Introduction
In the intricate landscape of administrative law, the public’s perception of fairness is not merely desirable but foundational. This principle finds its most potent expression in the “rule against bias,” a cornerstone of natural justice. When administrative bodies make decisions that affect individuals’ rights and interests, the integrity of the decision-making process hinges on the impartiality of the decision-maker. This chapter will delve into the multifaceted concept of bias in administrative law, examining its underlying principles, legal manifestations in Ethiopia, practical challenges, and the mechanisms designed to ensure fair and unbiased administrative action.
The Fundamental Principle: Nemo Debet Esse Judex in Propria Sua Causa
The rule against bias is rooted in the ancient legal maxim, nemo debet esse judex in propria sua causa, which translates to ‘no one should be a judge in their own cause’. This principle mandates that any decision-maker, whether a court, a tribunal, or an administrative official, must be neutral and unbiased. The essence of justice is that it must not only be done but must also be seen to be done. Therefore, the test for bias is objective: it asks whether “right-thinking members of the public, apprised of all the facts and circumstances, would conclude that the particular tribunal, body or person was biased.” This objective standard emphasizes the importance of public confidence in the impartiality of the administrative process.
However, the concept of “neutrality” itself presents inherent difficulties. What constitutes “neutral” can vary significantly across different contexts and circumstances. A truly neutral stance in all situations might be an ideal rarely achieved, especially given the specialized nature and policy roles of many administrative agencies. The challenge lies in balancing the need for impartiality with the practical realities of administrative governance.
Actual Bias vs. Apprehended Bias
The rule against bias recognizes two principal forms: actual bias and apprehended (or apparent) bias.
- Actual Bias: A claim of actual bias requires proof that the decision-maker approached the issues with a closed mind or had prejudged the matter and could not be swayed by the evidence presented. A decision-maker is considered actually biased “if motivated by a desire to favour one side or disfavour the other” for “reasons unconnected with the merits of the issue,” such as “prejudice, predilection or personal interest.” If actual bias is proven, the decision is rendered illegal and invalid.
- Apprehended Bias: This type of bias does not require proof of actual partiality but rather focuses on the appearance of bias. The rule applies where:
- There is some direct interest in the matter to be adjudicated (often leading to automatic disqualification).
- Where, short of a direct interest, there is some reasonable suspicion, appearance, or likelihood of bias.
Regardless of actual bias, a decision-maker who is a party to the matter to be decided, or who has a financial interest in the decision to be made, is “automatically disqualified” from making the decision. If a decision has already been made under such circumstances, it will be invalid.[1] This automatic disqualification rule reflects a strict application of the nemo judex principle, aiming to prevent even the slightest taint of impropriety.
The application of the bias rule, like the hearing rule, is flexible. While the abstract requirement for decision-makers to be unbiased is constant, its practical application varies significantly based on the nature of the process, the characteristics of the decision-maker, and the broader factual and legal circumstances of each case. As these factors change, so does what may constitute one of the many forms of bias. The rule’s demands can range from imposing clear restrictions to very few, depending on the context. These issues are ultimately determined by reference to the standards of a hypothetical observer, who is fair-minded, informed of all relevant circumstances, aware of community standards, and capable of adapting to contemporary social trends. This “fictional device,” while judicially controlled, ensures that the assessment of bias is grounded in a reasonable and objective community standard.
The Rationale for Impartiality in Public Administration
Impartiality and the public confidence it engenders are considered essential for the successful and proper operations of the public service, the tribunal system, and the judiciary. The reasons for this can be broadly categorized into instrumental and non-instrumental values.
- Instrumental Goals: Neutrality serves several practical objectives. It promotes the accuracy of fact-finding and enhances the quality of policy formulation and application. When decision-makers are impartial, their assessments are more likely to be based solely on the merits of the case, leading to sounder and more defensible outcomes. Furthermore, people adversely affected by a decision are more likely to accept it if they do not doubt its maker’s impartiality. This acceptance helps reduce enforcement costs in the decision-making process by minimizing appeals and resistance.
- Non-Instrumental Values: Beyond practical outcomes, the bias rule also upholds fundamental ethical and democratic values. It ensures that parties are treated with equal respect and dignity, regardless of their status or the nature of their claim. It promotes the public’s participation in decision-making processes that affect them individually, fostering a sense of ownership and procedural justice. Crucially, it enhances the institutional legitimacy of government agencies, ensuring that they are perceived as fair, trustworthy, and committed to the rule of law.
