Administrative Law

Administrative Law regulates the powers, procedures, and acts of public administration. It applies to all public officials and public agencies. As distinguished from legislative and judicial authority, administrative authority entails the power to issue rules and regulations based on Proclamations and Regulations, grant licenses and permits to facilitate the conduct of government business, initiate investigations of and provide remedies for complaints or problems, and issue orders directing parties to conform to governing rules. This section will provide you Administrative law related articles.

Administrative Law and Human Rights

Every branch of law has incidental effects on the protection or infringement of human rights, whether by constraining or enabling actions which affect other people. Administrative law is, however, particularly vulnerable to the permeation of human rights claims, since, like human rights law, it primarily constrains the exercise of public power, often in controversial areas of public policy, with a shared focus on the fairness of procedure and an emphasis on the effectiveness of remedies.

At an abstract level, there is a consonance of fundamental values underlying human rights law and administrative law. Both systems of law aim at restraining arbitrary or unreasonable governmental action and, in so doing, help to protect the rights of individuals. Both share a concern for fair and transparent process, the availability of review of certain decisions, and the provision of effective remedies for breaches of the law. The correction of unlawful decision-making through judicial review may help to protect rights. The values underlying public law – autonomy, dignity, respect, status and security – closely approximate those underlying human rights law. Moreover, each area of law has been primarily directed towards controlling ‘public’ power, rather than interfering in the ‘private’ realm, despite the inherent difficulties of drawing the ever-shifting boundary between the two. A culture of justification permeates both branches of law with an increasing emphasis on reasons for decisions in administrative law and an expectation in human rights law that any infringement or limitation of a right will be justified as strictly necessary and proportionate. There is also an ultimate common commitment to the basic principles of legality, equality, the rule of law and accountability. Both administrative and human rights laws assert that governments must not intrude on people’s lives without lawful authority.  Further, both embody concepts of judicial deference (or restraint) to the expertise of the executive in certain matters. In administrative law, for example, this is manifested in a judicial reluctance to review the merits, facts or policy of a matter.

There are also marked differences between the two areas of law. Human rights law is principally concerned with protecting and ensuring substantive rights and freedoms, whereas administrative law focuses more on procedure and judicial review attempts made to preserve a strict distinction between the legality and the merits of a decision. Human rights law protects rights as a substantive end in themselves, whereas administrative law focuses on process as the end and it may be blind to substantive outcomes, which are determined in the untouchable political realm of legislation or government policy. It is perfectly possible for a good administration to result in serious human rights violations (and conversely, compatibility with human rights law does not preclude gross maladministration).

Human rights law is underpinned by the paramount ideal of securing human dignity, whereas administrative law is more committed to good decision-making and rational administration. The three broad principles said to have underpin administrative law are largely neutral on substantive outcomes: administrative justice, executive accountability and good administration.

The traditional emphasis of administrative law on remedies over rights reverses the direction of human rights law, which may provide damages for the breach of a right, whereas this is not the natural consequence of invalid action in administrative law. At the same time, administrative law remedies may still guarantee essential human rights; an action for release from unlawful detention (habeas corpus) can secure freedom from arbitrary detention, and an associated declaration by the courts may provide basis for pursuing compensatory damages in a tortious claim for false imprisonment.

Administrative Law and Good Governance

Administrative law plays an important role in improving efficiency of the administration. The rules, procedures and principles of manner of exercising power prescribed by administrative law are simultaneously principles underlying good governance. They also share a common goal. One of the common destinations of administrative law and good governance is the attainment of administrative justice. The set of values of administrative justice which mainly comprises openness, fairness, participation, accountability, consistency, rationality, legality, impartiality and accessibility of judicial and administrative individual grievance procedures are commonly shared by administrative law and good governance.

Administrative justice is considered as having two themes. First, it comprehends the range of entities which deliver complaint and review services and assurances of those services to the citizen. Second, it comprehends the kind of resolution sought to be achieved. The attainment of administrative justice largely depends on the existence of efficient and effective institutions like the ombudsman, administrative tribunals and ordinary courts.

Review by the ordinary courts, judicial review, supports the legitimacy of the decision making process that it reviews. A decision-maker whose decisions are reviewable can claim that because the decision is reviewable for its legality, as determined by an independent judiciary, the decision has a legitimacy that it otherwise would not have. Its legitimacy lies on the fact that it is open to a dissatisfied person to challenge its validity.

