Explain the nature and scopes of Administrative law and distinguish it from Constitutional law.
Introduction
In 1986, Norfolk County Council created a route for road by-pass. As a consequence, a house previously valued at some £400,000 was destroyed and rendered valueless. The Council refused to buy the house on the basis that its acquisition was not necessary for the construction of the by-pass. The Secretary of State for Transport approved the by-pass scheme (David Stott, 1997). This decision taken by the council affected what would normally be regarded as fundamental rights or freedoms that is property right. This situation takes account of an exercise of power conferred by law but the question is that whether the decision maker had failed to act according to law in the sense of either having positively exceeded the mark of his or her legal authority or having negatively failed to exercise a power when the law intended it to be exercised. This type of issue gives us an idea about what administrative law is about, which is the legal regulation of exercising governmental power.
The nature of administrative law is concerned with safeguarding that public decision-makers act within the law and are, on this basis, accountable before the law, its development is due largely to a desire on the part of the courts to restore the balance of power and to safeguard the rights and interests of citizens. Administrative law is also concerned about ensuring there will be an element of fairness operating in public decision making and generally ensuring proper administration. This is not only for the advantage of the individual citizen but it is for the advantage of government also.
The purpose of this writing is to discuss the nature and scopes of Administrative law and to find out how it can be differentiated from Constitutional law.
Definition of Administrative Law
Administrative law deals with the legal control of government and related administrative powers. In other words, we can define administrative law as the body of rules and regulations and orders and decisions created by administrative agencies of government.
Administrative law is part of the branch of law commonly referred to as public law, the law which regulates the relationship between the citizen and the state and which involves the exercise of state power. So, it is a part of the legal framework for public administration. Public administration is the day-to-day implementation of public policy and public programs in areas as diverse as immigration, social welfare, defense, and economic regulation—indeed in all areas of social and economic life in which public programs operate.
Administrative law consists of complaints respecting government action that adversely affects an individual. Thus, administrative law involves determining the legality of government actions. There is a two-fold analysis: the legality of the specific law itself and the legality of particular acts purportedly authorized by the specific law.
Governments cannot perform any act by itself. Governments act through government officials who must act within certain limitations. A government’s power to act comes from legislation. Thus, government officials must act within the parameters (or scope) of such legislation which give their actions lawful authority. These are lawful actions. If government officials act outside the scope of their lawful authority and individuals are affected by these acts, then the principles of administrative law provide individuals with the ability to seek judicial review of the administrative action and possible remedies for the wrongful acts.
Nature and Scopes of Administrative Law
Administrative law determines the organization, powers and duties of administrative authorities. The emphasis of Administrative Law is on procedures for formal judgment based on the principles of Natural Justice and for rule making. Administrative law also determines the nature and scope of the powers deliberated to the government official by the specific legislation. Through legislation, the Parliament delegate specific powers as well as duties to government officials to enable them to act on behalf of the government.
The concept of Administrative Law is founded on the following principles:
a) Power is conferred on the administration by law
b) No power is absolute or uncontrolled howsoever broad the nature of the same might be.
c) There should be reasonable restrictions on exercise of such powers depending on the situation.
The Administrative law deals with the structure, functions and powers of the Administrative structures. It also lays down the methods and procedures which are to be followed by them during the course of remedies which are available to the persons whose rights and other freedoms are damaged by their operations. Administrative law specifies the rights and liabilities of private individuals in their dealings with public officials and also specifies the procedures by which those rights and liabilities can be enforced by those private individuals. It provides accountability and responsibility in the administrative functioning. Also there are specified laws and rules and regulations that guide and direct the internal administration relations like hierarchy, division of labor etc.
General Principles of Administrative Law
In the administrative law context, the first step is to determine the legal validity or authority of the action by the government official. This involves looking at the basis of the legal authority to act, that is, the specific law that gives that administrator the lawful authority to act. Constitutional law essentially deals with who has the ability to make laws. Administrative law deals with the government officials who have been empowered by these laws to act. Therefore, there is a close relationship between constitutional and administrative law. Specifically, if the law that empowered the government official to act was itself found to be unconstitutional, and therefore invalid, then any actions by the government official under that law will also be invalid. Consequently, this may result in a legal remedy for an individual adversely affected by this action.
The Rule of Law
It is based on the concept of rule of law that supports Natural Justice, i.e. to judge based on impartiality, unjustness and the prescribed laws and legal methods instead of arbitrariness and abuse of official power on the part of govt. while serving the people and deciding cases brought before its Tribunals etc. Natural justice is basically applied in cases where there are no laws prescribed, here the individual has to be given an opportunity to be heard and the judgment is to be taken into consideration the particular facts and cases of the case and the judgment should be free from bias. It is to prevent violation of people’s rights by officials in power. One of the best-known definitions of rule of law is that of Professor A V Dicey contained in his famous book The Law of the Constitution. He considered that the Rule of Law requires the recognition of the predominance of the regular law (as opposed to arbitrary or wide discretionary powers), equality before the law and that the constitution is the product of the ordinary law.[2] In essence, therefore, the Rule of Law requires that there should be government according to law and an avoidance of arbitrary action.
