01 February 2012 Written by  Aberham Yohannes and Desta G/michael

Forms of Administrative Adjudication

As was stated somewhere else, one of the striking features of adjudication is the existence of predetermined procedures that guide the decision-making process. The decision may be preceded by full-blown formal hearings that are similar to court trials or an informal process, which is just like a summary proceeding where the participation of the parties is very minimal. Normally, adjudication process begins either with a complaint filed against a private person, a business, or even another agency. The party charged in the complaint is the defendant (called the respondent). The respondent has the right to file an answer to the complaint. In principle, respondents are entitled to a hearing before the agency adjudicating the case. However, the depth of the hearing may vary from circumstance to circumstance.

1.1.1 Informal Adjudication

The vast majority of administrative adjudications involve informal actions. As will be discussed in the subsequent sub-sections, the informality of the process of administrative adjudication is among the justifications behind the delegation of judicial power to administrative agencies. The informal mode of adjudication, although it may vary from county to country and from case to case in terms of content, tries to provide the minimal statutory safeguards for the protection of fundamental rights of individuals.

The United States Administrative Procedure Act (APA) can be cited as a typical example. In the USA, the Administrative Procedure Act (APA) governs federal agency adjudicatory procedures in general. However, most states have their own counterpart to the APA. The APA requires the most basic elements of due process, that is, notice and hearing. Regarding notice, APA provides that “persons entitled to notice of an agency hearing shall be timely informed of the time, place, and nature of the hearing; the legal authority and jurisdiction under which the hearing is to be held; and the matter of fact and law asserted. As to the hearing, the agency is required to give all interested parties opportunity for …the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit…” The APA requirements for administrative hearings are minimal, allowing agencies to operate rather informally. Although hearing in this sense may be treated as important elements of the procedural due process of law, it does not necessarily mean that a full-blown oral hearing is to be conducted. Depending upon the nature of the case in hand, a written submission of opinion, argument, data, or otherwise may suffice. So, in the majority of cases, APA dictates administrative agencies to fulfill the minimum requirements of notice and hearing before proceeding to act on matters that affect the rights of others. Indeed, the notice has to be adequate enough in terms of time, place and content. But hearing could be informal such as written submissions and interview like oral communications. In all cases, the due process clauses of the fifth and fourth amendments to the US constitution dictate that neither the federal nor state governments shall deprive of “life, liberty, or property, without due process of law.” The notion of due process of law connotes two things: the substantive aspect of the action that the decision of the agency must be backed by lawful authority and the procedural aspect that the process of decision making must be guided by predetermined procedures, or in default by the minimum requirements set under APA. To put it simply, a person cannot be deprived of his entitlements to life, liberty and property except for strong reasons expressly provided under the relevant substantive laws and in accordance with the procedures set under the related laws.

The ordinary rules of procedure and evidences that govern court proceedings are not fully applicable to administrative/tribunal proceedings in their entirety. Courts in the common law tradition, therefore, have developed general principles that are expected to ensure fairness in agency adjudication. These principles are known as the rules of natural justice and fairness. The rules embody two concepts. First, audi alteram partem- that means a person should not be condemned without a fair hearing. Second, nemo judex in causa sua–which means that no one should act as judge in any matter if he or she has some kind of vested interest in the decision since all decisions should be free from bias. In the United Kingdom, there is an established precedent on the application of the rules of natural justice in the following types of situations:

  • Where someone is dismissed from office; or
  • Where someone is deprived of membership of a professional or social body;
  • Where someone is deprived of property rights or privileges.

Where the rules of natural justice apply in their entirety, a fair hearing will be expected to consist of the following elements:

a)      Adequate notice must be given to the person affected;

b)      The person affected must be informed of the full case against him or her;

c)       Adequate time must be allowed for that person to prepare his or her own case;

d)      The affected person must be allowed the opportunity to put forward his or her own case;

e)      The decision maker may be required to give reasons for his or her decision;

f)       The affected person may be able to cross-examine witnesses;

g)      The affected person may be entitled to legal representation.

