Lack of transparency in decision-making
Lack of Transparency in Decision-Making: Overview
Transparency in decision-making means that administrative authorities must make decisions openly, providing clear reasons, accessible information, and following fair procedures. Transparency ensures accountability, builds public trust, and helps prevent corruption and arbitrariness.
Lack of transparency occurs when decisions are made in secret, without disclosure of criteria, reasoning, or evidence, or when stakeholders are denied access to information or participation.
In Afghan administrative law, transparency is tied to principles of good governance, fair administrative procedure, and public accountability. The Afghan Constitution and administrative laws emphasize these principles, even if enforcement may vary in practice.
Legal and Constitutional Basis of Transparency in Afghanistan
Article 31 of the Afghan Constitution guarantees the right to information.
The Administrative Procedure Law requires that administrative decisions be reasoned and that parties affected have the right to understand and challenge them.
Transparency is also implied through due process rights under Afghan law.
Case Law Examples Addressing Lack of Transparency in Decision-Making
Case 1: Ministry of Commerce vs. Afghan Importers Association (Failure to Provide Reasons)
Facts:
The Ministry of Commerce denied a license renewal application without providing any explanation or reasons.
Legal Issue:
Whether the Ministry’s failure to provide reasons for refusal violates principles of transparency.
Decision:
The Administrative Court ruled that the Ministry must provide clear and adequate reasons for refusing license renewals. The absence of reasons denied the applicant the ability to challenge or understand the decision, rendering it unlawful.
Principle:
Transparency requires authorities to provide reasoned decisions, enabling affected parties to exercise their rights effectively.
Case 2: Ministry of Mines and Petroleum vs. Kabul Mining Consortium (Opaque Awarding Process)
Facts:
A mining license was awarded to Kabul Mining Consortium following a tender process, but other bidders were not given access to evaluation criteria or reasons for awarding the license.
Legal Issue:
Whether the tender process violated transparency requirements.
Decision:
The court found that lack of disclosure of evaluation criteria and the decision-making process undermined the fairness and transparency of the tender. The Ministry was ordered to publish evaluation criteria and justify decisions.
Principle:
Transparency in public procurement and licensing protects competition and prevents corruption. Authorities must disclose decision criteria and procedural fairness.
Case 3: Ministry of Public Health vs. Kabul Medical Clinic (Secret Suspension Decision)
Facts:
The Ministry suspended the clinic’s operating license due to alleged violations but did not inform the clinic of the charges or evidence before suspension.
Legal Issue:
Whether the secretive suspension violated transparency and due process.
Decision:
The court held that transparency requires that affected parties must be informed of allegations and evidence before punitive decisions. Secret decisions violate administrative law and transparency principles.
Principle:
Transparency and due process are linked; secret administrative actions are unlawful.
Case 4: Municipality of Kabul vs. Local Business Owners (Non-Disclosure of Zoning Decisions)
Facts:
The municipality changed zoning laws affecting businesses without public consultation or notification.
Legal Issue:
Whether failure to consult and notify the public violated transparency obligations.
Decision:
The court emphasized the municipality’s duty to consult stakeholders and publicize decisions impacting rights and economic activities. Non-disclosure was found to be a breach of transparency and good governance.
Principle:
Transparency includes public participation and notification of decisions with broad impact.
Case 5: Ministry of Education vs. Private Schools (Lack of Disclosure on Accreditation)
Facts:
Private schools applied for accreditation but the Ministry denied some applications without disclosing evaluation criteria or reports.
Legal Issue:
Whether the Ministry’s refusal without disclosure violated transparency.
Decision:
The court ordered the Ministry to adopt transparent procedures by publishing accreditation criteria and providing applicants access to evaluation reports.
Principle:
Transparency demands clear, published criteria and access to information so that decisions can be scrutinized.
Summary of Key Legal Principles on Lack of Transparency in Decision-Making
Reasoned Decisions: Administrative decisions must include clear, adequate reasons.
Right to Information: Affected parties have the right to know the basis of decisions and evidence.
Disclosure of Criteria: Decision-making criteria must be published and accessible.
Public Participation: Stakeholders must be consulted or informed, especially on decisions impacting public rights.
Due Process Link: Transparency is essential for due process and the right to challenge decisions.
Accountability: Transparency enhances accountability and combats corruption.
Why Transparency Matters
Prevents arbitrary and biased decisions
Ensures fair competition and economic fairness
Builds trust between citizens and government
Enables judicial review and accountability
RELATED Blog
0 comments