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Meaning and Nature of Tribunals

The attempt to provide a uniformly applicable single definition of the term tribunal is more than difficulty. Even where the subject of discussion is one and the same, there are situations where different authorities use different terminologies having regard to the diverse social realities surrounding them.  This is also the case that one may appreciate while discussing the term tribunals in administrative law context. While discussing the forums where administrative disputes are being formally resolved different jurisdictions use different terminologies having regard to the social set up of their own systems. The Federal Administrative Procedure Act of America use the term Administrative Law Judges to connote those persons who adjudicate administrative disputes. Whereas the French uses “Conseil d’Etat”, “Cours Administrative d’Appel” and “Tribunaux Administratifs” to refer to their three-tier hierarchy administrative courts that adjudicate administrative disputes. Other authorities also use the term “tribunal” with or without the designation “administrative” to denote the same thing.

Despite the differences in the terminologies used and their organizational set-up from country to country, tribunals or administrative tribunals or administrative courts, as the case may be, refer to the forums where justiciable disputes that involve government agencies, in one or another form, are being adjudicated by a panel of impartial decision makers. So, instead of trying to define this fluid concept of tribunal, it seems convenient to state what tribunals usually do and how they proceed. Tribunals are bodies established outside the structure of ordinary courts to adjudicate disputes that involve the government as a party on matters pertaining to governmental functions. The dispute could be between two or more government agencies, or between government agencies or between one or more individual parties. Hence, the typical tribunal, like an ordinary court, finds facts and decides the case by applying legal rules laid down by statute or legislation. In many respects, the tasks performed by tribunals are similar to that of performed by regular courts.  As the jurisdiction of these tribunals are restricted to adjudicating disputed cases involving administrative agencies as parties in their governmental functions based on the principles, rules and standards set under administrative law, it seems appropriate to call them with the designation “administrative tribunals” instead of simply “tribunals.” However, in using the term ‘tribunal’ together with the adjective “administrative”, care has to be taken in order to avoid the concerns raised by some authorities in using that designation. Two prominent administrative law authorities criticized the very designation of the term “administrative tribunal” for being misleading for the following four reasons:

In the first place, no tribunal can be given power to determine legal questions except by Act of Parliament. Normally a tribunal is constituted directly by the Act itself. Sometimes, however, the power to constitute a tribunal like may be delegated by the Act to a minister, but in such cases the act will make it clear a tribunal is intended. Secondly, the decisions of most tribunals are in truth judicial rather than administrative, in the sense that the tribunal has to find facts and then apply legal rules to them impartially, without regard to executive policy. Such tribunals have in substance the same functions as courts of law. These tribunals therefore have the character of courts, even though they are enmeshed in the administrative machinery of the state. They are “administrative” only because they are part of an administrative scheme for which a minister is responsible to parliament, and because the reasons for preferring them to the ordinary courts are administrative reasons. Thirdly, tribunals are not concerned exclusively with cases to which government departments are parties. Rent assessment committees and agricultural land tribunals, for example, are adjudicating disputes between landlords and tenants without any departmental intervention. Fourthly, and most important of all, tribunals are independent. They are not subject to administrative interference as to how they decide any particular case. No minister can be held responsible for any tribunal’s decision. Nor are tribunals composed of officials or of people who owe obedience to the administration. [Wade & Forsyth: pp. 907-908]

However, three of the critics labeled against the designation administrative tribunal as stated above do not stand valid. Of course, the term tribunal seems broader in meaning and scope than the term administrative tribunal as the former may embrace bodies formally instituted outside the structure of the ordinary courts to adjudicate disputes of private characters as contrasted to disputes that involve the agencies of the government. The Labor Relations Board that resolves collective labor disputes between employers and employees may be taken as a good example of these tribunals. But, the designation administrative tribunal is purposefully used to exclude the types of tribunals established here and there to resolve disputes between private individuals in their private relations. The adjective “administrative” as used in the above critics does not necessarily imply that the tribunal is created by the administration or that the tribunal resolves non-justiciable administrative disputes or that the tribunal is an appendix to the government agencies with no relative autonomy. It is simply to mean that the term administrative tribunal is a tribunal with all its attributes, but its jurisdiction is limited to resolving disputes of governmental nature as distinguished from disputes of private character.

As suggested by Garner and Jones (Administrative Law), tribunals have the following five hallmarks:

• Independence from administration;
• Capacity to reach a binding decision;
• Decision taken by a panel of members (as opposed to a single judge);
• A simpler procedure than that of a court; and
• A permanent existence.

5.3.2 Jurisdictional Issues

On the basis of the nature and scope of their jurisdiction, administrative tribunals can be classified into two. These are tribunals having general jurisdiction (general tribunals) and tribunals having special jurisdiction (special tribunals). The French model is a typical example of the tribunals having general jurisdiction on administrative matters. In France, there is a clear dichotomy between administrative law and private (ordinary) law, on the one hand, and between the machineries applying these laws, that is, administrative courts and civil courts also known as regular courts or ordinary courts on the other hand. Administrative courts adjudicate cases falling within the domain of the administrative law. These courts are, thus, the focus of the discussion in this section.

In France, judicial control of the administration is entrusted to a special corps of judges who sit in special courts- known as administrative courts. These courts form a three-tier hierarchy headed by the Conseil d’Etat (Council of State) in Paris, below which are the regional intermediary Cours Administratives d’Appel (Administrative Courts of Appeal) and the Tribunaux Administratifs (Administrative Tribunals) in metropolitan France. They respectively correspond to the Supreme, Higher and First Instance ordinary courts in structure. These three-tier administrative courts have general judicial jurisdiction on administrative matters falling under their respective material and/or local jurisdictions.

In addition to these courts of general jurisdiction, there are a number of other administrative tribunals exercising judicial functions in narrowly defined fields of activity. These are administrative courts of special jurisdiction that are established in special circumstances where the appropriate expertise does not exist in a general tribunal. But these specialized administrative tribunals are still under the supervision of the Conseil d’Etat as the supreme administrative court. Thus, the French administrative justice system has two striking features: firstly, there is a full-fledged system of administrative law that regulates the relationship between the administrative agencies and citizens and the interrelationship among the various organs of the government. Secondly, there is a full-fledged administrative court system. All administrative disputes are finally resolved within the system of the three-tier administrative court of general jurisdiction as supplemented by those relatively fewer (for example, compared to U.K.) administrative tribunals of special jurisdiction. The Conseil d’Etat is the court of final resort on administrative matters. There is neither possibility of lodging appeal nor possibility for invoking judicial review against the administrative decision before regular courts in France. Inspired by Montesquieu’s theory of separation of powers, the French strictly prohibits interference of regular courts on the affairs of the administrative organs of the government on whatever ground. In French, it is a criminal offence for the judges of the ordinary courts to interfere in any manner whatsoever with the operation of the administration, or to call administrators to account before them in respect of the exercise of their official functions.

Most of the common law jurisdictions do not have the French type system of administrative law and tribunals; but tribunals of special jurisdiction proliferated here and there in response to particular circumstances. The same thing seems true in Ethiopia, where there is neither full-fledged corpus of administrative law, nor structured system of administrative court. Of course, this does not mean that Ethiopia has no administrative law and administrative tribunals. As it has been explained earlier, there are diverse sources of administrative law such as the constitution, pieces of primary and delegated legislation.  So, the law is there and also the tribunals are there. But what is missing there is that unlike the French system of administrative justice, here in Ethiopia there is that is no generally defined administrative law jurisprudence. We do not have general principles of administrative law that govern the jurisdictional dichotomy between the adjudicatory powers of administrative agencies/tribunals on the one hand and regular courts, on other hand, Thus, for academic purpose it would be quite important to appreciate the French experience where there is a unified system of administrative justice.

If administrative tribunals and ordinary courts are required to confine themselves within the domain of their respective sphere of powers, a clear demarcation has to be made between the jurisdictions of administrative courts and that of the ordinary courts. This is especially important for countries that adopt the French model of administrative system that provides a clear dichotomy between the provinces of administrative law and private law. It is also important for countries where tribunals of special jurisdiction are proliferated here and there like ours. But the problem is that how this ideal line can be drawn. As it was discussed in the previous chapters, the concerns of the administrative law are governmental activities that administrative agencies carry out. There is a possibility where a given administrative agency may involve in activities that are governmental in nature; for example, regulating private business such as issuing or canceling of license, or rate fixing, or setting safety standards and so on, or in activities that are private in nature such as owning and administering property and producing goods and services for gain. There is a general opinion that when the dispute arises from activities of the first category, it falls within the domain of the administrative law- thus it is the jurisdiction of the administrative tribunals. But when the disputed act arises from activities of the second category, that is, activities private in nature, it falls within the province of private law-subjected to the jurisdiction of ordinary courts. This general criterion, homers, may not be always true.

