Tribunal and the Tribunal System



 The Introduction and summary of the text:

In pursuance of administrative law, there can arise disputes. These disputes require
adjudication. There are administrative agencies other than the courts to adjudicate such issues arising in the course of day to day administration. Regardless of any differences in the terminologies of tribunal from country to country, Administrative tribunals or administrative courts  are bodies  established under a statute (Act of Parliament), outside the  ordinary court system, to hear and settle disputes between  government  agencies and individuals or citizens, employers and employees, landlords and tenants, buyers and sellers or between other individuals.

The understanding of the meaning of tribunal rather be difficult to be generalized since there are situations where authorities use different terminologies to indicate the meaning of tribunal. This regards to the system of social set up where the administrative disputes are being resolved. Take example of The Federal Administrative Procedure Act of America, the term Administrative Law Judges to signify those who adjudicate administrative dispute. In French, the usage of “Conceil d’Etat” to refer to their three-tier hierarchy administrative courts that adjudicate the administrative disputes.

However, the tribunal should act under certain circumstances. Firstly, no tribunal can be granted power to determine legal questions except by Act of Parliament. Secondly, the decision 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 (unprejudiced), without regard to executive policy. Thirdly, tribunals are not scrutinized exclusively with cases that involve the government as the parties. Fourthly, tribunal are independent body. Therefore, they are not subject to administrative interference on how they decide any particular case.

As suggested by Garner and Jones (Administrative Law), tribunals have the following five distinctive features:

1.     It should be independent from the administration
2.     It has the capacity to reach a binding decision
3.     Decision by the tribunals shall be taken by a panel of members (as opposed by a single judge)
4.     It should have a simpler procedure as compared to normal court
5.     It is in permanent existence

Basically, administrative tribunals can be divided into two; the general jurisdiction (general tribunal) and the special jurisdiction (special tribunal). For instance, in France, there is clear separation between administrative law and private (ordinary) law. The administrative court normally adjudicate cases under the domain of the administrative law. Furthermore, in French; the three-tier hierarchy of court is being applied. The hierarchy is headed by the Conseil d’Etat (Council of State) in Paris, the other two are the regional intermediary Courts Administrative d’Appel (Administrative Court of Appeal) and the Tribunaux Administratifs (Administrative Tribunal) in metropolitan France. These three-tier administrative courts have jurisdiction on administrative matters falling under their respective jurisdiction. Other than these tribunals, there are other administrative tribunals to adjudicate special circumstances where appropriate expertise does not exist in general tribunal.

Apparently, the French Administrative justice system has two noticeable features; the full fledge system that regulates the relationship between agencies and citizen as well as the interrelationship among the various organs of the government. The other system is full-fledged administrative court system where all the disputes being resolved in these three-tier hierarchy of administrative court.

The French court system has adapted Montesquieu’s theory of separation of power between the judicial and administration. Thus, there is no possibility of appealing to the regular courts once the administrative tribunal has concluded its decision. Therefore, this connotes the prohibition of interference by the regular courts on the affair of the administrative organ of the government on whatever ground. In short, it is an offence for the judges of the ordinary courts to interfere in any manner whatsoever with the operation of the administration or to disturb the exercise of their official functions.

The concern of administrative law are the governmental activities that administrative agencies may carry out such as the regulation of private business for example, issuing or cancelling the license and etc. There are two separate dispute resolutions that may be used in order to ratify the issues. First, if the dispute arises from activities of the first category, therefore; it would be fall under the jurisdiction of the administrative law. However, if the dispute arises from activities of the second category, therefore it would be fall under the jurisdiction of the ordinary court. Thus, this solely depends on certain criteria.

The separation of administrative courts and the ordinary courts indeed crucial as according to Brown and Bell. The following criteria were developed as accordingly to separate these both courts.

1.     The state as a debtor, under which the Counseil d’Etat denied the ordinary court’s competence to condemn the state to any money payment
2.     The act of public authority that drew the 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.
3.     The practice of the public administration that used the private practice will fall within the scope of the private court. However, any dispute pertaining to public administration will be managed by administration court.

Under all these criteria, 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.