But it has to be noted that the concept of fair hearing may not imply the same thing in all circumstances. The requirements listed from (a) to (d) are made mandatory- the minimum requirements of fair decision, whereas those listed from (e) to (g), are discretionary in the sense that their application may be required having regard to the nature of each particular type of case. In McInnes v Onslow-Fane [1978] 1 WLR 1520, Megarry V-C said that natural justice was a flexible term which imposed different requirements according to the nature of the case. The closer a decision came to being termed ‘judicial,’ the more applicable the full elements of the rules of natural justice. However, the closer a decision came to being ‘administrative’ in nature, it was more appropriate to talk about the requirements of ‘fairness’. [Cumper & Waters: P. 311].  Normally, the consideration of an application for a license is an administrative task - the full rules of natural justice do not apply - the requirement is only that of fair consideration of the application. In contrast, the revocation of a license is more of a judicial decision – it is taking away someone’s rights – therefore they are entitled to the full protection of the rules of natural justice. [Id.]

It has to be noted further that fair hearing does not always necessitate oral hearing. Sometimes, written representations will comply with the rules of natural justice or the duty to act fairly. Case law suggests that written representation will suffice when the facts of a case are not in dispute. However, where this is not the case, the requirements of natural justice may require that there be an oral hearing.

To put it in nutshell, informal adjudication does not involve full-blown trial type hearing. Unless otherwise statutes or case laws (in common law practice) dictate the agency to follow a full-fledged formal hearing process, agencies are usually at liberty to adopt their own decision-making procedures having regard to the minimum requirements of due process of law or natural justice or fairness as such terms may be differently known in different jurisdictions. The more the process of administrative adjudication is highly formalized, the less would be the resultant advantages sought from the delegation of adjudicatory powers to administrative agencies. The more administrative adjudication process is made highly informal, the more would be the possibility for administrative arbitrariness and the threats posed on the rights of individuals. Thus, while it is important to dispense administrative agencies/tribunals from the highly formalized and stringent ordinary court procedures so that laws and policies will be enforced, it is equally important to device the minimum procedural safeguards for the protection of individual rights from arbitrary violation for such powerful agencies.  These are the two apparently conflicting and actually competing important interests what APA and the doctrine of fairness as developed from case laws try to strike balance.

1.1.2 Formal Adjudication

As mentioned above, informal administrative adjudication offers only the minimal statutory safeguards of notice and hearing; and hearing in the majority of cases does not involve oral hearing, but written submission of opinions, arguments, data, and so on. But formal adjudication involves an almost full-blown trial type hearing. Having regard to the magnitude of the individual interest at stake, the enabling legislation (parent act) or other statutes may dictate the concerned administrative agencies to hold a formal hearing before passing decisions. Formal adjudication, among other things, may provide the following procedural safeguard to the respondent:

  • Notification of charges;
  • Notification of hearing;
  • Representation by an attorney;
  • An impartial tribunal/administrative law judge;
  • Presentation of evidence;
  • Cross examination of the witness of the agency;
  • A decision based on the regulation.

In a formal adjudication, the respondent has the right to confront an agency witnesses. Hence, oral hearing must be always there. Even where the statutory requirements regarding agency adjudication process appear inadequate to ensure fairness or to protect the fundamental rights of individuals, the US Supreme Court has applied the Due Process Clause of the Fifth and Fourth Amendments that dictate neither the federal nor the state governments shall deprive persons of “life, liberty, or property, without due process of law.” Regarding the notion of administrative due process, authorities are noted as follows:

In administrative due process cases, the Court must make two determinations. First, it must decide whether the Due Process Clause is applicable. Administrative decisions are constrained by the Due Process Clause only if, they in some meaningful way, deprive an individual of “life, liberty or property.” Of course, today those interests are broadly defined. Second, assuming that the Due Process Clause does apply, the Court must determine what “process” is in order to ensure fundamental fairness. Here, the Court has been reluctant to adopt a one-size-fits-all approach to administrative due process. In Mathews v. Eldridge, the Court said, “due process is flexible and calls for such procedural protections as the particular situation demands.” Beyond the general requirements of fair notice and fair hearing, it is difficult to say precisely what due process requires in a specific administrative context. But one guiding principle is that the greater the magnitude of the individual’s life, liberty or property interest, the greater the requirement for procedural protections.