It can also be said that a decision reached by a fair decision making process is likely to be a better decision. It is likely to be better because requiring the decider to hear both points of view can make a contribution to the soundness of the decision. But, beyond that, we have to acknowledge that judicial review does not have a great deal to contribute to the quality of decision making by the executive government. Its ultimate goal remains to be maintaining the rule of law.

Administrative law also helps to realize the three underlying principles of good administration: i.e. accountability, transparency and public participation.  Accountability is fundamental to good governance in modern, and open societies. A high level of accountability of public officials is one of the essential guarantees and underpinnings, not just of the kinds of civic freedoms enjoyed by the individual, but of efficient, impartial and ethical public administration. Indeed, public acceptance of agovernment and the roles of officials depend upon trust and confidence founded upon the administration being held accountable for its actions. The administrative law system, when working properly, supplements and enhances the traditional processes of ministerial and parliamentary accountability in any system of government.

Accountability does not have a precise meaning. The underlying notion is that of giving an account or an explanation to a person or body to whom one is responsible. That part of it is clear enough. But the form or process of accountability, as that term is used in debate, varies widely. The process of accountability ranges from merely being subject to comment or criticism, through to loss of office, to personal liability for damage caused by a poor decision, and to prosecution for criminal offences. The discussion in which accountability is an issue is often confused because of the different processes and meanings of accountability. There is often a silent assumption that only certain processes of accountability, such as loss of office, represent true accountability. But, it is suggested that the underlying idea of accountability is that of giving an account or an explanation, and that it is necessary to recognize that the process of accountability can vary widely.

The accountability of the executive government for decisions made in the exercise of public powers may be manifested through different ways. By public powers it is to mean powers conferred by statute, and when the power is exercised in the public interest. This   typically refers   to decisions that are amenable to judicial review i.e. reviewable decisions.

Executive government refers to Ministers and public servants or government employees. Ministers are accountable to the electorate. They are called upon to explain their decisions, and can lose their parliamentary seat and hence their ministerial position. However, in practical terms, they are accountable to the electorate only as a group, not as individuals. If the party of which a minister is a member loses an election, the minister will lose office along with all other ministers. In that respect, the fate of the ministry is closely tied to the performance of the Prime Minister or Premier of his or her role. But this form of accountability cannot really be described as accountability for reviewable decisions.  The link is too distant. This process of accountability is, in reality, not linked to the making of reviewable decisions.

Ministers are accountable to Parliament for reviewable decisions. They can be called upon to provide an explanation for, and account of their decisions. But, there is no convention these days of ministerial responsibility for reviewable decisions made by public servants. And, even at the level of reviewable decisions made by ministers, the control that the executive government exerts over parliament means that, in the ordinary sense, there is no effective accountability to parliament for particular reviewable decisions. Whether an adverse consequence flows from the making of a reviewable decision by a minister, or by a minister’s department,it depends upon political aspects of the decision, and the process of parliamentary accountability is a highly political one. This is not an effective form of accountability for decision-making. A similar comment applies to the accountability of an individual minister to the prime minister or premier who leads the Government of which the minister is a part.

Public servants are accountable to a departmental head, and sometimes to a minister, for reviewable decisions that they make. But, in a system in which most public servants can be punished or dismissed only for a case, erroneous reviewable decisions do not lead to sanctions against the decision-maker, unless the decision involves misconduct as distinct from mere error. Accountability involving loss of office or some formal punishment has only a slender link to decision making by ministers and public servants. To treat the executive government as accountable for the making of reviewable decisions, by a process involving loss of office, is erroneous. Neither ministers nor public servants are usually required to submit their decision-making processes to contemporaneous public scrutiny. There can be contemporaneous comment upon a decision that is being made or is anticipated. A comment may take place in parliament, or on the media, or elsewhere. There can also be retrospective scrutiny, in particular through judicial review, by merits review when legislation so provides, by an Ombudsman or use of freedom of information legislation. However, it remains true to say that the decision-making process of the executive government is not transacted in public.

