Administrative Law

Remedies

The term remedy in this context refers to the varieties of awards/relieves that may be granted by the reviewing court following an application for judicial review. As a general rule, where any of the grounds justifying judicial review are there, a person complained against the agency decision has to include in his or her application for judicial review the type(s) of order or redress he or she sought from the reviewing court. Thus, the relief that the applicant seeks from the reviewing court is what we call remedy.

Needless to say those courts do not have an unlimited power to supervise the activities of administrative agencies. The principle of separation of powers dictates the various organs of the government to act within the scope of their respective sphere of powers and refrain from interfering on matters that are exclusively entrusted to others. So, judicial review does not authorize the court an outright power to interfere on administrative matters. The rational behind the need for the determination of the justifiable grounds of judicial review is, thus, to delineate the boundary where judicial review may be available to challenge administrative decisions.

The term ‘judicial review’ has different meaning and scope in different jurisdictions.  For example, in the United States, judicial review refers to the power of a court to review the actions of public sector bodies in terms of their lawfulness, or to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with a statute, a treaty, or the Constitution itself.

As it has been thoroughly discussed in the previous units, there are great possibilities that the three powers of government may be concentrated in the hands of many administrative agencies. The delegation of rulemaking and adjudicating powers to administrative agencies become an inevitable phenomenon of the complex technological world. In addition to the broad discretionary administrative powers originally entrusted to the executive organ and its agencies by the constitution, the delegation of rulemaking and adjudicating powers to these agencies, although may be justified by certain social and economic rationales, pose an inevitable threat on individual freedom and liberty. As propounded by the French political philosopher, Montesquieu, where the tripartite powers are merged in the same person, or in the same body, there can be no liberty as the life and liberty of the subject would be exposed to arbitrary control.

In this complex technological and democratic world, in addition to tribunals that investigate facts and apply laws to resolve specific administrative disputes, the formation of inquires that conduct fact and/or legal findings and provide recommendation to ministers or other agency heads to take policy considered action based on the findings of facts is becoming a paramount importance. Inquires are concerned with fact-finding directed towards making recommendations on questions of policy. The statutory inquiry is the standard device for giving a fair hearing to objectors before the final decision is made on some question of government policy affecting citizens’ rights or interests.

Technically speaking, judicial power/function is the primary function of courts. As mentioned somewhere else, the FDRE Constitution expressly vested judicial power at the Federal and State levels in courts. This goes in line with the principle of separation of state powers. However, it does not necessarily imply that only regular courts shall exercise judicial power. There are possibilities where judicial power may be delegated to other bodies falling outside the structure of ordinary courts. As inferred from the wordings of Articles 37(1) and 80(4 & 5) of the Constitution, such possibilities are not prohibited. Having said this, let us discuss the arguments developed concerning the advantages and disadvantages of delegating judicial power to administrative agencies.