1.     The public need can be either the one that has been decided by the decision of public authority or defined by the statute.
2.     It is important to distinguish the role of the public authority from its role as provider. However, the public body is not necessary to provide the same service for the public service to exist.
3.     The public authority must have possible course of action and privileged in meeting the public need and may operate in monopoly the services. However, the supervision of these may not come under the administration court, depending on the jurisdiction and statute.

In conclusion, the choice of criteria will be depending concept of public authority and public administrative. However, the principle of separation of power between the administrative court and the ordinary court left the option of the ordinary courts to settle the disputes of the public body that having private characteristic. Still, it is depending on jurisdiction and restriction of laws. Therefore, one principle only will not be the best to consider the options.


The advantages  and Disadvantages of Administrative tribunal

An administrative tribunal is not a Court nor it is an executive body. However, It stands somewhere midway between a Court and an ad­ministrative body. Generally, tribunal exists as a result of the compromise between the judiciary and the executive. It is established by the executive in exercise of, and in accordance with, the statutory provisions; it is required to act judicially and perform quasi-judicial functions; its proceedings are deemed to be judicial proceedings, and in certain procedural mat­ters it has the powers of a Civil Court; it is not wedded to the technicalities of the Rules of procedure and evidence prescribed by the Code of Civil Procedure and the Evidence Act.

Ultimately, Federal Constitution has judicial power in the courts. This highlights the concept of separation of 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 according to the virtue of articles 37(1) and 80(4 & 5) of the Federal Constitution, such possibilities are not prohibited and lawful in eye of law.  Typically, just like a regular court, administrative tribunals hear both parties to the dispute, examine the evidence, and pronounce decisions. However, administrative tribunals or courts are not considered to be part of the judiciary system. The legislature enacts laws to regulate activities in the society while the executive implements these so as to maintain the law and order in the state. The relevance of the judiciary is that when there are any crimes that are committed or if there are any disputes about rights, duties, responsibilities or a question of law that arises, the judiciary interprets the law and delivers a judgment to settle the dispute.

Administrative tribunals are authorities outside the ordinary court system, which interpret and apply the laws when acts of public administration are questioned in formal suits by the courts or by other established methods. In other words, they are agencies created by specific enactments adjudicate upon disputes that may arise in the course of implementation of the provisions and relevant enactments.

There are many differences in the approach of administrative courts. One of the practices that distinguish both is it does not follow the principles of law and evidence but its follows the principle of natural justice.

Other notable points that make administrative courts different from regular courts are as follows:

1.     The appointment of lawyer to represent the case is not necessary, if there is scope for adjustment on the dispute.
2.     The decision can be determined by experts on a subject and they don’t have to be judges.
3.     Formal rules pertaining to evidence and witnesses are not necessary.
4.     There are no complex court procedures.
5.     Administrative courts are not bound by precedents as they can formulate policy and exercise considerable flexibility to improve standards and procedures.

Administrative adjudication is a dynamic system of administration, which serves, more
adequately than any other method, the varied and complex needs of the modem society. First, there is an existence of flexibility in administrative adjudication and it is adaptable in the judicial as well as administrative tribunal. For instance, the courts of law exhibit a good deal of conservatism and inelasticity of outlook and approach. The justice they administer may become out of harmony  and aligned with the rapidly changing social conditions. In addition, administrative tribunals, not restrained by rigid rules of procedure and canons of evidence, it can still remain in tune with the varying phases of social and economic life.

Secondly, in this rapid world with the developing of new law, administrative tribunals are not only the most appropriate means of administrative action, but also the most effective means of giving fair justice to the individuals. General speaking, the legal practitioners find it difficult to adequately assess the needs of the modem welfare society and to locate the individuals place in it. Therefore, administrative tribunals serve adequate justice to the society.

Thirdly, administrative tribunals ensure cheap and quick justice. As against this, procedure in the law courts is long and cumbersome and litigation is costly. Therefore, by having administrative tribunals as the option. It provides cheaper and easy way in managing dispute resolutions. Furthermore, the procedures are simpler and can be easily understood by most of the people.

Fourthly, administrative tribunal gives the much-needed relief to ordinary courts of law, which are already overburdened with ordinary suits. There are plenty of unsettled cases that still running in ordinary courts.