It is also true that responsibility for reviewable decisions made by the executive government is often diffused. This is to mean that reviewable decisions made by the executive government are often made by a process of consideration and advice at various levels. Responsibility for a given decision may be diffused downwards to various advisers, or upwards to a departmental policy. For this reason, it is often difficult to identify a reviewable decision made by the executive government with a particular decision-maker. That can be a limit upon accountability. Ministers and public servants are not routinely required to give full reasons for a reviewable decision. Ministers and public servants are usually not personally liable for damage or loss caused by a poor decision. If a decision  that goes beyond power is made, the decision-maker might then be liable in damages, but even then would usually be indemnified by the executive government. Decisions made by the executive government are, of course, subject to judicial review to determine whether they are made within power (jurisdiction), whether they are in compliance with the law, and whether they fair or natural justices. Some governments have also provided a process of review on the merits. Many reviewable decisions made by the executive government are subject to scrutiny by parliamentary committees, by an Ombudsman, or other      institutions     such as the Auditor General and the Ethics and Anti-corruption Commission.

Administrative law also ensures transparency in the conduct of government administration and the decision making process. One of the requirements of an open government is the right of individuals to obtain and have   access to information. Government has to implement the right to get information through specific legislation. Freedom of information act, adopted   in most democratic countries, affords citizens the right to have access to public documents and the right to be timely informed of decisions affecting their interests. Government cannot be held accountable and hence, subject to criticism unless it opens its door to citizens. The existence of freedom of information legislation by itself does not guarantee open government, rather a developed system of administrative law is needed for its proper implementation. Courts, through judicial review should be able to compel public officials denying citizens of their right to get information as provided by law. Institutions, like the ombudsman should also be able to give redress to the aggrieved parties whose rights are denied or violated by the administration.

In addition to this role of administrative law enabling citizens have access to government information, it also ensures openness in the decision-making process. Administrative adjudication should be conducted openly. An interested party should get prior notice detailing the nature of the case, time and place of hearing. The concerned agency proposing a certain measure should disclose all relevant evidence to that party. Such adjudication procedure allows the party to prepare his defense and generally create public confidence in the fairness of the decision- making process.

Similarly, the administration should be transparent in the rule-making process. Before an agency, through its delegation power issues a certain rule or regulation having a binding effect, it is required to make the proposed rule or regulation accessible to concerned   parties for commenting and criticism. Once an administrative rule is legally issued, it should be officially published so that the public could know its content, and if necessary challenges its legality and validity.

Such adjudication and rule making procedures fall within the proper scope of administrative law. Some countries such as America, have introduced a comprehensive and detailed administrative procedure to make the decision-making process open and fair. Other countries, without adopting a comprehensive administrative procedure, have introduced specific procedures for the respective administrative action by the agency.

Such procedures do not only make the conduct of government open to the citizen, but also facilitate public participation in the administrative process. In a state founded on democratic principles, it is axiomatic that the basic human right (beyond access to the necessities of life) is the right to participate in civil society. Indeed, the very notion of representative democracy is predicated upon people exercising their civil rights.

In any system of government representative, democracy, for its lifeblood depends upon the participation of the public. Anything, therefore, which is likely to increase public participation in government, or in governmental decision-making processes is a good thing regardless of the merits or demerits of an individual decision. Obviously, public confidence in the institutions of government is a central concern, for without it, there is likely to be little inclination to participate. And without a public perception that one will be treated fairly by the government, it is doubtful that the confidence necessary to engender a keenness to participate will exist. Fairness in the decision-making process creates public confidence and motivates  citizens to engage in active and meaningful participation in government administration.

Administrative law lays down the legal framework by which public’s participation is recognized and practically implemented. The principle of public participation as an element of   good administration allows citizens to have their say or their voice be heard in the conduct of government administration. In a developed system of administrative law, agencies are required to observe minimum procedures while making judicial decisions or issuing rules and procedures. The principle of natural justice which mainly requires an individual’s defence be heard and get an impartial and fair treatment in the adjudication process acts as a stimulant for public participation indirectly creating public confidence. Unless the public gets a positive impression that the decision making process is fair and impartial, it will be discouraged to participate in other    aspects of public affairs seriously.

The rule making procedure, on the other hand, it directly affords an opportunity to participate in the legislative process. One of such procedural requirements is the obligation to conduct consultation with concerned parties. Such consultation may be manifested through conducting an open hearing, collecting suggestions, comments and criticisms on the proposed rule or regulation. The concerned agency is further required to take comments and suggestion from interested parties as an input in the proposed rule. In some cases, it may be required to prepare a statement of reason indicating those comments   incorporated, or submit a justification for the reason that were disregarded.

