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Administrative Law

Teaching Material

Prepared by:

Aberham Yohannes & Desta G/Michael

Prepared under the Sponsorship of the Justice and Legal System

Research Institute

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UNIT ONE: INTRODUCTION TO ADMINISTRATIVE LAW

Introduction

This chapter presents you some highlights of the nature, meaning, scope and sources of administrative law. Administrative law, as a branch of public law, governs the relationship of the state and its citizens. Specifically, it regulates the manner of exercising power by the executive branch of government and administrative agencies so as to ensure its legal limits. Ultimately, by controlling power, it provides protection to the citizen against ultravires acts, abuse of power and arbitrariness.

This chapter begins by giving students background information about the political and economic forces shaping the evolution and development of administrative law. How and why administrative law was recognized and later developed as a distinct branch of law is discussed under this unit.

Then, the chapter discusses the meaning, sources, scope and theories of administrative law. Different definitions of administrative law given by different scholars are compared and contrasted to show the various approaches towards the subject. Sources of administrative law may be mentioned as: constitution, enabling act, delegated legislation, and judicial and administrative decisions. The study of these instruments is relevant to understanding its practical application. It is believed that these points will ultimately enable students to understand and determine the proper scope of administrative law.

The second section compares and contrasts administrative law with other concepts and disciplines. It mainly analyzes administrative law as influencing and influenced by concepts like rule of law, good governance and human rights. Administrative law was born out of constitutional law. Hence, analyzing their close relationship and determining their differences and similarities of these two subjects is relevant and necessary. It is difficult to study and understand administrative law without reference to its constitutional roots. This section outlines the interdependence between constitutional and administrative

law. Lastly it provides a comparative survey of the nature, form and scope of administrative law in common law and civil law countries.

The last part of this chapter briefly summarizes the historical development of administrative law as new legal phenomena at a global level and in Ethiopia. The development of ‗Ethiopian administrative law‘ is discussed with some emphasis on its current and future situations within the federal and regional context.

Objectives: At the end of this chapter, students are expected to:

 Analyze the economic and political circumstances which shaped the evolution and development of administrative law.  Define administrative law  Understand clearly the basic purpose of administrative law and analyze the way such purpose is attained.  Differentiate red light and green light theories of administrative law.  Explain the place of administrative law in ensuring rule of law and enforcement of human right.  Describe the similarity, difference and interdependence between administrative law and constitutional law.  Compare and contrast the nature & development of administrative law in continental and common law countries.  Examine the present state of administrative law in Ethiopia in light of the federal structure.

1.1 The Modern Welfare State and Evolution of Administrative Law

In order to understand the nature of administrative law, you should start studying the subject by looking at the political and economic circumstances that led to its ‗creation,‘ /or its ‗invention‘/ as a distinct subject at a certain point in history.

Let‘s begin our inquiry by asking the following preliminary questions?

traditional role of government i.e. as a protector. The management of social and economic life was not regarded as government responsibility. But laissez faire doctrine resulted in human misery. The unequal bargaining power between labour and management resulted in exploitation of workers, dangerous conditions of work and child labour. This ultimately led to the spread of poverty and the concentration of wealth in a few hands. Then it came to be recognized that the state should take active role in ameliorating the conditions of power. This approach gave rise to the favoured state intervention, social control and regulation of individual enterprise. The ‗negative state‘ was then forced to assume a positive role. In course of time, out of dogma of collectivism emerged the concept of ―social welfare state‖ which laid emphasis on the role of the state as a vehicle of socio- economic- regeneration and welfare of the state. Thus, the growth of the administrative law is to be attributed to a change of philosophy as to the role and function of the state.

The characteristics of a modern welfare state in which we line in may be summarized as:

 A vast increase in the range and detail of government regulation of privately owned economic enterprise;  The direct furnishing of services by government to individual members of the community, and  Increased government ownership and operation of industries and businesses.

