Monday Essay: Alone & Dismissed: Counsel, Rights and the Admin Hearing

Introduction

Procedure is the handmaid of justice.

            Administrative disciplinary hearings occupy a unique space in law. Though not criminal trials, their outcomes – dismissal, demotion, or professional de-licensing – can be just as consequential. The central procedural question that arises is whether the principle of natural justice entitles an individual to legal representation (in terms of the actual physical presence of a lawyer in the course of proceedings) in such forums? Unlike criminal or other similar constitutionally grounded administrative proceedings where the right to counsel is constitutionally guaranteed, administrative hearings operate under a quite different framework. The right to be heard is assured, but the right to be represented is often contingent. This essay examines the tension between procedural fairness and institutional efficiency. We consider the law and jurisprudence of the Superior Courts. Ultimately, “Alone and Dismissed” seeks to clarify the legal threshold: when must the panel permit counsel, and when may the focal point of such administrative hearing be required to answer alone? 

Minimum natural justice standards in admin hearings

Without a doubt, administrative hearings are subject to full compliance with the rules of natural justice which insist that no person should be condemned unheard; that decisions affecting rights must allow for explanation, defence and reply; and that a decision-maker comes to the matter without interest, prejudice or appearance of bias. The compendium of rights consisting of substantive and procedural guarantees which connote the right to a fair hearing, and an impartial resolution of all manner of administrative infractions, remain the minimum standard in administrative hearings. More specifically, Article 23 of the 1992 Constitution guarantees the right to administrative justice. It mandates that administrative bodies and officials act fairly and reasonably, comply with the law, and ensure that aggrieved persons have the right to seek redress in a court of tribunal. Furthermore, Article 19(2)(f) of the Constitution, though focused on criminal proceedings, guarantees every person charged with a criminal offense the right to defend themselves before a court, either in person or through a lawyer of their own choice. This means that where an accused cannot afford a lawyer, that accused is provided with State-funded legal aid. Article 296 of the 1992 Constitution regulates the exercise of discretionary power by public officials, administrative bodies and institutions, mandating that the exercise of discretionary power implies a duty to be fair and candid, prohibits actions that are arbitrary, capricious, or biased, and requires the publication of regulations to govern the exercise of such powers, where applicable. The courts have constantly held that the minimum standards of natural justice apply with equal force to administrative actions and disciplinary proceedings as long as they involve decisions that affect rights, interests or legitimate expectations. 

In the room without Counsel?

Within the framework of compliance with the minimum standard of natural justice, the important question seems to be whether the presence of a lawyer is compulsory at an administrative/disciplinary hearing? The High Court in the case of Elizabeth Agbenorxevi v Accra Brewery Limited, Suit No. HR/0111/17 dated 31^st July, 2019 decided that denying an employee the opportunity to appear before a disciplinary committee with a lawyer of their choice was unlawful. The court reasoned that legal representation before such a committee is a component of fair hearing and cannot be excluded by “corporate policy” especially where the outcome may curtail a fundamental right such as the right to work. The Court in quashing the committee proceedings and ordering a re-hearing which allowed the presence of Counsel, emphasised that all natural and legal persons in Ghana including private entities are required to respect and uphold fundamental human rights where applicable, regardless of whether they are public or private institutions. 

By contrast, the Court of Appeal in a later decision in the case of Shafawu Musah v Aviation Handling Services (Gh) Ltd, Suit No. H1/50/2019 dated 6^th February, 2020 held that the right to be physically represented by Counsel applies to court trials, not work place disciplinary proceedings. The court further upheld a disciplinary process on the basis that the employee was given an adequate opportunity to be heard even without the physical presence of Counsel. The Court reasoned that where a contractual document, such as a Collective Bargaining Agreement, expressly limits representation at disciplinary proceedings to a colleague or union representative (and specifically excludes legal representation), such limitation is valid and binding, provided that the contract is not otherwise unlawful or unconstitutional. According to the Court, the employer’s duty of fairness and obligation to observe the principles of natural justice in disciplinary procedures is satisfied if the employee is made aware of the charges and is afforded a genuine opportunity to respond, even if that employee forfeits that opportunity by insisting on conditions, such as the physical representation of a lawyer, not granted by the contract.

The practical thesis drawn from this jurisprudence, due to the hierarchy of the Courts’ decisions, is that there is no general rule that the physical presence of a lawyer is a mandatory requirement in administrative proceedings as long as the person involved has been given a fair hearing, including the opportunity to consult a lawyer and receive written responses and advice from a lawyer. However, certain factors such as the seriousness of the charge and of the potential penalty; whether any points of law are likely to arise; the capacity of a particular individual to present his or her own case; procedural difficulty; the need for reasonable speed in making the adjudication; and the need for fairness as between individuals  in different roles in the process; may determine whether an exception may be created for the general rule that there exists no automatic constitutional entitlement to the physical presence of counsel as such administrative hearings. What matters most, above all, is that the person against whom an allegation is made is afforded the opportunity to defend himself, and when that has been done, the duty would have been discharged by the person or body handling the matter even without the physical presence of a lawyer. 

Conclusion

In conclusion, the question is not whether a person may attend a disciplinary hearing alone. The law permits it. The real question is whether they should be required to. Administrative hearings are meant to balance institutional discipline with individual fairness. Articles 19, 23 and 296 of the 1992 Constitution demand that power be exercised without arbitrariness. Where the allegations are simple and the sanction is minor, self-representation in line with a contract should suffice. But where there seems to be complexity in the issues at hand, fairness may demand more. Denying the physical presence of counsel in complex cases may reduce the rules of natural justice to a hallow ritual. It creates a process where one side speaks the language of the law, and the other is expected to guess it. Ultimately, justice in administrative hearings must be both done and seen to be done. The panel must therefore ask: will proceeding without counsel make this hearing fair, or merely make it fast?

God bless!