French administrative law writers and practitioners have been engaged in searching for general principles and criteria which make a clear demarcation between the jurisdiction of administrative courts and ordinary courts. According to Brown and Bell, in the period before Blanco (TC 8 February 1973), the following criteria were developed:

• The first was that of the state as a debtor, under which the Conseil d’Etat denied the ordinary court’s competence to condemn the state to any money payment.
• The second was the criterion of ‘the act of public authority’ that drew a distinction between those actions of the administration, which involved its public authority and mere acts of management that did not: the former were outside the jurisdiction of the ordinary courts, the latter were within it.
• The third criterion and the one favoured by the ordinary courts, was that of ‘public administration’ as distinct from ‘private administration’; in the latter the administration used the same process as the private citizen and therefore came within the scope of the ordinary courts. On the other hand, disputes arising out of its public administration belonged to the administrative courts.

These early criteria, tentative and overlapping, were discarded in Blanco in favour of a new principle, that of ‘public service’. The child Agnes Blanco was injured by a wagon, which was crossing the road between different parts of the state-owned tobacco-factory at Bordeaux. The question then arose, to which court, civil or administrative, the claim for damages should be brought. The Tribunal des Conflits, adopting the analysis proposed by Commissaire du gouvernement David, held that the injury arose out of the activities of a service public and that for this reason the administrative court had jurisdiction. Such influential doctrinal writers as Duguit…Jeze, and Rolland subsequently approved this approach. According to this last criterion, ‘a public service is any activity of a public authority aimed at satisfying a public need’. This definition stresses that for a public service two elements must both be presented: the activity of a public authority, and satisfying a public need. [Brown and Bell: pp125-126] A ‘public need’ is not only that defined by statute; it can simply be identified by a decision of public authority. The second element in the concept of service public, namely, that the activity in question must be carried on by a public authority, has been extended almost to vanishing point in recent decades. In particular, it is necessary to distinguish between the public authority’s role as creator or director of the public service from its role as provider. For a public service to exist, it is not necessary for a public body actually to provide the service.

A third element may be distinguished in the concept of service public, in addition to the meeting of a public need and the participation of a public authority. The authority must have recourse to methods and prerogatives which would be excluded in relations  private parties. For example, it may operate as the service concerned as a monopoly, or may finance it by compulsory contributions from those it benefits.

But even where the activity has the appearance of a service public, it may not come under the supervision of the administrative courts sime the special regime of administrative law is excluded. Such exclusion may be expressed by statute, or implied because the interests involved are ones traditionally within the protection of civil courts, or because the public authority decides to function under the same conditions as private operators.

In short, the choice of criterion has been swung back and fro between the concept of public service and public authority. However, the latter seems currently the preferable test for the competence of administrative judge. The basic principles for separating the functions of the administrative courts and the ordinary courts as indicated above would lead to giving jurisdiction to the ordinary courts only when the activity of public body was private in character. However, these principles are subject to a number of exceptions based on convenience more than principle. So, some disputes, although they arise from acts of public authorities, may in exceptional circumstances be left to the jurisdiction of ordinary courts. Hence, a watertight demarcation of jurisdiction cannot be made based on a single principle only.

It is suffice say that  disputes involving administrative agencies, which arise out of the conducts of public authorities, are in principle falling under the jurisdiction of administrative courts. But the French administrative law gives a room for some exceptions to this principle.

As was stated somewhere else, one of the striking features of adjudication is the existence of predetermined procedures that guide the decision-making process. The decision may be preceded by full-blown formal hearings that are similar to court trials or an informal process, which is just like a summary proceeding where the participation of the parties is very minimal. Normally, adjudication process begins either with a complaint filed against a private person, a business, or even another agency. The party charged in the complaint is the defendant (called the respondent). The respondent has the right to file an answer to the complaint. In principle, respondents are entitled to a hearing before the agency adjudicating the case. However, the depth of the hearing may vary from circumstance to circumstance.

1.1.1 Informal Adjudication

The vast majority of administrative adjudications involve informal actions. As will be discussed in the subsequent sub-sections, the informality of the process of administrative adjudication is among the justifications behind the delegation of judicial power to administrative agencies. The informal mode of adjudication, although it may vary from county to country and from case to case in terms of content, tries to provide the minimal statutory safeguards for the protection of fundamental rights of individuals.

The United States Administrative Procedure Act (APA) can be cited as a typical example. In the USA, the Administrative Procedure Act (APA) governs federal agency adjudicatory procedures in general. However, most states have their own counterpart to the APA. The APA requires the most basic elements of due process, that is, notice and hearing. Regarding notice, APA provides that “persons entitled to notice of an agency hearing shall be timely informed of the time, place, and nature of the hearing; the legal authority and jurisdiction under which the hearing is to be held; and the matter of fact and law asserted. As to the hearing, the agency is required to give all interested parties opportunity for …the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit…” The APA requirements for administrative hearings are minimal, allowing agencies to operate rather informally. Although hearing in this sense may be treated as important elements of the procedural due process of law, it does not necessarily mean that a full-blown oral hearing is to be conducted. Depending upon the nature of the case in hand, a written submission of opinion, argument, data, or otherwise may suffice. So, in the majority of cases, APA dictates administrative agencies to fulfill the minimum requirements of notice and hearing before proceeding to act on matters that affect the rights of others. Indeed, the notice has to be adequate enough in terms of time, place and content. But hearing could be informal such as written submissions and interview like oral communications. In all cases, the due process clauses of the fifth and fourth amendments to the US constitution dictate that neither the federal nor state governments shall deprive of “life, liberty, or property, without due process of law.” The notion of due process of law connotes two things: the substantive aspect of the action that the decision of the agency must be backed by lawful authority and the procedural aspect that the process of decision making must be guided by predetermined procedures, or in default by the minimum requirements set under APA. To put it simply, a person cannot be deprived of his entitlements to life, liberty and property except for strong reasons expressly provided under the relevant substantive laws and in accordance with the procedures set under the related laws.

The ordinary rules of procedure and evidences that govern court proceedings are not fully applicable to administrative/tribunal proceedings in their entirety. Courts in the common law tradition, therefore, have developed general principles that are expected to ensure fairness in agency adjudication. These principles are known as the rules of natural justice and fairness. The rules embody two concepts. First, audi alteram partem- that means a person should not be condemned without a fair hearing. Second, nemo judex in causa sua–which means that no one should act as judge in any matter if he or she has some kind of vested interest in the decision since all decisions should be free from bias. In the United Kingdom, there is an established precedent on the application of the rules of natural justice in the following types of situations:

• Where someone is dismissed from office; or
• Where someone is deprived of membership of a professional or social body;
• Where someone is deprived of property rights or privileges.

Where the rules of natural justice apply in their entirety, a fair hearing will be expected to consist of the following elements:

a)      Adequate notice must be given to the person affected;

b)      The person affected must be informed of the full case against him or her;

c)       Adequate time must be allowed for that person to prepare his or her own case;

d)      The affected person must be allowed the opportunity to put forward his or her own case;

e)      The decision maker may be required to give reasons for his or her decision;

f)       The affected person may be able to cross-examine witnesses;

g)      The affected person may be entitled to legal representation.

But it has to be noted that the concept of fair hearing may not imply the same thing in all circumstances. The requirements listed from (a) to (d) are made mandatory- the minimum requirements of fair decision, whereas those listed from (e) to (g), are discretionary in the sense that their application may be required having regard to the nature of each particular type of case. In McInnes v Onslow-Fane [1978] 1 WLR 1520, Megarry V-C said that natural justice was a flexible term which imposed different requirements according to the nature of the case. The closer a decision came to being termed ‘judicial,’ the more applicable the full elements of the rules of natural justice. However, the closer a decision came to being ‘administrative’ in nature, it was more appropriate to talk about the requirements of ‘fairness’. [Cumper & Waters: P. 311].  Normally, the consideration of an application for a license is an administrative task - the full rules of natural justice do not apply - the requirement is only that of fair consideration of the application. In contrast, the revocation of a license is more of a judicial decision – it is taking away someone’s rights – therefore they are entitled to the full protection of the rules of natural justice. [Id.]

It has to be noted further that fair hearing does not always necessitate oral hearing. Sometimes, written representations will comply with the rules of natural justice or the duty to act fairly. Case law suggests that written representation will suffice when the facts of a case are not in dispute. However, where this is not the case, the requirements of natural justice may require that there be an oral hearing.

To put it in nutshell, informal adjudication does not involve full-blown trial type hearing. Unless otherwise statutes or case laws (in common law practice) dictate the agency to follow a full-fledged formal hearing process, agencies are usually at liberty to adopt their own decision-making procedures having regard to the minimum requirements of due process of law or natural justice or fairness as such terms may be differently known in different jurisdictions. The more the process of administrative adjudication is highly formalized, the less would be the resultant advantages sought from the delegation of adjudicatory powers to administrative agencies. The more administrative adjudication process is made highly informal, the more would be the possibility for administrative arbitrariness and the threats posed on the rights of individuals. Thus, while it is important to dispense administrative agencies/tribunals from the highly formalized and stringent ordinary court procedures so that laws and policies will be enforced, it is equally important to device the minimum procedural safeguards for the protection of individual rights from arbitrary violation for such powerful agencies.  These are the two apparently conflicting and actually competing important interests what APA and the doctrine of fairness as developed from case laws try to strike balance.

