A few weeks ago I attended a workshop by the law commission on its draft Administrative Justice Bill. The combination of the Open Democracy Act and this Bill will be crucial legislative instruments in ensuring open, honest democracy. In the words of the Mpumalanga political lexicon, these laws will make it hard for government to lie!
The Bill is mandated by the Constitution, which provides that it must be enacted by no later than February 3 2000. It appears that nothing was done until recently. The project team was appointed in November 1998 and by January 15 1999 the Bill was completed.
Frankly, the need for haste shows. The Bill’s scope is extremely vague. The Bill applies to all administrative action, covering organs of state as defined in the Constitution. Given recent Constitutional Court decisions, this appears to be narrower than the present position, where presidential decisions are included. The definition also covers private persons exercising a public power or performing a public function. This exquisite piece of vagueness is sure to result in great uncertainty for a long time.
The list of review grounds is so long and repetitive that it is difficult to know whether new grounds of review have been created. In particular, the Bill provides that administrative action can be set aside if not rationally connected to a purpose for which it was taken. It then provides that administrative action can be set aside if the action is unreasonable.
This looks like the case of the cook using all the ingredients in the kitchen because he cannot decide between them. There is a profound difference between the concepts rational and reasonable. The former allows the court less scope to interfere in the decision of the administrative agency. Hence the key question left open is whether the courts are to be given wide or narrow powers to intervene in the decision-making of the administration.
There is a good argument that judges are not well equipped to second-guess the merits of administrators’ decisions, and should only interfere where the decision is irrational. There is another approach; that administrative action can be reviewed if it is not justifiable – justification depending upon how plausible the reason given for the decision is. This allows the court a powerful tool to interfere without requiring a second guess at the decision. The fact that magistrates’ courts will now have a power of review makes the need for clarifying grounds for review all the more important.
Central to the Bill is the creation of two bodies: an administrative review council and a central drafting office. Why is it that our legislation is drafted by lawyers with no knowledge of institutional design, save for cribbing international precedent and employing it out of context? This country does not have the resources to maintain two new, costly bodies. We need to be realistic: a little imagination and a little less uncritical borrowing from countries with more resources would be a start.
Legislation to open up government and promote a culture of justification is crucial to the building of democracy. This Bill is far too much an effort in weekend dictation to pass muster.