“Administrative law is an instrument to combat administrative authoritarianism through the instrumentality of courts”- Explain &
INTRODUCTION:
Administrative law is the bye-product of the growing socio-economic functions of the State and the increased powers of the government. Administrative law has become very necessary in the developed society, the relationship of the administrative authorities and the people have become very complex. In order to regulate these complex, relations, some law is necessary, which may bring about regularity certainty and may check at the same time the misuse of powers vested in the administration. So enforcement of administrative law is an instrument to combat administrative authoritarianism.
ADMINISTRATIVE LAW:
Administrative Law is that branch of the law, which is concerned, with the composition of powers, duties, rights and liabilities of the various organs of the Government.
The term “administrative law” as generally used refers to the laws and associated procedures that govern the way government officials and agencies exercise their lawfully delegated powers. The term is sometimes used in a specific sense, particularly in many civil law countries, to refer to the delegation of authority and to substantive technical standards governing bureaucratic decision-making and the delivery of public services.
People form their most immediate impressions about the state’s integrity and responsibility, and thus about the depth of democratization, through these administrative relations. By emphasizing procedural regularity, transparency, and accountability in settings that affect people’s daily lives and livelihoods, administrative law brings otherwise abstract notions of the rule of law down to earth. It provides a framework to govern the exercise of authority by administrative agencies and officials. It is central to legitimacy, procedural fairness, and access to justice, which constitute essential elements of the rule of law defined in the Guide to Rule of Law Country Analysis.
Administrative law provides the legal framework governing both the standards for bureaucratic decision making and the procedures by which the public can assert their rights in the regulatory process.
Administrative authoritarianism:
Administrative Authoritarianism is a peculiar form of social authoritarianism that is a consequence of cultural dynamics and social ethos, and socio-structural patterning.
Administration affects all levels of government, public affairs, education, the military, etc. It has formed a class unto itself, and as a class has largely organized itself in a manner to protect and promote its own interests even at the expense of other groups in society. It typically articulates information networks that are privileged, that deal with information that often would violate constitutionally granted rights if it were made public, and that operate in “behind closed” doors manner to manipulate resources and power without full public accountability to the people whose tax-payments give them high salaries.
The collusion of authority and power, of economic interest and privileged access to information, has a great deal to do with it.
One example of such case can be denial of a multimillion dollar license application.
The government denies a multimillion dollar license application. The applicant company unsuccessfully appeals the decision through multiple internal agency and court proceedings. It also tries to verify rumors of nepotism and corruption involving the successful license applicants, which are ultimately verified by aggressive journalists.
Objectives, purposes, and mechanisms of administrative law-
There are three objectives as the framework for organizing the presentation of individual administrative law mechanisms. Not all administrative law systems contain all mechanisms (some appear under other rubrics), but most have at least some of these in place.
Objective 1: Limitation of discretion
Purpose: To limit the exercise of discretion by government actors as to the authorities granted by law or regulation.
Objective2: Rights of the governed (due process)
Purpose: To secure the rights of citizens against adverse government decisions or wrongdoing
Objective 3: Information
Purpose: To ensure the adequate exchange of information between citizens and government these three objectives clearly to combat administrative authoritarianism. Now we will look at the applications of these mechanisms through instrumentality of court:
Mechanisms for Implementing Objective 1—Limitation of Discretion
Government agencies derive their authority from properly enacted laws, and have limited and clearly defined power to implement these laws. Making certain that agencies do not exceed or misuse this power is one of the essential roles of administrative law. The following mechanisms operate to control that exercise of power.
1. Review of Agency Decisions:
At a Higher Level within the Agency Government agencies are primarily responsible for restraining themselves. As long as the original decision-maker has not “exhausted” their power, they may be able to reconsider their decision. Always consider this option first. If you are not sure, you may ask the decision-maker whether they are prepared to reconsider the matter. Generally speaking, if more than one person’s “rights” are at stake, reconsideration may not be possible (for example, if a license has been granted to someone else instead of you, reconsideration of your matter might impact on their right to that license) [1]
• Corrects errors by staff before matter reaches the courts.
• Provides opportunity to educate lower level staff
• Provides management overview of lower level staff
• Maintains policy consistency
2. Ombudsman Review of Agency Decisions
An ombudsman, usually affiliated with the legislature, is generally charged with reviewing the legality, arbitrariness, consistency, or fundamental correctness of an agency’s exercise of authority granted by the parliament. The review typically focuses on the procedure that an agency used in reaching its decision rather than on the substantive decisions. Usually, the ombudsman has authority to investigate acts by government officials, and to publish reports and recommendations. In some countries the ombudsman may go to court to seek redress for a party. Actions by the ombudsman do not preclude judicial review, nor are they a precondition for such review.
