Old Wine in New Bottle? A Constitutional Right to Fair Hearing in Administrative Proceedings Prof Johannes Chan SC Dean, Faculty of Law The University.

Old Wine in New Bottle? A Constitutional Right to Fair Hearing

in Administrative Proceedings

Prof Johannes Chan SC

Dean, Faculty of Law

The University of Hong Kong

From Time Immemorial

• ‘Adam’, says God, ‘where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldst not eat?’ And the same question was put to Eve.

A Right to Fair Hearing in Common Law

• Dr Bentley’s case (1723)• ‘I cannot conceive any harm that could happen to the district board from hearing

the party before they subjected him to a loss so serious as the demolition of his house; but I can conceive a great many advantages which might arise in the way of public order, in the way of doing substantial justice, and in the way of fulfilling the purposes of the statute, by the restriction which we put upon them, that they should hear the party before they inflict upon him such a heavy loss.’ (Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, per Erle CJ)

• ‘The rule is of universal application, and founded on the plainest principles of justice.’ (per Willes J)

• ‘That being so, a long course of decisions beginning with Dr Bentley’s case, and ending with some very recent cases, establish that, although there are no positive words in a statute, requiring that the party shall be heard, yet the justice of the common law will supply the omission of the Legislature.’ (per Byles J)

Some Immediate Set-back• Judicial act, quasi-judicial act or administrative act? (Nakkuda Ali

v Jayarante (1951)• Rights or privileges? • Fair hearing v administrative efficiency and integrity• ‘These bodies, however, which exercise a monopoly in an

important sphere of human activity, with the power of depriving a man of his livelihood, must act in accordance with the elementary rules of justice. They must not condemn a man without giving him an opportunity to be heard in his own defence: and any agreement or practice to the contrary would be invalid.’ (Abbot v Sullivan [1952] 1 KB 189 at 198, per Lord Denning)

The Pendulum Swung Back• Ridge v Baldwin (1963)(the mere fact that a power affects

rights or interests is what makes it ‘judicial’; it is no less ‘judicial’ because the power is ‘administrative’.)

• ‘Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by the decisions.’ (R v Commission for Racial Equality, ex p Hillingdon LBC (1982), per Lord Diplock)

Some Observations• Duty to act fairly; the content of fairness varies with

circumstances; rules of natural justices are one aspect of the duty to act fairly

• Judicial/quasi-judicial v administrative act never completely eradicated

• Underlying concern: how far judicialisation should go in the context of administrative decision?

• Proliferation of administrative bodies and statutory encroachment

A typical administrative appeal system

• Any person who is aggrieved by a decision of the Town Planning Board under section 6 of the Town Planning Ordinance (regarding zoning and land use) may appear before the Town Planning Board, whose decision may be upheld, reversed or modified by the Chief Executive in Council.

The Story of a Police Officer

Lam Siu Bo v Commissioner of Police, FACV 9/2008

(26 Mar 2009)

Reg 9(11) and (12), Police (Discipline) Regulation

(11) A defaulter may be represented by –

(a) an inspector or other junior police officer of his choice; or(b) any other police officer of his choice who is qualified as a barrister or solicitor,

who may conduct the defence on his behalf.

(12) Subject to paragraph (11), no barrister or solicitor may appear on behalf of the defaulter.’

Basic Law, Art 35

‘Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies.’

Right of access to what?

• Art 35 of the Basic Law applies to the courts of law, that is the courts entrusted with the exercise of independent judicial power in the HKSAR. It means the judiciary and nothing else. (Stock Exchange of Hong Kong Ltd v New World Development Co Ltd (2006) 9 HKCFAR 234)

• Bill of Rights Ordinance

Bill of Rights, Art 10

• In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.’

Right of Access to Court: is there such

a right?

An Implied Right to Fair Hearing?• No point of having elaborated provisions on fair

hearing when there is no right of access to court in the first place: Golder v UK. The reverse is here.

• Absence of any reference to right of access to court in civil matter is of no consequence. The rights to fair hearing in civil matter is co-extensive as that in criminal matter.

• Implied Limitations?

Two Provisions• ‘In the determination of any

criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.’ (ICCPR, art 14; BOR, art 10)

• ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’ (ECHR, art 6)

Right to Fair Hearing in Administrative Process

• Right to fair hearing is an important right• This right is not confined to formal courts• ‘Suit at law’ is an autonomous concept, or otherwise

a State Party can avoid the treaty obligation simply by re-categorizing the right concerned or by removing its determination from normal courts to special tribunals

• Complications arising from differences between civil law/common law system

Problems of extending a constitutional right to fair hearing to administrative

proceedings• Features of administrative proceedings

• Expeditious• Informal; no extensive rules on procedures and evidence• Sometimes staff by experts in the field• Judgment written by lay persons

• Emergence of an administrative state; proliferation of administrative tribunals

• Where should the line be drawn?