1.1.2 Formal Adjudication

As mentioned above, informal administrative adjudication offers only the minimal statutory safeguards of notice and hearing; and hearing in the majority of cases does not involve oral hearing, but written submission of opinions, arguments, data, and so on. But formal adjudication involves an almost full-blown trial type hearing. Having regard to the magnitude of the individual interest at stake, the enabling legislation (parent act) or other statutes may dictate the concerned administrative agencies to hold a formal hearing before passing decisions. Formal adjudication, among other things, may provide the following procedural safeguard to the respondent:

• Notification of charges;
• Notification of hearing;
• Representation by an attorney;
• An impartial tribunal/administrative law judge;
• Presentation of evidence;
• Cross examination of the witness of the agency;
• A decision based on the regulation.

In a formal adjudication, the respondent has the right to confront an agency witnesses. Hence, oral hearing must be always there. Even where the statutory requirements regarding agency adjudication process appear inadequate to ensure fairness or to protect the fundamental rights of individuals, the US Supreme Court has applied the Due Process Clause of the Fifth and Fourth Amendments that dictate neither the federal nor the state governments shall deprive persons of “life, liberty, or property, without due process of law.” Regarding the notion of administrative due process, authorities are noted as follows:

In administrative due process cases, the Court must make two determinations. First, it must decide whether the Due Process Clause is applicable. Administrative decisions are constrained by the Due Process Clause only if, they in some meaningful way, deprive an individual of “life, liberty or property.” Of course, today those interests are broadly defined. Second, assuming that the Due Process Clause does apply, the Court must determine what “process” is in order to ensure fundamental fairness. Here, the Court has been reluctant to adopt a one-size-fits-all approach to administrative due process. In Mathews v. Eldridge, the Court said, “due process is flexible and calls for such procedural protections as the particular situation demands.” Beyond the general requirements of fair notice and fair hearing, it is difficult to say precisely what due process requires in a specific administrative context. But one guiding principle is that the greater the magnitude of the individual’s life, liberty or property interest, the greater the requirement for procedural protections.

The greater an agency’s action tends to encroach to the fundamental constitutional rights of individuals, the greater should be the procedural protections provided to such individuals. This is also what the principle of natural justice and the doctrine of fairness as discussed in the previous subsection dictate. Thus, there are circumstances where administrative agencies/tribunals are required to conduct a full-fledged formal administrative adjudication. They may be dictated to do so in the majority of cases by the enabling legislations or other related statutes, by the constitutional principles guarantying due process of law, the principles of natural justice and fundamental fairness.

To date, Ethiopia has not come up with an instrument that provides uniform standards or guidelines that regulate administrative agencies’ adjudication process. Both at the federal and the regional levels, there is no uniform legislative guidance that dictates administrative agencies concerning the procedural steps they must go through while adjudicating cases. So, if there are any, such procedures have to be searched in each of the pieces of enabling legislations that create the respective agencies. At the federal level, a fruitless attempt was made in 2001 to adopt a federal administrative procedure proclamation that was intended to regulate the process of rulemaking and adjudication by federal administrative agencies. But for unknown reason, it has remained as a draft for almost a decade. Federal administrative agencies can refer to this draft document like any other an unbinding legal literature at their discretion; the draft document cannot dictate such agencies decisions for it is not yet adopted in the form of law.

However, this does not necessarily imply that administrative adjudication in Ethiopia is completely arbitrary. You can see some procedural requirements dispersed here and there in the enabling legislations that create and empower particular agencies. Even where the procedural safeguards provided in such particular legislations are found, inadequate to protect the fundamental constitutional rights of individuals, recourse has to be made to the principles of due process of law enshrined under the FDRE Constitution.  Our constitution expressly protects, among other things, the right to life, liberty and property. These rights cannot be restricted or taken away arbitrarily by any individual or administrative authority. Rather, all citizens and organs of the federal and regional government have the duty to ensure the observance of the constitution and obey it. Thus, as it happens in the United States of America, there is a wide room for our courts to play active role in ensuring the principles of due process of law incorporated in our constitution. Implicit in the concept of due process of law are there always the core requirements of fair notice and fair hearing.

In an attempt to provide a procedural safeguard to the protection of individual rights from administrative agencies, the draft federal administrative procedure proclamation of Ethiopia (herein after referred to as the draft) incorporates the core principles of due process of law such as notice and hearing. The joint reading of Articles 24 and 26 of the draft indicates notice and hearing as requirements. Before an administrative action that affects the right of individuals is taken, adequate notice and a fair hearing opportunity shall be given by the agency to such concerned individuals. The general requirement of notice under Article 24 of the draft dictates administrative agencies to notify the cause of action of the case they intended to take, the time, place and nature of the hearing. The purpose of notice is to let individuals aware of the action an agency actually plans or intends to take on cases that involve their legitimate interest. The right to hearing before an administrative measure is taken is also provided under Article 26 of the draft. Unless otherwise hearing is dispensed in those circumstances expressly provided under the law for different reasons, an agency is obliged to conduct a public hearing (Article 26 cum Article 28). The hearing enables the party to the case voice his objections and arguments against the decision. Article 28(3) of the draft confers parties to administrative proceedings the right to submit documentary and other evidences to request agencies to summon witnesses, and to cross-examine the allegation of the other side. Article 25 of the draft allows parties to administrative proceedings the right to counsel and represent by a licensed advocate, or any other person.

In the conduct of the hearing, agencies are required to maintain the record to all proceedings carried out in rendering decision, and upon request to give the copy of the record to the parties or their representatives. Furthermore, Article 32 of the draft dictates administrative agencies to reduce their decision into a written form and to include disputed facts under consideration including the substance and source of the evidence, the findings of facts made and the evaluation of the evidence which bases the decision, the determination of the issue and action to be taken on the basis of such decision.

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

Broadly speaking, the term judicial review may have the following two meanings: “Higher court’s review of a lower court’s (or an administrative body’s) factual or legal findings” or “Supreme Court’s power to decide whether a law enacted by the legislature is constitutional or not.”

But in the United Kingdom’s context, the term judicial review refers to the power of the judiciary to supervise the activities of governmental bodies on the basis of rules and principles of public law that define the grounds of judicial review. It is concerned with the power of judges to check and control the activities and decisions of governmental bodies, tribunals, inferior courts…. (Cumper, P.291.) Judicial review is a procedure in English Administrative Law by which English courts supervise the exercise of public power. A person who feels that an exercise of such power by, say, a government minister, the local council or a statutory tribunal, is unlawful, perhaps because it has violated his or her rights, may apply to the Administrative Court (a division of the High Court) for judicial review of the decision … Unlike the United States and some other jurisdictions, English law does not know judicial review of primary legislation (laws passed by Parliament), save in limited circumstances where primary legislation is contrary to the  EU law. Although the Courts can review primary legislation to determine its compatibility with the Human Rights Act 1998, they have no power to quash or suspend the operation of an enactment which is found to be incompatible with the European Convention of Human Rights- they can merely declare that they have found the enactment to be incompatible. (http://en.wikipedia.org/wiki/Judicial-review) The principle of Parliamentary supremacy in the UK implies that the Parliament can legislate on any matter. Thus, the principle of Parliamentary supremacy in the UK dictates that the judiciary cannot review a law enacted by the Parliament.

However, appreciating the differences concerning the meaning of judicial review among jurisdictions, for the purpose of this discussion, the term judicial review is taken in its narrow sense: it meant the power of the court to supervise/ control the legality of the powers of administrative agencies. Judicial review is the exercise of the court’s inherent power to determine whether an agency’s action is lawful or not and to award suitable relief. Judicial review is a fundamental mechanism for keeping public authorities within due bounds and for upholding the rule of law (Wade & Forsyth, PP. 33-34)  The primary purpose of judicial review is to keep government authorities within the bounds of their power.

Judicial review Vs. Merits Review

In terms of purpose and scope, merits review of an agency’s decision is different from judicial review (technical review). As was stated somewhere else, the purpose of merits review action is to decide whether the decision which is being challenged was the ‘correct and preferable’ decision. If not, the reviewing body can overrule such decision and substitute it with a new decision it deems ‘correct and preferable’ under the given circumstance. The issue in merits review is to test whether decision complained is ‘right or wrong’. The process of merits review will typically involve a review of all the facts that support a decision. Merits review is said to be the sole responsibility of the executive, because the person or tribunal conducting the review ‘stands in the shoes” of the original administrative decision maker. Administrative tribunals are not bound by strict rules of evidence and seek to provide a less formal atmosphere than the courts. If the reviewing body would make a different decision, then that decision will be substituted for the original decision. As practices of different countries indicate, the power to conduct merits review of an agency’s decision may be conferred to a court (in the form of appeal), a special tribunal, or a general administrative tribunal

Whereas, judicial review is a technical review; while reviewing an agency’s decision, the court is concerned with the legality or illegality of the decision under review.  If the court finds out the decision is legal, it will not do anything on it even if the decision deems incorrect in terms of preference. But if the court finds out the decision against which review is sought is illegal or ultra vires, it can set it aside and order the concerned agency to reconsider the decision based on the directions of the court. The reviewing court does not substitute its own new decision in place of an agency’s invalidated decision on account of illegality. In one case, the phrase judicial review was described in the follows terms:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative error or injustice, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone ((Attorney-General (NSW) v Quin (1990) 170 CLR at 35-36 per Brenan J.))

