Online Legal Resources

A to Z is a collection of resources for Ethiopian's legal profession, students, academics and the public. These links have been collected so that users with an interest in the law and Ethiopia may be able to access the Ethiopian legal information they require more quickly. The site is organized simply into an alphabetical list of law subjects. This link is a very helpful source for students who want to study online as teaching materials written by different university teachers under the sponsorship of Justice and Legal System Research Institute are included in the list. Moreover, Training materials prepared by different Proffessionals under the sponsorship of Federal Justice Organs Professionals Training Centerare also in our list. 

Around 1880, the renowned English constitutional lawyer professor A.V.Dicey, misled by his misconception of the rule of law, proudly stated that England did not have administrative law. Almost after a century, in what can be said a total reversal of the  Dicey’s position, the renowned English judge Lord Denning commented that ‘…it may truly now be said that we have a developed system of administrative law.’

Given the current situation in Ethiopia as to the scope and impact of the administrative law, it may be unfair to say that Ethiopia does not have administrative law. But, it is equally true that no one can boldly declare that ‘ we have a developed system of the administrative law.’ Still there is no administrative procedure governing administrative decision-making or delegated legislation, either at the federal or state level. There are only few administrative courts poorly organized, highly subject to executive control and ineffective due to lack of expert administrative judges and absence of clear guidelines regarding their qualification, procedure of appointment and dismissal. Control of administrative action through judicial review is almost non-existent. Institutional control through the Ombudsman and the Human Rights Commission is not as developed and effective as it should have been. Generally, the legal instrument to bring about administrative justice, executive accountability and good governance is far from being developed in a comprehensive and systematic manner. Presently, the need for such a developed system of administrative law is beyond necessity. The question of the administrative justice is still an unanswered question for the citizens of Ethiopia.

The implication of the federal structure is that there is a possibility of the  Federal and the state administrative law. Since the constitution envisages for the establishment of the executive branch at the state level as one organ of government, it is be up to the states to formulate their own administrative law. This means that the decision making and rule-making procedure of one regional state may be different from that of the other state, or even from that of   the federal state.

Rule of Law as a Basis of Administrative Law

 

The expression “Rule of law” plays an important role in administrative law. It provides protection to the people against the arbitrary action of the administrative authorities. The expression ‘ rule of law’ has been derived from the French phrase ‘la principle de legalite’, meaning a government based on the principles of law. In simple words, the term ‘rule of law, indicates the state of affairs in a country where, in main, the law rules. Law may be taken to mean mainly a rule or principle which governs the external actions of human beings, and which is recognized and applied by the state in the administration of justice.

 

Procedural Elements

 

Almost all administrative lawyers or anyone embarking a research on this dynamic concept usually starts to treat the subject by espousing the approach and definition given to it by the renowned English constitutional lawyer,Dicey. (1888)gave the most influential definition of rule law which mainly comprises the following three elements.

 

A. Supremacy of Law (Principle of Legality)

 

For Dicey (1888 :) the primary meaning    of rule of   law is supremacy of the ordinary laws of the land over the actions of public officials and administrative agencies. He writes:

 

It means, in the first place, the absolute supremacy or predominance of   regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government.

 

Hence, one aspect of the concept of rule of law is absolute predominance, or supremacy of law over arbitrary, government actions. Simply stated, it means every administrative action that should be taken according to law. Applied to the powers of government, this requires that every government authority which does some act which would otherwise be a wrong (such as taking a man’s house), or which infringes a man’s liberty (as by refusing him a trade license), must be able to justify its action as authorized by law. An administrative agency or public official is required to justify its action by clearly establishing that it is expressly or impliedly empowered or authorized by act of the parliament (i.e. proclamation issued by the House of People’s Representatives). This means also that in the absence of any authority, the affected party whose rights and liberties have been violated as a result of the action of government, should be able to take the case to court and have it invalidated.

 

However, acting according to law does not satisfy the meaning of rule of law in the presence of wide discretionary powers. Parliament may confer on the specific administrative agency, wide discretionary powers that enables the agency to take unpredictable and in some cases of the arbitrary actions. Hence, the government should be conducted within the framework of the recognized rules and principles that restrict discretionary power. In many countries, typically in England, many of the rules of the administrative law are rules for restricting the wide powers, which acts of parliament confer very freely on ministers and other authorities.

 

B  Principle of Equality

 

“ . . .It means equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.”

 

One meaning of the above statement is that disputes, as to the legality of acts of government, are to be decided by judges who are independent of the executive. This aspect of the rule of law, which is typical characteristics of English administrative law, is largely based on the principle of the separation of powers which prohibits interference among the three government branches, Hence, not only civil cases, but also administrative disputes that should be adjudicated by the ordinary courts; not by the separate administrative courts.

 

In France, the same principle of separation of powers resulted in a totally opposite conception of the rule of law. According to French administrative law ( droit adminstratif), disputes between the individual and the government are settled by separate administrative courts, the conseil de etat   being the supreme administrative court. It is said that this system was developed in France based on the strict interpretation of the separation of powers. Dicey emphatically rejected the French system of the administrative law (droit adminstratif). because of his emphasis on the ordinary law courts as opposed to any specialized administrative law courts as ultimate arbiter of disputes between the government and the individual.

