ADMINISTRATIVE JUSTICE
Introduction
The term administrative justice (AJ) requires that ‘the day-to-day
administration of government must satisfy requirements of justice and that the
delivery of justice is not the sole responsibility of civil or criminal courts’
(Andrew Le Sueur et al, Public Law (2010) OUP, p. 632).
It is argued that the term ‘justice’ in this context connotes ‘just’ and ‘good’
administration as a matter of constitutional imperative or necessity rather than
a government largesse (see Nazi v Secretary of State (2008) EWCA 755).
Public bodies established by law and imbued with powers to make decisions
must ensure that their decisions are lawful. Therefore, if people are dissatisfied
with the decisions of public institutions, they should be able to have access to
redress through independent bodies that should demand that the requisite
standards are met in the decision making process as well as the quality of the
service rendered.
Framework for ensuring AJ
In a democracy, the framework within which people live and carry out their
daily undertaking is governed by institutions acting in the public interest. In this
context, it can be said that public institutions and local government bodies
churn out volumes of policies and decisions aimed at ‘good governance’.
It is expected that these institutions and their agents (public office-holders)
should act fairly and in good faith. The question, however, remains: what
happens if these public institutions and office-holders get things wrong?
As institutions and human beings they may get things wrong arising from
various factors, including uncertainties about application of the law
underpinning their legal mandate; gaps in knowledge of the circumstances of
people; and in certain instances covet acts of victimisation, discrimination,
oppression, etc. on the part of the decision-maker.
This therefore brings to the fore the need for an institutional mechanism to
check of exercise oversight responsibility over public institutions and public
office-holders in the course of exercising their discretionary powers
administratively.
The AJ system
AJ system refers to the system by which decisions of an administrative or
executive nature are made in relation to particular person, including:
(a) The procedures for making such decisions
(b) The law under which such decisions are made; and
(c) The systems for resolving disputes and airing grievances in relation to
such decisions
Practically people may come into contact with the administrative justice system
in circumstances where:
Decisions about their rights and interests are taken by officials
They want to have decisions reconsidered by officials in terms of
complaining about the way in which their case has been handled
They want to appeal to an independent body or tribunal
They intend to seek further recourse to the courts
AJ and government/executive accountability
Regarding AJ and executive accountability, it instructive to take some lessons
from Tony Benn, a British MP (Labour Party) who posed what he termed the
‘democratic five questions’ during a debate in the 1970s on the European
Parliamentary Elections Bill. These questions relate to the exercise of executive
power and its accountability. These questions are:
(a) What power do you have;
(b) Where did you get it;
(c) In whose interests do you exercise it;
(d) To whom are you accountable; and
(e) How can we get rid of you.
Public office/office-holders and accountability
Ministers and civil servants (see Andrew Le Sueur et al p. 230-231)
See: 1992 Constitution on Public Services of Ghana
Access to AJ
Access to justice, including AJ is non-negotiable and therefore fundamental as
basis for ensuring the rule of law in terms of human rights. Access to AJ entails
the right to complain about the quality of service that people receive from
public institutions and public office-holders.
In order to access AJ there should be an effective complaints mechanism,
which should be based on the rights of a complainant as follows:
Has the complaint been dealt with efficiently and properly investigated
Ability to know the outcome of any investigation into the complaint
lodged
Make a claim for judicial review if the complainant believes the decision
taken or outcome of investigation is unlawful, irrational, unreasonable,
etc.
Remedy – e.g. payment of compensation if complainant is ‘harmed’ in
any way.
(see NHS, UK. ‘Complaints about the National Health Service’)
Institutional mechanism for ensuring administrative justice and
accountability:
Parliamentary and Health Service Ombudsman
Independent Police Complaints Commission
Employment tribunal
Local Government Ombudsman
Financial Services Authority
