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Tribunals and the Tribunal System
Meaning and Nature of Tribunals
The attempt to provide a uniformly applicable single definition of the term tribunal is more than difficulty. Even where the subject of discussion is one and the same, there are situations where different authorities use different terminologies having regard to the diverse social realities surrounding them. This is also the case that one may appreciate while discussing the term tribunals in administrative law context. While discussing the forums where administrative disputes are being formally resolved different jurisdictions use different terminologies having regard to the social set up of their own systems. The Federal Administrative Procedure Act of America use the term Administrative Law Judges to connote those persons who adjudicate administrative disputes. Whereas the French uses “Conseil d’Etat”, “Cours Administrative d’Appel” and “Tribunaux Administratifs” to refer to their three-tier hierarchy administrative courts that adjudicate administrative disputes. Other authorities also use the term “tribunal” with or without the designation “administrative” to denote the same thing.
Despite the differences in the terminologies used and their organizational set-up from country to country, tribunals or administrative tribunals or administrative courts, as the case may be, refer to the forums where justiciable disputes that involve government agencies, in one or another form, are being adjudicated by a panel of impartial decision makers. So, instead of trying to define this fluid concept of tribunal, it seems convenient to state what tribunals usually do and how they proceed. Tribunals are bodies established outside the structure of ordinary courts to adjudicate disputes that involve the government as a party on matters pertaining to governmental functions. The dispute could be between two or more government agencies, or between government agencies or between one or more individual parties. Hence, the typical tribunal, like an ordinary court, finds facts and decides the case by applying legal rules laid down by statute or legislation. In many respects, the tasks performed by tribunals are similar to that of performed by regular courts. As the jurisdiction of these tribunals are restricted to adjudicating disputed cases involving administrative agencies as parties in their governmental functions based on the principles, rules and standards set under administrative law, it seems appropriate to call them with the designation “administrative tribunals” instead of simply “tribunals.” However, in using the term ‘tribunal’ together with the adjective “administrative”, care has to be taken in order to avoid the concerns raised by some authorities in using that designation. Two prominent administrative law authorities criticized the very designation of the term “administrative tribunal” for being misleading for the following four reasons:
In the first place, no tribunal can be given power to determine legal questions except by Act of Parliament. Normally a tribunal is constituted directly by the Act itself. Sometimes, however, the power to constitute a tribunal like may be delegated by the Act to a minister, but in such cases the act will make it clear a tribunal is intended. Secondly, the decisions 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, without regard to executive policy. Such tribunals have in substance the same functions as courts of law. These tribunals therefore have the character of courts, even though they are enmeshed in the administrative machinery of the state. They are “administrative” only because they are part of an administrative scheme for which a minister is responsible to parliament, and because the reasons for preferring them to the ordinary courts are administrative reasons. Thirdly, tribunals are not concerned exclusively with cases to which government departments are parties. Rent assessment committees and agricultural land tribunals, for example, are adjudicating disputes between landlords and tenants without any departmental intervention. Fourthly, and most important of all, tribunals are independent. They are not subject to administrative interference as to how they decide any particular case. No minister can be held responsible for any tribunal’s decision. Nor are tribunals composed of officials or of people who owe obedience to the administration. [Wade & Forsyth: pp. 907-908]
However, three of the critics labeled against the designation administrative tribunal as stated above do not stand valid. Of course, the term tribunal seems broader in meaning and scope than the term administrative tribunal as the former may embrace bodies formally instituted outside the structure of the ordinary courts to adjudicate disputes of private characters as contrasted to disputes that involve the agencies of the government. The Labor Relations Board that resolves collective labor disputes between employers and employees may be taken as a good example of these tribunals. But, the designation administrative tribunal is purposefully used to exclude the types of tribunals established here and there to resolve disputes between private individuals in their private relations. The adjective “administrative” as used in the above critics does not necessarily imply that the tribunal is created by the administration or that the tribunal resolves non-justiciable administrative disputes or that the tribunal is an appendix to the government agencies with no relative autonomy. It is simply to mean that the term administrative tribunal is a tribunal with all its attributes, but its jurisdiction is limited to resolving disputes of governmental nature as distinguished from disputes of private character.