 

Another aspect of the principle of equality is that the issue that states the law should be even- handed between government and citizen. In other words, those laws governing the relationship between individuals should also similarly be applicable to the relationship between individuals and government. This implies that government officials should not entertain different, or special privileges. However, the intensive form of the government and the complexities of administration sometimes necessitate granting special powers (privileges) to the government. What the rule of law requires is that the government should not enjoy unnecessary privileges, or exemptions from the ordinary law.

 

C  Constitution Is the a result of the Ordinary Law of the Land

 

“ It means the constitution is the result of the ordinary law as developed by the courts through the common law tradition and provides for the legal protection of the individual not via a bill of rights, but through the development of the common law”

 

The rule of law lastly means that the general principles of the constitution are the result of judicial decisions of the courts in England. In many countries rights such as right to personal liberty, freedom from arrest, freedom to hold public meetings are guaranteed by a written constitution. However this is not so in England. These rights are the result of judicial decisions in concrete cases that have actually arisen between the parties. The constitution is not the source but the consequence of the rights of the individuals. Thus, Dicey emphasized the role of the courts as ultimate guarantors of liberty.

 

2.1.2 Substantive Elements

 

The modern concept of the rule of law is fairly wide and, therefore, sets up an ideal for government to achieve. This concept was developed by the international commission of jurists, known as Delhi Declarations, in 1959, which was later on confirmed at Logos in 1967. According to this formulation, the rule of law implies that the functions of government in a free society should be exercised so as to create conditions in which the dignity of man, as an individual, is upheld.

 

In recent years, wide claims have been made as to the proper sphere of rule of the law. The presence of representative democracy, beneficial social and economic services and conditions, personal independency (privacy) and independent judiciary has all been taken as indicators and elements of the rule of law. One way to understand the concept is making a contrast between the two approaches which are the ‘formal’ and ‘substantive’ (ideological) versions of the rule of law. The former is not much more than the principle of legality, and the latter insists on a wide range of positive content.

 

2.1.3 Rule of Law as a Foundation of Administrative Law

 

In simple terms, the rule of law requires that government should operate with in the confines of the law; and that aggrieved citizens whose interest have been adversely affected be entitled to approach an independent court to adjudicate whether or not a particular action taken by or on behalf of the state is in accordance with the law. In these instances, the courts examine a particular decision made by an official, or an official body to determine whether it falls with in the authority conferred by law on the decision maker. In other words, the courts rule as to whether or not the decision is legally valid.

 

It is in this way that the principle of rule of law serves as the foundation of the  administrative law. It has been repeatedly said that the basic purpose of the administrative law is to control excessive and arbitrary governmental power. This purpose is mainly achieved through the ordinary courts by reviewing and checking the legality of any administrative action. Therefore, administrative law as a branch of law, is rooted in the principle of the rule of law. This principle mainly stipulates that every administrative action should be according to law. The different control mechanisms of power in administrative law by preventing government not to go beyond the authority granted to it by law ensure that rule of law is respected.

 

Hence, the expression “Rule of Law” plays an important role in administrative law. It provides protection to the people against arbitrary action of the administrative law.

 

To clearly understand the relationship between the rule of law and the administrative law, it is important to examine a related doctrine of the administrative law, which is the doctrine of ultra virus. The doctrine to some extent  is a derivation of the principle of the rule of law. The former underlines that power should be exercised according to law. The later, goes one step further and states that an action of any official or agency beyond the scope of power given to it is ultra virus (i.e. beyond power), hence it is considered as null and void. An ultra virus act does not have any binding effect in the eyes of the law.

 

The simple proposition that a public authority may not act outside its powers (ultra virus) might fitly be called the central principles of the administrative law. The juristic basic of judicial review is the doctrine of ultra virus. According to Wade & Forsyth an administrative act that is ultra virus or outside of jurisdiction (in case of action by administrative court) is void in law, i.e. deprived of any legal effect. This is, in order to be valid, it needs statutory authorization, and if it is not within the powers given by the act, it has no legal leg to stand on it. Once the court has declared that some administrative act is legally a nullity, the situation is as if nothing has happened. Administrative law by invalidating an ultra virus act ensures that every administrative action is in conformity with the law; indirectly guaranteeing the observance of rule of law.

 

Rule of law as a foundation of the administrative law has been briefly explained above. But at the same time, you should also be aware of the fact that the principle also serves as a limitation on the scope of administrative law.

 

It has been clearly pointed out in chapter one that the proper scope of the administrative law is procedure, not substance. This means, it is concerned with the decision-making procedure (how power is exercised), rather than the decision itself. To a wider extent the study of the administrative law has been limited to analyzing the manner in which matters move through an agency, rather than the wisdom of the matters themselves. Whether a certain decision is right is not a matter to be investigated under the administrative law, rather it should be left to the decision-making agency since it purely involves policy considerations. Similarly, the principle of the rule of law does not go to the extent of ensuring whether a certain agency’s decision is right or wrong. Its primary meaning is attached to the principle of the legality or the superiority of law.  Its concern is to ensure that a administrative action is taken according to law.

 

The court, in reviewing an administrative action, is expected to see or examine the legality of the action only. In judicial review, the judges do not substitute their own discretion and judgment for that of the government. They simply rule whether the government or its officials have acted within the ambit of their lawful authority. Thus, the judges do not “govern” the country, and do not “displace” the government when government decisions are challenged in the courts.

 

The principle of the rule of law, by limiting its scope only to legality, or in some cases to fairness of the administrative action, simultaneously serves as a limitation to the scope of the administrative law.