Dicey’s Rule of Law depends on the capacity of the court to control abuses of administrative power. That the courts are incapable of undertaking this control function is seen in the fact that not all administrative action is contained in statute amenable to judicial interpretation. Increasingly, administrative functions are dissipated, particularly with the development of privatization. In this and many other governmental contexts some functions are carried out by means of contracts governed, not by public, administrative law, but by the private law of contract. Even if Dicey’s Rule of Law depended on the supremacy and sovereignty of Parliament, there would be an important question about Parliament’s capacity to control the executive. For so many different purposes the reality is that the executive government of the day influences and controls Parliament.
Delegation of Powers
Delegation of powers from the legislators to administrators is necessary given the great importance of the business of government. Due to the volume of decisions required, it is not possible for the Parliament to decide all issues in a country. Another important reason for the delegation of powers is that laws by their very nature need to be broad since the wording of laws cannot encompass all specific and often changing circumstances that occur. Thus, the application of the law may require some aspect of discretion in order to apply to specific circumstances, and the laws themselves must set out criteria for the application of such discretion to ensure fairness and consistency. Almost all laws passed by Parliament identify specific powers and duties for various government entities or officials such as a cabinet, a specific minister or civil servant, or a judge. Given the grave importance of the delegation of powers, Parliament has developed control guidelines for their own delegation of powers to administrators.
Characterization of Powers and Sub-Delegation of Powers
Characterization of the function of the legislative powers enables the determination of the scope of these powers and the duties they grant, and the procedures the delegate is required to follow to lawfully exercise these powers. In turn, this determines the available remedies in court if the impugned act is found to be unlawful.
Powers can be characterized as
• Legislative
• Judicial (or quasi-judicial) or
• Administrative (or executive)
If the delegated power is legislative or judicial in nature, the general rule in administrative law is that such powers must be exercised by the specific person identified in the legislation. Such a person (government official) is prohibited from sub-delegating these powers and duties to another person. By contrast, powers characterized as administrative can be sub-delegated.
Characterization of Duties and Discretionary Powers
Another important principle of administrative law distinguishes between delegated powers that are duties that the delegate must perform and delegated powers that are discretionary in nature. Some powers are broadly set out in the legislation with some discretionary aspects to enable the delegate to apply the broad principle to specific circumstances. The rationale behind such discretionary powers includes the difficulty of providing a general rule that would apply to all circumstances; the difficulty in anticipating all possible factors for all situations; and the difficulty in ascribing weight of all factors in a broad legislation. Discretionary powers generally constitute either the delegate being authorized to exercise discretion on an ad hoc basis or the delegate being authorized to enact “subordinate legislation” to govern specific types of cases. Examples of subordinate legislation include regulations, codes, and bylaws. In administrative law, it is important to determine the scope of discretion of delegates in order to examine the validity of their acts, especially given that discretionary powers are generally granted within specific limits.
Administrative Boards or Tribunals
Federal and provincial laws have expressly created administrative boards or tribunals as decision-making bodies for a variety of areas. The underlying rationale is to make the governmental decision-making process more efficient and accessible to the general public. The checks and balances for these decision-making bodies are provided by the provincial superior courts who oversee them by providing judicial review of the administrative actions of the boards and tribunals.
Administrative Remedies
In reviewing the legality of an impugned act, if a court determines that the act was ultra virus, it has the following remedies available: declarations; injunctions; damages; statutory appeals to a court or another administrative body; or prerogative remedies.
Constitutional Law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature, and the judiciary. Constitutional law can be defined as the written text of the state and federal constitutions. The bodies of judicial precedent that has gradually developed through a process in which courts interpret, apply, and explain the meaning of particular constitutional provisions and principles during a legal proceeding.
The text of the U.S. Constitution is marked by four characteristics: a delegation of power, in which the duties and prerogatives of the executive, legislative, and judicial branches are delineated by express constitutional provisions; a Separation of Powers, in which the responsibilities of government are divided and shared among the coordinate branches; a reservation of power, in which the sovereignty of the federal government is qualified by the sovereignty reserved to the state governments; and a limitation of power, in which the prerogatives of the three branches of government are restricted by constitutionally enumerated individual rights, Unremunerated Rights derived from sources outside the text of the Constitution, and other constraints inherent in a democratic system where the ultimate source of authority for government action is the consent of the people.
In deciding their cases, courts look to these constitutional provisions and principles for guidance. Once a court has interpreted a constitutional provision in a certain fashion, it becomes a precedent. Under the doctrine of Stare Decisis, the judicial branch is required to adhere to existing precedent in all future cases presenting analogous factual and legal circumstances, unless it has a compelling reason for deviating from the precedent or overruling it. A state or federal law is said to be constitutional when it is consistent with the text of a constitutional provision and any relevant judicial interpretations. A law that is inconsistent with either the written text or judicial interpretation of a constitutional provision is unconstitutional.