As suggested by Garner and Jones (Administrative Law), tribunals have the following five hallmarks:
- Independence from administration;
- Capacity to reach a binding decision;
- Decision taken by a panel of members (as opposed to a single judge);
- A simpler procedure than that of a court; and
- A permanent existence.
5.3.2 Jurisdictional Issues
On the basis of the nature and scope of their jurisdiction, administrative tribunals can be classified into two. These are tribunals having general jurisdiction (general tribunals) and tribunals having special jurisdiction (special tribunals). The French model is a typical example of the tribunals having general jurisdiction on administrative matters. In France, there is a clear dichotomy between administrative law and private (ordinary) law, on the one hand, and between the machineries applying these laws, that is, administrative courts and civil courts also known as regular courts or ordinary courts on the other hand. Administrative courts adjudicate cases falling within the domain of the administrative law. These courts are, thus, the focus of the discussion in this section.
In France, judicial control of the administration is entrusted to a special corps of judges who sit in special courts- known as administrative courts. These courts form a three-tier hierarchy headed by the Conseil d’Etat (Council of State) in Paris, below which are the regional intermediary Cours Administratives d’Appel (Administrative Courts of Appeal) and the Tribunaux Administratifs (Administrative Tribunals) in metropolitan France. They respectively correspond to the Supreme, Higher and First Instance ordinary courts in structure. These three-tier administrative courts have general judicial jurisdiction on administrative matters falling under their respective material and/or local jurisdictions.
In addition to these courts of general jurisdiction, there are a number of other administrative tribunals exercising judicial functions in narrowly defined fields of activity. These are administrative courts of special jurisdiction that are established in special circumstances where the appropriate expertise does not exist in a general tribunal. But these specialized administrative tribunals are still under the supervision of the Conseil d’Etat as the supreme administrative court. Thus, the French administrative justice system has two striking features: firstly, there is a full-fledged system of administrative law that regulates the relationship between the administrative agencies and citizens and the interrelationship among the various organs of the government. Secondly, there is a full-fledged administrative court system. All administrative disputes are finally resolved within the system of the three-tier administrative court of general jurisdiction as supplemented by those relatively fewer (for example, compared to U.K.) administrative tribunals of special jurisdiction. The Conseil d’Etat is the court of final resort on administrative matters. There is neither possibility of lodging appeal nor possibility for invoking judicial review against the administrative decision before regular courts in France. Inspired by Montesquieu’s theory of separation of powers, the French strictly prohibits interference of regular courts on the affairs of the administrative organs of the government on whatever ground. In French, it is a criminal offence for the judges of the ordinary courts to interfere in any manner whatsoever with the operation of the administration, or to call administrators to account before them in respect of the exercise of their official functions.
Most of the common law jurisdictions do not have the French type system of administrative law and tribunals; but tribunals of special jurisdiction proliferated here and there in response to particular circumstances. The same thing seems true in Ethiopia, where there is neither full-fledged corpus of administrative law, nor structured system of administrative court. Of course, this does not mean that Ethiopia has no administrative law and administrative tribunals. As it has been explained earlier, there are diverse sources of administrative law such as the constitution, pieces of primary and delegated legislation. So, the law is there and also the tribunals are there. But what is missing there is that unlike the French system of administrative justice, here in Ethiopia there is that is no generally defined administrative law jurisprudence. We do not have general principles of administrative law that govern the jurisdictional dichotomy between the adjudicatory powers of administrative agencies/tribunals on the one hand and regular courts, on other hand, Thus, for academic purpose it would be quite important to appreciate the French experience where there is a unified system of administrative justice.