Travaux Preparatoires of Art 14.1 of the ICCPR

• ‘determination of rights and duties under the law’ (1947)• ‘Civil suits’ as those rights and duties connected with military service and

taxation were generally determined by administrative officers other than courts (1949, US)

• ‘civil’ be deleted so that it did cover fiscal, administrative and military questions (France, Egypt, Lebanon, Guatamala)

• ‘rights and obligations’ too broad as it would tend to submit to judicial decision any action taken by administrative organs exercising discretionary power conferred on them by law.’ (Denmark, Yugoslavia (infringement of traffic regulations)

• ‘rights and obligations in a suit at law’ as a compromise• Philippines’ attempt to delete the phrase was defeated.

Y L v Canada• ‘… the concept of a “suit at law” or its equivalent in the

other language texts is based on the nature of the right in question rather than on the status of one of the parties (governmental, parastatal or autonomous statutory entities), or else on the particular forum in which individual legal systems may provide that the right in question is to be adjudicated upon, especially in common law systems where there is no inherent difference between public law and private law, and where the courts normally exercise control over the proceedings either at first instance or on appeal specifically provided by status or else by way of judicial review.’ (para 9.2)

Drafting History

• ECHR used ‘rights and obligations in a suit at law’ and this phrase was changed to ‘civil rights and obligations’ only at the last minute as the latter was regarded to be a better translation of the French term of ‘droits et obligations de caratere civil’, which is the same for both ECHR and ICCPR.

ECHR• Public and private law rights and law administered

in civil and administrative courts• Extended to public law that is essentially economic

or pecuniary in nature, such as entitlement to social security or welfare benefits (Feldbrugge)

• See Runa Begum and Alconbury• Excluding disputes relating to the recruitment,

careers and termination or reinstatement of service of civil servants

Runa Begum• ‘…the term ‘civil rights and obligations’ was

originally intended to mean those rights and obligations which, in continental European systems of law, were adjudicated upon by the civil courts. These were, essentially, rights and obligations in private law. The term was not intended to cover administrative decisions which were conventionally subject to review (if at all) by administrative courts.’ (per Lord Hoffmann)

Essentially Pecuniary Nature Test• ‘The judicialisation of dispute proceudres… is eminently

appropriate in the realm of relations between individuals but not necessarily so in the administrative sphere, where organisational, social and economic considerations may legitimately warrant dispute procedures of a less judicial and formal kind.’

• Prevalence of public law character (disbarring an advocat)• Decisive of private law rights which are of an essentially

pecuniary nature (town planning)• Civil servants/police?

Pellegrin v France• Difficult to apply the essentially economic/pecuniary nature test, as

nearly all decisions concerning the recruitment, career or termination of service of a civil servant would have pecuniary consequences

• Functional criterion based on the nature of the employee’s duties and responsibilities

• Civil servants weilding a portion of the State’s sovereign power; hence legitimate State interest in requiring of these servants a special bond of trust and loyalty.

• Excluding those acting as depository of public authority responsible for protecting the general interests of the State or other public authorities as they require a special bond of trust and loyalty (except retirement employees)

Vilho Eskelinen v Finland (2007)• Functional criterion may lead to anomalous results

(5 police officers and a civilian office assistant on wage compensation)

• Reverse the burden• Access to court must be expressly excluded• Exclusion must be justified on objective grounds in

the State’s interest. Exercise of power conferred by public law is not in itself decisive

Perterer v Austria (2005)• Imposition of disciplinary measures taken against civil

servants does not of itself necessarily constitute a determination of rights and obligations in a suit at law, except in cases of sanctions that are penal in nature that amounts to a determination of a criminal charge.

• But if a judicial body is entrusted with the task of deciding on the imposition of disciplinary measures, it must respect the guarantee of equality of all persons before the courts and tribunals and the principles of impartiality, fairness and equality of arms implicit in this guarantee.

Lederbauer v Austria (2006)

• Same point was made

• Emphasized that the Disciplinary Appeals Commission and the High Administrative Court are ‘tribunals’ and therefore Art 14 is engaged.

• Implications?