Recusal Under Ethiopian Administrative Law
The Ethiopian Administrative Procedure Proclamation No. 1183/2020 explicitly addresses the issue of bias through its provisions on recusal, establishing grounds and procedures for a decision-maker to be removed from a case.
Article 38. Recusal: “1/ A person may be recused from the decision-making on one of the grounds listed here under: a) He has a direct or indirect interest on the matter; b) The matter at hand affects a person that has a relation with a decision maker in consanguinity or Affinity, close friend; c) If he has represented the person regarding whom the decision is being considered, as an agent, attorney or in any other professional capacity; d) He has made a decision on the matter in another capacity; 2/ In case where one of the grounds listed under sub article (1) of this Article are present, the person may be recused from decision-making process on his own accord, or the petition of an interested person; 3/ If recusal is requested, until the head of administrative decision rendering final decision the person raised matter of recusal shall remain suspended from entertaining the case; 4/ The Head accepted the recusal request initiated by the interested person or others shall render decision within five working days to stay or recused.”
These provisions reflect a comprehensive approach to addressing bias, encompassing both personal and departmental forms.
Personal and Pecuniary Bias
Article 38(1)(a) and (b) directly address situations where the decision-maker has a personal stake in the outcome, either through a direct or indirect interest in the matter or through close personal relationships (consanguinity, affinity, close friendship) with an affected party. These are classic examples of pecuniary (financial) or personal bias. If such an interest exists, the person is legally prohibited from participating in the decision-making process or attempting to influence the decision. The law presumes bias in such cases, automatically disqualifying the individual.
The Proclamation provides two avenues for rectification if a personal or pecuniary interest is detected before a decision is rendered:
- Self-Initiated Recusal: The decision-maker has a duty to remove themselves from the position upon their own initiation. However, this relies on the decision-maker’s integrity, which might be unrealistic in cases where the bias is intentional or known.
- Party-Initiated Request: An interested party can request the removal of the decision-maker. This petition must be submitted to the head of the agency, who is then obliged to render a decision on the request within five working days. Crucially, the decision-maker whose removal is requested is suspended from entertaining the case until a final decision on recusal is made.
These avenues are primarily designed to prevent a biased decision from being made. The Proclamation does not specifically provide a direct remedy if bias is detected after a decision has already been rendered. However, Article 50(2) of the Federal Administrative Procedure Proclamation No. 1183/2011 states that a “violation of the Principles provided under Chapter Three of the proclamation constitutes a valid ground of judicial review.”[2] Therefore, it can be argued that the effect of a biased decision should be its invalidation. This invalidation would particularly apply if the decision-maker, knowing of their personal or pecuniary interest, fails to recuse themselves, or if an interested party’s petition for recusal is rejected without good cause. Conversely, if a biased decision is given without the decision-maker’s knowledge of the interest, or if the party failed to raise an objection despite having full knowledge of the facts, the decision might not be invalidated unless it can be established that the decision-maker should have known about the bias. This highlights the importance of timely objection by parties.
Departmental Bias
Departmental bias arises in multi-purpose government agencies where individuals or groups within the same agency carry out conflicting functions, leading to a risk of impartiality in decision-making. The maxim “No one shall be a judge in his own cause” also applies here: a person who has investigated a matter or formed an opinion on a particular outcome should not then act as the adjudicator.
The Ethiopian Administrative Procedure Proclamation identifies two instances of departmental bias under Article 38(1)(c) and (d):
- If the decision-maker has previously represented the person concerned as an agent, attorney, or in any other professional capacity (c).
- If the decision-maker has already made a decision on the matter in another capacity (d).
While these provisions are important, other instances of departmental bias can occur. Most notably, a person who has participated in a case as a prosecutor, investigator, or auditor should generally be precluded from sitting as a decision-maker on the same case. It is unlikely that such an individual would reach a conclusion contradicting their own investigative or prosecutorial opinion. To avoid such conflicts of interest, multi-function agencies should ensure that different functions (investigation, prosecution, adjudication) are carried out by individuals or groups who operate at arm’s length from each other, as well as from the broader government structure.[3]
Some specific laws prescribe more detailed rules and standards to prevent bias. For example, the Financial Reporting Proclamation No. 847/2014 includes mandatory disclosure requirements and prohibits members of the administrative tribunal from engaging in the provision of audit or assurance services.
Financial Reporting Proclamation No. 847/2014
Article 3. Separation of Functions “1/ The Administrative Tribunal will not be responsible for or subject to the supervision or direction of any officer, employee, or agent of the Authority in carrying out its adjudicatory functions and responsibilities. 2/ No officer, employee or agent of the Authority who is engaged in the performance of investigative or prosecuting functions in connection with any proceeding shall, in that proceeding or any factually related proceeding, participate or advise in the decision of the Administrative Tribunal or the Authority except as witness or counsel in the proceeding, without the express written consent of the respondents in the proceeding.”
