These are used to a significant extent in the context of land use planning. The calling in of a planning application is an example of the third type as the inquiry takes place before any decision is made. Inquiries held for the purposes of appeals against refusal of planning permission provide an example of the fourth type (GRZ, 2016).
It is, therefore, only this final category that should be regarded as a process for challenging decisions. In fact, the great majority of initial planning decisions and planning appeals are decided on the basis of written submissions without any public inquiry. There have also been significant changes over time in the role of inquiries feature in the decision process. The ‘classic’ model of the land use inquiry under was a two stage decision-making process, the first being a public inquiry to receive evidence which resulted in the preparation of a report from the person presiding over it, and the second being a decision on the matter by the Minister. For many years now, most planning appeals have been disposed without a public inquiry, because, as noted above, most cases are disposed of by written submissions. The other important change is that for most cases the power to decide has been delegated to persons appointed by. Public inquiries are now reserved for the most complex and controversial cases. Where the appeal is a delegated appeal i.e. decided by the reporter rather than the Minister, it resembles a court or tribunal process in that the case is decided by an independent person applying published criteria, and results in a binding decision (subject to the right to apply to the courts on limited grounds within 6 weeks). It differs from the typical court or tribunal in that the decision criteria are primarily policies rather than legal rules, and that often there is no oral hearing. The arrangements for securing independence are also different from those for courts and tribunals. Where the appeal is decided by a minister it is a hybrid process (ibid).
Asimow, M. (1996). Administrative law under South Africa’s final constitution: the need for an administrative justice act. South African Law Journal.
Brisk. D (1995) Administrative Law: Cases, Text, and Materials. 4th ed. Toronto: Emond Montgomery Publications.
Craig, P.P. (1994) Administrative Law. 3rd ed. London: Sweet ; Maxwell.
Davis, Kenneth Culp (1969). Discretionary Justice. Baton Rouge, LA: Louisiana State University Press.
Sunstein C R (1990) After the Rights Re?olution: Reconcei?ing the Regulatory State. Harvard University Press, Cambridge, MA
GRZ (2016), FNDP, Lusaka, Zambia.