Procedural privileges and ouster clauses in judicial proceedings against public authorities : a critical analysis

Abstract

When seeking recourse against public authorities, the ordinary citizen is encumbered with several statutory imposed obstacles and limitations favouring the former. Intricately spread across the legal system, these include ouster clauses and procedural privileges, frequently invoked by these authorities to serve their interest. The aim of this work was to group under one heading, a critical analysis of key ouster clauses and key procedural privileges accorded to public authorities, with the overall intention of stirring debate as to whether such provisions should retain legal force. The first part of this research project examines ouster clauses and the court’s reaction to such clauses. Generally, our courts - mindful that such clauses risk placing the administration in an unfettered position impinging on the rule of law, have watered down their effects. From a historical perspective, this was evidenced by the court’s restrictive interpretation of the former article 743(2) of the COCP, which failed to achieve its desired effects of subverting the court’s power of judicial review. Moreover, it was found that ouster clauses in the Constitution, such as those afforded to the PSC and the Prime Minister, also failed to attain their full effects of exculpating the jurisdiction of the courts on alleged human right violations or ultra vires acts. In the second part, the four key privileges found in the COCP are analysed: the ten-day notice of action requirement; the manner of debt enforcement due to public authorities; the limitation in issuance of precautionary warrants against public authorities; and the withholding of certain evidence in court proceedings. All these privileges were found to work in favour of the public administration at the cost of the ordinary citizen, even though the latter is much weaker than the former. This work, enforced by case law and other literature, casts doubt as to whether these provisions are compatible with the right of a fair hearing guaranteed in the Constitution and the European Convention.