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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