Constitutional Law and Administrative Law

Administrative law is categorized as public law since it governs the relationship between the government and the individual. The same can be said of constitutional law. Hence, it is undeniable that these two areas of law, subject to their differences, also share some common features. With the exception of the English experience, it has never been difficult to make a clear distinction between administrative law and constitutional law. However, so many administrative lawyers agree that administrative law cannot be fully comprehended with out a basic knowledge of constitutional law. As Justice Gummov has made it clear “The subject of administrative law can not be understood or taught without attention to its constitutional foundation”

This is true because of the close relationship between these two laws. To the early English writers there was no difference between administrative and constitutional law. Therefore, Keitch observed that it is ‘logically impossible to distinguish administrative law from constitutional law and all attempts to do so are artificial.”

However, in countries that have a written constitution, their difference is not so blurred as it is in England. One typical difference is related to their scope. While constitutional law deals, in general, with the power and structures of government, i.e. the legislative, the executive and the judiciary, administrative law in its scope of study is limited to the exercise of power by the executive branch of government. The legislative and the judicial branches are relevant for the study of administrative law only when they exercise their controlling function on administrative power.

Constitutional law, being the supreme law of the land, formulates fundamental rights which are inviolable and inalienable. Hence, it supersedes all other laws including administrative law. Administrative law does not provide rights. Its purpose is providing principles, rules and procedures and remedies to protect and safeguard fundamental rights. This point, although relevant to their differences, can also be taken as a common ground shared by constitutional and administrative law. To put it in simple terms, administrative law is a tool for implementing the constitution.  Constitutional law lays down principles like separation of power and the rule of law. An effective system of administrative law actually implements and gives life to these principles. By providing rules as to the manner of exercising power by the executive, and simultaneously effective controlling mechanisms and remedies, administrative law becomes a pragmatic tool in ensuring the protection of fundamental rights. In the absence of an effective system of administrative law, it is inconceivable to have a constitution which actually exists in practical terms.

Similarly, the interdependence between these two subjects can be analyzed  in light of the role of administrative law to implement basic principles of good administration enshrined in the F.D.R.E. constitution. The constitution in Articles 8(3), 12(1) and 12(2), respectively provides the principles of public participation, transparency and accountability in government administration. As explained above, the presence of a developed system of administrative law is sine qua non for the practical realization of these principles.

Administrative law is also instrumental in enhancing the development of constitutional values such as rule of law and democracy. The rules, procedures and principles of administrative law, by making public officials, comply with the limit of the power as provided in law, and checking the validity and legality of their actions, subjects the administration to the rule of law. This in turn sustains democracy. Only, in a government firmly rooted in the principle of rule of law, can true democracy be planted and flourished.

Judicial review, which is the primary mechanism of ensuring the observance of rule of law, although mostly an issue within the domain of administrative law, should look in the constitutional structure for its justification and scope. In most countries, the judicial power of the ordinary courts to review the legality of the actions of the executive and administrative   agencies emanates from the constitution. The constitution is the supreme document, which confers the mandate on the ordinary courts. Most written constitutions contain specific provisions allocating judicial review power to the high courts, or the Supreme Court, including the grounds of review and the nature    and type of remedies, which could be granted to the aggrieved parties by the respective courts.

A basic issue commonly for administrative law and constitutional law is the scope of judicial review. The debate over scope is still continuing and is showing a dynamic fluctuation, greatly influenced by the ever changing and ever expanding features of the form and structure of government   and public administration. The ultimate mission of the role of the courts as ‘custodians of liberty’, unless counter balanced   against the need for power and discretion of the executive, may ultimately result in unwarranted encroachment, which may have the effect of paralyzing the administration and endangering the basic constitutional principle of separation of powers. This is to mean that the administrative    law debate over the scope of judicial review is simultaneously a constitutional debate.

Lastly, administrative and constitutional law, share a common ground, and supplement each other in their mission to bring about administrative justice. Concern for the rights of the individual has been identified as a fundamental concern of administrative law. It ultimately tries to attain administrative justice. Sometimes, the constitution may clearly provide right to administrative justice. Recognition of the principles of administrative justice is given in few bills of rights or constitutional documents. Australia and South Africa may be mentioned in this respect.

