TyroCity: Administrative Law Notes

Limitation of Delegated Legislation

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

(i) Constitutional supremacy.

(ii) Not contradictory to Acts.

(iii) Judicial Review –principle of ultra vires.

parliamentary supremacy in England, so no judicial review of parliament’s delegated authority there.

(iv) Legislature cannot delegate its essential legislative functions, it must lay down policies and principles and may delegate power to fill in details and execute policy.

Meaning and definition of Delegated Legislation

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Delegated legislation means legislation made by bodies other than legislature. Delegated legislation means a legislation which is passed by a body to which the power of legislation is delegated by the statute. The parliament delegates the power making rules, regulation, orders etc to certain bodies and authorities. Such powers are exercised by these authorities within the limits and in accordance with the limits and in accordance with the principles laid down by parliament. In other word, when the function of legislation is entrusted to organs other than parliament by word, when the function of legislation is entrusted to organ other than the legislation. Delegated legislation is generally known as rules, regulations, bye-laws or notification etc.

‘Delegated legislation’ in Nepal is generally expressed as statutory rules and orders, but expressions like, ‘regulation’, notification, bye-laws, schemes, direction etc are also employed in the same context. The practice in England, India, France has been the same. The term statute law covers both acts of parliament and delegated legislation. It is also called subordinate legislation.

According to R.Dayal, “Delegated legislation means legislation which is passed by a body to which the power of legislation is delegated by the statute.”

According to Salmond, “Delegated legislation as that which proceeds from any authority other than the sovereign power and is therefore dependent for its continuous existence and validity on some superior or supreme authority.”

According to jain and jain, The term delegated legislation is used in two sense.

The exercise by a subordinate agency of the legislative power delegated to it by legislature, or
The subsidiary rules themselves which are made by the subordinate agency pursuance of the power as mentioned in no (a).

So, from above definition we can say that delegated legislation is a subordinate legislation by the authority other than the legislature and it gets legal validity and recognition on the basis of the law promulgated by the supreme authority.

Scope and Classification of Delegated Legislation

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

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 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 to 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.

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.

Definition

When an instrument of a legislative nature is made by an authority in exercise of power delegated or conferred by the legislature, it is called subordinate legislation or delegated legislation. Halsbury’s Laws of England, 4th ed.

Delegated legislation is that which proceeds from any authority other than the sovereign power, and is, therefore, dependent for its continued existence and validity on some superior or supreme authority. Salmond.

Scope
Delegated legislation must not:

(i) exceed the parent/enabling Act made by the legislature

(ii) conflict with the enabling Act, and

(iii) alter the necessity, special features, make or polices of the Act.

Forms

Title based classification
Discretion based classification
Purpose based classification
Authority based classification
Nature based classification

Title based classification
(i) Rule– A rule made under any Act, and includes regulation made similar to a rule under any Act . – Nepal Law Interpretation Act, 2010.

The law or rule made by the executive or other concerned authority in exercise of power conferred by the legislature in an Act for fulfillment of the objectives of the Act.

(ii) Regulation– The term relates to a situation where power is given to fix the date for the enforcement of an Act or to grant exemptions from the Act or to fix prices, etc. (more of substantive nature).

(iii) By-law– Regulations, ordinances, rules or laws adopted by an association or corporation or the like for its internal governance. By laws define the rights and obligations of various officers, persons or groups within the corporate structure and provides rules for routine matters such as calling meetings and the like.- Black’s Law Dictionary.

(iv) Order– This term is used to cover various forms of legislative and quasi-judicial decisions. Orders may be specific or general. The former refers to administrative action while the latter refers to administrative rule-making.

(v) Direction-It is an expression of administrative rule-making under the authority of law or rules or orders made thereunder. These may be recommendatory or mandatory. If mandatory, these have the force of law.

(vi) Scheme: The term refers to a situation where the law authorizes an administrative agency to lay down a framework within which the detailed administrative action is to proceed.

Discretion based classification
(i) Contingent or conditional legislation

A statute that provides control but specifies that they are to go into effect only when a given administrative authority finds the existence of conditions defined in the statute itself. It is fact-finding, not discretionary.

Such as,

future applicability left to the subjective satisfaction of the delegate as to indicating the proper time
Act enforced but power to withdraw the same from operation delegated to satisfaction of the delegate.
Power exercisable upon the delegate’s satisfaction of objective facts by a class of people seeking benefit of the exercise of such power to deprive the rival class of persons of statutory benefits.