The fundamental principle of judicial review is that “all power has its limits,” and when administrative decision-makers act outside of those limits, they may be restrained by the judiciary. Judicial review does not prevent wrong decisions; it, instead, prevents them from being made unjustly. It does not matter whether the judge who is reviewing the decision would himself or herself has arrived at a different conclusion to the administrative decision-maker. The decision will only be interfered if there was some illegality in the process by which it was made. The jurisdiction of the court is confined to quashing the decision and remitting the matter back to the original decision-maker for determination in accordance with the law. This may not always be satisfying- either for individual judges or for the party seeking relief- but it is often  unfairness in the making of a decision, rather than the decision itself, that causes people the greatest distress (Justice Peter McClellan, p.4)

Unlike merits review which is statutory in origin, the source of judicial power is not statute; statutory authority is not necessary the court is simply performing its ordinary functions in order to enforce the law. The basis of judicial review, therefore, is common law (Wade & Forsyth, P.34) However, it has to be noted here that, although a statutory empowerment may not be necessary to exercise judicial review, this power can be taken away from the court by a statute. For example, in French, regular/ordinary courts have no supervisory power over the activities of government agencies. That is, regular courts cannot claim inherent power of judicial review to challenge administrative acts. This is the mandate of the French administrative tribunals that are established outside the structure of the ordinary courts. There are also countries that confer statutory judicial review power to ordinary courts in order to supervise and ensure legality in administrative decision-making.

The Bases of the Power of Courts to Supervise Administrative Action

In General

Concerning the basis or the sources of the power of ordinary courts to supervise (review) administrative actions, there is no single universally applicable formula that is accepted by all jurisdictions. As indicated above, some authorities state that judicial review is the exercise of the court’s inherent power to determine whether an action is lawful or not. According to these authorities, since the basis of judicial review is common law, no statutory authority is necessary: the court is simply performing its ordinary functions in order to enforce the law (Wade & Forsyth, P.34). But the practices in some other countries indicate that statutes may empower ordinary courts to review administrative acts based on defined criteria thereof. For example, Australia, appreciating the arcane and complications of the common law practice and procedures relating to judicial review, codified the principles of judicial review; reform the procedures for commencing a judicial review proceeding; confer supervisory jurisdiction upon a specialist Federal Court. These criteria are clearly provided under section 5 of the Administrative Decisions (Judicial Review) Act 1977 (‘AD (JR) Act’. The practice in Australia indicates that judicial review of administrative decisions is possible by other methods besides the AD (JR) Act, such as review by the High Court in its original jurisdiction conferred by section 75(v) of the Constitution, and review by the Federal Court under section 39B of the Judiciary Act 1903.

The system of judicial remedies is derived from two main sources. First, there is  a group of statutes which establishes an agency and incorporates provisions for the review of its actions. Second, there is a branch of remedies which has been developed by the combined action of the common law and statutes consolidating, simplifying, or in some other ways reforming the common law remedies. These remedies are certiorari, mandamus, prohibition, habeas corpus, quo warranto (the so- called prerogative writs), damages suits, bill in equity, and defense to enforcement proceedings. To them, modern statutes have added the declaratory judgment procedure. These remedies are available where no specific review has been provided, or where the specific review provisions have been drafted in such a way as to make them unavailable for the review of certain decisions of the agency.

No two of these systems are identical. The same administrative action may be controlled in one state by a specific statutory provision, in another by certiorari, in another by mandamus, in a fourth by injunction, and in a fifth it may be doubtful whether it is subject to control at all. Assuming the availability of any relief, the remedies may be both complementary and supplementary. If certiorari is not available, mandamus may be, and if neither, the proper remedy may be injunction; and different questions relating to the same proceeding may have to be tested by different means. Nevertheless, all of the systems are based on the system developed by English judges and parliaments. (Jaffee From Administrative Action, pp. 152-196)

The English judges were the King’s judges. As such they exercised his supreme plenary power of judicator. The King’s Bench issued writs, the so-called prerogative writs, to all the inferior officers. The writ ordered the officer to demonstrate the legality of this order or determination. The King’s courts also allowed actions for damages against an officer who by exceeding his powers had injured the plaintiff. The theory was that public officers were subject to “the law” as were the private citizens, i.e., they were answerable in the regular courts of law. It was this latter phenomenon of damage suit which  came to characterize the “rule of law,’ though it is one aspect-and not the most impeared to exclude it. (Jaffee, pp. 152-196).

As can be inferred from the remarks made above, the basis of the power of the court to supervise (review) administrative decisions is either common law, or statute, or both as the case may be. However, the assertion that judicial review is the inherent power of the  regular/ordinary courts may not always stand valid, as there are jurisdictions that do not allow judicial review of administrative decisions by regular courts at all. The French and other continental systems, for example, which follow the extreme version of separation of power doctrine, take away from the regular court the power of judicial review of administrative decisions; they have a system of administrative courts - the administrative counter part of regular courts within the administration is established to perform judicial function on administrative matters. But this does not mean that there is no judicial review in France and other continental law countries. It is to mean that this power is exercised by administrative courts not by regular courts, like in many common law jurisdictions.

In the United States, there is a different position. The US Federal Supreme court, as it is well known, not only has the power to review administrative decisions and subordinate legislations like in the case of United Kingdom, but also has the constitutionality of any act be it a parliamentary legislation or any act of the government administration. The US Supreme Court can render a primary legislation invalid on constitutionality ground. One may wonder concerning the source of this broad power of the court. There is no comparable common law practice expressly stated anywhere in the US Constitution. In a landmark case, Marbury v. Madison, the basis for the exercise of judicial review in the United States, is said to be an interpretation of the Constitution as applying to the law and policies of the  government. This  implies that the power of federal courts to consider or overturn any congressional and state legislation or other official governmental action is deemed inconsistent with the Constitution, Bill of Rights, or federal law.

The two important Articles incorporated under the US Constitution proponents of the doctrine often quoted are Article III and Article Six of the Constitution. In Article III, the Constitution says:

The judicial power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish… The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution…

Article Six of the US Constitution also dictates, “This Constitution and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme Law of the Land…” From the wordings of this provision of the Constitution, proponents of the doctrine inferred the laws of the United States which are not in pursuance to the Constitution are not the supreme law of the land. So, even though nowhere the constitution explicitly authorizes the Supreme Court to challenge acts of congress on constitutional ground, by the cross reading of the two Articles mentioned above, the US Supreme Court maintained the power to interpret the Constitution.

To extend similar argument to other administrative matters, the federal and state courts in the United States exercise supervisory (judicial review) power over administrative decisions and subordinate legislations. In this regard, courts can test the legality of the decision or administrative act in question against the Parent Act, or they can question even the legality of the Parent Act and decisions passed under its cover against the Constitution.

In Ethiopia

Coming back to the status of judicial review in Ethiopia, there is no clearly defined jurisprudence on the evolution and status of the judicial review. Judicial review of administrative decision dwells inthe fundamental principle of separation of power among the three conventional organs of the state: the legislature, the judiciary and the executive.  Judicial review could be meaningful only when judicial power is ultimately vested in the judiciary and when the principle of rule of law reigns. Thus, a brief discussion of the evolution of the separation of power and the rule of law in Ethiopia is of great help in understanding the status of judicial review in historical perspective.

During the Imperial regime, the principle of separation of power was absent. The 1931 Constitution conferred to the Emperor uncontested and boundless executive, legislative and judicial power. In this regard, an authority named Scholler cited an important remark made by a famous Ethiopian writer, Mahtama Slassie, concerning the power of the Emperor as follows:

The Ethiopian Emperor has an uncontested and boundless power over the territory he rules. He is both the temporal and spiritual ruler. With the supreme sovereignty vested in him, he appoints or dismisses government officials, he gives gifts or refuses to give them, he imprisons or releases, he sentences criminals to death or punishes them, and does many other things of similar nature. (Scholler, p.35)

During the Imperial regime, the Emperor was the head of state and the government, the fountain of justice and equity, the supreme law giver. Emperor Haile Selassie I continued with this omnipotent power until he was demised by the military revolution of 1974.  In short, the Emperor, during the period under discussion, was above the law. He was immune from any judicial procedure. Thus, the general opinion is that since ultimate judicial power was dwelling in the hands of the Emperor and the Emperor himself he was above the law of the empire. Thus, it would be nonsense to say that there was a meaningful room for judicial review during the Imperial regime of Ethiopia. Although the 1955 Revised Constitution of the Imperial Ethiopia, which was modelled under the U.S. Constitution, formally recognized the concept of judicial reviews. Since ultimate judicial power remained in the hands of the Emperor intact, it could not have practical meaning as such.

Following the downfall of the Monarchical regime by force in the 1974 the Provisional Military Administrative Council (PMAC) commonly known by the Amharic word ‘Derg’ overtook the political power. The Derg suspended the application of the 1955 Revised Constitution and ruled the country for almost thirteen years without having a constitution. After forming the Worker’s Party of Ethiopia (WPE) in 1984, which was the only party with the political power, the Constitution of the People’s Democratic Republic of Ethiopia (PDRE) was adopted in 1987.   Article 62 of the Constitution vested supreme legislative power in the National Shango (assembly). The PDRE Constitution, as stated under Chapter XIV of the same, vested judicial power in courts that were established by law. The highest judicial organ was the Supreme Court. It had the authority to supervise the judicial functions of all courts in the country.