 


 

As stated by MARSHAL In MARURY Vs. MADISON

 

“The province of the Court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers perform duties in which they have a discretion. Questions in their nature political, or which are, by the Constitution and laws, submitted to the executive, can never be made in this court.”

In General

Unlike other fields of law, administrative law is a recent phenomenon and can fairly be described as ‘infant.’ Historically, its emergence could be dated back to the end of the 19th century. This era marked the advent of the ‘welfare state’ and the subsequent withering away of ‘the police state.’ The interventionist role of the welfare state practically necessitated the increment of the nature and extent of power of governments. Simultaneous, with such necessity came the need for controlling the manner of exercise of power so as to ensure protection of individual rights, and generally legality and fairness in the administration. With such background, administrative law, as a legal instrument of controlling power, began to grow and develop too fast. Typically, with the proliferation of the administrative agencies, administrative law has shown significant changes in its nature, purpose and scope.

Presently, administrative law, in most legal systems, is significantly developed and undoubtedly recognized as a distinct branch of law. However the path followed to reach at this stage is not uniform and similar in most countries. Administrative law is unique to a specific country. Such uniqueness can be explained by the fact that it is the outcome of the political reality, economic circumstances and the nature of the legal system prevailing in that country. It is also highly influenced by the constitutional structure, the system of government and principles of the public administration adopted by that country.

Generally, the proliferation of the administrative agencies and the expansion of delegated legislation were two significant factors for the growth of the administrative law in most countries. The 20th century marked with the vast increase of administrative agencies with vast and wide-ranging powers. This necessitated legislative measures and judicial interference aimed at controlling the manner of exercise of power of these entities so as to ensure protection of individual rights and freedoms. As a result, most countries introduced specific and comprehensive rules and procedures governing administrative adjudication and rule-making. In US, the Administrative Procedure Act which was made law in 1946 is one such example of a comprehensive response to deal with the growing power of agencies. Since then, the landscape of the history of the American administrative law has been changed significantly. Similarly, in England the Statutory Instrument Act was promulgated in the same year (1946) even though it was not as comprehensive and influential as the American counterpart. The Act was a direct response to the ever increasing power of agencies, more specifically, the delegation power of agencies. In the 1920s fear developed about the volume and nature of the delegated legislation being produced, which was not receiving parliamentary scrutiny; many sought necessary or desirable.

In 1929, lord chief justice Lord Hewart published The New Despotism in which he railed against what he saw as dangerous and uncontrolled growth of bureaucratic power. In 1932, the report of the Donoughmore-Scott Committee on Ministers’ powers was issued. The report, amongst other things, explained the inevitability of the delegated legislation, and also suggested some safeguards. The report also recommended better scrutiny of the vesting in Ministers of ‘oppressive’ powers. This, finally, led to the enactment of the Statutory Instruments Act of the 1946.

However, the growth of the administrative law is not limited to statutory prescriptions of rules and procedures governing the administrative process. Courts have also played important roles in shaping the form, substance and scope of the administrative law. In England, until the Second World War and in the period immediately following 1945, courts continued limiting the scope of their controls. Such judicial restraint was relaxed after the 1960s and there was judicial revival and activism with the judiciary reclaiming their proper role of ensuring the legality and fairness of exercise of governmental powers. In America, where the judiciary has firmly asserted its strong position in checking the constitutionality of parliamentary legislation, the courts didn’t hesitate to review administrative decision, including delegated legislation.

In France, Italy, Germany and in a number of other countries, there is a separate system of administrative courts which deal with administrative cases exclusively. As a natural consequence, administrative law has developed on its own independent lines, and is not enmeshed with ordinary private law as it is in the Anglo-American system.

1.6.2   Ethiopia

It is very difficult and challenge to talk about the history of administrative law in Ethiopia.   Administrative law is still not well developed, and it is an area of law characterized by the lack of legislative reform. It is also a subject in which too little attention is given in terms of research and publication. Even though it cannot be denied that there are some specific legislations scattered here and there, which are relevant to the study of administrative law, it is still at a very infant stage.

When one looks into some of the specific legislations, one could easily realize that they are not in effect rules and procedures of manner of exercising power, or in general terms tools of controlling governmental power. Rather they are enabling acts conferring power on administrative agencies. However, since administrative law is in essence the mechanism of controlling power such enabling acts granting judicial and legislative powers it could not in any way signify the existence of administrative law in one country.

Hence, the historical development of the administrative law should be studied in terms of the process of legislative and judicial movement to curb the excess of power. In Ethiopia, the history of government is largely characterized by arbitrariness and lack of effective legislative, judicial and institutional control of power. That is why it is challenging to record the historical development or growth of administrative law.

In the final analysis, it becomes convincing that the issue has to be dealt with in terms of describing the growth of administrative power and the respective absence or few instances of legislative, judicial institutional attempts to control the exercise of administrative  power. Ultimately, this task becomes the study of the constitutional history of Ethiopia, as the administrative law history could not be significantly different from its constitutional history.

Up to 1987, the previous three constitutions of the 1931, 1955 and 1974 did not contain any meaningful and practical limit on the power of government.

