Acta Juridica - Volume 2006, Issue 1, 2006
Volume 2006, Issue 1, 2006
Author Kate O'ReganSource: Acta Juridica 2006, pp VII –VIII (2006)More Less
This collection, the fourth in a series of published conference proceedings on administrative law, once again provides illuminating insights into the current status of administrative law. This conference differed from the earlier three in its explicit focus on administrative law in the Commonwealth. The list of contributors includes some of the most eminent administrative lawyers from the Commonwealth, and the contributions range widely over the area of administrative law.
Author Hugh CorderSource: Acta Juridica 2006, pp 1 –10 (2006)More Less
Administrative law in England and its former colonies, which now form the British Commonwealth, has undergone the most extraordinary transformation over the past 40 years. There are many reasons for this, chief among them the need to regulate the substantial growth in executive authority as the State has intervened increasingly in the 'private' sphere, ostensibly for the public benefit, and to give expression to the idea of a participatory democracy that emphasises accountability and justification. This has become a prominent ideal of good governance over the past 20 years or so, and has led frequently to talk of administrative justice rather than administrative law.
South African administrative law, like much of the public and commercial law in place in that country, is based in English administrative law. However, because of South Africa's expulsion from the Commonwealth in 1961 and the reluctance of its judiciary to develop the common law of judicial review of administrative action (the main form of administrative review) so as to regulate more closely the autocratic rule of the executive under apartheid, South African administrative law largely failed to develop in concert with progressive changes in the administrative law of other Commonwealth countries. This situation changed dramatically in the early 1990s as the demise of apartheid witnessed the introduction of a thoroughly modern model of a constitutional democracy, with a Bill of Rights which included, from 1994, a 'right to administrative justice'. A statute which attempts to provide greater detail about the process and substance of judicial review of administrative action followed in 2000, and the courts have been busily engaged in bringing the law in practice into line with the requirements of this legislative framework. Influences from other constitutional systems in the Commonwealth are to be seen in all forms of this current law.
Author Jeffrey JowellSource: Acta Juridica 2006, pp 13 –22 (2006)More Less
Public law governs the boundaries between the respective realms of the citizen and the citizen's government. The calibration of the balance between those two realms is one of the most complex in all of legal philosophy and political theory. It has grave consequences for democracy which, to a large extent, it defines.
Until recently in the United Kingdom the subject of public law was divided into constitutional and administrative law. The purpose of constitutional law was to define the powers of the state. Administrative law then had a subsidiary purpose, which was to regulate the exercise of those constitutionally-defined powers by ensuring that public officials acted within their scope. Most of the attention of administrative law was therefore absorbed in the interpretation of the power - express or implied - conferred upon administrators. Two questions predominated: Should the grant of wide discretion be construed literally or purposively? And to what extent should a general duty of fairness or reasonableness be subsumed within the grant of official power?
Initially, these questions were resolved within the overriding aim of enabling administrators to further the public interest. Public power should, it was said, self-evidently be exercised in the cause of the interest of the public as a whole, and not in the interest of any individual or group of individuals alone. Private concerns were not to obstruct that overall mission.
As administrative law developed, another aim asserted itself, most often described as the promotion of 'good public administration'. This notion shifted the perspective of administrative law in the direction of the consumer - those persons affected by official decisions. However, the qualities of 'the good' in public administration were not grounded in any clear theoretical or constitutional basis. Later the courts articulated the 'grounds' of administrative law - lawfulness, fairness and reasonableness. These more specific criteria were useful as guides to the content of 'good administration', but they were still considered duties of the administrator to provide, rather than rights of the individual to receive.
To defer and then when? Administrative law and constitutional democracy : the constitutional contextAuthor Dennis M. DavisSource: Acta Juridica 2006, pp 23 –41 (2006)More Less
South African administrative law is now firmly rooted within the framework of the Constitution. If there was ever any doubt about this proposition, certainty was achieved with the judgment of Chaskalson P (as he then was) in Pharmaceutical Manufacturers Association SA: in re ex parte President of the Republic of South Africa. It follows that the overarching purpose of South African administrative law is the promotion of a deliberative, accountable democracy, the foundational principles of which have their source in the Constitution. The argument of this paper is that, in order to promote this constitutional vision, South African administrative law is required to foster the principles of participation and accountability which ensure that government justifies its decisions to those whom it governs. The development of the content of these principles will promote the construction of a body of administrative law which fits within the Constitution which is the source of all legal development.