Distinguishing Administrative & Constitutional Law
Sometimes, a question is asked as to whether there is any distinction between constitutional law and administrative law. Till recently, the subject of administrative law was dealt with and discussed in the books of constitutional law and no separate and independent treatment was given to it. In many definitions of administrative law, it was included in constitutional law.
The relationship between constitutional and administrative law is complex. In general, written constitutions tend to say relatively little about the administrative state. General due process type considerations may apply particularly to administrative agencies.[3] More directly, of course, constitutions control the administrative state through founding the structures of government, providing chains of accountability and democratic legitimacy for the decisions of administrative.
Though in essence constitutional law does not differ from administrative law inasmuch as both are concerned with functions of the government and both are a part of public law in the modern State and the sources of both are the same and they are thus inter-related and complementary to each other belonging to one and the same family. Strict differentiation, therefore, is not possible, yet there is a distinction between the two. According to Maitland, while constitutional law deals with structure and the broader rules which regulate the functions, the details of the functions are left to administrative law.
The orthodox understanding is that the fields of constitutional and administrative law share similar purposes of protection of rights, control of agency costs, and limitation of government. The primary difference, in this view, concerns their place in the hierarchy of public law: constitutional law regulates the highest norms of the state, while administrative law rules sub?legislative action, somewhat lower in the hierarchy of sources.
According to Hood Phillips, “Constitutional law is concerned with the organization and functions of Government at rest whilst administrative law is concerned with that organization and those functions in motion.”[4] But the opinion of English and American authors is that the distinction between constitutional law and administrative law is one of degree, convenience and custom rather than that of logic and principle. It is not essential and fundamental in character. Keith Rightly remarks: “It is logically impossible to distinguish administrative law from constitutional law and all attempts to do so are artificial.”[5] According to Maitland, while constitutional law deals with structure and the broader rules which regulate the functions, the details of the functions are left to the administrative law. So, constitutional law deals with the general principles relating to the organization and power of the legislature, executive and judiciary and their functions inter se and towards the citizen, administrative law is that part of constitutional law which deals in detail with the powers and functions of the administrative authorities, including civil services, public departments, local authorities and other statutory bodies. At the end, constitutional law is concerned with constitutional status of ministers and civil servants; administrative law is concerned with the organization of the service and the proper working of various departments of the government.
A table of distinguishable features of both administrative and constitutional law is provided below.
Constitutional Law
1. Constitutional law is its own kind.
2. Constitutional law deals with various departments of the state.
3. It deals with the structure of the state.
4. It is the highest law.
5. It gives the guidelines with regard to the general principles relating to organization and powers of organs of the state, and their relations between citizens and towards the state. It touches almost all branches of laws in the country.
6. It also gives the guidelines about the international relations.
Administrative Law
1. Administrative law is a species of constitutional law.
2. It deals with those organs as in motion.
3. It deals with the functions of the state.
4. It is subordinate to constitutional law.
5. It deals in details with the powers and functions of administrative authorities.
6. It does not deal with international law. It deals exclusively the powers and functions of administrative authorities.
Conclusion
Although the relationship between constitutional law and administrative law is not very distinct to be seen with bare eyes but the fact remains that related points are neither so blurred that one has to look preciously with a magnifier to locate the relationship. The aforementioned validities and illustrations provide a clear evidence to establish an essential relationship between the fundamentals of both the concepts. If doubts still remains, the very fact that each author, without the exception of a single, tends to differentiate between the two branches of law commands the hypothecation of a huge intersection.
References
1. Stott, D. Principles of Administrative Law (1997)
2. Hawke, N. and Parpworth, N. Introduction to Administrative Law (1998)
3. wordnetweb.princeton.edu/perl/webwn
4. Stott, D. Principles of Administrative Law (1997)
5. Cane, P. Administrative Law (1996)
6. Administrative Law: The Basics, Connie L. Mah, accessed from http://www.lawnow.org
7. Dicey, A. V. The Law of the Constitution (1985)
8. Ginsburg, T. On the Constitutional Character of Administrative Law, accessed from http://www.law.yale.edu/documents/pdf/CompAdminLaw/Tom_Ginsburg_CompAdLaw_paper.pdf
9. Phillips, O.H. Constitutional and Administrative Law (1962)
10. The Indian Journal of Public Administration, Volume 33, Published by The Institute (1987)
[1] Hawke, N. and Parpworth, N. Introduction to Administrative Law (1998)
[2] Dicey, A. V. The Law of the Constitution (1985)
[3] Ginsburg, T. On the Constitutional Character of Administrative Law, accessed from http://www.law.yale.edu/documents/pdf/CompAdminLaw/Tom_Ginsburg_CompAdLaw_paper.pdf
[4] Phillips, O.H. Constitutional and Administrative Law (1962)
[5] The Indian Journal of Public Administration, Volume 33, Published by The Institute (1987)