The 1931 constitution was simply a means of centralizing power of the Emperor, and as Markaris has explained, it was ‘designed as a legal weapon in the process of centralization of governmental power.’ The 1955 revised constitution has showed little improving in this regard as it tried to define and distribute powers of government. It also included provisions entitling the citizen’s fundamental rights and freedoms. But it failed to do away with the accumulation of power in the hands of the Emperor. The Emperor still retained law-making power sharing it with parliament, and judicial powers, which were illdefined in the constitution as ‘the power to maintain justice’ and the essential executive powers were vested directly on him.

Such being the constitutional set up during that time, it is naïve to talk about the control mechanisms of power of the executive since that ultimately means checking the unquestionable power of the Emperor. However, it is be unfair to inter this conclusion as an indicative of the total picture. There were some attempts and signs towards addressing the grievances of citizens against maladministration. There was, for instance, a legislative effort to establish the Ombudsman during the last days of the Emperor Haile Selasie’s regime. In attempt to come up with a new constitution, a draft constitution was prepared which devoted the ninth chapter to the establishment of the office of the Ombudsman. This draft, and thereby the establishment of the Ombudsman, remained in paper as a result of the fall of the Emperor in 1974.

During the same period, an unsuccessful attempt was made to introduce for the first time an Administrative Procedure Act that governs the decision making process of the administrative agencies. The draft was not actually as comprehensive as the American Administrative Procedure Act since it failed to deal with the rule making procedure of the agencies. Its scope is limited only to providing mandatory adjudication procedures of the agencies and the establishment of the administrative court reviewing their decision.

In addition to such unsuccessful attempts, the establishment of some the administrative courts like the Civil Service Tribunal and an administrative tribunal entrusted with the power of reviewing assessment of tax may be taken as one step ahead for the evolution of the administrative law in Ethiopia.

The courts were also not totally silent in exercising their proper role of checking the legality of power of the executive. In very few instances, the courts used their ordinary power of interpretation of laws and entertained disputes between the citizen and the government. In one reported case, a court issued an order of mandamus compelling the agency to discharge its legal duty towards the plaintiff. This, even though, is a single and isolated incident is an indicative of the uncoordinated effort of the judiciary to wake up from the deep sleep of judicial restraint. It should also be remembered that the judiciary be totally blamed for failing to assert its proper place as ‘the guardian of liberty.’ This is mainly due to the fact that the citizen didn’t look to the judiciary seeking redress against the government. There is no role for the court to play in the absence of   a petition made to it. Too many reasons could be mentioned for such incident. But, lack of public confidence in the judiciary reflective of absence of independence of the courts may be cited as one of the contributing factors for the lack of an active judiciary.. This is true not only with respect to the scope and extent of judicial control of administrative action during the Imperial era, but can also be taken as a general truth   about the judiciary to the present day.

Administrative law didn’t show any progress during the Dergue regime. The 1987 constitution was not devised to limit the power of the government. Hence, one should not expect administrative law to deviate from the prevailing constitutional structure and develop as an instrument of checking the executive.

The present Federal Democratic Republic of Ethiopia of the 1995 has laid down the constitutional framework for the development of the administrative law. It contains key principles of government administration like accountability, transparency, and public participation. It also envisages the establishment of the Ombudsman and the Human Rights Commission. Six years after the constitution, the two institutions were established by the parliament.

Frank Esparraga

The question that has frequently been asked is issues related to what can be achieved by comparing different systems of administrative law. There are those (Schwartze) who say that administrative law is a technical field which is a fruitful source for finding “functional equivalents” and that it can readily be compared. It has been suggested in this paper that different systems of administrative laws are influenced to a varying degree by political, constitutional and historical experiences and choices. It is not suggested any correctness in the view of skeptics who say that administrative law is the clearest expression of the national character of a people. The convergence of the different European systems of administrative law leads to an even greater harmonization of law. Any comparative study also serves a variety of purposes. By providing perspective, comparative study helps us to understand better our own administrative law, to stimulate our minds as to possible weaknesses, and to assist legal reform to find creative solutions for problems.

BELGIUM

The Belgian legal system is patterned to a large extent upon that of the France’s legal system  During the 19th century, the Belgian ordinary courts worked out a system of substantive droit administratif similar to that of the French system. In Belgium, the Constitution requires the judicial courts to hear disputes over civil and political rights. Citizens’ rights with respect to administration are held to be included in these rights, except when they are specifically withdrawn from the jurisdiction of the courts by statute and placed within the jurisdiction of the administrative courts. The Conseil D’Etat, established in 1946, is the highest administrative body with several specialist administrative courts. The lower courts known as la Deputation Permanente du Conseil Provincial also have jurisdiction in certain administrative matters such as taxation. The Conseil D’Etat has five divisions, each with five members. Two of these handle cases in French; two handle cases in Dutch; and one is bilingual. The laws relating to the Conseil D’Etat empower the administrative section of the court to set aside a decision (a term which covers all acts and regulations of    administrative authorities) made by an administrative authority, or court. This power is also limited by the general jurisdiction of the judicial courts. The Conseil D’Etat may quash a decision and undertake full judicial review under a number of conditions.

Power to quash or vary: The Conseil D’Etat has the power to quash decisions dealing with disputes with the administration. However, Belgium does not have lower administrative courts. For administrative matters, the Conseil D’Etat is the place of the first and the last resort. The most important cases that the Conseil D’Etat can deal with are those which involve the quashing of acts and regulations of administrative authorities. Such cases are of general interest and are brought to ensure that the law, as opposed to individual rights, is respected. The Belgian Conseil D’Etat lacks competence when the applicant has the possibility of taking action before the judicial body which is empowered to hear problems involving personal rights, with the exception of disputes over certain political rights which are reserved to the administrative courts. However, an application to quash an administrative regulation always falls within the jurisdiction of the Conseil D’Etat since such applications are of a general nature and independent of whether or not an individual’s right has been interfered with.