Last category of conditional legislation attracts the principles of natural justice.

Though delegated legislation as such does not attract the principles of natural justice, but it applies in the case of conditional legislation where a person is deprived of his statutory rights.

Contingent legislation classification is linked with the case of Field v. Clark (US, 1892)

(ii) Subordinate legislation

The process consists of the discretionary elaboration of rules and regulations.

The distinction is one of discretion. ‘It may be noted that this distinction is hardly real. In contingent legislation also, a certain amount of discretion is always present. The contingent legislation formula is a fiction developed by the U.S. Supreme Court to get away from the operation of separation of powers.

Whereas conditional legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of excessive delegation, delegated legislation does confer some legislative power on some outside authority and is, therefore, open to attack on the ground of excessive delegation.

Purpose based classification
On the basis of different purposes it is made to serve.

(i) Enabling Act: such Acts contain an ‘appointed day’ clause under which the power is delegated to the executive to appoint a day for the Act to come into operation.

(ii) Extension and Application of Act: extension and application of Act in respect of a territory or for a duration of time or for any other such object.

(iii) Dispensing and Suspending Acts: power is delegated to the administrative authority to make exemptions from all or any provision of the Act in a particular case or class of cases or territory, when at the discretion of the authority, circumstances warrant it.

(iv) Alteration Acts: Alteration is a broad term and includes both modification and amendment.

The power of modification is limited to consequential changes, but if overstepped it suffers challenge on the ground that it is not within the legislative intent of modification.

Sometimes includes the power to remove difficulties so that the various statutes may coexist.

Amendment- e.g. power to change the schedule of an Act.

(v) Taxing Act: The policy of the taxing statute must be clearly laid down by the legislature.

(vi) Supplementary Acts: Power is delegated to the authority to make rules to carry out the purposes of the Act.

(vii) Approving and Sanctioning Acts: Power is delegated not to make rules, but to approve the rules framed by another specified authority.

(viii) Classifying and Fixing Standard Acts: Power is given to administrative authority to fix standard of purity, quality or fitness for human consumption. Courts have upheld on grounds of necessity.

(ix) Penalty for Violation of Acts: Power may be delegated to administrative authority to prescribe punishment for violation of rules.

(x) Clarify the provisions of the statute’ Act: Power is delegated to the administrative authority to issue interpretation on various provisions of the enabling Act.

Authority based classification
Based on the position of the authority making the rules.

Sub-delegated legislation: When the rule-making authority delegates to itself or to some other subordinate authority a further power to issue rules, such exercise of rule-making power is known as sub-delegated legislation.

Rule-making authority cannot delegate power unless such power of delegation is contained in the enabling act. Such authorization may be either express or by necessary implication.

Maxim ‘delegatus non potest delegare’ indicates that sub-delegation of power is normally not allowable, though the legislature can always provide for it.

If the authority further delegates its law-making power to some other authority and retains a general control of a substantial nature over it, there is no delegation as to attract the doctrine of ‘delegatus non potest delegare.’

The maxim was originally invoked in the context of delegation of judicial powers and implied 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 statute.

Sub-delegation in very wide language is improper and some safeguard must be provided before the delegate is allowed to sub-delegate his power.

Nature-based classification
On the basis of nature and extent of delegation

(i) Normal delegation

(a) Positive- where the limits of delegation are clearly defined in the enabling Act.

(b) Negative- where power delegated does not include power to do certain things, i.e., legislate on matters of policy.

(ii) Exceptional delegation

Instances of exceptional delegation may be:

power to legislate on matters of principle
power to amend Acts of Parliament
power conferring wide discretion that is almost impossible to know the limits
power to make rules without being challenged in a court of law

Judicial review on the abuse of Administration discretion

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Abuse of administrative discretion
In the word of Justice Douglas of the US Supreme court: where discretion is absolute, man has always suffered … absolute discretion … is more destructive of freedom than any of man’s other inventions. And also absolute discretion like corruption , marks the begging of the end of liberty. It thus becomes necessary to devise ways and means to minimize the danger of absolute discretion. To achieve objectives a multipronged strategy has to be adopted.

The abuse of administrative discretion can be through 4 different ways as numbered below:

Improper purposes

It is unlawful to use a discretionary power to achieve a purpose other than that for which the power was conferred.

Irrelevance

Just as grant of power may specify the purpose to which they may be applied, so they may also indicate consideration which are to be taken into account on the exercise of the power. A failure to take those consideration into account can be ultra vires . the court have also held that the taking into account of irrelevant consideration can render the exercise the power unlawful.