Constitutional law needs to be understood to include more than the jurisprudence surrounding the express, and implied provisions of any constitution. In its broader sense, constitutional law connotes “the laws and legal principles that determine the allocation of decision-making functions amongst the legislative, executive and judicial branches of government, and that define the essential elements of the relationship between the individual and agencies of the state”. Wade has observed that administrative law is a branch of constitutional law and that the “connecting thread” is “the quest for administrative justice”.

 

I- Public Law/Private Law Divide

The boundaries of administrative law extend only when administrative agencies and public officials exercise statutory or public powers, or when performing public duties. In both civil and common-law countries, these types of functions are sometimes called “public law functions” to distinguish them from “private law functions”. The former govern the relationship between the state and the individual, whereas the later governs the relationship between individual citizens and some forms of relationships with the state, like relationship based on government contract.

For example, if a citizen works in a state owned factory and is dismissed, he or she would sue as a “private law function”. However, if he is a civil servant, he or she would sue as a “public law function”. Similarly, if residents of the surrounding community were concerned about a decision to enlarge the state- owned factory because of environmental pollution, the legality of the decision could be reviewed by the courts as a “public law function.” It is also to be noted that a contract between an individual or business organization with a certain administrative agency is a private law function governed by rules of contract applicable to any individual – individual relationship. However, if it is an administrative contract it is subject to different rules (see civ. code art 3136 ff).

The point here is that the rules and principles of administrative law are applicable in a relationship between citizens and the state; they do not extend to cases where the nature of the relationship is characterized by a private law function.

B) Substance vs. Procedure

Many of the definition and approaches to administrative law are limited to procedural aspects of the subject. The focus of administrative law is mainly on the manner and procedure of exercising power granted to administrative agencies by the legislature. Fox describes the trend and interaction between substance and procedure as:

‘It is the unifying force of the administrative process – in dramatic contrast to the wide variety of substantive problems with which agencies deal- that has persuaded most administrative law professors to concentrate on agency procedure rather than agency substance.  Hence, to a wider extent, the study of administrative law has been limited to analyzing the manner in which matters move through an agency, rather than the wisdom of the matters themselves.’

With respect to judicial review, the basic question asked is not whether a particular decision is “right”, or whether the judge, or a the Minister, or officials have come to a different decision. The questions are what is the legal limit of power or reasonable limit of discretion the law has conferred on the official? that power been exceeded, or otherwise unlawfully exercised? Therefore, administrative law is not concerned with the merits of the decision, but with the decision making process.

1.3 Theoretical   Perspectives

The role of law in modern state is evidently a complex one. The legal thought on administrative law is largely shaped by the role of law generally and the role of administrative law in public administration specifically. The traditional view of administrative law is that it should aim to bolster the rule of law and ensure the accountability of executive government to the will of parliament and, at least indirectly, to the people. Cane describes the role of courts in achieving such purpose of administrative law in the following woeds:

“It is often said that the enforcement of statutory duties and the control of the exercise of statutory powers by the courts is ultimately justifiable in terms of the doctrine of parliamentary supremacy: even though parliament has not expressly authorized the courts to supervise governmental activity, it can not have intended breaches of duty by governmental agencies to go un-remedied (even if no remedy is provided in the statute itself), nor can it have intended to give administrative agencies the freedom to exceed or abuse their powers, or to act unreasonably. It is the task of the courts to interpret and enforce the provisions of statutes, which impose duties and confer powers on administrative agencies. In so doing they are giving effect to the will of parliament.”

This approach puts more emphasis on the role of courts through judicial reviews   to control arbitrary and ultravires administrative action. Presently, the perspectives on administrative law are summarized by two contrasting models labeled by Harlow and Rowling  as ‘red light’ and ‘green light’ theories. The former is more conservative and control-oriented; the latter is more utilitarian (socialist) in orientation and facilitative in nature. Both significantly serve to describe the concept of  administrative law, and to act as normative (i.e. moral and political) suppositions about what its role in society ought to be.

A)  Red Light Theory

The red light approach advocates strong role for the courts to review administrative decisions. It considers that the function of law is to control the excesses of state power.  “The red light view can be seen to originate from a political tradition of 19th century laissez faire (minimal state) theory. It embodied a deep-rooted suspicion of   governmental power and a desire to minimize the encroachment of the state on the rights (especially property rights) of individuals.