Belgian law makes a sharp distinction between personal applications to have an administrative measure quashed and objective applications where the application is made independently of whether or not individual rights have been interfered with. The former applications are generally heard in the judicial courts and the latter in the administrative courts.

Power of full judicial review: This is a very restricted power and is only available for a limited number of specific cases laid down by statute and essentially dealing with electoral matters. The jurisdiction of Belgian administrative courts, as will be seen, is quite narrow when compared with the administrative courts of other countries. When it comes to substituting a decision, the principle of separation of administrative and judicial functions prevents the Conseil D’Etat from further activity than quashing the decision. Consequently, when requested to vary or substitute an administrative act that is being challenged before it, the Conseil D’Etat must declare itself incompetent. As to fines, the controversial question of whether or not the Belgian Conseil D’Etat was entitled to impose a fine was answered in a 1990 statute, which granted the Conseil D’Etat the right to impose a fine on an administrative authority that failed to act on a judgment to set aside a decision. With regard to damages, the Conseil D’Etat does not have the authority to attach an order to pay damages to its judgment to quash. Persons subject to public law are subject to tort liability, and  an applicant must turn to the judicial judge to enforce performance ordered in judgments of the Conseil D’Etat. As to compensation, the Conseil D’Etat determines requests for damages brought against the state or public bodies for injury sustained as a result of measures taken by them. The procedure is rare and the Conseil D’Etat only determines it when no other competent court is found.

Belgian Conseil D’Etat is, therefore, obliged by virtue of Article 177 of the Treaty, as a court of last resort, to submit all questions raised by it that involve interpretation of European Union Law to the European Court for preliminary ruling.

The effects of decisions of administrative courts: Any decision emanating from the Conseil D’Etat, which quashes an administrative act, has retrospective effect, although this is limited, in cases of  the considerations of equity, public utility and certainty. When an administrative act is quashed, the decisions taken by virtue of that act also lose their legal basis. Because of the fact that it has an absolute binding effect, a decision ordering that an administrative act be quashed creates a precedent binding on all courts. In theory, the Conseil D’Etat is not bound by the decisions of other courts, but it takes them into account.

With regards to the enforcement of decisions of administrative courts in Belgium, some laws force public persons and public bodies to be subject to public law to register in their accounts, should the case arise, the debts that result from adverse judgments handed down by administrative courts. An applicant may, in the case where the Conseil D’Etat decision has not been granted, apply to a non-administrative court to obtain reparation for the loss suffered and may also request the annulment of the new administrative decision. In 1991, a law which allowed the Conseil D’Etat to suspend the carrying out of a particular act or decision by the administration, if the act or decision would be likely to cause the applicant serious loss or damage of a kind which would be very difficult to repair once it had occurred. Was introduced.

GERMANY

Administrative law in Germany is concerned primarily with the validity or revocability of administrative acts and the right to administrative action. There is a tendency towards codification in large parts of German administrative law being codified.

There are five jurisdictional branches in Germany, each with its own court organization: the general courts; the administrative courts; the tax courts; the social courts; and the labour courts. There is also a constitutional court. In addition to the general administrative courts, the tax courts and the social courts are also considered to be administrative courts in certain instances.

There are thirty-five  general administrative courts of the first instance— Verwaltungsgerichte; ten appeal courts—Oberverwaltungsgerichte; and the Supreme Court, the Bundesverwaltungsgericht.

Power to quash or vary: The administrative judge in Germany has the power to quash a decision in two ways. The first, which is most often used, is intended to protect a personal right or interest by quashing the contested act. Since the object of this action is the protection of rights or interests of individual persons, the judge must restrict considerations to the part of the act that appear to be unlawful. The second form of action is the direct review of rules and regulations. This enables the administrative judge to revoke certain executive rules which do not have the authority of law. This right to review may be exercised over certain local planning regulations and the law of the “Lander”, on condition that the ‘Land’ has incorporated this review procedure into its law.

The German administrative judge has also the power to obtain an administrative act from the administration, but cannot issue an administrative act in the place of the administration. However, the administrative judge can quash any decision which refuses to grant a request and can oblige the administration to come to a new decision which takes into account the grounds for the decision. In some instances, the judge can oblige the administration to issue the act requested by the applicant. Another possibility open to the German administrative judge is to order measure that is to be served or withheld. This involves full judicial review, but is reserved to certain well-defined matters and is intended to get the administration to pay out a certain sum of money.

Additional powers: In the case of the quashing of an administrative act that has already been carried out, the administrative judge may decide the manner in which the administrative authorities should restitute the previous situation. The judge cannot, however, substitute himself for the administration to do this. Judicial courts, in principle, have jurisdiction to order the payment of damages. This is the case when the State acts as a private person, in the case of State liability as a result of administrative acts governed by administrative law, or in the case of compensating private persons in expropriation for public purposes. Administrative courts determine State liability resulting from contracts entered into by the administration and, in likewise, the State’s liability towards its public servants. The orders or judgments and decisions of these courts may be carried out in accordance with the rules of the Code of Civil Procedure involving the State. The court can appoint a competent authority to carry out its orders in accordance with the orders of the court when the administration is inactive. The provisions of the Code of Civil Procedure to force performance are applicable to the decisions of the administrative courts. However, it is indeed rare that steps have to be taken to force the administration to apply or carry out an order. On most occasions, the court’s decisions or orders are obeyed.