An important question that may be raised here is that whether or not the principle of separation of state power was duly recognized under the PDRE Constitution. In addition to the discussion made above, having a brief look to the power of the executive organ of the PDRE government has paramount importance in answering this question. Chapter XI of the PDRE, Constitution outlined the powers and duties of the President. Accordingly, the President who was to be elected by the National Shango was the head of the state, representative of the Republic at home and abroad and was the Commander-in-Chief of the Armed Forces. He had vast power to supervise the activities of the various organs of the government. Article 86( c) and ( e) of the Constitution, for instance, state that the President has the power, among other things, to ensure that the Council of Ministers, the Supreme Court, the Procurator General… carry out their responsibilities. The president had also the power to nominate the President and the Vice-President of the Supreme Curt for approval by the National Shango, and when compelling circumstances warrant it, he can between the sessions of the National Shango appoint and dismiss the same. The President had a wide opportunity to abuse his power since the National Shango was required to meet once a year unless emergency necessitates the calling of extra ordinary meeting. Although the Constitution required that the judges of the Supreme Court were to be elected and dismissed by the National Shango, since the Shango was in recess through out the year, the President had the opportunity to exercise his power in disguise.

The President and the Vice President of the PDRE were also the President and the Vice President of the Council of State, respectively. As stated under Article 82 of the PDRE Constitution, the Council of State had the power and duty to ensure the implementation of the Constitution and other laws, to interpret the Constitution and other laws, to revoke regulations and directives which do not conform to the Constitution Interpretation of laws during the Derg period was done not only by courts; state organs such as the National Shango, the Council of State and the General Procurator were also entrusted with such power.

From the facts provided above, one can understand that the PDRE Constitution not only vested supreme executive power in the hands of the Council of State, which was under the presidency of the PDRE President, but also judicial power such as interpretation of the Constitution and other laws as well as revocation of laws that contravene the constitution. Were also under the plisenderry of the PDRE President.It is also possible to say that the judiciary did not have administrative independency as the PDRE Constitution made the Supreme Court directly accountable to the President. Here is the paradox;  he/she was the Chief-Executive and Head  of the PDRE, the President whom the Constitution empowered to supervise the Supreme Court Judges in effect rendered judicial review non-existence during the Derg regime.

The Constitution of the Federal Democratic Republic of Ethiopia (FDRE) vested judicial powers both at federal and state levels in the courts. This is expressly stated under Article 79(1) of the Constitution.  Thus, one may safely say that supreme judicial power under the FDRE is vested in the Judiciary.  Being a final arbiter of the law, the judiciary can review and annul administrative decisions on grounds of legality. However, Ethiopian courts did not have the power to interpret the Constitution. This power was explicitly given to the House of the Federation in Article 62(1) of the FDRE Constitution. But this should not be construed to mean that courts could not invalidate an administrative decision or other subordinate legislation that contravened the clear words of the Constitution (in circumstances where there is no need for interpretation), provided that they have the very power of judicial review. So, an important question that should be raised here is that: Do Ethiopian courts have the power of judicial review? As was mentioned above, in some foreign jurisdictions like France, regular courts are prohibited from reviewing administrative decisions; France has full-fledged administrative tribunal systems that are established to resolve disputes on administrative matters in accordance with the principles and standards of administrative law. But, there is no such kind of institutional arrangement in Ethiopia, although technically speaking it seems possible. As can be inferred from Articles 37(1) and 78(4) of the FDRE Constitution, despite the existence of Article 79(1) of the same, judicial power is not exclusively vested in regular courts. Other bodies such as administrative courts can be established to assume judicial power on administrative matters. Thus, it may not be labeled unconstitutional if Ethiopia adopts the French type model provided that it is preferable in terms of relevancy and feasibility having regard to the specific situations of the country.

However, having regard to the existing situation in Ethiopia, that is the absence of full-fledged administrative court system like the French counter part, it seems justifiable to argue that regular courts must have the power to test the legality of administrative decisions in the same manner as courts in the common law tradition do. The power of the court to review administrative decisions, thus, may be derived from the very principle of separation of power that vests judicial power in the judiciary and the doctrine of rule of law enshrined under the FDRE Constitution by way of interpretation just like the practice in the United States, at least, for the purpose of reviewing administrative decisions and subordinate legislations. There are also possibilities where the parent acts that create the respective agencies may also empower courts to review administrative decisions under specified conditions. Thus, one may plausibly argue that implied in the principles of separation of state power and the rule of law that are duly recognized under the FDRE Constitution is that the judiciary as the ultimate arbiter of justice has the power to test the legality of administrative acts. In the absence of a systematically devised administrative reviewing mechanism like that of the French one, precluding the ordinary courts to review administrative acts on technical grounds renders the doctrine of rule of law meaningless. However, practically speaking, the status of judicial review in Ethiopia lacks clear-cut jurisprudential evidence.

Wherever courts have the power to review administrative actions or inactions that tantamount to decisions, the prerequisites that they are expected to observe are discussed subsequently.

It is accepted at all hands that a rigid application of the doctrine of non-delegability of powers or separation of powers is neither desirable nor feasible in view of the new demand on the executive. The new role of the welfare state can be fulfilled only through the use of greater power in the hands of the government, which is most suited to carry out the social and economic tasks. The task of enhancing the power of the government to enable it to deal with the problems of social and economic reconstruction can be effectively and efficiently accomplished through the technique of delegation of legislative power to it. Thus it can be clearly observed that pragmatic considerations                                                                                                                                                                                                                                                                                                                                                                   have prevailed over theoretical objections.

Therefore, the position has been shifted from one of total objection to the issue of the permissible limits of valid delegation. Legislative delegation raises the issue of delegable and non-delegable legislative powers. There is no agreed formula with reference to which one can decide the permissible limits of delegation. However, as a rule, it can be said that the legislature cannot delegate its general legislative power and matters dealing with policy.

The legislature after formulating the fundamental laws, can delegate to administrative agencies the authority to fill in gaps which is an authority necessary to carry out their purposes. The matters which are appropriate for delegation are such matters as procedures for the implementation of the substantive provisions contained in the principal legislation. This indicates that only the subsidiary part of the legislation could be delegated to administrative agencies so as to enable them fill any available gaps;i.e. the legislative body ought to state an intelligible principle and that the executive branch would merely fill in the details. Subordinate legislation can cover only subject matters delegated expressly in the principal legislation.

As a summary, the following points may be noted.

• Delegation of some part of legislative powers has become a compulsive necessity due to the complexities of modern legislation.
• Essential legislative functions cannot be delegated by the legislature.
• After the legislature has exercised its essential legislative functions, it can delegate non-essentials, however, numerous and significant they may be.
• The delegated legislation must be consistent with the parent act and must not violate legislative policy and guidelines. Delegatee cannot have more legislative powers than that of the delegator.

In Australia, the following matters could not be delegated.

A. Appropriations of money;

B. Significant questions of policy including significant new policy or fundamental changes to existing policy;

C. Rules which have a significant impact on individual rights and liberties;

D. Provisions imposing obligations on citizens or organizations to undertake certain activities (for example, to provide information or submit documentation, noting that the detail of the information or documents required should be included in subordinate legislation) or desist from activities (for example, to prohibit an activity and impose penalties or sanctions for engaging in an activity);

E. Provisions conferring enforceable rights on citizens or organizations;

F. Provisions creating offences which impose significant criminal penalties (imprisonment or fines equal to more than 50 penalty units for individuals or more than 250 penalty units for corporations);

G. Provisions imposing administrative penalties for regulatory offences (administrative penalties enable the executive to receive payment of a monetary sum without determination of the issues by a court);

H. Provisions imposing taxes or levies;

I. Provisions imposing significant fees and charges (equal to more than 50 penalty units consistent with (f) above);

J. Provisions authorizing the borrowing of funds;

K. Procedural matters that go to the essence of the legislative scheme;

L provisions creating statutory authorities (noting that some details of the operations of a statutory authority would be appropriately dealt with in subordinate legislation); and

M. Amendments to Acts of Parliament (noting that the continued inclusion of a measure in an Act should be examined against these criteria when an amendment is made.)

Which of the following do you think are essential legislative functions which could not be delegated?

a) Power to levy tax

b) Power to exempt any item from tax

c) Power to repeal or amend a proclamation

d) Power to extend the applicability of a proclamation to other sectors

e) Power to exempt certain sectors not to be covered by the proclamation

f) Power to determine the standard rate of interest for borrowings and saving

4.5   Form and Classification of Administrative Rule Making

A close scrutiny of delegated legislations reveals that they usually contain enacting clauses and that they are also detailed legislations. Enacting clause is a provision in a legislation that indicates how and from where the authority of legislating the law was derived. It is found in the preamble part of the legislation. Delegated legislation is considered as legislated by the legislature in so far as they are enacted following the proper procedure. They are also considered as part and parcel of the main legislation under which they are issued. These legislations are detailed because they are issued to implement other superior legislations that are drafted in broader terms.

Thus, delegated legislation may assume different forms. In our country there are mainly two types of delegated legislations regulation and directive.

Regulation

Pursuant to Art 771(13) of the F.D.R.E. constitution, the council of ministers has the power of issuing regulations in accordance with a power vested to it by the house of people’s representatives. The power to issue regulations is found in the specific legislation.

Directive

These types of delegated legislations are issued by each administrative agency. Agencies issue these subordinate legislations to implement regulations and other primary legislations.

Pursuant to Art. 93 of the F.D.R.E. constitution, the council of ministers has the power to declare emergency, which is subject to approval by the House of Representatives. Can we say that this decree by the Council of Ministers is a delegated legislation?

Administrative rule-making may also be classified based on the different purposes, that it is made to serve.

A-Enabling act- Such acts contain an “appointed date” clause under which the power is delegated to the executive to appoint a date for the act to come into operation. In this category, the legislature prescribes the gun and the target and leaves it to the executive to press the trigger. It is aimed at easing the executive the time to equip itself for the administration of the law. In this class of legislation, rule making exercise is valid only to the extent it is preparatory to the act coming in to force.

B-Extension and application act- The technique of administrative rule-making may sometimes be used for the extension and application of an act in respect of a territory, or a given for duration of time, or for any other such objects. Power may be delegated to extend the operation of the act to other territories.

E.g. Reduction or Extension of Time

“ Notwithstanding any provision of these regulations which may specify a period of time within which an act is to be performed, the licensing authority may for good cause provide for a shorter or longer period, provided that such reduction or extension shall not jeopardize the rights of a licensee or engender his ability to perform the duties and obligations under the license or under the proclamation.”

(Art 42 of Mining Operations Regulation No 182/94)

C-Dispending and suspending act- Sometimes the power may be delegated to the administrative authority to make exemptions from all, or any provision of the act in a particular case or class of cases. These exemption clauses are meant to enable the administrative authority to relieve hardship, which may be occasioned as a result of uniform enforcement of the law.

See for instance the following provision:

“Not withstanding the provisions of rule - articles (1) of this article, the council of ministers may be regulations determine the inapplicability of this proclamation on employment relations established by religious or charitable organizations.”

(Art 3(b) of Labour Proclamation No 377/96)

D- Classifying and sanctioning acts- Under this type of delegation, power is given to the administrative authority to fix standard of purity, quality or fitness for human consumption. See, for instance, Classification of Hotels, Pensions and Restaurants Regulations No 209/1995.

E- Penalty for violation acts - Sometimes power may be delegated to an administrative agency to prescribe punishment for the violation of rules. Usually, making an act penal is a parliamentary function and cannot be delegated to the administrative agency.

4.6. Rule Making Procedure

In order to ensure power delegated by the legislature is exercised fairly and lawfully, the administrative agency is expected to follow some minimum rule making procedures. Such procedure is usually provided in a comprehensive manner applicable to every agency at all time (e.g. the American Procedure Act.) In other cases, it may provide on specific legislations i.e. on the enabling act. The rule making procedure under the U.S. Federal Administrative Act (hereinafter referred to as APA) is a detailed one that    provides different   types of rule-making procedures ensuring flexibility in the administrative process. Before discussing the specific requirements applicable for each type of rule- making procedures under APA, let’s have a brief look at the rule-making procedure in England.

Rule Making Procedure in England

A- Prior Consultation

Under English administrative law, the rules of natural justice do not apply to delegated legislation, and failure to consult parties does not entail invalidity of the rules by court. As has been noted by one judge:

“Many of those affected by delegated legislation and affected very substantially, are   never consulted in the process of enacting that legislation and yet they have no remedy.”

Even though prior consultation with concerned parties is not a mandatory requirement, in practice, many agencies informally comply with this requirement upon their own initiative. The informal consultation of representative bodies by the legislative administrative body is very common. Few statutes may also specifically provide a general process of considering objection, or prior consultation and publishing draft delegated legislation. Where consultation with certain parties is required by the enabling act, the courts are likely to interpret this as being a mandatory requirement; failure to comply could invalidate any resulting order.

B-Laying procedure

In England, most rules and regulations issued through power of delegation will not have a binding force unless they comply with review mechanism by parliament. Such parliamentary review mechanism commonly known as laying procedure affords an opportunity for the   legislature to control the exercise of the power of delegation by subordinate bodies. In effect, it is an effective mechanism to ensure legality and fairness in delegated legislation. If the enabling act subjects the agency to comply with laying procedure, non-observance results in the nullity of the rule or regulation. Laying procedure   may assume    different forms some of which are indicated below.

Bare Laying Procedure

No further procedure is necessary for the provision to be effective. The statutory instrument is drawn to the attention of members and can come into operation once laid.

Negative Resolution Procedure

The legislative instrument once it is laid before parliament may be annulled if there is a request (prayer) to this effect. However, the annulment of the instrument does not invalidate retrospectively action taken by the minister.

Positive Laying Procedure

The enabling act requires the instrument to be laid before parliament; it can only    become law if it receives the affirmative approval of the parliament.

Laying of a Draft Statutory Instrument

A draft instrument is laid before parliament, and the instrument itself cannot be made until 40 days have passed from the date of laying of the draft instrument. During this period, the draft instrument may be subject to a negative resolution procedure.

C-Publication

Under English administrative law, there is difficulty and argument as to when a statutory instrument is “made”. One view is that the statutory instrument is made as soon as it is signed by the appropriate minister, and it becomes effective from that time onwards notwithstanding that any publication or laying requirements have not been complied with. According to the second view, the statutory instrument is made when it is signed, but only comes into effect on a certain date, on the order itself. Third it is said that it becomes after it is signed and is due to become into effect on some specified date in the future, after one of the various laying procedures has been complied with.

As can be seen from the above different arguments, it is clear that there is no uniform procedural requirement of publication. However, the enabling act may specifically provide for the publication requirement that is mandatory, resulting in invalidation for non-compliance.

Rule Making   Procedure in U.S.

The Administrative Procedure Act (APA) enacted in 1946 and recodified in 1966, is the procedural roadmap for the federal executive branch.                    The federal government passed the act in 1946, in response to the increasing resentment of the agencies' latitude in matters affecting the rights of individuals. Following the federal lead, most of the states also passed similar statutes during the late 1940s and early 1950s. Unless another statute provides otherwise, every executive branch department and agency must follow the APA's minimum procedures for adjudication and rule making. It also establishes general ground rules for the judicial review of agency actions. Although it has been supplemented by several other laws discussed in this volume (e.g., the Freedom of Information Act, Regulatory Flexibility Act, and Administrative Dispute Resolution Act), it has been amended remarkably little since 1946, and its provisions have served as models for many other administrative procedure laws in the fifty states and other countries around the world.

The Administrative Procedure Act sets up the procedures to be followed for administrative rule making. Before adopting a rule, an agency generally must publish advance notice in the Federal Register, the government's daily publication for federal agencies. This practice gives those who have an interest in, or are affected by the proposed rule an opportunity to participate in the decision making by submitting written data or by offering views or arguments orally or in writing. Before a rule is adopted in its final form, and 30 days before its effective date, the agency must publish it in the Federal Register.                                                                                                                                 Formally adopted rules are published in the Code of Federal Regulations; a set of paperback books that the government publishes each year so that rules are readily available to the public.

Administrative agencies promulgate three types of rules: procedural, interpretative, and legislative. Procedural rules identify the agency's organization and methods of operation. Interpretative rules are issued to show how the agency intends to apply the law. They range from informal policy statements announced in a press release to authoritative rules that bind the agency in the future, and are issued only after the agency has given the public an opportunity to be heard on the subject. Legislative rules are statutes enacted by a legislature. Agencies can promulgate legislative rules only if the legislature has given them this authority.

Types of Rule-Making Procedure

The APA subdivides the categories of rule-making into formal and informal proceedings. A rule-making procedure is considered formal when the proceeding is required by another statute to be "on the record after opportunity for an agency hearing." The APA prescribes complex procedures for hearings in formal rule-making procedure. It requires relatively minimal procedures for informal rule-making. Each agency which will be affected by section 4 should publish under section 3 (a) (2) the procedures, formal and informal, pursuant to which the public may participate in the formulation of its rules. The statement of informal rule making procedures may be couched in either specific or general terms, depending on whether the agency has adopted a fixed procedure for all its rule making or varies it according to the type of rule to be promulgated. In the latter instance, it would be sufficient to state that the proposed substantive rules will be adopted after allowing the public to participate in the rule-making process either through submission of written data, oral testimony, etc. The method of participation in each case to be specified in the published notice in the Federal Register.

A- Informal Rule Making

In every case of the proposed informal rule-making according to the  requirements of section 4 (a), section 4 (b) provides that "the agency shall afford interested persons an opportunity to participate in the rule-making through submission of written data, views, or arguments with or without opportunity to present the same orally in any manner." The quoted language confers discretion upon the agency, except where statutes require "formal" rule-making subject to sections 7 and 8, to designate in each case the procedure for public participation in rule-making. Such informal rule making procedure may take a variety of forms: informal hearings (with or without a stenographic transcript), conferences, and consultation with industry committees, submission of written views, or any combination of these. These informal procedures have already been extensively employed by federal agencies. In each case, the selection of the procedure to be followed will depend largely upon the nature of the rules involved. The objective should be to assure informed administrative action and adequate protection to private interests.