According to this theory of state, the best government is the one that governs least. Wider power means danger to the rights and liberty of citizens. Hence, the red- light theory serves the function of controlling excess and arbitrary power, mainly by the courts. Its descriptive feature is that, on the one hand, it gives much attention on control of governmental power, and on the other hand, it is confident that the effective controlling instrument are the courts through judicial review; As Harlow and Rawlings put it:

“Behind the formalist tradition, we can often discern a preference for a minimalist state. It is not surprising, therefore, to find many authors believing that the primary function of administrative law should be to control any excess of state power and subject it to legal, and more especially judicial control. It is this conception of administrative law that we have called ‘red light theory”.

B) Green Light Theory

The green light approach considers that the function of administrative law is to facilitate the operation of the state. It is based on the rationale that bureaucrats will function most efficiently in the absence of intervention. Administrative law should aim to help simplifying the procedures and enhance efficiency. It starts from the standpoint of a more positive, largely social and democratic view of the state.

The green light theory is originated from the utilitarian tradition, which proposes promoting the greatest good for the greatest number. According to the utilitarian theory, the state is expected to provide the minimum standards of provision, including housing, education, health, social security, and local services. To provide maximum satisfaction for most of its people, the state should assume a broader role, hence, should possess wider powers. The green light theory broadly supports the introduction of policies aiming at developing public service provisions. Law is perceived as a useful weapon and an enabling tool. It is something very concrete and can provide in principle, at least, the proper authority and framework with which to govern consensually. It regards law not as a controlling mechanism, rather as facilitative tool. Consequently, it considers the court’s intervention as an obstacle to efficiency.

Harlow & Rawling write:

Because they see their own function as the resolution of disputes and because they see the administrative function from the outside, lawyers traditionally emphasize external control through adjudication. To the lawyer, law is the policeman; it operates as an external control, often retrospectively. But a main concern of green light writers is to minimize the influence of the courts. Courts, with their legalistic values, were seen as obstacles to progress and the control which they exercise as unrepresentative and undemocratic. To emphasis a crucial point in green light theory, decision making by an elite judiciary imbued with a legalistic, rights based ideology and eccentric vision of the ‘public interest’ was never a plausible counter to authoritarianism.

Purpose of Administrative Law

There has never been any serious doubt that administrative law is primarily concerned with the control of power. With the increase in level of state involvement in many aspects of everyday life during the first 80 years of the twentieth century, the need for a coherent and effective body of rules to govern relations between individuals and the state became essential. The 20th century saw the rise of the “regulatory state” and a consequent growth in administrative agencies of various kinds engaged in the delivery of a wide variety of public programs under statutory authority. This means, in effect, the state nowadays controls and supervises the lives, conduct and business of individuals in so many ways. Hence controlling the manner of exercise of public power so as to ensure rule of law and respect for the right and liberty of individuals may be taken as the key purpose of administrative law.

According to Peer Leyland and Tery Woods (Peter Leyland and Terry Woods, Textbook on Administrative Law, 4th ed. ) Administrative law embodies general principles applicable to the exercise of the powers and duties of authorities in order to ensure that the myriad and discretionary powers available to the executive conform to basic standards of legality and fairness. The ostensible purpose of these principles is    to ensure that there is accountability, transparency and effectiveness in exercising of power in the public domain, as well as the observance of rule of law.

Peer Leyland and Tery Woods have identified the following as the underlying purposes of administrative law.

  • It has a control function, acting in a negative sense as a brake or check in respect of the unlawful exercise or abuse of governmental/ administrative                                 power.
  • It can have a command function by making public bodies perform their statutory duties, including the exercise of discretion under a statute.
  • It embodies positive principles to facilitate good administrative practice; for example, in ensuring that the rules of natural justice or fairness are adhered      to.
  • It operates to provide accountability and transparency, including      participation by interested individuals and parties in the process of government.
  • It may provide a remedy for grievances at the hands of public authorities.

Similarly I.P. Massey (I.P. Massey, Administrative Law, 5th ed.) identifies the four basic bricks of the foundation of administrative law as:

  • To check abuse of administrative power.
  • To ensure to citizens an impartial determination of their disputes by officials so as to protect them from unauthorized encroachment of their rights and interests.
  • To make those who exercise public power accountable to the people.