Referral before an international court: In the case of conventions dealing with refugees and stateless persons and also in the case of the European Convention for the Protection of Human Rights, the German judge applies international conventions on condition that these conventions have been incorporated into the domestic law. The general rules of international law take precedence over domestic laws, and directly create rights and obligations for all citizens.

Article 177, paragraph 1 of the EEC Treaty, requires courts of the last resort, from which there is no appeal, to transfer all questions to which European Union law may be applied, to the European Court of Justice for preliminary ruling. German administrative courts are bound to take account of the judgments of the European Court of Justice.

The effects of decisions of the administrative courts: Judgments given in administrative cases have relative authority and are subject to challenge. They only bind the parties in relation to the matter concerned. This relative effect stems from the fact that the object of the action is not to decide whether the administrative act is unlawful, but to pass judgment on the applicant’s claim. The subjective nature of an action to have an administrative act quashed explains the fact that the decision has only relative binding authority. Third parties are, however, bound by the fact that the administrative act has been quashed. Decisions quashing regulations are final and these decisions are published. Any administrative act which is quashed is made retrospectively invalid and, if possible, is deemed never to have existed. A decision declaring that a regulation is unlawful takes effect ab initio unless this would cause legal uncertainty.

The enforcement of decisions of administrative courts: In general, the administration respects the principle of the rule of law, and applies the decisions of the administrative courts without direct outside pressure. Problems of enforcement that occur in the cases where the application brought before the court do not have the effect of suspending the act, or decision challenged. In such cases, when the administrative court declares an act or decision annulled, the court may, upon the application of an interested party, specify the way in which a administration must apply its judgment.

The administrative courts may oblige the administration to take a decision or carry out an act that it previously refused to do so. Such a court order may be accompanied by the imposition of a periodic fine. As a general rule, the Code of Civil Procedure may be relied upon the administrative matters to ensure that the decisions and judgments of the administrative courts are enforced. The Code of Civil Procedure provides a specific measure to be taken to encourage the administration to comply voluntarily with the decisions of the courts. The court, before deciding what enforcement measures to adopt, must inform the administration of the decision it intends to pronounce and accord a specific time limit in which the decision should be applied.

FRANCE

Administrative law has evolved as a special branch of law in France with a three tier system of general administrative courts. The first tier has the Tribuneaux Administratifs; the second tier has five Cours Administratives d’Appel; and the highest administrative court is the Conseil D’Etat to which appeal is required, although in some instances the Conseil D’Etat may be a court of the first instance.

Power to quash or vary: In actions brought involving abuse of power, the judge is informed of arguments which challenge the legality of administrative acts. A judge, in the French Conseil D’Etat, may pronounce the contested decision quashed, if it turns out to be unlawful, otherwise, there are no further powers to annul.

Power of full judicial review: In full judicial review, questions involving the recognition of personal rights and which are attached to an individual legal situation are, in principle, referred to a judge. In such cases, the judge may order the payment of money, or reverse the decision, and in certain cases the judge may even substitute a decision. The extent of the powers actually varies according to the subject matter. Appeals against the judgments made after full judicial review are heard by the administrative courts of appeal, and only go to the Conseil D’Etat on further appeal. Cases concerning abuse of power are appealed before the Conseil D’Etat, but since 1992 appeals involving abuse of power lodged against individual administrative decisions have been progressively assigned to the administrative courts of appeal.

Additional powers: In actions against the abuse of power and in actions for full judicial review, the administrative judge is neither enabled to issue an injunction against the administration, nor may the administration be ordered to pay a fine.

It is a basic principle of French Public Law that the administrative judge is careful not to interfere with the activity of the administration or to give orders to the administration.

The effects of decisions of administrative courts: In France, the effect of a court decision varies. In most cases, it is only relative, but may be absolute if the decision quashes the administrative act as ultra vires. Once administrative acts have been quashed, they lose all legal effects and can no longer be enforced, either by the administration itself or by any other court. Acts quashed as ultra vires are deemed to have never existed, and they disappear with retrospective effect from the country’s legal framework.

The enforcement of decisions of administrative court: The majority of the decisions of the administrative courts are applied in France, although, in recent years, there has been an increase in the number of applications claiming that decisions have not been applied. Putting aside bad faith on the part of those involved, the principal cause is due to the complexity of the decisions, and the lack of legal knowledge of many persons and bodies is subject to administrative decisions. A Decree dating back to 1963 provides a mechanism that aims to prevent administrative court decisions being ignored so as to encourage their application. There is a separate division of the Conseil D’Etat which ensures that this aim is attained. Two Acts of the Parliament, in 1980’s and the 1987’s, reinforced this aim and added coercive measures. These Acts empower the Conseil D’Etat to impose periodic penalty payments by compelling fines on persons or bodies subject to public law and, in more general terms, on private persons or bodies charged with running public services.