Bad faith

As a nothing that an administration authority has not acted in good faith is such a serious thing. It is not surprising that it is a rare ground of review. Megaw LG. has suggested that bad faith involves dishonesty. Yet it is difficult to think of an example in which a dishonest exercise of power would not the consideration of an irrelevant purposes or seeking of an improper purpose.

Unreasonableness

In many cases decided that the discretion should be reasonable as well as in accordance with law and discretion should not be arbitrary. The cases are as follows: R v. commissioner of Fens(1666) 2 keb.43, Westminister Corporation v. L and NW Railway (1905) AC 426 at 430, and lord Macnaghten said that, “ nobody, of course, can dispute that the government or the board had a discretion in the matter. But it was not an arbitrary discretion… It was a discretion to be exercised reasonably, fairly and justly.”

Substantive review

Illegality is concerned with keeping authorities within their power, whereas irrationality insures that there is no breach of substantive principles which are independent of those in the statute, even if the decision or action is technically inside the scope of the legislative scheme.

Judicial review on the abuse of administrative discretion

To exercise statutory power reasonably, in good faith, and on correct ground. The courts are still working within the bounds of familiar principle of ultra vires. The analysis involves no difficulty or mystique. Offending acts are condemned simply for the reason that they are unauthorized. The court assumes that parliament cannot have intended to authorize unreasonable action which is therefore ultra vires and void. This is the express basis of the reasoning in many of the case.

The fundamental principle of rule of law is all authorities and their actions are subject to law. The administrative authority is discharging their duties may act beyond the power or abuse the power conferred on them. As result, individual right and liberties may be affected, therefore it is necessary that there should be judicial control over misuse of discretionary power of the administrative authorities. So the rights of the peoples are not adversely affected and protect the notion of democracy and rule of law.

Judicial review can be on done for the declaring invalid the decision of the administrative decision. The administrative discretionary power is sometime very much authoritative and it hamper on the fundamental right of the individual at that time the court issue such order to repel that decision. The following case is one of the important example this regard.

Case description

Baburam Poudel v. HMG and council of ministers

Fact of the case

His Majesty Government gives retirement to a person by using the discretionary power. HMG claim that the conduct giving retirement is lawful as per the Civil Service Regulation 2021 rule 7.1(3). This rule state that any person who is reach at the stage of getting pension then government can give retirement to him or her.

Ratio Decidendi

Civil Service Regulation 2021, rule 7.1(3) talks about the discharging any government official from the service by the Government, when he/she is at the stage of getting pension. But any Act or Rules are void until the contradiction or inconsistency with Constitution is exist. This rule is some how contradict with the fundamental right. The use of discretionary power should be just and reasonable. The applicant discharge from his position and it is related with the positional right. So the decision regarding this matter should be just. The discretionary power should be use as consistent with the law; any decision made under that power is not done with the bad intention. The decision should consistent with the equality right provided by the constitution. In the question regarding, Whether is this type of decision rational and amiable? Whether are those laws inconsistent with the constitution under which decides about the retirement? If such laws are contradict with the constitution, then art. 88(1) of the constitution and the extra ordinary Jurisdiction of Supreme Court under art 88(2) provide authority to declare the conduct and laws as invalid.

The Supreme Court is competent and authoritative to decide on such constitutional issue so, supreme court can do judicial review on the decision regarding the retirement.

The universal principle is that, the discretionary power should not be arbitrary. Arbitrary acts are negative aspect of the Rule of Law. The constitution of Nepal aims to protect and follow the rule of law. That’s why the discretionary right is limited and controlled.

Civil Service Regulation 2021, rule 7.1 provide right for applicant that, applicant can stay on service until his age of 60. The Government conducts under rule 7.1(3) blunt the right provided by rule 7.1 so the use of discretionary power should be just.

Laws provide the discretionary power to the administrative executive officer, whereas the power is not arbitrary and absolute. It must be amiable. The abuse of power is not acceptable and the discriminatory conduct is functional. The decision of the administrative executive is free from the mal intention and biasness.

Court Verdict

The decision of the Government regarding the retirement of the applicant is discriminatory and unlawful. So the decision of HMG in 2048/6/4 was made void by issuing the certiorari order. Again issuing the Mandamus, order to the general administrative ministry for the re-recruitment to the applicant.

The discretionary power provided to the administrative executive body for the reason of, quick and prompt decision making in the emergency. The discretionary power does not mean arbitrariness but must be used on the ground of reasonableness and just. To control over that arbitrary discretionary power the judicial review play a vital role. So the universally accepted principle regarding the discretionary power is just and reasonable.