To realize these basic purposes, it is necessary to have a system of administrative law rooted in basic principles of rule of law and good administration. A comprehensive, advanced and effective system of administrative law is underpinned by the following three broad principles:

Administrative justice, which at its core, is a philosophy that in administrative decision- making the rights and interests of individuals should be properly safe guarded.

Executive accountability, which has the aim of ensuring that those who exercise the executive (and coercive) powers of the state can be called on to explain and justify the way in which they have gone about that task.

Good administration- Administrative decision and action should conform to universally accepted standards, such as rationality, fairness, consistency and transparency.

Sources of Administration Law

Administrative law principles and rules are to be found in many sources. The followings are the main sources of administrative law in Ethiopia.

The Constitution

The F.D.R.E constitution contains some provisions dealing with the manner and principle of government administration and accountability of public bodies and officials. It mainly provides broad principles as to the conduct and accountability of government, the principle of direct democratic participation by citizens and the rule of law. It also embodies the principle of separation of powers by allocating lawmaking power to the house of people’s representatives, executive power cumulatively to the Prime Minister and Council of Ministers, and finally the power to interpret the laws to the judiciary. Art, 77(2) talks about the power of Council of Ministers to determine the internal organizational structure of ministries and other organs of government, and also Art 77(3) envisages the possibility of delegation of legislative power are also relevant provisions for the study of the administrative law, (see also Articles 9(1), 12, 19(4), 25, 26,37,40, 50(9), 54(6)(7) 55(7), (14)(15), (17),(18),58,66(2),72-77,82,83,93,101-103 of F.D.R.E constitution).

Legislation

Laws adopted by parliament, which may have the effect of creating an administrative agency, or specify specific procedure to be complied by the specific authority in exercising its powers, can be considered a primary sources for the study of administrative law. The statute creating an agency known as enabling act or parent act, clearly determines the limit of power conferred on a certain agency. An administrative action exceeding such limit is an ultra virus, and in most countries the courts will be ready to intervene and invalidate such action. Moreover, parliament, when granting a certain power, is expected to formulate minimum procedure as to how that power can be exercised to ensure fairness in public administration. This can be done, on the one hand, by imposing a general procedural requirement in taking any administrative action mainly administrative rule making and administrative adjudication just like the American Administrative Procedure Act (APA). And on the other hand, parliament in every case may promulgate specific statutes applicable in different situations.

Delegated Legislation

Rules, directives and regulations issued by Council of Ministers and each administrative agencies are also the main focus of administrative law. Administrative law scholarship is concerned with delegated legislation to determine its constitutionality and legality or validity and ensure that it hasn’t encroached the fundamental rights of citizens. One aspect of such guarantee is subjecting the regulation and directive to comply with some minimum procedural requirements like consultation (public participation) and publication (openness in government administration). Arbitrary exercise of power leads to arbitrary administrative action, which in turn, leads to violation of citizen’s rights and liberty. Hence, the substance and procedure of delegated legislation is an important source of administrative law.

Judicial Opinion

Much, but not most, of the doctrine that envelops and controls administrative power is found in judicial analysis of other sources. However, much of administrative law will not be found solely in judicial opinions. Furthermore, the opinions themselves must be carefully pursued to avoid generalizations about controls on agency behavior that may not be appropriate, as the outcome of many cases may turn on particular statutory language that may not necessarily reflect the nature of disputes in other agencies.

The American experience as to judicial opinion influencing administrative law is characterized by lack of generalization and fluctuating impacts. These may be due to two reasons. First, cases coming before the courts through judicial review are insignificant compared to the magnitude of government bureaucracy and the administrative process. Second, even as between two apparently similar cases, there is a possibility for points of departure.

In Ethiopia, judicial opinion is far from being considered even as the least source of administrative law. Only cases less than 1% go to court through judicial reviews. The subject is not known by judges, lawyers, the legal profession and administrative officials, let alone by the poor and laypersons who are expected to seek judicial remedy for unlawful administrative acts and abuse of power by public officials. However given the fact that presently the rule of precedent is applicable, judicial opinion, it is hoped, may have a limited role as one of the sources of administrative law in Ethiopia.

Definition

There is a great divergence of opinion regarding the definition of concept of the administrative law. The is because of the tremendous increase in the administrative process that it makes impossible to attempt any precise definition of administrative law which can cover the entire range of the administrative process. Hence one has to expect differences of scope and emphasis in defining administrative law. This is true not only due to the divergence of the administrative process within a given country, but also because of the divergence of the scope of the subject in the continental and Anglo – American legal systems.