General Comment No 32 (2008), para 18

• Travaux preparatoires do not resolve the discrepancies in the various language texts

• Based on the nature of the right in question rather than on the status of one of the parties or the particular forum provided by domestic legal systems

• Covers both rights and obligations pertaining to the areas of contract, property and torts in the area of private law

• Equivalent notions in the area of administrative law such as the termination of employment of civil servants for other than disciplinary reasons, the determination of social security benefits or the pension rights of soldiers, or procedures regarding the use of public land or the taking of private property

• Other procedures which must be assessed on a case by case basis in the light of the nature of the right in question

Reasons• No determination of rights and obligations in a suit

at law where the persons concerned are confronted with measures taken against them in their capacity as persons subordinated to a high degree of administrative control, such as disciplinary measures not amounting to penal sanctions being taken against a civil servant, a member of the armed forces, or a prisoner.

• What is so special about ‘disciplinary ground’?

Where does HK stand: Lam Siu Bo (2009)

• ‘Suit at law’ in Art 10, ICCPR, bears the same meaning as ‘civil rights and obligations’ in Art 6, ECHR

• Disciplinary proceedings, whether in respect of professions, disciplined services or occupations, are determination of rights and obligations in suits at law within the meaning of art 10

• Eskelinen test preferred to Leberbauer: (1) placing the onus on the State to specify, in legislation, the particular class of civil servants who are to be excluded from the BOR; (2) subjecting such legislation to scrutiny by the Court which asks whether objective grounds related to the effective functioning of the State or some other public necessity which justify removal of Convention protection have been established (para 89-90, Riberio PJ)

• Termination of employment: the right to remain in the employment one currently holds must be a civil rights; pension rights affected as well

• Right to legal representation is not absolute, but no justification for absolute bar.

Should legal representation be permitted?

• A matter of what fairness requires• Stock Exchange of Hong Kong v New World

Development Co Ltd (2006)• Rowse v Secretary for the Civil Service (2008)• Diane Heath v Commissioner of Police (2004)

• Tribunal recognised by law?• Issue ‘akin to’ that of a civil or criminal issues?• Nature of procedure adopted• Result leading to a binding determination of civil rights of a party

Anomaly• Small Claims Tribunal and Labour Tribunal (no punishment, mediation,

inquisitorial nature, transfer to higher court, and appeal)• Public hearing (Tse Wai Chung v Solicitors Disciplinary Tribunal)• ‘No provision, especially not one that guarantees a fundamental right or

freedom, should be interpreted so that its components trip each other up and defeat its purpose… There are various types of art 10 suits at law. Disciplinary proceedings are of a sort in which, fairness is always needed, privacy is usually appropriate. If art 10 applies to disciplinary proceedings, it would mandate fairness at disciplinary hearings but would not mandate publicity at such hearings or for their results.’ (Bokhary PJ, para 19; also para 121, Riberio PJ)

• Independence and impartiality

Curative Effect‘…the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1).’ (Albert and Le Compte v Belgian (1983) 5 EHRR 533, para 29)

• A court of full jurisdiction?• Is judicial review, with its restricted scope of reviewing primarily on merits, sufficient to

cure the defect? (Lee Lai Ping v Inland Revenue Board)• Runa Begum (2003) (nature of issue/defect)• ‘The fact that the reviewing court is itself impartial or will itself act fairly may not be

sufficient since the original defects may have resulted, for instance, in skewed factual findings or materials wrongly excluded, preventing the court from fully addressing the decision in the manner demanded’ (para 123)

• A court of full jurisdiction must have jurisdiction to deal with the case as the nature of the decision requires. Sufficiency of JR depends on the subject matter, the manner in which the decision was arrived at, its content and the proposed grounds of challenge (para 131).

Previous Cases on Art 10 Doubtful• Auburntown v Town Planning Board (1994) (objection to

draft OZP a legislative process)• Kwan Kong v Town Planning Board (1996) (CFI: formal

court process; CA: wider than that, but left it open)• REDA v Town Planning Board (1996)(not legislative

process, but Art 10 applied only to judicial and quasi-judicial process)

• Ma Wan Farming Ltd v CE in Council (1998)(nature of rights; policy matter)

Other Issues• Ultra vires not addressed• Inequality of arms not addressed• Pecuniary embarrassment and Impairment of operational

efficiency (Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653 overruled), but no rebuttable presumption

• 1993 version amended as a result of Ng Kam Chuen; 1999 version further amended to the 2003 version as a result of Leung Fuk Wah; 1999 version being the subject of challenge; how would it impact on the 2003 version?

Implications

• Amending the Police Discipline Regulations• Reviewing and amending a number of similar

provisions• Reviewing all administrative tribunals that

deal with discipline (regulatory bodies?)• How far does it go beyond disciplinary

matters?

Thank you