The principle of natural justice constitutes a fundamental tenet of equitable decision-making, having been progressively elaborated by jurists within the common law jurisdictions of England and other nations. This principle, even in the absence of explicit statutory preclusion, does not impede its application by judicial authorities. Concomitantly, in the United States, the constitutionally recognized doctrine denominated as ‘Due Process of Law’ is judiciously applied by courts as warranted, even when specific legislative enactments governing decision-making procedures are absent. Nonetheless, in both aforementioned nations and various other polities, the procedural framework governing administrative functions primarily derives its provenance from legislation enacted by the legislative branch.
In instances where a distinct legal provision obtains, the nullification or revocation by a court of a decision afflicted by a procedural deficiency is indisputable. However, a profound jurisprudential query emerges in scenarios bereft of mandatory legal provisions: Is it incumbent upon the judicial institutions of this jurisdiction, akin to their counterparts in England and America, to develop and enforce principles of equitable decision-making? Should such an imperative exist, does their stance derive a constitutional imprimatur? Within the realm of administrative decision-making, where the entitlement to a hearing and the principle of impartiality are not explicitly codified, the determination of the ultimate disposition of an administratively rendered decision characterized by procedural infirmity frequently presents a formidable undertaking.
On the one hand, judicial bodies are constitutionally obligated to safeguard the citizenry’s prerogative to access justice. On the other hand, the constitutional remit of said bodies does not extend to legislative enactment beyond the interpretative function concerning existing statutes. This ‘constitutional quandary,’ if not approached with judicious fortitude and circumspection, resists facile resolution.
Furthermore, a ‘principle,’ upon its practical implementation, necessitates adaptation to specific contextual circumstances, and its jurisdictional ambit must be meticulously delimited. While the right to be heard is obligatory in certain situations, its application may, at times, be subjected to limitations considering its practical efficacy and the imperatives of efficient administration. Moreover, the scope of its applicability is confined to administrative decisions of a quasi-judicial character that impinge upon an individual’s rights or interests. This underscores that the arduous task resides not in the wholesale acceptance of principles of equitable decision-making, but rather in precisely defining the parameters of their application through a nuanced consideration of the distinct circumstances appertaining to each particular case.
Subsequent to the seminal legal interpretation rendered by the Federal Supreme Court Cassation Bench in file No. 43511 in the Ethiopian calendar year 2005, it was established that, even in the absence of a mandatory legal provision, any entity vested with quasi-judicial authority bears an obligation to uphold the right to be heard. For a comprehensive apprehension of the Bench’s judicial posture, an examination of the ensuing commentary extracted from the reasoning section is deemed imperative:
“…The right to be heard necessitates observance from the initial phase of administrative adjudication until the matter culminates at the ultimate judicial organ. This inference may be drawn from the Federal Democratic Republic of Ethiopia (FDRE) Constitution and the substantive content and intrinsic spirit of the provisions of the Civil Procedure Code governing the conduct of hearing proceedings.”
The binding legal interpretation promulgated by the Cassation Bench possesses historical constitutional significance, inasmuch as it serves to shield citizens from administrative determinations that adversely affect their entitlements and interests without affording them an opportunity for input. Moreover, it occupies a paramount position among the jurisprudential contributions made by the Bench towards the progressive evolution of administrative law within this nation.
However, an isolated assessment of the decision’s impact may unduly inflate the practical transformations it has engendered. Cassation File No. 43511 has demonstrably failed to exert substantial pressure upon administrative bodies to conform their procedures to the Bench’s pronouncement or to integrate the right to be heard into their decision-making protocols. Even subordinate judicial tribunals, which are bound to accept and implement this mandatory legal interpretation, have not emerged as catalysts for change in diligently upholding the right to be heard in administrative disputes. It is conceivable that the existence of this decision remains unknown to some within these lower echelons of the judiciary. The challenges pertaining to the accessibility of cassation decisions and the conspicuous absence of robust academic discourse concerning these pronouncements frequently result in numerous binding legal interpretations becoming obscured and effectively forgotten within the voluminous collections of judicial rulings.