Article 50. Conflicts of Interest “1/ A person who could, directly or indirectly, derive benefits from any matter that the Board has the right to determine shall, if being considered for membership of the Board of Directors of the Board, disclose with specificity to the nominating body the nature and amount of any such direct or indirect benefits. 2/ A member of the Board of Directors of the Board prior to voting on any matter that could directly or indirectly benefit him, shall disclose to the Board of Directors with specificity the nature an amount of any such direct or indirect benefits an shall excuse himself from participating in any sue vote. 3/ An employee of the Board or a consultant or advisor to the Board who has a private professional or official interest in, or whose immediate family member is directly or indirectly interested in, any matter being considered by the Board shall disclose such interest. 4/ A disclosure of interest made as per sub-article (3) of this Article shall be made to the Chairperson of the Board of Directors of the Board who shall take such decision as he considers appropriate in each case and submit a report thereon to the Board of Directors. 5/ On being appointed as a member of the Board of Directors of the Board, a person shall not engage in providing audit or assurance services, either in his own name or in the name of any other person, unless he complies with sub-article (2) of this Article. 6/ No member of the Board of Directors of the Board shall engage in, or continue in, any profitable pursuit outside of the Board, unless the member discloses with specificity the nature and extent of such pursuit to the Board. 7/ No member of the Board of Directors or employee of the Board shall engage in or carry on any activity, which may create or have an adverse effect on the discharge of his duties. 8/ For the purpose of this Article “immediate family” means spouse, children, father and mother and siblings of the person concerned.”
This detailed approach in sector-specific legislation demonstrates a deeper understanding of the unique risks of bias in specialized administrative contexts.
Exclusions and Exceptions to Procedural Fairness
While the principles of natural justice, including the rule against bias and the right to a hearing, are fundamental, there are limited situations where the effectiveness and efficiency of public administration may necessitate restricting or even excluding these rights. As I.P. Massey argues, if “the right to be heard will paralyse the process, law will exclude it. It has been said that no army can be commanded by a debating society… if to condemn unheard is wrong, it is wrong except where it is overborne by dire social necessity.”[4]
The Ethiopian Federal Administrative Procedure Proclamation No. 1183/2020 lists three instances where the hearing right may be excluded under Article 36(2):
- a) If there are no arguments on the facts of the case;
- b) If it is a special privilege or if the administrative agency has alternative decision power; or
- c) The issue is urgent.
This list, while intended to cover justifiable instances, might be seen as exhaustive and potentially limiting. It does not explicitly include cases constituting secrecy, national security, or temporary preventive measures, which are commonly recognized grounds for exclusion in other jurisdictions. This could create an obstacle for the administration in dealing with similar justifiable cases of exclusion not explicitly listed.
“Hearing Makes No Difference” vs. “No Arguments in the Case”
The first exclusion, “If there is no arguments of the facts of the case,” is intended to resemble the common law exception of “hearing makes no difference.” However, there is a visible difference. “No arguments” concerns one aspect of the process (the absence of factual dispute), whereas “no difference” determines exclusion based on the projected outcome of the case (i.e., whether a hearing would alter the inevitable decision). The latter is a broader and more outcome-oriented criterion, focusing on the futility of a hearing rather than merely the absence of factual contestation.
Privilege and Discretion
The inclusion of “privilege” as a ground for exclusion under Article 36(2)(b) is perplexing. The fundamental question arises: when does a decision become a privilege, and whose privilege is being referred to? Within the Ethiopian constitutional context, all power conferred on an agency emanates from law; there is no other source of power to be categorized as ‘privilege’ that would negate the need for a hearing.
The Explanatory Note attempting to clarify Article 36(2)(b) states: “Article 36 (2) (b) indicates the situation where the right or interest at issue is exclusively assigned by law to one of the claiming persons or the law gives special authority to the administrative agency to do this in which case there is no need for a hearing. For instance, an administrative agency authorized to return an illegally confiscated house to the owner can consider the confiscation record and decide to return it to the owner without the need for hearing third parties.” This explanation remains vague and confusing. The example provided is arguably unrelated to a true ‘privilege.’ The return of a confiscated house is governed by law, and the agency’s action is an exercise of statutory obligation, not a privilege. “Considering the confiscation record” is part of its duty to verify legal entitlement, not an act of discretion exempting a hearing. This section of the Proclamation warrants further clarification and perhaps revision to align with established principles of administrative law regarding legal entitlement versus mere privilege.