If administrative tribunals and ordinary courts are required to confine themselves within the domain of their respective sphere of powers, a clear demarcation has to be made between the jurisdictions of administrative courts and that of the ordinary courts. This is especially important for countries that adopt the French model of administrative system that provides a clear dichotomy between the provinces of administrative law and private law. It is also important for countries where tribunals of special jurisdiction are proliferated here and there like ours. But the problem is that how this ideal line can be drawn. As it was discussed in the previous chapters, the concerns of the administrative law are governmental activities that administrative agencies carry out. There is a possibility where a given administrative agency may involve in activities that are governmental in nature; for example, regulating private business such as issuing or canceling of license, or rate fixing, or setting safety standards and so on, or in activities that are private in nature such as owning and administering property and producing goods and services for gain. There is a general opinion that when the dispute arises from activities of the first category, it falls within the domain of the administrative law- thus it is the jurisdiction of the administrative tribunals. But when the disputed act arises from activities of the second category, that is, activities private in nature, it falls within the province of private law-subjected to the jurisdiction of ordinary courts. This general criterion, homers, may not be always true.
French administrative law writers and practitioners have been engaged in searching for general principles and criteria which make a clear demarcation between the jurisdiction of administrative courts and ordinary courts. According to Brown and Bell, in the period before Blanco (TC 8 February 1973), the following criteria were developed:
- The first was that of the state as a debtor, under which the Conseil d’Etat denied the ordinary court’s competence to condemn the state to any money payment.
- The second was the criterion of ‘the act of public authority’ that drew a 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, the latter were within it.
- The third criterion and the one favoured by the ordinary courts, was that of ‘public administration’ as distinct from ‘private administration’; in the latter the administration used the same process as the private citizen and therefore came within the scope of the ordinary courts. On the other hand, disputes arising out of its public administration belonged to the administrative courts.
These early criteria, tentative and overlapping, were discarded in Blanco in favour of a new principle, that of ‘public service’. The child Agnes Blanco was injured by a wagon, which was crossing the road between different parts of the state-owned tobacco-factory at Bordeaux. The question then arose, to which court, civil or administrative, the claim for damages should be brought. The Tribunal des Conflits, adopting the analysis proposed by Commissaire du gouvernement David, held that the injury arose out of the activities of a service public and that for this reason the administrative court had jurisdiction. Such influential doctrinal writers as Duguit…Jeze, and Rolland subsequently approved this approach. According to this last criterion, ‘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. [Brown and Bell: pp125-126] A ‘public need’ is not only that defined by statute; it can simply be identified by a decision of public authority. The second element in the concept of service public, namely, that the activity in question must be carried on by a public authority, has been extended almost to vanishing point in recent decades. In particular, it is necessary to distinguish between the public authority’s role as creator or director of the public service from its role as provider. For a public service to exist, it is not necessary for a public body actually to provide the service.
A third element may be distinguished in the concept of service public, in addition to the meeting of a public need and the participation of a public authority. The authority must have recourse to methods and prerogatives which would be excluded in relations private parties. For example, it may operate as the service concerned as a monopoly, or may finance it by compulsory contributions from those it benefits.
But even where the activity has the appearance of a service public, it may not come under the supervision of the administrative courts sime the special regime of administrative law is excluded. Such exclusion may be expressed by statute, or implied because the interests involved are ones traditionally within the protection of civil courts, or because the public authority decides to function under the same conditions as private operators.
In short, the choice of criterion has been swung back and fro between the concept of public service and public authority. However, the latter seems currently the preferable test for the competence of administrative judge. The basic principles for separating the functions of the administrative courts and the ordinary courts as indicated above would lead to giving jurisdiction to the ordinary courts only when the activity of public body was private in character. However, these principles are subject to a number of exceptions based on convenience more than principle. So, some disputes, although they arise from acts of public authorities, may in exceptional circumstances be left to the jurisdiction of ordinary courts. Hence, a watertight demarcation of jurisdiction cannot be made based on a single principle only.
It is suffice say that disputes involving administrative agencies, which arise out of the conducts of public authorities, are in principle falling under the jurisdiction of administrative courts. But the French administrative law gives a room for some exceptions to this principle.