A Constitutional Right to Fair Hearing in Administrative Proceedings

1. A Constitutional Right to Fair Hearing in Administrative Proceedings Prof Johannes Chan SC Dean, Faculty of Law The University of Hong Kong

2. ‘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) ‘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) Two Provisions

3. The Story of a Police Officer

4. Reg 9(11) and (12), Police (Discipline) Regulation • 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.’

5. Right of Access to Court: is there such a right?

6. 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.’

7. An Implied Right? • 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 • 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?

8. 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

9. 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?

10. 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.

11. 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

12. 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’?

13. 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)

14. 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.

15. 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?

16. ECHR • Private law • 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

17. 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 • 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

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

19. 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.

20. UK Police Conduct Regulations 1999 and 2004 • Legal representation is allowed if the hearing should have available the sanctions of dismissal, requirement to resign or reduction in rank

21. Common Law Approach • 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

22. HK Cases on Art 10, BOR • 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)

23. Canadian Position • Joplin v Chief Constable of the City of Vancouver (1985)

24. 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) • Is judicial review, with its restricted scope of reviewing primarily on merits, sufficient to cure the defect? • Runa Begum (2003)

25. Where are we now?