Although judicial review is not the only mechanism available to promote the principles of participation and accountability in governance, it is an important means to the attainment of transparent and accountable government. Indeed, as Murray Hunt correctly claims, the central question of a system of administrative law, particularly when located within a constitutional dispensation, is 'what are the proper boundaries to the respective powers of different branches of government, and who decides on where those boundaries are drawn?' The answer to this question is bedevilled by a conceptual framework of administrative law which was sourced in a very different political and economic context. That framework is encrusted with concepts that addressed a Diceyan distrust of a state that played a significant role in the social and economic foundations of society.
Author David J. MullanSource: Acta Juridica 2006, pp 42 –61 (2006)More Less
Judicial deference to the decisions and actions of statutory and prerogative authorities is a key principle of Canadian judicial review law. In its current incarnation, it frequently requires reviewing courts to exercise restraint. In those instances, the reviewing court should scrutinize the decision or action under attack not from the perspective of whether the statutory or prerogative authority made a correct decision but rather by inquiring whether the decision or action was unreasonable or patently unreasonable.
In determining whether it is an occasion for one of the two deferential standards of review, the court evaluates the situation based on a list of so-called 'pragmatic and functional factors' that the Supreme Court of Canada has established and refined over an almost twenty year period. Initially, these pragmatic and functional factors were developed in a series of judgments involving applications for judicial review for error of law of privative-clause protected decisions by adjudicative tribunals. Over time, the reach of this analysis expanded dramatically. It rapidly reached review for questions of fact as well as mixed fact and law. The Court then came to accept that it should also be used even in situations where the route to the reviewing court was not by way of common law or general statutory judicial review but statutory appeal. Later, the Court specified that it was an approach that the courts must deploy for review for abuse of discretion irrespective of whether the respondent was an adjudicative tribunal or a Minister of the Crown. At that point, McLachlin CJ was able to accept in Dr Q v College of Physicians and Surgeons of British Columbia that the pragmatic and functional approach 'provided an overarching or unifying theory for review of the substantive decisions of all manner of statutory and prerogative decision-makers'. Indeed, on occasion, the Court has been prepared to be deferential to statutory authority determination of constitutional questions including the application of the Canadian Charter of Rights and Freedoms.
Author Jacques De VilleSource: Acta Juridica 2006, pp 62 –91 (2006)More Less
The remaining traces of formalism in administrative law are under attack in a number of common-law countries. Formalism in administrative law is usually equated with attempts to invoke a distinction between errors that are jurisdictional or non-jurisdictional in nature, between void and voidable decisions or by relying on a classification of functions as a means to determine the outcome of review proceedings. There can be little doubt that this type of formalism is in steady decline. Some academics who have a wider view of formalism also oppose the distinctions drawn between law and policy, legality and merits, law and fact and even between different grounds of review. These views are not beyond contention as they seem to challenge the very foundations of administrative law. The question that inevitably arises upon the demise of at least some of the traditional distinctions in administrative law is what they should be replaced with. In many common-law countries it has now become fashionable for the courts to hold and for academics to argue that the context of every case should guide decision-making. These contextual approaches, apart from stipulating the factors that must be taken into account, usually do not tell us how choices should be made between different contextual factors or how these factors should be weighed in review proceedings. Some form of pragmatism seems usually to dictate the answer. A number of attempts have recently been made in the administrative law context to provide a theoretical model of the rule of law to guide judicial decision-making in the era of contextualism. The most prominent theoretical accounts of the rule of law in the current administrative law context are those of Trevor Allan and David Dyzenhaus, which I will discuss briefly later on. In this article I will focus primarily on the general ability of models of the rule of law to guide judicial decision-making. This will include a reference to discussions by mostly South African authors of the German Rechtsstaatsprinzip.
Engaging unreasonableness and proportionality as standards of review in England, India and Sri Lanka : comparative studiesAuthor Shivaji FelixSource: Acta Juridica 2006, pp 95 –116 (2006)More Less
The purpose of this article is to examine the extent to which the twin concepts of unreasonableness and proportionality have been fused and whether they provide an adequate rubric for the judicial review of irrationality in administrative law in England, India and Sri Lanka. The jurisdictions surveyed are heirs to a common law tradition. However, in England contemporary judicial review has a statutory underpinning whilst in the other two jurisdictions it has a constitutional foundation. Nevertheless, in all three jurisdictions the grounds of review have been developed by the courts on an incremental basis drawing inspiration from the common law and/or statutory or constitutional human rights postulates.
The law of bureaucratic negligence in South Africa : a comparative Commonwealth perspective : comparative studiesAuthor Chuks OkpalubaSource: Acta Juridica 2006, pp 117 –157 (2006)More Less
If the law governing bureaucratic negligence had developed in South Africa before the coming of the democratic dispensation, it would have done so along the same lines that public authority liability in negligence had developed in other parts of the old Commonwealth. That is, through the expansion of the frontiers of the legal duty to take care in the law of delict. But that was not to be. Nor could the law possibly have developed by way of constitutional damages since no South African constitution prior to 1994 embodied a bill of rights. Given the context in which they functioned during the apartheid era, it is understandable that the courts were not prepared to impute liability to government functionaries who, as it were, discharged legitimate government business and carried out functions prescribed by legislation, the then supreme source of law.
