It is January 2015, and in history’s rear-view mirror the publication date of Unjust by Design is rapidly receding (as is the book’s shortlisting for the Donner Prize). Looking forward through history’s front window, no spark of interest in the reform of the administrative justice system can be seen; indeed, the system is suffering further regressions and indignities as I write.
In these circumstances, it has occurred to me that it couldn’t hurt if those responsible for our justice system – the governments, the politicians, the legislatures, the bureaucracies, academe, the administrative law bar, and most importantly the courts – were occasionally reminded of the book’s principal messages.
It is also not impossible (highly unlikely, I know, but not impossible) that some visitors to the site will not have actually read Unjust by Design and might like an opportunity to digest the book’s highlights, piece by piece.
This post is, therefore, the first of a series that I have entitled “Unjust by Design Replayed” in which I will from time to time reprise the book’s greatest hits, as it were.
I am, of course, sensitive to the fact that in this website I will be for the most part preaching to the choir. Still, as I said, it couldn’t hurt, so here we go – Unjust by Design Replayed – Post #1:
THE BOOK’S OVERVIEW
(From the UBD Dust Cover)
Canadian legislatures regularly assign what are truly court functions to non-court government tribunals. These executive branch “judicial” tribunals are surrogate courts and together comprise a system of justice that annually makes hundreds of thousands of contentious, life-altering judicial decisions.
This book demonstrates that that justice system is a justice system in name only. Failing to conform to rule-of-law principles or constitutional norms, its judicial tribunals are neither independent nor, in law, impartial and only providentially competent. Unjust by Design describes a justice system in transcendent need of major restructuring and presents a modern theory of administrative justice fit for that purpose. …
A SUMMARY OF THE PROBLEMS
(UBD Introduction, page 28)
… Of course, official assertions of the independence of tribunals are ubiquitous, but never more than empty rhetoric.
In Chapter 1, I will present evidence of ruinously inadequate budgets;
of patronage and partisan political preoccupations undermining appointments and reappointments;
of competitive, merit-based selection processes for judicial tribunal members being the rare exception rather than the rule;
of appointments that are invariably for short, fixed periods, typically of three or five years, with the reappointment power routinely exercised arbitrarily, and with expected reappointments of experienced, meritorious members and chairs often refused following decisions that were unpalatable to the government or its allies or merely to make way for the appointment of a government’s importunate friends;
of incoming governments refusing to reappoint judicial tribunal members on ideological grounds, not caring that the refusals are jeopardizing the tribunal’s ability to meet its statutory responsibilities;
[of the appointment of tribunal chairs “at pleasure”];
of the tolerance of mid-term dismissals of members without cause or reasons;
of judicial tribunal chairs and members being discharged allegedly for cause without an opportunity to be heard;
of the administrative justice system routinely expelling its most qualified members at the end of an arbitrarily imposed maximum of six or ten or twelve years of service; and
of egregious, structurally embedded conflicts of interest between judicial tribunals and their host ministries continuing to be the common reality. …
The determination of the leaders of our justice system to continue to condone the gaping rule-of-law structural omissions in the so-called administrative part of the system is all of a piece with the general relegation of the rule of law in that part of the system to the status of an ignis fatuus (see earlier posts) – and all this in the part of our justice system in which the majority of our rights now fall to be decided.