Administrative Law in Civil Law and Common Law Countries

The comparative method is useful in many branches of law. It is particularly important in administrative law, because of the nature of the leading problems, related way of controlling government according to the interests of both state and citizen, which is common to all the developed nations of the west and in many developing countries of the third world. There is a clear difference with regards to the scope of and the approach to administrative law in these two legal systems.

France is the source of a distinct system of Administrative law known as ‘droit administrative’, which has a huge impact not only in civil law countries, but also on the system of administrative law of common law countries. In France, Italy, Germany and a number of other countries, there is a separate system of administrative court  that deals with administrative cases exclusively. As a natural consequence, administrative law develops on its own independent lines, and is not enmeshed with the ordinary private law as it is in the Anglo- American system. In France, droit administrative is a highly specialized science administered by the judicial wing of the conseil de etat, which is staffed by judges of great professional expertise, and by a network of local tribunals of first instance.

The British system of administrative law, which is followed through out the English-speaking world, has some salient characteristics, which distinguish it sharply from the administrative law of other European countries adopting continental legal system. The outstanding characteristic of the Anglo- American system is that the ordinary courts, and not special administrative courts, decide cases involving the validity of government action. This can be attributed to the conception of the principle of rule of law as developed by Dicey, which among other things emphasizes the resolution of disputes between government and the citizens through the ordinary courts.

The scope of Administrative law is also wider in scope in the continental system compared to its common law counterpart. Administrative law in civil law countries covers issues such as the organization, powers and duties of administrative authorities, the legal requirements governing their operation, and the remedies available to those adversely affected by administrative action. It also includes subjects like the structure and composition of the various administrative agencies, civil service law, the acquisition and management of property by the administrative authorities, public works, and contractual and non- contractual liability of administrative authorities and public officials.

In Anglo- American countries, administrative law is limited to delegation of rule- making powers, adjudication of administrative cases, manners and procedures of exercising these powers, the mechanisms of controlling and the available remedies. It mainly focuses on control through the courts or judicial review of administrative action by the ordinary courts. Hence the study of composition and structure of administrative power is not its primary concern. Wade & Forsyth, commenting on this point have said:

“ An exhaustive account of the structure and functions of government is not necessary in order to explain the rules of administrative law.”  Moreover, its domain extends only when public officials exercise powers and discharge duties, which are in the nature of public power and statutory duties. In other words, administrative actions which are a private law nature meaning relations arising out of contract by administrative authorities and their extra- contractual liability falls outside the scope of administrative law.

1.5.1 Administrative Law in Common Law Countries

(Source- wikipidia (http://en.wikipedia.org/wiki/Administrative_law)

Generally speaking, most countries that follow the principles of common law have developed procedures for judicial review that limit the reviewability of decisions made by administrative law bodies. Often, these procedures are coupled with legislation or other common law doctrines that establish standards for proper rulemaking. Administrative law may also apply to review of decisions of the so-called semi-public bodies such as non-profit corporations, disciplinary boards, and other decision-making bodies that affect the legal rights of the members of a particular group or entity.

While administrative decision-making bodies are often controlled by larger governmental units, their decisions could be reviewed by a court of general jurisdiction under some principle of judicial review based upon due process (United States) or fundamental justice (Canada). It must be noted that judicial review of administrative decision, is different from an appeal. When sitting in review of a decision, the court only looks at the method in which the decision has been arrived at, whereas in appeal, the correctness of the decision itself is under question. This difference is vital in appreciating the administrative law in common law countries.

The scope of judicial review may be limited to certain questions of fairness, or whether the administrative action is ultra vires. In terms of ultra vires, actions in the broad sense, a reviewing court may set aside an administrative decision if it is patently unreasonable (under Canadian law), Wednesbury unreasonable (under British law), or arbitrary and capricious (under U.S. Administrative Procedure Act and New York State law). Administrative law, as laid down by the Supreme Court of India, has also recognized two more grounds of judicial review which were recognized but not applied by English Courts viz. legitimate expectation and proportionality.

The powers to review administrative decisions are usually established by statute, but were originally developed from the royal prerogative writs of English law such as the writ of mandamus and the writ of certiorari. In certain Common Law jurisdictions such as India, or Pakistan, the power to pass such writs is a constitutionally guaranteed power. This power is seen as fundamental to the power of judicial review and an aspect of the independent judiciary.

1.5.2   Droit  Administratif

French administrative law is known as “droit administratiff”, which means a body of rules which determine the organization, powers and duties of public administration and regulate the relation of the administration with the citizens of the country. Administrative law in France does not represent the rules and principles enacted by the parliament. It contains the rules developed by administrative courts. Administrative law in France is a judge- made law. This seems strange for a country, representative of the civil law legal system, characterized by the statute law as the primary source of law.

France also has dual court structure: administrative courts and the ordinary courts existing and functioning in an independent line. The highest administrative court is known as Conseil d’etat, which is composed of eminent civil servants, and deals with a variety of matters like claim of damages for wrongful acts of government servants, income tax, pension, disputed elections, personal claims of civil servants against the state for wrongful dismissal or suspension and so on.

