Nature, Meaning, and Classification of Administrative Agencies
Nature of agencies
There is hardly any function of modern government that does not involve, in some way, an administrative agency. The 20th century has witnessed an unprecedented proliferation of agencies with varying size, structure, functions and powers charged with the task of day – to- day governing. Their existence and growth have been the typical characteristics of the modern administrative state (welfare state.) For this reason, they have been responsible for the expansion and development of administrative law greatly influencing its content, scope and future. In the broadest sense, administrative law does not involve the study of how those parts of our system that is neither legislature nor courts make decisions. It is concerned with the study of the procedures, powers and control mechanisms of the administrative agencies. For this reason, the complex web of the administrative process of agencies constitutes an essential aspect of administrative law.
Administrative agencies have become a major part of every system of government in the world. In Ethiopia, for instance, they are the primary tools through which local, states and the federal government performs regulatory functions. The vast increase of agencies in number and power has been observed by a U.S. Supreme Court judge who makes the following remarks:
“ The rise of administrative bodies probably has been the most significant legal trend of the last century and perhaps more values today are affected by their decisions than by those of all the courts . . . They have become a veritable fourth branch of government.”
3.1.2 The Meaning of Administrative Agency
Defining an administrative agency is not an easy task. Agencies come in a huge array of sizes and shape. This is coupled with their wide ranging and complex functions and their power to legislate and adjudicate, in addition, to their normal executive powers, makes it challenging and difficult to precisely provide a precise and concise definition covering all these aspects of the administrative process.
Agencies may be defined as governmental entities, although they affect the rights and duties of persons are neither courts nor legislatures. For one thing it is true that agencies are not located within the legislative or judicial organ of the government. Although they are within the executive branch, most of them are not mainly accountable to the executive branch. The term executive branch of government is used either to refer to the president (e.g. in U.S.), or the prime minister and the council of ministers (e.g. Ethiopia). This definition lacks some precision. A government entity outside of the judiciary or the legislature does not necessarily qualify as an administrative agency. This does not mean that the legislature for some public policy reasons may not opt for a wider inclusive approach in determining which agency may properly be called as agency. The American Administrative Procedure Act adopts this and defines agency as any U.S. governmental authority that does not include Congress, the courts, the government of the district of Columbia, the government of any territory or possession, courts martial, or military authority. In this definition, the reference to “authority” signifies a restriction on the scope of government entities that may be properly called as agency. Authority refers to a power to make a binding decision. Therefore, only entities with such power constitute an agency. In a similar fashion, Black’s Law dictionary defines agency as a governmental body with the authority to implement and administer particular legislation. Generally, it can be said that the authority or power of the entity is a common denominator for a precise definition of an agency.
A more detailed definition of an administrative agency is given in the New York Administrative Procedure Act, which reads:
“An agency is any department, board, bureau, commission, division, office, council, committee or officer of the state or a public benefit corporation or public authority at least one of whose members is appointed by the governor, authorized by law to make rules or to make final decisions in adjudicatory proceedings but shall not include the governor, agencies in the legislative and judicial branches, agencies created by interest compact or international agreement, the division of the military and naval affairs to the extent it exercise its responsibility for military and naval affairs, the division of state police, the identification and intelligence units of the division of criminal justice services, the state insurance fund, the unemployment insurance appeals board.”
You can see from the above definition that a very long description is used to avoid the difficulty of identifying the exact location and scope of an administrative agency. Determining whether a certain government entity constitutes an agency or not is greatly a matter of government policy so that the legislature may exclude some organs from the scope of an agency.
Generally speaking, we may identify two important elements in distinguishing whether a certain government entity is an administrative agency or not. Firstly, the nomenclature may be indicative of the status of an entity as an agency. Most agencies have names like department, authority, commission, bureau, board etc;…Secondly, the government entity should be empowered to legislate (through delegation), or adjudicate individual cases, in addition to its merely executive functions. Generally, an entity is an agency if it has authority to take a binding action. Even though the above two elements are fulfilled, it is also important to check whether there is any express exclusion from the above definition. You can clearly see in the New York Administrative Procedure Act that some entities are excluded expressly by the legislature.
Due to the absence of an administrative procedure act in Ethiopia, there is no comprehensive definition of an administrative agency. There are some specific legislation that make a reference to “government agency”, though failing to provide a satisfactory definition. For instance, the income tax proclamation and the civil servants proclamation similarly define a government agency as an entity fully or party funded by the federal government. Practically, the allocation of fund by the federal government is unimportant to determine whether a certain entity is an administrative agency or not. Hence, if there is any dispute as to status of a certain governmental entity, resort has to be made to its nomenclature, and mainly to the existence of legislative and /or adjudicative power of that entity.
The Draft Administrative Proclamation of the Imperial government (draft proclamation No 251/1967) and that of the draft prepared by the federal government define agency relatively in a similar way.
The 1967 draft administrative procedure act uses the term “administrative authority” instead of “administrative agency” and defines it as:
“ Any ministry, public authority or other administration of the imperial Ethiopian government, including chartered municipalities, competent to render an administrative decision.”
This definition combining nomenclature with power of the agency attempts to identify which government entity may be properly called an administrative authority. The reference to competency to render administrative decision indicates that the power of the agency to legislate through delegation is missing as criteria.
The draft does not categorically exclude some entities from the purview of an administrative authority. However, it excludes some administrative decisions such as those regarding selection or tenure of public servants, those based solely on inspection tests or election, decisions as to the conduct of military or foreign affairs functions, decisions of any judicial division by courts of law, and any decision establishing rules or regulations.
Still it could not be known with exact precision what entity falls within and outside the definition of an administrative agency. Lastly, the draft administrative procedure of the federal government defines administrative agency taking the ability to render an administrative decision as criteria.
The 1967 is draft, different from the current Amharic text only in the substitution of “the imperial government” by F.D.R.E government and “chartered municipalities” by Addis Ababa and Dire Dawa Administrations. one may wonder whether the latter draft is simply a translation of the former rather than an original one. Such type of word-for-word translation is not only the characteristic of this definition, also it but extends to the whole text of the federal draft. The following parameters should be used to determine whether a certain government entity is an agency or not.
- The nomenclature used to describe the entity is ministry, authority, agency, bureau, office, commission, board, etc., or any other similar terms.
- That it has legislative and/or adjudicative power granted by the legislature.
- That the head of the agency is appointed by the executive or by the house of people’s representatives.
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Nature and Meaning of the Principle
The doctrine of separation of powers means that none of the government, i.e., the legislative, executive and judicial should ever exercise the powers of the other. It means that the three departments of government are to be separated and distinct. They are to be independent of one another, and each can exercise only one type of authority, legislative, executive or judicial.
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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.’
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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.