• Offers less formal, more accessible review for citizens
• Provides oversight on how laws are applied
• Provides for general study and assessment of process
• Offers limited individual relief
3. Judicial Review of Agency Decisions
A fundamental element of every developed administrative law system is the ability of an individual to seek redress in the courts against an adverse bureaucratic decision in an individual matter affecting that person. Some form of judicial review of individual administrative acts or decisions exists in every legal system. Awareness of various systems and some familiarity with their elements is especially useful when considering reforms of judicial review mechanisms.
• Permits disinterested review of executive action
• Compares action with requirements of agency’s own rules, applicable laws, and constitution
• Controls arbitrary actions, such as absence of factual support, abuse of discretion, and violation of procedures
4. Review of General Agency Rules and Regulations
Rules and regulations determine decisions that agencies make that apply to a broad class of persons. European legal systems also use these terms, as well as “sub-legislative acts” or “normative acts.” There is relatively little consistency among legal systems about control over these kinds of agency actions. However, most systems allow for some possibility of judicial review. The route to review varies greatly, but the nature of the review—to the extent it focuses on proper process—does not.
• Is central element of separation of powers?
• Permits court review for consistency with statute and intent of legislature
• May be provided by legislature or legislative committee and/or executive review body
• Operates as restraint on executive branch exercise of arbitrary or unauthorized power[2]
5. Legal Liability of Agency to Persons Adversely Affected by Erroneous Agency Decision
· It makes agency financially liable for improper or illegal action damages.
· It is enforceable in court and
· May attach liability to individual officials making improper decisions.
6. Prevention of Agency Action Contrary to Prior Agency Statements or decisions:
• Allows party to rely on government advice even when it turns out to be incorrect
• Insulates party from legal liability, or allows party to retain benefits based on incorrect advice
Mechanisms for Implementing Objective 2—Rights of the Governed (Due Process)
Individuals dealing with the government are at an inherent disadvantage because of the huge power wielded by the government agencies that affect them. Every system of administrative law provides a set of procedural rights for the governed that attempts to provide a fair process for interaction with the government. There is a marked similarity among the systems with respect to the rights deemed to be important, and the guarantees provided
1. Notice of Rules and Standards That Apply to Government Actions
In countries with well-developed legal systems, publication of standards and criteria for government actions is automatic, and there is little difference in how the systems operate. Examples include criteria for licenses or benefits and elements of administrative violations. However, in transition countries, the simple act of recording and publishing the basis for granting benefits, licenses, and other administrative law instruments can be a major contribution to transparency and accountability.
• Provides public with knowledge of government rules
• Prevents application of “secret” standards
• Prevents enforcement of “secret” rules
• Promotes consistency and predictability in government actions
• Enhances credibility of government[3]
2. Notice of Proposed Individual Adverse Government Action
Central to protecting the rights of the governed is the requirement that individuals be notified of any adverse action an agency proposes to take against them. This requirement is the foundation of hearing rights. It may be found in constitutions, general procedure codes, or subject matter statutes.
• Informs party of pending charges of violations
• Informs party of pending denial or rejection of application for
Government benefit or permit
• Allows more effective supporting presentation to official(s)
3. Opportunity to Be Heard Prior to Final Adverse Action
Administrative agencies are obligated to give the adversely affected individual the opportunity to present his or her version of the story.
• Provides decision-maker with better, more balanced information
• Provides fairness to individuals subjected to government coercive action
• Allows individuals to challenge opposing evidence or witnesses
• Validates party’s position by submitting it in own words
• Makes it more difficult for decision-maker to ignore party’s position
4. Impartial Decision-maker
Administrative law anticipates an impartial decision-maker, and an unbiased decision based on all of the material submitted. A major objective is to prohibit agency officials with a personal stake in a matter (or who have friends or family with a personal stake) from making the decision.
• Does not necessarily require outside adjudicator (may be agency official uninvolved with preparing the agency’s position in the dispute)
• Provides for appearance as well as fact of impartiality
• Significantly enhances credibility of decision process
5. Explanation of Decision
Consistent with the focus of administrative law on transparency, adversely affected parties should be notified of the decision following a hearing, and provided with reasons for the decision. This is particularly important if the party is to have a meaningful review at the next higher level within the agency, since he or she will need to decide whether to challenge the decision and, if so, what aspect of the decision to challenges. Requires agency to articulate rational, defensible justification for individual decision collective decision (rulemaking)
• Establishes basis for review or appeal of decision to higher level or court
• Allows party to investigate and rebut reasons if possible
• Enhances credibility of decision process
6. Opportunity to Seek Meaningful Review of Initial Decision
Whether the matter is to be reviewed at a higher level within the agency, by an ombudsman, by the courts, or by some combination of the three, the affected parties must have the right to bring the matter to the attention of these entities. Who is considered an affected party, however, is not always clear. Certainly any party that has been the subject of an adverse decision—e.g., penalized for a violation, denied a license, or had benefits terminated—can seek review of the matter at another level.