Beyond its constitutional import, the procedural trajectory of the case in Cassation File No. 43511 merits particular scrutiny. The genesis of the case involved a petition submitted by the applicants to the Ethiopian Privatization Agency, seeking the restitution of immovable property which had been subject to confiscation in contravention of a prior proclamation. Subsequent to affording the respondent an opportunity to submit a defense and undertaking an examination of the adduced evidence and governing law, the agency directed the respondent to restore the property to the applicants. Dissatisfied with this determination, the respondent lodged an appeal with the agency’s Board, which subsequently reversed the agency’s initial decision. Nevertheless, prior to the revocation of the initial decision, the Board failed to summon the applicants to present their counter-arguments.
Thereafter, the applicants, asserting a violation of their right to be heard, lodged a direct cassation appeal with the Federal Supreme Court Cassation Bench. However, the investigating bench declined their appeal, positing that it lacked the requisite authority to rectify the Board’s decision. Undaunted, the applicants underscored that the matter presented a question of constitutional interpretation and proceeded to appeal to the Constitutional Inquiry Council. In that forum, their application similarly met with rejection. Persisting in their quest for a hearing, they subsequently appealed to the House of Federation. Ultimately, their petition proved meritorious, culminating in the overturning of the investigating bench’s prior decision.
The applicants’ unwavering resolve in pursuing their claim to the House of Federation and securing a favorable outcome is intrinsically commendable. Nevertheless, of greater particular note is not merely the procedural journey of the litigation, but rather the substantive content of the House of Federation’s resolution. This pivotal decision, which effectuated an expansion of the judicial authority of the Cassation Bench and imbued it with a novel constitutional dimension, definitively affirmed that the Cassation Bench possesses the jurisdiction to rectify fundamental legal errors perpetrated by the Board. The constitutional interpretation espoused by the House of Federation was predicated upon the quasi-judicial mandate vested in the agency’s Board. Consequently, as the Board functions as a quasi-judicial entity and its determinations are deemed final, the Federal Supreme Court, exercising its cassation jurisdiction, possesses the requisite authority to adjudicate the matter.
Subsequent to the resolution of the jurisdictional question, upon the remand of the case from the House of Federation to the Cassation Bench, the decision-making protocol of the Board emerged as the principal substantive issue. In order to address this issue, the Bench scrutinized Proclamation No. 87/1986, which established the Privatization Agency, yet ascertained no provision mandating the Board to observe the litigants’ right to be heard during its decision-making process.
It is unequivocally a formidable undertaking for the Bench to impose an obligation upon a decision-making body to respect the right to be heard in administrative disputes where no explicit statutory provision safeguards this entitlement. This is attributable to the fact that, absent a legally derived obligation, compelling the Board to adhere to the principles of the right to be heard would, in effect, transmute the Bench’s function from one of legal interpretation to one of legislative promulgation. Consequently, the Bench is necessitated to substantiate its determination with compelling rationale, without transgressing the demarcation established by the principle of separation of powers and remaining strictly within the purview of its own judicial authority. In this regard, an examination of the rationale that constituted the bedrock of its position is deemed instructive. On this particular point, the primary portion of the reasoning articulates the following:
“As a quasi-judicial body, the Board’s determination must be rendered in strict accordance with the dictates of the rule of law. An entity vested with quasi-judicial authority, in the absence of a distinct procedural framework for the conduct and delivery of hearings as stipulated by law, is duty-bound to uphold the rights to access justice, to be heard, and to equitable treatment, all of which are constitutionally protected by the Constitution of the Federal Democratic Republic of Ethiopia. One of the constitutional entitlements that mandates protection within the decision-making continuum is the right to present arguments and adduce evidence. This constitutes one of the indispensable procedural prerequisites for the due administration of justice. An individual who has been denied a proper opportunity to articulate their case cannot effectively exercise their right to access justice, an entitlement guaranteed by Article 37 of the FDRE Constitution.”
