I. The Executive
A. Need for and limitations on
effective governmental powers (Congress of Delhi, 1959, Committee, II)
The Rule of Law depends not only on the
provision of adequate safeguards against abuse of power by the
executive, but also on the existence of effective government capable of
maintaining law and order and of ensuring adequate social and economic
conditions of life for the society.
The following propositions relating to the
executive and the Rule of Law are accordingly formulated on the basis of
certain conditions which are either satisfied, or in the case of newly
independent countries still struggling with difficult economic and
social problems are in the process of being satisfied. These conditions
require the existence of an executive invested with sufficient power and
resources to discharge its functions with efficiency and integrity. They
require the existence of a legislature elected by democratic process and
not subject, either in the manner of its election or otherwise, to
manipulation by the executive. They require the existence of an
independent judiciary which will discharge its duties fearlessly. They
finally call for the earnest endeavour of government to achieve such
social and economic conditions within a society as will ensure a
reasonable standard of economic security, social welfare and education
for the mass of the people.
In the light of the foregoing the following
propositions have been agreed upon.
1. In modern
conditions and in particular in societies which have undertaken the
positive task of providing welfare services for the community it is
recognized that legislatures may find it necessary to delegate power to
the executive or other agencies to make rules having a legislative
character.
The grant of such powers should be within
the narrowest possible limits and should carefully define the extent and
purpose of delegated legislation and should provide for the procedure by
which it can be brought into effect.
Public emergency threatening the life of a
nation may require extensive delegation of powers. Even in such cases,
however, the Rule of Law requires that every attempt be made by the
legislature to define as carefully as possible the extent and purpose of
the grant of such delegated powers, and the procedure by which such
delegated legislation is to be brought into effect.
In no event shall fundamental human rights
be abrogated by means of delegated legislation.
2. To ensure that
the extent, purpose and procedure appropriate to delegated legislation
are observed, it is essential that it should be subject to ultimate
review by a judicial body independent of the executive.
3. Judicial
review of delegated legislation may be usefully supplemented by
procedure for supervision by the legislature or by a committee or a
commissioner of the legislature or by other independent authority either
before or after such delegated legislation comes into effect.
4. In general,
the acts of the executive which directly and injuriously affect the
person or property or rights of the individual should be subject to
review by the courts.
5. The judicial
review of acts of the executive may be adequately secured either by a
specialized system of administrative courts or by the ordinary courts.
Where specialized courts do not exist it is essential that the decisions
of ad hoc administrative tribunals and agencies, if created (which
include all administrative agencies making determinations of a judicial
character), should be subject to ultimate review by ordinary courts.
Since this supervision cannot always amount
to a full re-examination of the facts, it is essential that the
procedure of such ad hoc tribunals and agencies should ensure the
fundamentals of fair hearing including the right to be heard, if
possible, in public, to have advance knowledge of the rules governing
the hearing, to adequate representation, to know the opposing case, and
to receive a reasoned judgment.
Save for sufficient reason to the contrary,
adequate representation should include the right to legal counsel.
6. A citizen who
suffers injury as a result of illegal acts of the executive should have
an adequate remedy either in the form of a proceeding against the state
or against the individual wrongdoer, with the assurance of satisfaction
of the judgment in the latter case, or both.
7. Irrespective
of the availability of judicial review to correct illegal action by the
executive after it has occurred, it is generally desirable to institute
appropriate antecedent procedures of hearing, enquiry or consultation
through which parties whose rights or interests will be affected may
have an adequate opportunity to make representations so as to minimize
the likelihood of unlawful or unreasonable executive action.
8. It will
further the Rule of Law if the executive is required to formulate its
reasons when reaching its decisions of a judicial or administrative
character and affecting the rights of individuals and at the request of
a party concerned to communicate them to him.
B. Human rights and government
security (Conference of Lagos, 1961, Committee I.
1. The exigencies
of modern society necessitate the practice of the legislature delegating
to the executive the power to make rules having the force of
legislation.
2. The power of
the executive to make rules or regulations having legislative effect
should derive from the express mandate of the legislature; these rules
and regulations should be subject to approval by that body. The object
and scope of such executive power should be clearly defined.
3. The judiciary
should be given the jurisdiction to determine in every case upon
application whether the circumstances have arisen or the conditions have
been fulfilled under which such power is to be or has been exercised.
4. Every
constitution should provide that, except during a period of emergency,
legislation should as far as possible be delegated only in respect of
matters of economic and social character and, that the exercise of such
powers should not infringe upon fundamental human rights.
5. The
proclamation of a state of emergency is a matter of most serious concern
as it directly affects and may infringe upon human rights. The dangers
of survival of the nation such as arise from a sudden military challenge
may call for urgent and drastic measures by the executive which by the
nature of things are susceptible only to a posteriori legislative
ratification and judicial review. In any other case, however, it is the
parliament duly convened for the purpose that should declare whether or
not the state of emergency exists. Wherever it is impossible or
inexpedient to summon parliament for this purpose, for example during
parliamentary recess, the executive should be competent to declare a
state of emergency, but in such a case parliament should meet as soon as
possible thereafter.
6. Real danger
exists when the citizenry, whether by legislative or executive action,
or abuse of the judicial process, are made to live as if in a perpetual
state of emergency.
7. In all cases
of the exercise of emergency powers, any person who is aggrieved by the
violation of his rights should have access to the courts for
determination whether the power has been lawfully exercised.
8. The principles
set out in this chapter must be maintained at all times, except in a
period of national emergency duly declared by the state, or in
exceptional circumstances and for limited periods in coping with public
calamity or necessity, directly affecting the life or livelihood of the
people. At such times, certain of those principles may have to be
temporarily relaxed. This relaxation is justified only to the extent
actually required and should be confined to the executive agencies
directly concerned. In no case should fundamental human rights and the
dignity of the individual be disregarded.
The conditions under which an emergency may
be declared should be formulated in a law which determines the authority
capable of proclaiming it, as well as the relevant procedures, duration
and appropriate methods of control.
C. Preventive detention in periods of
emergency (Conference of Bangkok, 1965, Committee I, cl. xi.)
1. Save during a
period of public emergency threatening the life of the nation, no person
of sound mind shall be deprived of his liberty except upon a charge of a
specific criminal offence, and preventive detention without trial shall
be contrary to the Rule of Law.
2. During such
period of public emergency, legislation often authorizes preventive
detention of an individual if the executive finds that public security
so requires. Such legislation should provide the individual with
safeguards against continuing arbitrary confinement by requiring a
prompt administrative hearing and decision upon the need and
justification for detention, with a right to judicial review as to the
need and justification for such detention and with the right to
representation by counsel at all stages. It should be required that any
declaration of public emergency by the executive be forthwith reported
to, and be subject to ratification by, the legislature. Moreover, both
the declaration of public emergency and any consequent detention of
individuals should, except in time of war, be effective only for a
specified and limited period of time (not exceeding six months).
3. Extension of
the period of public emergency should be affected by the legislature
only after careful and deliberate consideration of the necessity
therefor. Finally, during any period of public emergency the executive
should only take such measures as are reasonably justifiable for the
purpose of dealing with the situation which exists during that period.
4. Even where the
preventive detention of an individual is permitted by law by reason of a
public emergency threatening the life of the nation, it is essential
that the executive should not act arbitrarily and that it should
forthwith supply the person detained with the grounds for his detention
and particulars thereof.
5. Where it is
necessary in order to prevent hardship, the state should support the
dependents of a person placed under preventive detention.
D. Control by
the courts and the legislature over executive action
The existence
of effective safeguards against the possible abuse of power by the
Executive is an all-important aspect of the Rule of Law. Judicial and
legislative control of the executive are such safeguards.
(i) Judicial control (Congress of
Rio, 1962, Committee II A)
1. Judicial
control must be effective, speedy, simple and inexpensive.
2. The exercise
of judicial control demands full independence of the judiciary and
complete professional freedom for lawyers.
3. Judicial
control over the acts of the executive should ensure that:
(a) the executive acts within the powers
conferred upon it by the constitution and such laws as are not
unconstitutional;
(b) whenever the rights, interests or status
of any person are infringed or threatened by executive action, such
person shall have an inviolable right of access to the courts and unless
the court be satisfied that such action was legal, free from bias and
not unreasonable, be entitled to appropriate protection;
(c) where executive action is taken under a
discretionary power, the courts shall be entitled to examine the basis
on which the discretion has been exercised and if it has been exercised
in a proper and reasonable way and in accordance with the principles of
natural justice;
(d) the powers validly granted to the
executive are not used for a collateral or improper purpose.
4. In
establishing the purpose for which a power has been used it should be
for the court to decide on evidence whether any claim not to disclose
state documents is reasonable and justified.
5. When the
infringement complained of is one affecting human rights, the courts
should be entitled to take into consideration at least as an element of
interpretation and as a standard of conduct in civilized communities the
provisions of the Universal Declaration of Human Rights adopted by the
General Assembly of the United Nations.
6. It is
considered to be necessary that at least in cases involving human rights
there should be an international court to which final recourse might be
had by an individual whose rights have been infringed or threatened.
Such an international tribunal would be a World Court of Human Rights,
its writ effective in any jurisdiction.
7. The first step
in this direction could be regional conventions with optional clauses
analogous to the European Convention for the
Protection of Human
Rights and Fundamental Freedoms and the Inter-American Draft Convention
on Human Rights, and regional courts analogous to the European Court of
Human Rights. Close liaison between such regional courts would have to
be established in order to develop a common case law.
(ii) Legislative control (Congress of
Rio, 1962, Committee II B, cl. 1-5)
1. The complexity
of modern society may necessitate the delegation of legislative power by
the legislature to the executive, particularly where requirements of
fair practice demand frequent changes or where the legislature cannot
reasonably be expected to deal with technical details.
2. The enactments
by which such legislative powers are delegated should carefully define
the extent, purpose and where necessary duration of delegated
legislation and should provide for the procedure by which it can be
brought into effect.
3. Delegated
legislation should always be fair and reasonable and should be drafted
in clear form. In no circumstances should it deviate from general
principles of legislation or from the directions laid down by the
legislature.
4. To ensure that
the executive should loyally discharge its legislative mandate, the
legislature should entrust appropriate organs, such as standing
committees, with the task of scrutinizing all delegated legislation and
reporting to it at fixed intervals the results of their scrutiny.
5. Attention is
called to the powers of the legislature to exercise control through its
right to appropriate public money. Such control can be strengthened by a
high and independent official, like a controller or auditor-general,
appointed by parliament, who exercises control over expenditure of
public money.
(iii) Control through the institution of
an ombudsman
1. Creation of
the office of ombudsman
A high official, such as the ombudsman in
the Scandinavian countries and in New Zealand, should be appointed by
the legislature for a fixed period. He should be entirely independent of
the executive, be responsible only to the legislature and be remunerated
directly by it. He should be entitled and under an obligation to act
either on his initiative or on complaints from any individual. He should
have full access to all government documents and files. He should have
the power of summoning and examining witnesses as in a court of law. His
reports should be made at least once a year and should be given due
publicity. (Ibid. cl. 6)
2. In the light
of the experience gained in Scandinavia and New Zealand, it is
recommended that nations should examine the possibility of adopting the
ombudsman concept as a means of facilitating the correction of
administrative errors and minimizing the possibility of
maladministration.
While adaptation to local circumstances will
be necessary, it is understood that the basic principles underlying such
a concept are: the complete independence of the office from the
executive; its full and untrammelled power, including access to files
and the hearing of witnesses, to investigate complaints against
administrative actions of the executive; and the limitation of its power
to recommendations addressed to competent legislative and executive
organs. (Conference of Bangkok, 1965, Committee II, cl. xiv.)
2. The need
for an ombudsman
It is vital to the wellbeing of every
society that administration by the executive should be, and should by
the ordinary citizen be felt to be, efficient, fair and humane. When the
ordinary citizen has in this respect a grievance, or a sense of
grievance, the legal remedies' available to him in the courts of law
are, in many countries, not always adequate or appropriate.
Even if, as is urgently necessary, control
of executive action by the courts were strengthened, by simpler and more
effective remedies, by more general insistence on fair procedures in the
administrative process, by appeals from administrative decisions on
points of law, by the award of damages in appropriate cases and by the
provision of legal aid and advice in civil and criminal cases, there
would still remain a gap in the machinery for the redress of grievances
of the individual against administrative acts or omissions.
This gap should be filled by an authority
which is able to act more speedily, informally and with greater regard
to the individual justice of a case than is possible by the ordinary
legal process of the courts. It should not be regarded as a substitute
for, or rival to, the legislature or the courts but as a necessary
supplement to their work, using weapons of persuasion, recommendation
and publicity rather than compulsion.
3. The
practicability of the institution
It is clear that the problems to be faced in
introducing the ombudsman principle in large countries are of a
different character from those found in small countries which are
homogenous in nature such as Sweden or Denmark.
Whether there should be one ombudsman or
several would depend on the constitutional structure of the countries
concerned and the size and distribution of their population. It is
however always necessary to build up the authority and prestige of the
institution by centering it around one man who commands universal
respect. The institution should also be adapted to meet the special
problems created by racial, religious and linguistic groupings and their
relative strength in a particular country or in a particular area. It is
necessary that the ombudsman should enjoy the confidence of all sections
of the population. While the full benefits of the ombudsman concept
could only be realised in parliamentary democracies, there is
considerable value in the existence of an independent office to
supervise the administration and redress the grievances of citizens in
regimes which do not have a parliamentary system of government.
4. His
appointment and tenure of office
Whether the ombudsman is appointed by the
executive or by the legislature or in some other appropriate manner, it
is essential that he should enjoy the confidence of all parties in the
legislature and of the various sections of the community.
He should enjoy the same security of tenure
and salary as that of a judge of the highest court. The ombudsman should
have the power of appointment, removal and disciplinary control over his
staff. He should be able to report to the legislature if he considers
that the staff made available to him is insufficient to carry out his
duties.
5. The scope
of his supervisory powers
The ombudsman's powers should be declared
and defined in the Act constituting the office, and persons, departments
and other organisations which are within his jurisdiction should be
enumerated in the Act.
The ombudsman's power of investigation
should not extend to the head of state and judges, or to matters of
discipline in the armed forces.
The ombudsman should have the power to
require full disclosure of documents except in respect of such matters
as security, defense, international relations and cabinet papers. He
should have the power to summon witnesses and the power to enter any
public building for the purpose of carrying out his duties.
It is desirable that the powers of the
ombudsman should where practicable extend to local authorities as well
as to the organs of central or state governments.
6. Procedure
The ombudsman should deal not only with
complaints lodged by any aggrieved person but also take up any matter on
his own initiative.
In the case of any grievance where there is
a remedy in the ordinary courts or by administrative action, the
ombudsman should have the discretion to decide whether he should insist
on the exhaustion of all available remedies or proceed with the
investigation. The ombudsman need not be bound by the rules of evidence
and may follow any reasonable procedure which he deems appropriate. He
shall however give the department affected and any person against whom a
complaint is directed a fair opportunity to present its or his case. On
reaching a conclusion in the matter, the ombudsman should invite the
department concerned to redress the grievance, if any. Failing redress,
the ombudsman should report on the matter to the legislature either
immediately or in the annual report and recommendations which he makes
to the legislature. His report should be printed and given wide
publicity.
The above conditions are subject to
adaptation to suit the constitutional requirements of each country.
(Ceylon Colloquium 1966, Committee III)
II. Administrative Law
A. Human rights and aspects of
administrative law (Congress of Rio, 1962, Committee II, cl. 1-4.)
1. It is
recognized and agreed that legislation authorizing administrative action
by the executive should not be discriminatory with respect to race,
creed, sex or other such reasons and any such discriminatory provisions
contained in legislation are considered contrary to the Rule of Law.
2. While
recognizing that inquiry into the merits of the propriety of an
individual administrative act by the executive may in many cases not be
appropriate for the ordinary courts, it is agreed that there should be
available to the person aggrieved a right of access to:
(a) a hierarchy of administrative courts of
independent jurisdiction; or
(b) where these do not exist, to an
administrative tribunal subject to the overriding authority of the
ordinary courts.
3. The minimum
requirements for such administrative action and subsequent judicial
review as recommended in paragraph 2 above are as follows:
(a) that the full reasons for the action of
the executive be made known to the person aggrieved; and
(b) that the aggrieved person shall be given
a fair hearing; and
(c) that the grounds given by the executive
for its action shall not be regarded as conclusive but shall be
objectively considered by the court.
4. It is
desirable that, whenever reasonable in the prevailing circumstances, the
action of the executive shall be suspended while under review by the
courts.
B. Procedures utilized by
administrative agencies and executive officials (Congress of Rio, 1962,
Committee I)
1. To maintain
the Rule of Law there must be on the one hand effective government
capable of maintaining order and promoting social and economic
development, and on the other adequate safeguards against the abuse of
state power. Today all societies face the need for adjustment to the
requirements of technological change and of social and economic
development. In various areas of activity the executive branches are
compelled to deal with problems for the solution of which no adequate
machinery may exist and which may constantly require governmental and
legislative intervention for the good of society and of the individuals
within it. A major dilemma confronting government and citizens alike is
how to balance the freedom of the executive to act effectively with the
protection of the rights of the individual. It is the duty of all states
in coping with this dilemma to preserve and advance the Rule of Law
while undertaking measures of social and economic development.
2. The first
guarantee of good administration and of the protection of the individual
is the procedural framework used by the executive in making decisions
affecting his rights. Judicial procedure for protection of the
individual has evolved over a long period, but in modern societies the
executive acts through various agencies which have no uniform rules of
procedure and in which the Rule of Law is inadequately safeguarded. The
conclusions which follow set out the principles and procedures which
should be observed.
3. In nearly
every country one type of action of administrative agencies and
executive officials is in the nature or adjudication, and the decisions
made are similar to judicial decisions. Whatever variations in procedure
may be appropriate to this kind of executive action, there are certain
fundamental principles that must be followed if the Rule of Law is to be
preserved. These are:
(1) adequate notice to the interested
parties of the nature and purpose of the proceedings;
(2) adequate opportunity for them to prepare
the case, including access to relevant data;
(3) their right to be heard, and adequate
opportunity for them to present arguments and evidence, and to meet
opposing arguments and evidence;
(4) their right to be represented by
counselor other qualified person;
(5) adequate notice to them of the decision
and of the reasons therefore;
(6) their right of recourse to a higher
administrative authority or to a court.
4. To ensure the
independence of the members of the administrative bodies which
customarily render decisions similar to judicial decisions, and to
protect them from undue interference, such members must not be removable
during their term of office, except for good cause and by due process of
law.
5. Decisions
taken by the executive not involving adjudication may still vitally
affect the freedom and interests of individuals. Therefore, it is
necessary that in these cases certain minimum safeguards for the Rule of
Law to be preserved.
Regarding the adoption of administrative
regulations and decisions of broad scope, it is desirable that the
administration secure expert advice when necessary, consult
organizations representing citizens or groups interested in the
contemplated measures, and give an opportunity to interested individuals
to present their views.
Regarding individual decisions, the
procedure in all cases where the administration is about to impose
sanctions on a citizen or to take measures liable to affect
detrimentally his vital interests should include the following:
(a) notification of the contemplated measure
and the reasons for its adoption;
(b) right of access to the relevant data;
(c) right to be heard;
(d) notice of the decision.
6. It is
essential that effective publication be made promptly of all decisions
of a legislative character made by the executive, so that interested
parties may be advised of measures adopted affecting their interests.
7. The
fundamental principles referred to above should not be left to the
discretion of governments, but should be clearly formulated and adopted
in all countries in the most appropriate manner (Constitution, law,
decree, administrative code, etc.).
8. It is
desirable that states should prepare and adopt international conventions
providing a right of appeal to individuals and interested groups before
an international tribunal to guarantee, in exceptional as well as in
normal circumstances, the protection of the prescribed rights.