• Enables parties affected to seek review of agency decisions or rules
• Allows agency actions to be reviewed by an independent judge or court
• Is important for review of general agency decisions like regulations or normative acts
Mechanisms for Implementing Objective 3—Information
These mechanisms cover three significant areas of administrative law: (1) the process that agencies use in developing, adopting, and publishing implementing regulations; (2) standards regarding access to information held by the government; and (3) the obligation to hold meetings that are open to the public. One common thread is transparency
1. Requiring Public Notice of Proposed New Government Agency Actions or Initiatives affecting the public
Individuals or groups affected by new rules have the opportunity to learn about them and comment on them before they become effective.
• Applies to actions such as regulations and normative acts
• Applies at all levels of government (national to local)
• Encourages public attention and participation
• Enhances government credibility
2. Opportunity for the Public to Provide Commentary or Feedback Prior to the Final Action
Directly linked to the obligation to provide public notice of proposed rules or regulations is the opportunity for interested individuals to give their ideas and suggestions to the government.
• Provides government with better information for decisions
• Encourages public attention and participation
• Improves quality of decision
• Enhances credibility of the government
3. Use of Advisory Committees or Special Experts to Provide Better Information to the Agency for its Decision-making
Governments often look to experts or panels of experts to assist them in administering highly technical programs. There may also be a wide range of consultative councils or other bodies that provide policy input on less technical subjects.
• Can prevent abuses by “insiders” through regulation
• With adequate openness, avoids appearance of favoritism by making the process public[5]
4. Requiring Meetings to be Advertised in Advance and Open to the Public for Observation and/or Participation
Open meetings laws generally apply to local government councils, boards, or other multi-member bodies. These laws can be especially important tools in enhancing the accountability of local officials.
• Governs activities of collegial bodies (such as boards and commissions, including advisory bodies)
• Encourages media and public attention and participation
• Enhances government credibility
5. Requiring Government Agencies to Make Certain Information Public (Affirmative Duty Provision)
This mechanism is addressed by what are commonly called Freedom of Information (FOI) laws. Most of these laws oblige governments to make publicly available a wide range of information about their policies and practices, including personnel and budgets.
• Meets growing global standard
• Increases public awareness of government activities
• Enhances government accountability
• Enhances government credibility
6. Requiring Government Agencies to Provide Information When Requested
The second aspect of FOI laws, and usually the most controversial, is the requirement that governments respond to individual requests for information.
• Meets growing global standard
• Provides media and public opportunity to examine specific government practices
• Enhances government credibility
So, the goal of administrative law is to redress this inequality to ensure that, so far as possible, the individual and the state are placed on a plane of equality before the bar of justice. In reality there is no antithesis between a strong government and controlling the exercise of administrative powers. Administrative powers are exercised by thousands of officials and affect millions of people Administrative efficiency cannot be the end-all of administrative powers. There is also the questions of protecting individual’s rights against bad administration will lead to good administration.
Conclusion:
People of all folk should have clear knowledge about the functions and application of administrative law because this is the most effective instrument to combat any administrative authoritarianism.
Bibliography:
( 1-5…are used in the paper) ( 6-8……are only used for understanding)
1. Retrieve from: http://persmin.gov.in/otraining/UNDPProject/undp_modules/Administrative%20Law%20N%20DLM.pdf
2. Using administrative tools and concept to strengthen USAID programming(2008) retrieve from: http://pdf.usaid.gov/pdf_docs/PNADK999.pdf
3. Retrieve from : http://www.lawhandbook.org.au/handbook/ch21s01s01.php
4. Guide to rule of law country analysis – Unpublished USAID publication. The guide offers a conceptual framework to USAID democracy and governance officers who are grappling with the problems inadequate legal systems pose to democracy
5. Retrieve from: http://www.lewismicropublishing.com/Publications/AmericanEssays/AdministrativeAuthoritarianism.htm
6. http://persmin.gov.in/otraining/UNDPProject/undp_modules/Administrative%20Law%20N%20DLM.pdf http://www.lexglobal.org/files/047_chapter_two_in_rule_by_law_book.pdf
[1] Retrieve from : http://www.lawhandbook.org.au/handbook/ch21s01s01.php
[2] Using administrative tools and concept to strengthen USAID programming(2008) retrieve from:
[3] Using administrative tools and concept to strengthen USAID programming(2008) retrieve from:
[4] Using administrative tools and concept to strengthen USAID programming(2008) retrieve from:
[5] Using administrative tools and concept to strengthen USAID programming(2008) retrieve from: