“Rule against bias is one of the concepts of fair hearing under administrative law”-Explain with 3 decided cases.
INTRODUCTION
Administrative law is a part of the legal structure for public administration. Public Administration deals with daily implementation of public policies and programs. The purpose of Administrative law is to deal with decision-making of various government administrative units such as boards, commissions, tribunals or committees. It is also about the accountability of the public administrators for their actions while performing their duties and exercising their powers. The field of Administrative law is very diverse and varies from economic regulation, social welfare, defense, immigration, environment, taxation and others.
Fair hearing is a judicial proceeding which is carried out abiding by the fundamental concepts of justice and equality. The authority implemented during the fair hearing must comply with the principles of “Due Process of Law”. The Principle of Due Process of Law originates in the common law; it implies that there is a constitutional guarantee that all legal procedures will be fair and an individual will be notified of the procedures beforehand and must be given an opportunity to be heard before a judgment is made against them to take away their life, liberty or property. A fair hearing may not necessarily be termed as a fair trial, can also be administrative hearing such as the immigration board, taxation and so on.
The concept of fair hearing is based on two components. One is “Audi Alteram Partem”, which means that everyone has the right to be heard. Nobody should be condemned before their point of view is heard. This rule states that the concerned party should be given prior notice of the action being taken against them and they should be provided with adequate time to prepare their case. They are also entitled to access the information the tribunal will rely on while making decision.
The other pillar of fair hearing is “Nemo iudex in causa sua” which means that a person should not be judging his own case. This also implies that the person who is judging must be impartial, i.e. not be biased towards any party. The Rule of Bias is thought to be based upon the words of Lord Hewart’s famous statement, “justice should not only be done but also be seen to be done”. The rule against bias law has become very important considering the link between impartiality and public confidence in courts and other decision making places where the rule against bias is applicable. In the following segment, the fact that rule against bias is a concept of fair hearing will be discussed by citing the examples of three decided cases under administrative law.
ANALYSIS OF DECIDED CASES
I. Beaverford v Thorhild (County No. 7), 2013 ABCA 6 (CanLII)
The applicant Beaverford applied for a permit for gravel extraction in the Thorchild County. However, the County’s Municipal Planning Commission refused the application. The applicant then appealed the issue to the Subdivision and Development Appeal Board (SDAB). The applicants objected to the participation of councilor Croswell who was a member of the SDAB panel.[1] They claimed that the councilor publicly expressed his opinion of disapproving the gravel extraction. Beaverford supported their claims by producing digital documents from Croswell’s “Face Book” page which were posted one year previously. The Face Book postings showed Councilor Crosswell’s open criticism of the proposed plan. They also produced a flier where the councilor in his last council meeting forwarded a motion to prohibit further extraction of gravel from the county. SDAB deduced that the councilor raised questions regarding another proposed gravel pit and there was no evidence that suggests that his stance was regarding the gravel pit in question. Therefore the appeal was dismissed by SDAB.
Beaverford then appealed SDAB decision in the Alberta Court of Appeal. They appealed that due to the Councilor’s presence, the decision was impartial. The Alberta Court of Appeal agreed that the principles of natural justice govern the action of the administrative decision makers. The judges laid out the test for reasonable apprehension of bias. The judges came to a conclusion that SDAB’s role was quasi-judicial[2], therefore a higher degree of impartiality should have been shown to uphold the rule against bias and hence ensure “Fair Hearing”. The decision of SDAB was quashed and Councilor Croswell was ordered to not to participate further.
II. Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992]
A public hearing was held by the Newfoundland Board of Commissioners of Public Utilities before five of its executives in 1988. This was done to evaluate the executive pay and benefits package of the Newfoundland Telephone Company. Andy Wells, who was one of the commissioners, expressed his view about the package to the press before the hearing. He criticized the package by saying the benefits were irrational. He went on to series of interviews where he discussed about his opposition to the increment in the Executive salaries.
The Board of commissioners rejected the enhanced executive package in 3 to 2 majority and ordered refund for the customers for making unnecessary expenses in the form of executive salaries. The Newfoundland Telephone Co. appealed against the order to the Newfoundland Court of Appeal. They claimed that the orders are invalid because of the statements made by Wells was biased. The Court of Appeal ruled in favor of the Board of Commissioners. However, the case was further dragged to the Supreme Court.
