| by Ruwantissa Abeyratne
Genius of administrative action through commissions endangers the doctrine of the supremacy of law
Dean Roscoe Pound
Harvard Law School, 1920
( August 19, 2014,Montreal, Sri Lanka Guardian) One of the ways in which to subvert administrative law and its implementation is to circumvent the Constitution of a country. A much used (or abused) tool in this regard is the creation of commissions.
The creation of commissions more often than not vests power in inept and inefficient entities comprised of political appointees with partisan views and vested personal interests. The process suffocates democracy and the rule of law, making sycophants of the executive and the judiciary. It is interesting to inquire how this blatant subterfuge and disingenuous practice can erode the foundations of administrative law.
P.P. Craig, in his book "Administrative Law" states: "The legislature and courts will both be of importance in determining the shape of administrative law. It should never be forgotten that it is the legislature which enacts the policies which are directly constitutive of the administrative state. It will be the legislature which chooses whether these policies should be imbued with, for example, a market oriented neo liberal philosophy or one which is more social democratic in its orientation. In this sense, the shape and nature of administrative law will be profoundly affected by the philosophy which underlies government policy. The courts also have a major influence on the nature of the subject. They will decide what particular constraints to impose on administrative action, and more generally on the overall purpose of judicial review. Administrative law, when viewed this way, is always a combination of what is going on in the political world, combined with the reactions of the judiciary.
What commissions do, as Dean Pound said in 1920, is eliminate the supremacy of the law. In fact, eliminate the law in its totality, giving power to the executive (or executive president as the case may be) to do as she pleases, whether to sack a president and CEO of a company owned by the government, or dispense with a high government official, without giving that person recourse to the law.
At common law which is applicable in England, there lies a remedy in judicial intervention if a government department promulgates advice in a public document that contained directions or advice erroneous in law. In such an instance, as was pronounced by Lord Bridge, in the 1986 Gillick case, although in general such non-statutory advice cannot be questioned by judicial review, the exception to this general rule lay in instances where such advice was inconsistent with the law, where the courts could intervene. The judiciary could also interpret the meaning of codes, circulars and other similar documents, and review the interpretation of such documents by any government entity. There is also the issue of legitimate expectation of the victim of an administrative decision, towards such a decision being consistent with applicable law, and the courts can go into whether such expectation was obviated or eroded.
The courts could also inquire as to whether a decision had relevancy, purpose, reasonableness and was not taken as a result of or corollary to an abuse of discretion. Historically, common law courts have reviewed and exerted control over discretion exercised by public bodies, tribunals and agencies with a view to preventing misuse or abuse of discretion.
It must be understood that a commission of inquiry is neither a tribunal nor a court. It is not a judicial body. Therefore, the findings of a commission cannot be couched in legalese. In the 1997 case of Attorney General v. Canada, the Canadian Supreme Court held that a commission of inquiry must uphold procedural fairness and substantial legitimate expectancy of the person under inquiry to his rights under the law. In New Zealand courts have increasingly held the right of judicial review over government decisions taken in accordance with findings and recommendations of commissions appointed by the government, if such decisions were ultra vires or beyond the power of government. Judicial review in New Zealand derived from the English common law prerogative writs and the public law manifestations of provisions for declaratory and injunctive relief. These remedies were received into New Zealand law. Commissioners appointed to public commissions by a government have to ensure prudent and ethical conduct on their part. Questions such as: what is the applicable legislation by which this commission is established? Is the commissioner satisfied that the appointing authority provides clear and full authority to complete the mandate as stipulated? Are revisions to the mandate necessary? If so, when and how? Is the commissioner satisfied with the protections afforded his or her “independence” while heading an inquiry at the request of, and upon terms prescribed by the executive branch of government?
In the 1803 seminal case of Marbury v. Madison in the United States, three basic principles of judicial review were upheld. They were: It is the duty of the courts to pronounce what the law is and to interpret it and inquire whether a law has violated the basic tenets of the Constitution of the country; decisions of the Supreme Court are the final authority on the status and interpretation of the Constitution; and decisions of the Supreme Court are the final word on the Constitution. These principles were endorsed in 1958 (155 years after the handing down of the Marbury decision) in the case of Cooper v. Aaron which was co-signed by all 9 judges of the Supreme Court.
At administrative law, judicial review hinges on the fundamental doctrine of ultra vires, which means that no person or body can act beyond the mandate or powers conferred. This is an immutable fact that has to be followed by any democratic society.