The greater an agency’s action tends to encroach to the fundamental constitutional rights of individuals, the greater should be the procedural protections provided to such individuals. This is also what the principle of natural justice and the doctrine of fairness as discussed in the previous subsection dictate. Thus, there are circumstances where administrative agencies/tribunals are required to conduct a full-fledged formal administrative adjudication. They may be dictated to do so in the majority of cases by the enabling legislations or other related statutes, by the constitutional principles guarantying due process of law, the principles of natural justice and fundamental fairness.

To date, Ethiopia has not come up with an instrument that provides uniform standards or guidelines that regulate administrative agencies’ adjudication process. Both at the federal and the regional levels, there is no uniform legislative guidance that dictates administrative agencies concerning the procedural steps they must go through while adjudicating cases. So, if there are any, such procedures have to be searched in each of the pieces of enabling legislations that create the respective agencies. At the federal level, a fruitless attempt was made in 2001 to adopt a federal administrative procedure proclamation that was intended to regulate the process of rulemaking and adjudication by federal administrative agencies. But for unknown reason, it has remained as a draft for almost a decade. Federal administrative agencies can refer to this draft document like any other an unbinding legal literature at their discretion; the draft document cannot dictate such agencies decisions for it is not yet adopted in the form of law.

However, this does not necessarily imply that administrative adjudication in Ethiopia is completely arbitrary. You can see some procedural requirements dispersed here and there in the enabling legislations that create and empower particular agencies. Even where the procedural safeguards provided in such particular legislations are found, inadequate to protect the fundamental constitutional rights of individuals, recourse has to be made to the principles of due process of law enshrined under the FDRE Constitution.  Our constitution expressly protects, among other things, the right to life, liberty and property. These rights cannot be restricted or taken away arbitrarily by any individual or administrative authority. Rather, all citizens and organs of the federal and regional government have the duty to ensure the observance of the constitution and obey it. Thus, as it happens in the United States of America, there is a wide room for our courts to play active role in ensuring the principles of due process of law incorporated in our constitution. Implicit in the concept of due process of law are there always the core requirements of fair notice and fair hearing.

In an attempt to provide a procedural safeguard to the protection of individual rights from administrative agencies, the draft federal administrative procedure proclamation of Ethiopia (herein after referred to as the draft) incorporates the core principles of due process of law such as notice and hearing. The joint reading of Articles 24 and 26 of the draft indicates notice and hearing as requirements. Before an administrative action that affects the right of individuals is taken, adequate notice and a fair hearing opportunity shall be given by the agency to such concerned individuals. The general requirement of notice under Article 24 of the draft dictates administrative agencies to notify the cause of action of the case they intended to take, the time, place and nature of the hearing. The purpose of notice is to let individuals aware of the action an agency actually plans or intends to take on cases that involve their legitimate interest. The right to hearing before an administrative measure is taken is also provided under Article 26 of the draft. Unless otherwise hearing is dispensed in those circumstances expressly provided under the law for different reasons, an agency is obliged to conduct a public hearing (Article 26 cum Article 28). The hearing enables the party to the case voice his objections and arguments against the decision. Article 28(3) of the draft confers parties to administrative proceedings the right to submit documentary and other evidences to request agencies to summon witnesses, and to cross-examine the allegation of the other side. Article 25 of the draft allows parties to administrative proceedings the right to counsel and represent by a licensed advocate, or any other person.

In the conduct of the hearing, agencies are required to maintain the record to all proceedings carried out in rendering decision, and upon request to give the copy of the record to the parties or their representatives. Furthermore, Article 32 of the draft dictates administrative agencies to reduce their decision into a written form and to include disputed facts under consideration including the substance and source of the evidence, the findings of facts made and the evaluation of the evidence which bases the decision, the determination of the issue and action to be taken on the basis of such decision.

Last modified on Wednesday, 02 May 2012 13:05