The Newfoundland Telephone Co. presented their claim with strong supporting evidence, which included excerpts from interviews in the media showing Mr. Wells opposing stance to the increment. The court applied an “open mind” test. The Board has a duty to act as a prosecutor and adjudicator. When these statements were analyzed together, the Court saw a clear indication that not only Mr. Wells showed a reasonable apprehension of bias but also at the same time he proved he had a “closed mind”. Based on the results of the findings of bias, the court then ordered the order of the Court of Appeal to be set aside and the order made by the Board of commissioners to be declared invalid.[3]
From this case we can see that it is a case of actual bias.[4] The individual was prejudiced against the appellant. There was no pecuniary interest from the party. However, the rule against bias ensured that fair hearing took place in this case.
III. A. K. Kraipak & Ors.Etc vs Union Of India & Ors on 29 April, 1969
According to Forest Service regulation of India 1966, a Special Selection Board (SSB) was formed to select officers to the Indian Forest Service in the senior and junior scales from officers serving in the froest department of the State of Jammu and Kashmir, under the All India Services Act, 1951. An individual named Naqishbund was one of the Members of the Board and also was the Chief Conservator of forests of the state. When the selection by the SSB was made, he was appointed as the Acting Chief Conservator prevailing over another conservator of Forests, whose appeal to the State Government against his suppression was pending at the time.
The Board later on selected officers based on junior and senior scales. The name of Naquisbund was at the top of the list of the selected officers. The names of three conservators, who rival of Naquishbund including the officer, who was superseded by Naquishbund, were omitted. The Actict chief Conservator did not participate when his name was selected; however, he participated in the deliberations when the names of his rivals were considered.[5] The Three in issue and other aggrieved officers filed a petition to quash the notification.
Since this was a quasi-judicial issue the Judges pondered and concluded that there was no reason why the principle of natural justice would not be applicable in this case. It was found out that the other members of the Board were unaware of the appeal pending against Naqishbund when he was selected for the board. Therefore there was no reason for them to distrust his opinions. Since he was judge in his own cause, he was found to be biased judging the circumstances. This is further strengthened by the fact that Assistant Conservators have been selected for the senior scale service whereas for the officers who put in more than 8 years of service had been selected for the junior scale service. Therefore it is not possible to distinguish between the two. This is why the court ordered the petition to be allowed.
OPINION
Analyzing all three cases we can see that the rule against bias is a vital concept of fair hearing and it must be upheld. However, there are arguments in favor of abolishing automatic disqualification as well. Considering the case of Dimes v Grand Junction Canal, the Global Financial market has developed into a very complex structure since the days of Dimes case (1852). In today’s world ownership of shares and complex financial products such as derivatives are widely seen, however, this was not the same case in the days of Dimes. Since judges cannot be deprived of their right to invest, the level of interaction between the judges and other parties is likely to be more. Therefore the rule against bias should also evolve to adjust to present situation. That is why we see in cases like Ebner v Official trustee, where even though allegations of bias were presented; the Judges decided to dismiss the appeal.[6] However it should also be noted that the opposite is also true, as it has been found that one-third of the Supreme Court justices who hear big-money lawsuits of Manhattan, have failed to disclose their personal conflict of interest and are also more inclined to rule in favor of the litigants with whom they have stake. Therefore in order to ensure decisions without bias, the rule against bias should be applied.
CONCLUSION
We have seen throughout the paper about the importance of rule against bias and why it is one of the core concepts of Fair hearing.we would like to end with an excerpt from Lord Campbell’s speech in the Dimes v Grand Junction Canal case:[7]
“My Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest.”