Each agency is affirmatively required to consider "all relevant matter presented" in the proceeding; it is recommended that all rules issued after such informal proceedings should be accompanied by an express recital that such material has been considered. It is entirely clear, however, that section 4 (b) does not require the formulation of rules upon the exclusive basis of any "record" made in informal rule-making proceedings. Accordingly, except in formal rule-making governed by sections 7 and 8, an agency is free to formulate rules upon the basis of materials in its files and the knowledge and experience of the agency, in addition to the materials adduced in public rule making proceedings.

Section 4 (b) provides the completion of public rule-making proceedings "after consideration of all relevant matter presented, the agency shall incorporate in any rules adopted a concise general statement of their basis and purpose". The required statement will be important in that the courts and the public may be expected to use such statements in the interpretation of the agency's rules. The statement is to be "concise" and "general". Except as required by, statutes providing for "formal" rule-making procedure, findings of fact and conclusions of law are not necessary. Nor is there required an elaborate analysis of the rules or of the considerations upon which the rules were issued. Rather, the statement is intended to advise the public of the general basis and purpose of the rules.

B-Formal Rule Making

Section 4 (b) provides that "Where rules are required by statute to be made on the record after opportunity for an agency hearing, the requirements of sections 7 and 8 shall apply in place of the provisions of this subsection." Thus, where a rule is required by some other statute to be issued on the basis of a record after opportunity for an agency hearing, the public rule-making proceedings must consist of hearing and decision in accordance with sections 7 and 8. The provisions of section 5 are in no way applicable to rule-making. It should be noted that sections 7 and 8 did not become effective until December 11, 1946, and, pursuant to section 12, did not apply to any public rule making proceedings initiated prior to that date.

Statutes authorizing agencies to prescribe future rates (i.e., rules of either general or particular applicability) for public utilities and common carriers typically require that such rates be established only after all opportunity for a hearing before the agency. Such statutes rarely specify in terms that the agency action must be taken on the basis of the "record" developed in the hearing. However, where rates or prices are established by an agency after a hearing required by statute, the agencies themselves and the courts have long assumed that the agency's action must be based upon the evidence adduced at the hearing. Sometimes, the requirement of decision on the record is readily inferred from other statutory provisions defining judicial review.

The term legislation refers to the process of making or enacting and repealing a positive law in written form by a branch of government constituted to perform this process, which is the legislature. The legislative organ of every country has the power to make laws on every matter concerning the lives of its citizens and the government subject to the limitations imposed by the constitution. In England, where the doctrine of parliamentary sovereignty is propounded, parliament as a matter of principle can enact or repeal legislation as it sees fit. Whether there is a clear limitation or not, the legislature is in charge of making laws in the form of primary legislation. Any other legislation that is subordinate or auxiliary to primary legislation is known as delegated (or sometimes ancillary) legislation.

In short, delegated legislation means the exercise of legislative power by an agency that is subordinate to the legislature. This subordinate body acquires the power from the act of the legislature. Power is transferred from the principal lawmaker to the lower body, which may be the executive, cabinet, council of minister, or a specific administrative agency, by the mechanism of delegation. Generally, delegation refers to the act of entrusting another authority or empowering another to act as an agent or representative. By the same token, delegation of legislative powers means the transfer of law-making authority by the legislature to the executive, or to an administrative agency. In line with the power granted to them by the legislature administrative, agencies can issue rules, regulations and directives, which have a legally binding effect.

The study of rule-making (delegated legislation) by the executive branch of government occupies a significant place in the administrative law due to its increasing growth, complexity and the dangers it poses to individual liberty and freedom. Scholars regard delegated legislation as a typical characteristic of administrative activity in public administration.

One of the most significant developments of the present century is the growth in the legislative powers of the executive. Measured by volume, more legislation is produced by the executive government than by the legislature. The increase in quantity and quality of delegated legislation, if not supplanted by clear procedures and effective controlling mechanisms, may ultimately result in arbitrariness and abuse of power, which in turn leads to injustice and violation of liberty. That is why it is regarded by many as a “necessary evil.” It was considered a danger to the liberties of the people and a devise to place despotic powers in few hands. It was said that delegated legislation preserved the outward show of representative institutions while placing arbitrary and irresponsible power in new hands.

However, in reality, the intricacies and complexities of modern government have proved beyond doubt that the delegation of legislative powers to administrative agencies is a compulsive necessity. In no democratic society committed to the establishment of a welfare state, the legislature monopolizes the legislative power. It will be futile for the legislature to solve the ever increasing social and economic problems, unless it shares some of its powers with the executive and other administrative organs of the state. A statute may be inexact, incomplete, and unintelligible, and may even be misleading unless it is read with specific rules and regulations made there under. Delegated legislation also serves a technique to relieve pressure or legislature’s time so that it can concentrate on principles and formulation of polices.  After this, it has to leave technical and detailed matters which are necessary to fill the gaps in the primary legislation.  Nowadays, administrative rule-making has become a typical characteristic of the administrative law and administrative activity. The 20th century has been termed as the age of regulation due to the increasing number of instruments issued by the executive branch of government. Most of the legislations that govern the conduct of the individual come from administrative agencies, not from the legislature.

How do you distinguish administrative actions from quasi-legislative actions?

There is only a hazy borderline between legislation and administration, and it is difficult to show there exists a fundamental difference between the two. One common point of difference is that the legislative power is the power to lay down the law for people in general, whereas administrative power is the power to lay down the law for them, or apply the law to them in some particular situation. It is also a common principle of legislation that legislative acts should be public.

One test of distinction may be that where the former is a process of performing particular acts or of making decisions involving the application of general rules to particular cases, the latter is the process of formulating a general rule of conduct without reference to particular cases and usually for future operation.

Rule - making action of the administration partakes with some exceptions, all the characteristics of a normal legislative action process. These may be generality, non-retroactivity and a behavior which bases action on policy consideration and gives a right or a disability. In some cases, however, administrative rule making action may be particularized, retroactive and based on evidence. On the other hand, a quasi-judicial action is particularly based on the facts of the case and declares a pre-existing right.

4.2 The Need for Delegated Legislation

Despite the ever-increasing volume of primary legislation, the complexities of governing a sophisticated society (and even a developing society) demands the delegation of some legislative functions to inferior bodies such as ministers and administrative agencies. Clearly parliament does not have time or resources to enact every single piece of legislation that is needed in the form of primary legislation, which can be fully debated and scrutinized in accordance with legislative procedures. The result is delegated legislation- legislation produced by an  ‘inferior body’ which nevertheless has the force of law.

Tackling the complexities of modern administration in an efficient and efficient manner demands an atmosphere of complexity. Parliament has to follow strict legislative procedures to make a single law. Hence, it will be far from being flexible without delegating some of its powers to the executive.

Can you try to identify impacts of retaining all legislative power by the lawmaker ( parliament)?

The complexities of modern administration are so baffling and intricate and bristle with details, urgencies and difficulties. Therefore, to tackle these problems, an atmosphere of flexibility is needed. A parliament which sits for a limited period of time and which is required to observe strict legislative procedures will be far from being flexible without delegating some of its powers to the executive.

Taking into account the above general justification, the following factors may be mentioned as reasons for the   need for delegated legislation.

A) Limitation on Parliamentary Time

Art 58(2) of the F.D.R.E. constitution reads:

“The annual session of the house shall begin on Monday of the final week of the Ethiopian month of Meskerem and end on the 30th day of the Ethiopian month of sene. The House may adjourn for one month of recess during its annual session”

As stated in Art. 58(2) of the constitution, assuming that there is one month recess, for how many maximum days will the House of representatives sit in parliament? Then subtract 39-week days and multiply it by 8 working hours. Taking into consideration the average time necessary to make law, do you think the house of people’s representatives has sufficient time to provide all the laws in quantity and quality?

It is said that even if today parliament sits all the 365 days in a year and all the 24 hours, it may not give the quantity and quality of law, that which is required for the proper functioning of a modern government. Therefore, it is clear and self-evident that the main reason for delegation of legislative power is to relieve the pressure on parliamentary time.

B) Technicality Subject of Matter

Read carefully the following provisions:

I.)  “For the purpose of fostering monetary stability and credit and exchange conditions conducive to the balanced growth of the economy of Ethiopia, the Bank may issue directives governing its own credit transactions with banks and other financial institutions, and credit transactions of banks, and other financial institutions.”(Art 28(1) of Monetary and Banking Proclamation No.83/1994)

II) “The council of ministers may by regulations exempt any income recognized as such by this proclamation for economic, administrative or social reasons”

(Art 13(e) of Income Tax Proclamation No.286/2002)

III)  “1. Regulations and directives may be issued for the complementary of this   proclamation.

“2. The regulations shall, in particular, provide for the payment of fees in connection with applications for the grant of patents and utility model certificates and for the registration of industrial designs and matters related there to.”

(Art 53 sub 1 and 2 of Inventions and Industrial Designs Proclamation No 123/1995)

Which of the above provisions do you think are technical matters which do not involve policy issue and need some expertise knowledge?