Secrecy and Urgency
Good administration demands not only that individuals affected by decisions are heard but also that the exercise of an administrator’s powers is not frustrated. Where issues of national security or secrecy arise, these considerations may legitimately outweigh considerations of procedural fairness. Similarly, when urgent action is required, the implication of procedural fairness may be qualified.[5]
Some administrative actions are inherently inconsistent with an obligation to accord procedural fairness, such as powers to arrest and seize. In exceptional emergency cases where prompt action, whether preventive or remedial, is needed, the requirement of notice and hearing may be obviated. Thus, if the right to be heard would paralyze the process, the law must exclude it. For example, in situations where a dangerous building is to be demolished, there is an imminent danger to peace, or a trade dangerous to society is to be prohibited, “dire social necessity requires exclusion of the elaborate process of fair hearing.”[6]
The Radiation and Nuclear Protection Proclamation No. 1025/2017 provides a typical example of measures to be taken during emergency situations to prevent greater harm to the public and the environment:
Article 17. Enforcement of Law “1/ When the inspector determines that an activity or practice is conducted in violation of this Proclamation and regulations, directives and necessary requirements and conditions of authorization issued hereunder and poses an immediate risk of injury to persons or substantial damage to property or the environment, the inspector as may be necessary shall make enforcement of law by: a) order immediate suspension of the activity or practice on temporary basis; or seal the premises of the radiation sources; b) order the authorized person to prohibit radiation worker who does not meet applicable requirements from engaging in the activity or practice; c) order that nuclear or radioactive material originating from a suspended activity or practice be safely and securely stored or seized; d) summon and receive statement or testimony, either alone or in the presence of any other person as he thinks fit, any person with respect to matters under radiation and nuclear regulatory activities; and e) require a medical examination to be carried on as may be necessary to minimize the negative adverse effect of urgent measure 3/ Notwithstanding sub-article (2) of this Article the decision of inspector may not be enforced: a) when the top official of the Authority takes measure which reverses or modifies the order or decision of the inspector; or b) when complaint handling body reverses the order or decision of the inspector; 4/ In cases of enforcement of law, the inspector shall produce a report containing relevant findings and identifying the evidentiary basis for the findings, including measures as necessary, test results, explanations or other information.”
This example clearly demonstrates a legislative recognition of situations where urgent public safety concerns override the immediate provision of a full hearing, though accountability mechanisms (like reporting and potential review) are still built in.
Conclusion
The rule against bias is an indispensable component of administrative law, safeguarding the integrity and legitimacy of administrative decision-making. Grounded in the fundamental principle that no one should be a judge in their own cause, it demands impartiality, both in fact and in appearance. Ethiopian administrative law, through Proclamation No. 1183/2020 and other specific legislation, has established clear mechanisms for identifying and addressing various forms of bias, including personal, pecuniary, and departmental biases, primarily through recusal procedures.
However, the application of natural justice principles, including the right to a hearing, is not absolute. Exceptions for urgency, secrecy, or where a hearing would make no difference are recognized to balance fairness with administrative efficiency and public interest. Nonetheless, clarity in the legal framework, particularly regarding ambiguous provisions such as “privilege,” is crucial for consistent and just application. Ultimately, a robust administrative justice system in Ethiopia, as elsewhere, relies on a continuous commitment to upholding the rule against bias, ensuring that all administrative actions are not only lawful but also fundamentally fair and impartial.
Footnotes
[1] Peter Cane, Administrative Tribunals and Adjudication, supra note 9, p. 70-71. (This citation refers to the previous chapter’s numbering system, but for this new chapter, it would be [1] here). [2] Federal Administrative Procedure Proclamation No. 1183/2011 art. 50/2/ (Note: the user provided 1183/2011, while the current text references 1183/2020. I will use the one provided by the user for this citation). [3] Liz Nastasi, Judicial Review of Administrative Decisions, supra note 22, p. 47. (Again, this citation refers to the previous chapter’s numbering, but is presented as [3] in this new chapter). [4] Roger Douglas; Margaret Hyland (2015). FOCUS Administrative Law. LexisNexis Butterworths P208. (This citation is provided as [4] in this chapter). [5] I.P. Massey Administrative Law (9th ed.). Delhi: Eastern Book Company. P256-7. (This citation is provided as [5] in this chapter). [6] I.P. Massey Administrative Law (9th ed.). Delhi: Eastern Book Company. P256-7. (This citation refers to the same source as [5]).