BIBLIOGRAPHY
1. “Actual bias” (n.d.). Retrieved from: http://definitions.uslegal.com/a/actual-bias/
2. A. K. Kraipak & Ors.Etc vs Union Of India & Ors on 29 April, 1969. Retrieved from: http://www.indiankanoon.org/docfragment/639803/?formInput=kraipak%20union%20of%20india
3. Beaverford v Thorchild (County No. 7), 2013 ABCA 6 (CanLII). Retrieved from: http://canlii.ca/en/ab/abca/doc/2013/2013abca6/2013abca6.html
4. Cane,P (2011). Administrative Law (5th ed.). (pp 10-13) Oxford: Oxford University Press.
5. Cane,P (2011). Administrative Law (5th ed.). (p 4) Oxford: Oxford University Press.
6. Dimes vs the proprietors of Grand Junction Canal (1852). Retrieved from: http://swarb.co.uk/dimes-v-proprietors-of-grand-junction-canal-and-others-hl-26-jun-1852/
7. Due Process of Law (n.d.). Retrieved from: http://legaldictionary.thefreedictionary.com/Due+Process+of+Law
8. Ebner v Official Trustee (2000) 205 CLR 337 http://www.ipsofactoj.com/international/2000/Part7/int2000(7)-010.htm
9. Fair Hearing (n.d.)Retrieved from: http://legaldictionary.thefreedictionary.com/Fair+Hearing
10. Ferdous, S.R. (2007). Bias: A Devil In Justice. Asian Affairs, 29, 47-60. Retrieved from: http://www.cdrb.org /journal/current/4/Robaye_3t.pdf
11. Greg B., Smith B and Port (2004) Judges keep Quiet about Conflicts. New York Daily News. Retrieved from: http://www.nydailynews.com/archives/news/judges-quiet-conflicts-state-supreme-court-justices-rule-scores-cases-financial-stake-article-1.612566#ixzz2NUwKD3L6
12. Groves, M. (2009) The Rule Against Bias. Hong Kong Law Journal, 39, pp-485. Retrieved from faculty of Law of Monash University website: http://ssrn.com/abstract=1592326
13. Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) (1992). Retieved from: http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/851/index.do
14. Office of the General Counsel.(2011). Rules of Natural Justice. Concordia University. Office of the General Counsel.
15. Quasi Judicial (n.d.) Retrieved from: http://legal-dictionary.the freedictionary.com/Quasi-Judicial
16. R v Sussex Justices Ex p McCarthy [1924] 256 at 259. In the same year, Aitkin LJ similarly remarked that “[N]ext to the tribunal being in fact impartial is the importance of its appearing so”: Shrager v Basil Dighton Ltd [1924] at 284.cited in Groves, M. (2009) The Rule Against Bias. Hong Kong Law Journal, 39, pp-485. Retrieved from faculty of Law of Monash University website: http://ssrn.com/abstract=1592326
17. The test for reasonable apprehension of bias (n.d.) Association of Corporate Counsel Library website: http://www.lexology.com/library/detail.aspx?g=c9db700a-395d-4bbd-b393-9f3c88711f0e
[1] Beaverford v Thorchild (County No. 7), 2013 ABCA 6 (CanLII). Retrieved from: http://canlii.ca/en/ab/abca/doc/2013/2013abca6/2013abca6.html
[2] The action taken and discretion exercised by public administrative agencies or bodies that are obliged to investigate or ascertain facts and draw conclusions from them as the foundation for official actions. See Quasi Judicial (n.d.) Retrieved from: http://legal-dictionary.the freedictionary.com/Quasi-Judicial
[3] ibid
[4] “Actual bias” is defined as “the existence of a state of mind that leads to an inference that the person will not act with entire impartiality.” Moore v. Johnson, 2009 U.S. Dist. LEXIS 70758 (W.D. Va. Aug. 12, 2009). Retrieved from: http://definitions.uslegal.com/a/actual-bias/
[5] A. K. Kraipak & Ors.Etc vs Union Of India & Ors on 29 April, 1969. Retrieved from: http://www.indiankanoon.org/docfragment/639803/?formInput=kraipak%20union%20of%20india
[6] Ebner v Official Trustee (2000) 205 CLR 337 http://www.ipsofactoj.com/international/2000/Part7/int2000(7)-010.htm
[7] Dimes vs the proprietors of Grand Junction Canal (1852). Retrieved from: http://swarb.co.uk/dimes-v-proprietors-of-grand-junction-canal-and-others-hl-26-jun-1852/