Consonant with the courts' reluctance during the apartheid regime to hold against Government in matters of public adjudication, they found solace in the absence of a general theory of liability of public bodies that pervaded this branch of administrative law by clinging to that nebulous jurisprudential weasel called 'policy'. To them, public policy, of which the courts were, and still are, the prime and ultimate determinants, was not in favour of imposing liability on public authorities or, for that matter, extending the legal duty to take care in the field of public administration. This, in a nutshell, was the state of the law as at 27 April 1994. However, with the coming into effect on that date of an autochthonous Constitution entrenching an elaborate Bill of Rights incorporating strongly worded enforcement provisions empowering the courts to grant 'appropriate relief' and to make 'just and equitable' orders for the enforcement of the guaranteed rights, the South African perspective on public law remedies in general, and recovery of damages for governmental wrongs in particular, was destined to change. Happily, the Constitutional Court approached the matter from that angle: of change, transformation, progressive development of the common law and upholding governmental accountability.
Author Michael TaggartSource: Acta Juridica 2006, pp 158 –208 (2006)More Less
One of the consequences of the apartheid era was that South African law became increasingly isolated from doctrinal developments elsewhere in the common-law world. This was nowhere more evident than in the area of administrative law. Moreover, this lack of impact was reciprocated, with little interest shown elsewhere in South African law and legal literature. Nevertheless, the growing international recognition of the abhorrence of apartheid generated a surprising amount of case law, some of it under the rubric of administrative law. This is a neglected part of the annals of apartheid. My purpose here is three-fold: to discuss that case law, to indicate the directions in which it has pointed Commonwealth administrative law and to draw lessons from it.
Author Christopher ForsythSource: Acta Juridica 2006, pp 209 –229 (2006)More Less
This paper tells the tale thus far of the development of an approach to the void/voidable conundrum, shortly to be described, that lies near the heart of administrative law. I have developed the 'second actor' approach to this conundrum and have written about it before, most prominently in my essay 'The Metaphysic of Nullity'. It is placed before this workshop for two reasons: first, to test whether the theory of the second actor survives the critical scrutiny of this distinguished gathering; and, secondly, to give an account of some of the more recent developments relevant to it. Sometimes the kind of conceptual reasoning we are about to indulge in is perceived as a kind of sterile formalism, likely to tempt the administrative lawyer into error. So, finally, I hope also to demonstrate that conceptual reasoning is crucial to the rule of law and the just decision of many administrative law cases. But let us first turn to the central conundrum.
Author Johannes ChanSource: Acta Juridica 2006, pp 233 –256 (2006)More Less
A cardinal principle that has shaped the development of judicial review is the doctrine of separation of powers. The principle of Wednesbury unreasonableness, which has been the orthodox position in judicial review for decades, is heavily influenced by this doctrine of separation of powers. Under this doctrine, there is a boundary of administrative discretion beyond which judicial supervision should not cross, even though the dividing line is often blurred and the precise boundary keeps shifting.
Author Robin CreykeSource: Acta Juridica 2006, pp 257 –287 (2006)More Less
The right to complain about government is at the heart of administrative justice. Australia has set up a framework of measures to implement that ideal, many of the elements of which have been in operation for over a quarter of a century. This paper explores the success or otherwise of this system to see which elements have been most effective in achieving that goal.
Author Arvind P. DatarSource: Acta Juridica 2006, pp 288 –302 (2006)More Less
Author Cora HoexterSource: Acta Juridica 2006, pp 303 –324 (2006)More Less
Twelve years ago South Africans acquired constitutional rights to just administrative action for the first time. Simultaneously and ineluctably we acquired the new concept of 'administrative action' itself. This threshold concept describes the area of operation of the rights to administrative justice. Most obviously, and as the Constitutional Court made clear early on in a series of ground-breaking decisions, these rights do not apply to legislative, executive and judicial decisions. But more recently that basic threshold has been raised considerably. The Promotion of Administrative Justice Act 3 of 2000 (PAJA), which was mandated by the Constitution in order to give effect to the rights in s 33 of the 1996 Constitution, has severely circumscribed the realm of administrative action by means of an elaborate statutory definition.