Napoleon Bonaparte was the founder of the droit Administratiff who established the Conseil d’etat. He passed an ordinance depriving the law courts of their jurisdiction on administrative matters and other ordinance matters that could be determined only by the consei d’etat. In pre- revolutionary France, a body known as Conseil du roi advised the king in legal and administrative matters, and also discharged judicial functions such as deciding disputes between great nobles. This created tension between those who supported the executive power over judicial powers (Bonapartists) and those who supported the jurisdiction of the ordinary courts (reformists). In August 1790 a law that abolished the Coneil d’ roi and the power of the executive was passed based on the justification of the principle of powers. This law also curtailed the king’s powers. However, in 1799, Napoleon, who greatly favoured the freedom of the administration, established the   Consei d’etat . However, its function was limited to an advisory role. It had no power to pronounce judgments. In 1872, its formal power to give judgment was established and in the subsequent year in 1873, a law that make the jurisdiction of the Conseil de etat final, was issued respect to all matters involving the administration. In 1889, it started receiving direct complaints from the citizens and not through the ministers. In case of conflicts between the ordinary courts and the administrative courts, regarding Jurisdiction, the matter was decided by the Tribunal des conflicts. This tribunal consisted of an equal number of ordinary and administrative judges and was presided over by the minister of Justice. Droit Administratif does not represent principles and rules laid down by the French parliament; it consists of rules developed by the judges of the administrative courts. Droit administratif therefore, includes three series of rules:


  1. Rules dealing with administrative authorities and officials; for example, appointment, dismissal, salary and duties, etc.

  1. Rules dealing with the operation of public services to meet the needs of the   citizens; for example, public utility like electricity, water etc…

  1. Rules dealing with administrative adjudication; for example, private and public liability of public officials.


The following are the main characteristics of the conseil de etat

  • Those matters concerning the state and administrative litigation fall within the jurisdiction of administrative courts and cannot be decided by the ordinary of courts of the land.
  • In deciding matters concerning the state, and administrative litigation, special rules  developed by the administrative courts are applied
  • Conflict of jurisdiction between ordinary courts and administrative courts are decided by the agency known as Tribunal des conflicts.
  • It protects government officials from control of the ordinary courts.
  • Conseil de etat is the highest administrative court.

Brown and Garner have attributed to a combination of following factors as responsible for the success of Conseil de etat.

  • The composition and functions of the  consei d’etat
  • The flexibility of its case- law,
  • The simplicity of the remedies available before the administrative courts
  • The special procedure evolved by those courts, and
  • The character of the substantive law, which they apply.

Administrative Law and Democracy

True democracy states that the executive government would be accountable to the people. The various aspect of accountability and the role of administrative law in ensuring accountability in government administration have been discussed above. The term accountability is uniformly applicable to all branches of government: parliamentary, judicial and executive accountability. Even though administrative law   is concerned with       executive accountability, for a true democracy to flourish, accountability should be manifested in all branches of government. For instance, the executive branch is accountable to parliament. It is an idea which is fundamental to the operation of responsible government. Accountability is accountability to parliament and, and the parliament is the place within which the idea of public scrutiny must find its fulfilment. However, unless parliament strongly challenges the executive and takes appropriate measures, members of parliament themselves should be held accountable to the people for their failure to act according to the interest of the public.

Another meeting point of administrative law and democracy is the principle   of rule of law. Administrative   law   is rooted in the    principle of rule of law.   Rule of law, in turn   nourishes democracy. Every truly democratic system of government rests upon the rule of law, and no system is truly democratic if it does not. There are at least two principles that are most important for a constitutional government. The first is that the government should be subject to the rule of law. The government should mostly and particularly comply with the basic laws establishing its constitutional structure. The second is that the government should be democratic. These two principles can overlap. For example, a democratic system, particularly one involving representative democracy, requires for its proper working that certain civil liberties be recognized, protected and applied, including rights to freedom of speech, freedom of assembly and freedom of association.  However, the recognition and protection of these rights necessarily require that elected governments should comply with the laws, including the common law, that protect those rights. Consequently, within a government characterized by representative type of constitutional structure, the rule of law reinforces the democratic principle.

The two principles can also be in conflict. A conflict occurs when the rule of law is inconsistent with the democratic will. Historically, such conflicts were resolved at common law by judicial review. Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which the executive action is prevented from exceeding the powers and functions assigned to the executive by the law and the interests of the individual are protected accordingly. In order for a government to be both democratic and subject to the rule of law, the government must be accountable, to the electorate and the courts. But, unless the scope of judicial review is properly limited so as to be in harmony with the principle of separation of powers, it may     encroach upon the values   of democracy.

The conflict between democracy and administrative law is also reflected in the challenge to justify the democratic basis of administrative agencies and administrative decision-making. Administrative agencies make individual decisions affecting citizens’ lives and also set general policies affecting an entire economy, though are usually headed by officials who are neither elected nor otherwise directly accountable to the public. A fundamental challenge in both positive and prescriptive scholarship has been to analyze and different administrative decision-making from the standpoint of democracy. This challenge is particularly pronounced in constitutional systems such as that of United States’ in which political party control can be divided between the legislature and the executive branch, each seeking to influence administrative outcomes. Much work in administrative law aims either to justify administrative procedures in democratic terms, or to analyze empirically how those procedures impact on democratic values.

A common way of reconciling unelected administrators’ decision-making with democracy is to consider administrators as mere implementers of decisions made through a democratic legislative process.  This is sometimes called the ‘transmission belt’ model of administrative law. Administrators, under this model, are viewed as the necessary instruments used to implement the will of the democratically-controlled legislature. Legislation serves as the ‘transmission belt’ to the agency, both in transferring democratic legitimacy to administrative actions and in constraining those actions so that they advance legislative goals.