Finally, administrative tribunals allow new case management where experimentation is possible in this field and not in the realm of judicial trials. The practical experience gained in the working of any particular authority can be more easily utilised by amendments of laws, rules and regulations. Amendment of law relating to courts is quite arduous.

In sum, flexibility, accessibility and low cost are the important merits of administrative
tribunals. In the words of W.A. Robson, the advantages of administrative tribunals are
"cheapness and speed with which they usually work, the technical knowledge and
experience which they make available for the discharge of judicial functions in special
fields, the assistance which they lend to the efficient conduct of public administration,

However, even though administrative adjudication is essential and useful in modem day administration and settlement of disputes, there are still defects from which it suffers or the dangers is poses to a democratic polity. Some of the main drawbacks of the administrative tribunals are, firstly, administrative adjudication is a negation of Rule of Law. The concept of Rule of Law is to ensure  equality before law for everybody and the supremacy of ordinary law and due procedure of law over governmental arbitrariness. However, by adapting the practice of administrative tribunals with the separate laws and procedures often made by the body itself has provides serious limitation upon the practicality of the principles of Rule of Law.

Secondly, administrative tribunals have in most cases, no set procedures and sometimes violates even the principles of natural justice. This worries every legal practitioner in order to ensure the justice is serves naturally and justly.

Thirdly, administrative tribunals often hold summary trials and they do not follow any precedents. As such it is not possible to predict the course of future decisions.

Fourthly, the civil and criminal courts have a uniform pattern of administering justice where the set of procedures and protocol should be followed to ensure the standard of legal practices thus, the experience in the administration of civil and criminal laws have provided testimony to the advantages of uniform procedure. A uniform code of procedure in administrative adjudication is not present. This draw the setback of the administrative tribunals’ standard of practice.

Finally, administrative tribunals are headed by administrators and technical heads who
may not have the background of law or training of judicial work. Some of them may not possess the independent outlook of a judge. However, there exist certain safeguards, which can go to mitigate or lessen these disadvantages.

Administrative adjudication suffers from many shortcomings that cannot perhaps be
denied. But, like delegated legislation, it is an inescapable necessity in a modem complex society. Therefore, to overcome the shortcomings, few safeguards are suggested to make administrative adjudication impartial and certain. Generally, Administrative tribunals should be headed by persons possessing legal training
and experience. Furthermore, a code of judicial procedure for administrative tribunals should be devised and enforced. This is important in view of the prevalence of varying procedures of administrative adjudication. In addition, Reasons should invariably accompany decisions by the tribunals. "Good Laws", observed Jeremy Bentham,. "are such laws for which good reasons can be given". A reasoned decision goes towards convincing those, who are affected by it, about its innate fairness and is a check against misuse of power. Thus, The jurisdiction of the Supreme Court (as well as the High Courts) should not be curtailed. In other words, the right to judicial review on points of law must remain unimpaired. Some of the administrative tribunals permit appeal to the court of law.

To sum up, although there is set of drawbacks of the administrative tribunals, administrative tribunal allows people not have to worry about paying for court fees, legal representation or pleadings. Further, as there are no complex procedures, there will be speedy justice. This system also reduces the burden of pending cases in regular courts. The weight of expert opinion endows the administrative tribunals with a higher level of professional expertise and transparency. To the extent justice is ad­ministered by an administrative tribunal, ordinary judicial process is by-passed, and the ability they possess to lay down new standards and to promote a policy of social improvement.

Conclusion:

In view of the increasing role of the administration bodies in citizens' life, the administrative tribunals are expected to play an important role in the redressal of citizens' grievances. Thus, the nature of administrative tribunals and the various reasons for their growth are so importance since various types of administrative tribunals are set up in the country to address various issues, such as, the adjudication of disputes and complaints of the public servants, redressal of consumer disputes, industrial disputes, disputes pertaining to income tax etc.

In addition, administrative tribunals provide greater flexibility in administering justice and provide relief to the courts. However, administrative tribunals still suffer from some limitations as they sometimes violate the principles of natural justice, lack uniform pattern of administering justice and also suffer from the lack of a proper background on law or judicial work.

However, with certain safeguards it is possible to rectify some of these limitations. The
administrative tribunals should have people with legal training and experience. A code of judicial procedures should be devised and enforced for their functioning.

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