While I accept that the rights in s 33 must attach to something, I have little faith in the benefits of threshold concepts in general. I have even less faith in the way in which this particular concept has been defined in the Act. As I have indicated a number of times since the enactment of the PAJA, 7 to me the statutory definition seems parsimonious, unnecessarily complicated and probably as unfriendly to users as it is possible to be. Indeed, my opinion is that this part of the PAJA creates many more problems than it solves, and here I do not mean merely technical difficulties such as the precise meaning of phrases contained in the definition. The judicial tendencies to which I shall draw attention in this paper suggest problems of a far more fundamental and systemic nature.
This paper is not primarily concerned with the characteristics of administrative action or with what the courts have already classified as administrative. Nor is it my aim to offer a complete survey of the case law. I hope to show merely that my pessimism about the concept of administrative action is apparently being justified by some of the responses of the courts over the last few years - both to 'administrative action' in its constitutional incarnation and to the Act's definition of it.
What difference does the Promotion of Administrative Justice Act make to administrative law? : country studiesAuthor Iain CurrieSource: Acta Juridica 2006, pp 325 –351 (2006)More Less
Unloved, disrespected, misunderstood, ignored. If the misfortunes of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) were set to music it would have to be the blues. Close your eyes and you might hear, for an instant, the late great John Lee Hooker doing his unforgettable 'I'll never get out of these PAJA blues alive'.
Author Gopal Sri RamSource: Acta Juridica 2006, pp 352 –369 (2006)More Less
The power of Malaysian Courts to issue prerogative orders has always been governed by statute. It is not necessary to look at the position before 1947. In that year the Courts Ordinance was enacted which contained the following provision in paragraph 1 of its Second Schedule: 'Jurisdiction and authority of a like nature and extent as are exercised by the Chancery and King's Bench Divisions of the High Court of Justice in England.'
Author Jonathan KlaarenSource: Acta Juridica 2006, pp 370 –386 (2006)More Less
Administrative justice is arguably a broader topic than that of administrative law - encompassing as it might understandings of culture, organisational change, and bureaucracy, not to mention political philosophy. Nonetheless, administrative law itself has become broader in South Africa of late - now encompassing topics such as access to information and whistle-blowing protection that could not have been taught at any length previously. Adopting the viewpoint that administrative law and justice by necessity overlap, this paper has two related aims. The first is to investigate the current state of the South African access to information regime. The second is to tentatively identify three waves of administrative justice that have washed over South African shores. The paper concludes by assessing the most significant set of drivers of change within the information regime with particular attention to their transnational character.
Source: Acta Juridica 2006, pp 389 –404 (2006)More Less
A significant chapter in the development of administrative justice in Malawi is recounted in this article. And one immediate question that will be asked is 'Why Malawi?' What is it about Malawi that renders administrative justice there of more interest than in any number of other Commonwealth states? The answer to that question lies in the steps which the Government of Malawi has taken to enhance the quality of administrative justice in that country. The Government has found that the practical task of administration, while at the same time respecting the rule of law and human rights, necessitates a governmental concern with the quality of administrative justice.
The role of the Commonwealth and Commonwealth associations in strengthening administrative law and justice : practical stepsSource: Acta Juridica 2006, pp 405 –422 (2006)More Less
This paper focuses on the role of the Commonwealth and Commonwealth associations, and in particular the Commonwealth Legal Education Association, in strengthening administrative law and justice. It is divided into two parts. Part 1 explores the work being done within the Commonwealth that is designed to support and enhance administrative law and justice. In doing so, it examines recent Commonwealth initiatives, including the Latimer House Guidelines and the Commonwealth Principles. Part 2 then argues that law teachers have a key role to play in supporting these initiatives and examines mechanisms for supporting and strengthening the teaching of, and research on, administrative law and justice in Commonwealth law schools.
Author Cheryl SaundersSource: Acta Juridica 2006, pp 423 –449 (2006)More Less
On 21 March 2005, Hugh Corder organised the fifth in a series of remarkable administrative law conferences that have been held over a period of 12 years. Each of the first four conferences was deliberately planned to influence the development of administrative law in South Africa and succeeded admirably in doing so. The first Breakwater conference, held in February 1993, following the fall of apartheid but before the finalisation of the interim Constitution, proposed a framework of principle for a new administrative law for a new South Africa, to be given a base in the coming Constitution. A second Breakwater conference, in 1996, took place just before the final Constitution was settled, with its somewhat different, but nevertheless important, protection for administrative justice. In 1999, participants in a third conference, in Leeds Castle in the United Kingdom, joined the project team of the South African Law Commission to consider the form that legislation to implement the constitutional requirements should take. In February 2001, almost exactly eight years after the first Breakwater conference, a fourth meeting, on Realising Administrative Justice, took stock of the progress that had been made and of that which was still to be done. All four of these conferences involved administrative lawyers from a range of other, mainly Commonwealth, countries, to assist South Africa to draw on existing international experience to fashion its own, distinctive, administrative law regime.