However, two important facts should be taken into account in an attempt of understanding and defining administrative law. Firstly, administrative law is primarily concerned with the manner of exercising governmental power. The decision making process is more important than the decision itself. Secondly, administrative law cannot fully be defined without due regard to the functional approach. This is to mean that the function (purpose) of administrative law should be the underlying element of any definition. The ultimate purpose of administrative law is controlling exercise of governmental power. The ‘control aspect’ impliedly shades some light on the other components of its definition. Bearing in mind these two factors, let us now try to analyze some definitions given by scholars and administrative lawyers.

Austin has defined administrative law, as the law which determines the ends and modes to which the sovereign power shall be exercised. In his view, the sovereign power shall be exercised either directly by the monarch or indirectly by the subordinate political superiors to whom portions of those powers are delegated or committed in trust.

Schwartz has defined administrative law as “the law applicable to those administrative agencies, which possess delegated legislation and adjudicative authority.’ This definition is a narrower one. Among other things, it is silent as to the control mechanisms and those remedies available to parties affected by an administrative action.

Jennings has defined Administrative law as “the law relating to the administration. It determines the organization, powers and duties of administrative authorities. Massey criticizes this definition because it fails to differentiate administrative and constitutional law. It lays entire emphasis on the organization, power and duties to the exclusion of the manner of their exercise.  In other words, this definition does not give due regard to the administrative process, i.e. the manner of agency decision making, including the rules, procedures and principles it should comply with.

Dicey like Jennings with out differencing administrative law from constitutional law defines it in the following way. ‘Firstly, it relates to that portion of a nation’s legal systems which determines the legal status and liabilities of all state officials. Secondly, defines the rights and liabilities of private individuals in their dealings with public officials. Thirdly, specifies the procedures by which those rights and liabilities are enforced.’

This definition is mainly concerned with one aspect of administrative law, namely judicial control of public officials. It should be noted, that the administrative law, also governs legislative and institutional control mechanisms of power. Dicey’s definition also limits itself to the study of state officials. However, in the modern administrative state, administrative law touches other types of quasi- administrative agencies like corporations, commissions, universities and sometimes, even private domestic organizations. Davis who represents the American approach defines administrative law as; “The law that concerns the powers and procedures of administrative agencies, specially the law governing judicial review of administrative action.” The shortcoming of this definition according to, Massey is that it excludes rule - application or purely administrative power of administrative agencies. However, it should be remembered that purely administrative functions are not strictly within the domain of administrative law, just like rule making (legislative) and adjudicative (judicial) powers. Davis’s definition is indicative of the approach towards administrative law, which lays great emphasis on detailed, and specific rule-making and adjudicative procedures and judicial review through the courts for any irregularity. He excludes control mechanisms through the lawmaker and institution like the ombudsman.

Massey gives a wider and working definition of administrative law in the following way.

“ Administrative law is that branch of public law which deals with the organization and powers of administrative and quasi administrative agencies and prescribes the principles and rules by which an official action is reached and reviewed in relation to individual liberty and freedom”

From this and the previous definitions we may discern that the following are the concerns of administrative law.

It studies powers of administrative agencies. The nature and extent of such powers is relevant to determine whether any administrative action is ultravires or there is an abuse of power. It studies the rules, procedures and principles of exercising these powers. Parliament, when conferring legislative or adjudicative power on administrative agencies, usually prescribes specific rules governing manner of exercising such powers. In some cases, the procedure may be provided as a codified act applicable to all administrative agencies. It also studies rules and principles applicable to the manner of exercising governmental powers such as principles of fairness, reasonableness, rationality and the rules of natural justice.

It studies the controlling mechanism of power. Administrative agencies while exercising their powers may exceed the legal limit abuse their power or fail to comply with minimum procedural requirements. Administrative law studies control mechanisms like legislative & institutional control and control by the courts through judicial review.

Lastly it studies remedies available to aggrieved parties whose rights and interests may be affected by unlawful and unjust administrative actions. Administrative law is concerned with effective redress mechanisms to aggrieved parties. Mainly it is concerned with remedies through judicial review, such as certiorari, mandamus, injunction and habeaus corpus.

Page 5 of 5