Legislation has become highly technical because of the complexities of a modern government. Members of the parliament are not experts, and so they cannot comprehend the technicality of the subject matter of some economic and social issues. Technical matters, as distinct from policy issues, are not susceptible to discussion in parliament and therefore cannot be readily be included in legislation. Therefore, technicality of the subject matter stands as another justification for delegation.  It is convenient for the legislature to confine itself to policy matters only and leave the technical law making sequence to the administrative agencies.

C) Flexibility

Ordinarily legislative process suffers from lack of viability and experimentation. A law passed by parliament has to be in force till the next session of parliament when it can be replaced Therefore, in situations which require adjustments frequently and experimentation, administrative rule making is the only answer.

The need for frequent adjustment or flexibility can be observed from the following provision.

“The Bank may, from time to time, prescribe by regulations the terms and conditions upon which persons departing from Ethiopia may carry with them foreign exchange or make remittance for services.” (Art 55 of Monetary and Banking Proclamation No.83/1994)

In the above provision, the terms and conditions for carrying foreign exchange by persons departing from Ethiopia could be changed from time to time. Hence this flexibility could be attained through delegation of power to make these rules.

D) Emergency

During emergency, it may not be possible for the parliament to pass necessary legislation to cope up with the situations. Under such conditions, speedy and appropriate action is required to be taken. The parliament cannot act quickly because of the time that requires passing an act. Moreover, immediate knowledge and experience is only available with the administration. For this reason, wide legislative power must be conferred up on the executive to enable the government to take actions quickly.

The above grounds clearly justify the need for administrative rule making. On the other hand, this rule-making may have some negative effects. Can you give one undesirable impact of the administrative rule making?

4.3. Theoretical Objections against Delegated Legislation

The fact that delegation is indispensable and inevitable due to practically convincing needs, it has not been a bar to theoretical challenges and criticisms against it. The main constitutional objection raised against delegation of rule making power to administrative agencies has been the doctrine of non delegability of power, which holds that power delegated to one branch may not be redelegated to another. People elect their representatives based on their fitness, knowledge and ability to represent their interest. Hence, it is a generally accepted rule that this mandate bestowed by the people cannot be delegated to another individual or organ, which does not stand in a direct relation to the people. It is a cardinal principle of representative government that the legislature cannot delegate the power to make laws to any other body or authority.

One of the most commonly cited sources of the rule of non delegation is the common law maxim delegates potestas non potest delegari which means that a delegate can not further delegates his power. Simply, the maxim indicates that power that has been delegated originally may not be redelegated.

The maxim was originally invoked in the context of delegation of judicial power and implies that in the entire process of adjudication, a judge must act personally except in so far as he is expressly absolved from his duty by a statue. Therefore the basic principle underlying the maximum is that discretion conferred by the statute on an authority must be exercised by that authority alone, unless a contrary intention appears from the language, scope or object of the statute. Generally, it implies that, since the people delegated legislative power to the lawmaker, executive power to the prime minister and cabinet and judicial power to the courts, none of the institutions may redelegate its power to any other authority.

Another objection to delegation of power is based on the doctrine of separation of powers. In America, the doctrine of separation of powers has been raised to a constitutional status. The U.S. Supreme Court has observed that the doctrine of separation of power has been considered to be an essential principle underlying the constitution and that the powers entrusted to one department should be exercised exclusively by that department without encroaching up on the power of another.

Administrative law is mostly tied with the study of manner of exercise of governmental power. By governmental power here refers to power of the executive and administrative agencies. The evolution of administrative law may be traced back to the emergence and proliferation of agencies.

The outstanding feature of administrative agencies in the history of Ethiopian government is their non-existence. For instance, a century back there were no regularly established royal councils, no clear cut system of local government, no established national army police force and no civil service system. Agencies as a machinery of public administration is relatively a recent phenomena in Ethiopia.

It was in the mid of the  19th century during the reign of Emperor Tewodros that a series of reforms including abolition of slave trade, suppression of the custom of vendetta, regulation of the power and lands of the church, and the civil service system were introduced in Ethiopia for the first time. Foreseeing the need of a decentralised system of administration to implement these reforms, Tewodros sought to turn the local chiefs into salaried officials responsible to the imperial power. However, apart from the establishment of a territorial police force and a regular army any specific agency charged with public administration was unknown and non-existent. Despite this there was some traditional administrative personnel in the government. Early historians e identified four primary heads of department under the emperor; 1) Yetor Abegaz(commander-in-chief of the army) 2) Afe Negus(judge on all appeals in the name of the emperor save the death sentence)  3) Tsehafe Tezaz(keeper of the great seal of the Enperor and writer of all imperial orders) ; 4)Ligaba( communicator of all imperial orders, deputy yettor Abegaz, and sergeant-at-arms to the Emperor.)

In 1907, Emperor Menelik created the first ministerial framework in ethiopia, consisting of the following ministries:

• Ministry of Justice
• Ministry of Interior
• Ministry of Foreign Affairs
• Ministry of Finance
• Ministry of Agriculture and Industry
• Ministry of Public Works
• Ministry of War
• Ministry of Pen
• Ministry of Palace

To some extent, the process was simply of giving new titles to old officials. The Afenegus became Minister of Justice and the Tsehafe tezaz became the Ministry of Pen. Further, the ministers bore the status of personal servants to the crown. However, during this time, though autonomy was hardly realized and though delegation of usable power existed more on paper than in reality, a permanent administrative body was established as an integral organ of the central government.

The 1931 constitution laid a foundation for the existence of the first administrative agencies in the Ethiopian history of public administration. The constitution recognised the existence of the executive branch of the government. Under Article 11 it was provided that the Emperor would lay down the organization and the regulation of all administrative departments. During that time a number of ministries and administrative departments.

In 1962, the most relevant government institution for the development of formal administration, the Imperial Ethiopian Central Personnel Agency (CPA), was established by order no. 23 of 1962. The agency was given the power to classify jobs, to recruit public servants, to establish pay scales and to issue regulations necessary for the establishment of homogeneous public service.

Until the fall of the imperial regime in 1974, various administrative and chartered agencies were established. Most of those administrative agencies bearing names of ministry, commission authority or agency were made accountable to the prime minister. There were about twenty one agencies at the ministerial level. These are The Ministry of National Community Development and Social affairs, The Ministry of Public Health, The Ministry of Land Reform and Administration, The Ministry of Communications, The Ministry of Information and Tourism, The Ministry of Mines, The Ministry of Public Works, The Ministry of Education and Fine Arts, The Ministry of Commerce and Industry, The Ministry of National Defence, The Ministry of Interior, The Ministry of Agriculture, The Ministry of Foreign Affairs, The Ministry of Finance, The Ministry of Imperial Court, The ministry of Pen, The Ministry of Justice, The Ministry of Planning and Development, The Ministry of Posts, Telegraph, and Telephones, The Ministry of Stores and Supplies, and The Ministry of Pensions. A number of  chartered agencies were also established during that time. These include National Community Development(1957), Board of National Community Development(1957), Our National Defence Council(1958), Central Personnel Agency and Public Service(1962), Public Employment Administration(1962), Technical Agency(1963), Charter of The National Bank of Ethiopia(1963), Ethiopian Tourist Organization(1964), Land Reform and Development Authority(1965), Institute of Agricultural Research(1966), Haile Selassie I University Charter(1961), and Awash Valley Authority Charter.

The 1987 constitution of The People’s Democratic Republic of Ethiopia under Article 89(1) gave all administrative powers to the council of ministers. The council was composed of the prime minister, deputy prime ministers, ministers and other members including heads of the secretariat of state committees. authorities and commissioners. Following the constitution, in the created  the cabinet there were twenty ministries, seven commissions, six authorities, two state committees, and two institutes.

The 1995 F.D.R.E constitution introduced a federal structure  sharing power between the federal government and the regional states. The federal government comprises of the house of people’s representatives as the supreme lawmaker, the executive (the prime minister and the council of ministers) and the judicial branch (first instance, high court and supreme court) A similar division of power also introduced at each regional state.

Currently, administrative agencies are established at the federal and state level. The constitution does not directly or indirectly make a reference to administrative agencies as parts of the system of government. It recognises the separation of powers among the three branches of government. This means, in effect, the source of legislative and judicial power of administrative agencies, typically those at the federal level could not be easily justified on constitutional grounds. For instance, the constitution does not in any way allow the house of people’s representatives to share or transfer some of its law making powers to agencies headed by unelected officials. Legislation through delegation is only mentioned with respect to the council of ministers. Hence, it will be a challenge for the Ethiopian administrative law to formulate a theoretical justification for the very existence and source of power of administrative agencies.

Two types of agencies exist at the federal level: These are independent and executive agencies. The independent agencies have a constitutional basis for their existence, and are directly accountable to the house of peoples representatives. They are five in number and all of them have been formally established through an act of parliament. These are the Human Rights Commission, The Ombudsman Office, The Auditor General, The Naational Election Board and The Population Census Commission.

The executive agencies are accountable directly to the prime minister, or the superior ministry, or the council of ministers. In 2007, there were about fifty government entities named as government agencies. Due to the lack a precise definition of an administrative agency in Ethiopia, every government entity partially or fully funded by the government is considered to be an administrative agency.