The welfare state in effectively carrying out these vast functions to attain socio- economic justice, inevitability will come in direct relationship and encounter with the private citizens. Therefore, the attainment of socio economic justice, being a conscious goal of state policy, is a vast and inevitable increase in the frequency with which ordinary citizens come into relationship of direct encounter with state power holders. Striking a balance and bringing about harmony between power and justice is the central mission of the administrative law.

It is clear that political and economic circumstances brought about the existence of administrative law. Administrative law was created as an instrument to control the ever- expanding governmental power. As Acton once said ‗ power corrupts and absolute power

corrupts absolutely.‘ Concentration of power in the hands of public officials, unless regulated and controlled properly and effectively, always poses a potential danger to the rights, freedom and liberty of individuals. Administrative law was developed as a response to the threats of ‗big government.‘ In other words as. Massey has put it, administrative law is the by-product of an intensive form of government.

Big government or what is referred to, as the welfare state, is the product of a response to the economic, social and political reality of the 19th century. The political theory prevalent at the time, i.e. Laissez faire, failed to solve the economic ills and social evils which resulted in poverty, ignorance, exploitation and suffering of the mass. Due to the emphasis given to wider individual freedom, interference of government was minimal, and its power was limited.

Administrative law was almost non-existent at this time. When the power of the government is less and limited, the degree of interaction with the individual is minimal. Hence, the need for administrative law as a power controlling mechanism becomes insignificant under these situations.

The evolution of administrative law goes in a parallel progressive stage with the transformation of the ‗police state‘ to the ‗welfare state.‘ The reason for the transformation was the reason that necessitated conferring more power on the state. The pitfalls, defects and shortcomings of the ‗police state‘ became clear at the end of the 20th century, specifically after the Second World War. The suffering, poverty and exploitation of the mass of the population were sufficient to justify the need to confer more power on the government. With more powers, the government also assumed new roles geared towards alleviating the social and economic problems and social evils to bring about development, social justice and equal distribution of wealth. Administrative law is the response to the problem of power. It unequivocally accepts the need or necessity of power, simultaneously stressing the need to ensure the exercising of such power within proper bounds and legal limits. Controlling the exercise and excesses of power is the essence and mission of the administrative law.

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

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

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

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

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

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

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

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

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

B) Purpose of Administrative Law

There has never been any serious doubt that administrative law is primarily concerned with the control of power. With the increase in level of state involvement in many aspects of

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

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

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

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

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

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

C) Sources of Administration Law

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

The Constitution

The F.D.R.E constitution contains some provisions dealing with the manner and principle of government administration and accountability of public bodies and officials. It mainly provides broad principles as to the conduct and accountability of government, the principle of direct democratic participation by citizens and the rule of law. It also embodies the

principle of separation of powers by allocating lawmaking power to the house of people‘s representatives, executive power cumulatively to the Prime Minister and Council of Ministers, and finally the power to interpret the laws to the judiciary. Art, 77(2) talks about the power of Council of Ministers to determine the internal organizational structure of ministries and other organs of government, and also Art 77(3) envisages the possibility of delegation of legislative power are also relevant provisions for the study of the administrative law, (see also Articles 9(1), 12, 19(4), 25, 26,37,40, 50(9), 54(6)(7) 55(7), (14)(15), (17),(18),58,66(2),72-77,82,83,93,101-103 of F.D.R.E constitution).

Legislation

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

Delegated Legislation

Rules, directives and regulations issued by Council of Ministers and each administrative agencies are also the main focus of administrative law. Administrative law scholarship is concerned with delegated legislation to determine its constitutionality and legality or validity and ensure that it hasn‘t encroached the fundamental rights of citizens. One aspect of such guarantee is subjecting the regulation and directive to comply with some minimum

C) Scope of Administrative Law

I- Public Law/Private Law Divide

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

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

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

B) Substance vs. Procedure

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

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

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

1.3 Theoretical Perspectives

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

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