An entity that issues binding determinations by applying legal principles to the substantive merits of a case executes a function that is indistinguishable from that performed by judicial officers presiding in a court of law. Therefore, whilst it may not be incumbent upon such an entity to strictly adhere to the civil procedure governing judges, it must, at a minimum, refrain from rendering a decision subsequent to hearing the submissions of only one party. The Bench has demonstrated a profound comprehension of this fundamental principle of administrative law. Its characterization as ‘historical’ is thus justified, given that no comparable or even proximate ruling had ever previously emanated from said Bench.
Notwithstanding the prior absence of analogous rulings, in a subsequent case adjudicated one year thereafter, the right to be heard attained constitutional recognition. In file No. 92546, a prosecutor facing disciplinary charges was exonerated by a decision of the Attorney General’s Administrative Council without the necessity of presenting a defense. However, the then Minister of Justice (presently, the Attorney General) authorized the prosecutor’s dismissal without affording him an opportunity to present his defense. The prosecutor directly appealed this ministerial action to the Cassation Bench, and his appeal was subsequently upheld. In its pronouncement, the Bench affirmed the Minister’s possession of quasi-judicial authority derived from statute and proceeded to annul the dismissal, indicating that the action constituted a contravention of the rights to equality and access to justice, which are protected and guaranteed by the FDRE Constitution.
Sources of Procedural Fairness in Ethiopia
Beyond the realm of constitutional interpretation, additional sources contributing to procedural fairness within Ethiopia encompass the following:
Administrative Procedure Proclamation No. 1183-2019:
This legislative instrument now constitutes the foundational source of fair hearing procedures pertinent to administrative adjudication. Its procedural stipulations are mandatory, and any non-compliance thereof necessitates the invalidation of the ensuing decision. The significance of this proclamation inheres not merely in its imposition of uniform and mandatory rules but also in its explicit admonition to agencies that determinations rendered in contravention of said procedures shall be subject to invalidation by judicial tribunals. Judicial review is thus recognized as the most efficacious mechanism for ensuring the implementation of these procedural requisites.
Specific Primary Legislations
These legislative acts represent pre-FAPP (Federal Administrative Procedure Proclamation) decision-making procedures applicable to particular agencies. A substantial number of enabling acts incorporate procedures that agencies are mandated to observe during their decision-making processes. Nevertheless, the scope of these rules is circumscribed to the specific agency concerned. For instance, the Customs Commission operates under its own distinct regulations, and similarly, the Ministry of Education would possess its own discrete decision-making protocols. A notable deficiency of this approach is that such procedures do not encompass all decision-making processes within a given agency; rather, they are frequently mandated only for select categories of decisions. Furthermore, the legal consequence of non-compliance is often left unspecified, thereby compelling judicial bodies to adopt divergent approaches and interpretations.
Regulations and Directives
Subordinate legislative instruments, enacted by virtue of delegated authority from the legislature, constitute salient sources of administrative decision-making procedure. Regulations promulgated by the Council of Ministers may either delineate specific procedures applicable at the agency level or prescribe general procedural rules governing a designated category of decisions across various agencies.
A paradigmatic illustration in this context is the Federal Civil Servants Disciplinary and Grievance Procedure Council of Ministers Regulations No. 77/2002, adherence to which is incumbent upon all agencies prior to the imposition of disciplinary measures against civil servants. Directives are likewise instrumental in prescribing tribunal procedures. Virtually all administrative tribunals within Ethiopia are legally empowered to establish their own adjudication procedures, and some have indeed issued such rules. These regulations are frequently characterized by their detailed nature and, in certain respects, exhibit a more advanced scope than the Administrative Procedure Proclamation, encompassing all facets of the decision-making continuum. For example, the Tax Appeal Commission Working Directive No. 2-2011 contains elaborate stipulations governing appellate proceedings and other procedural matters. Furthermore, the Commission has also issued a directive establishing the conditions under which appeals lodged out of time may be entertained.