The judicial review is done if the act or the laws are inconsistent with the constitution. In the Baburam Poudel v. HMG and council of minisry case, in this case also Government give retirement to a person by using the power of discretion. But that act was inconsistent with the same Regulation’s rule 7.1.

The civil servants are not absolute servants of the government. As same as the appointment and discharge the general servant the civil servant cant be appoint and discharge. The civil servants recruit as per the Civil Service Act 2013 and Civil Service Regulation 2021, so the discharging or give retirement from service also be done as per the Civil Service Act 2013 and Civil Service Regulation 2021. The doctrine of pleasure is not means that the ignorance of law. For having pleasure to any one the ignorance of law is not accepted and is not having the autocracy.

Thus Judicial review by Supreme Court can control over the massive discretionary power. It helps in protecting the democracy, rule of law and people’s fundamental right and legal right. In this case also the judicial review plays role for the protection of individual right which is protected by law and constitution. And applicant was reappointed in his post though was discharged using the discretionary power by government.

Judicial control over delegated legislation

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Judicial control over delegated legislation occupies an important place in the field of control mechanisms. Judicial control means assessment by the court of the legal validity of a piece of delegated legislation which the court may do first, with reference to the constitution by applying the doctrine of ultra vires and secondly, with reference to the other recognized principles of law. It is the most effective method to keep the administration within legal boundaries. The interim constitution of Nepal 2063 the fundamental law of the land and all laws inconsistent with it shall be void. And can be so declared by the supreme court of Nepal. And stressing the importance and the judicial review supreme court has also stated, “If court were to close its door for the injured people whose legal and constitutional rights have been curtailed, then injured will always suffer injustice and the government and public officials will become more and more arbitrary and ultimately the constitutional aim of rule of law will not be achieved. It is the integral constitutional principle that forms a very important regulating mechanism of democratic government and for the protection of people’s rights. It is not only a means to checking executive action but also an ultimate watchdog of the people’s fundamental rights.

Judicial is adjective of the judiciary. It means 1) the power of a court to interpret statutes and to declare them when they violate the constitution. 2) A form of appeal from an administrative body to the courts for control of the agency’s finding of fact or law.

The general theory of judicial control is called the doctrine of Ulta-vires. Administrative power derives from the statute. The limits are found in the statute itself or in the general principles of the construction by the courts. Judicial control, therefore, means control and is based on the fundamental principle of the legal system that powers can be validly exercised only within their true limits.

The scope of judicial control may be classified by the following principles.

Breach of the principle of Natural justice
Excess of power of “substantive” ultra vires.
Errors of law
Failure to perform a duty
Bad faith or abuse of power

Rule of law/ Droit Administrative

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Droit administratif, or “administrative law,” has been defined by French authorities in general terms as “the body of rules which regulate the relations “of the administration or of the administrative “authority towards private citizens”; and Aucoc in his work on droit administratif describes his topic in this very general language:[1] “Administrative law “determines (1) the constitution and the relations of “those organs of society which are charged with the “care of those social interests which “are the object of public administration, by which “term is meant the different representatives of society “among which the State is the most important, and “(2) the relation of the administrative authorities “towards the citizens of the State.”

It was once all but complete; it is now far less extensive than it was thirty-six years ago. It forms only one portion of the whole system of Droit administratif. It has been imitated in most of the countries of continental Europe. For Droit administratif has, of recent years, been so developed as to meet the requirements of a modern and a democratic society, and thus throws light upon one stage at least in the growth of English constitutional law. It is, however, this very contrast between administrative law as it exists in France, and still more as it existed during by far the greater equality before the law of the land which are firmly established in modern England, that mainly makes it worth while to study, not of course the details, but what de Tocqueville calls the notions generales of French droit administratif.

The prerogative writs of certiorari and prohibition are available against the decisions of administrative tribunals.

Council d’Etat:

This was formed for the judicial and administrative works. This also gives suggestions or opinions to the government in the general administrative matters. In the Council d’Etat there are four types of judicial officials- a president, vice presidents in required number, presidents of different departments and auditeurs. There are five departments in the Council d’Etat , There is the Department of Finance, Department of General Construction, Social Department, Home Department and Department of Justice. The heads of these departments are called as presidents. The main head of the Council d’Etat is the prime minister of France, in his absence, the Minister of Justice acts as the president. In practice, the vice president does most of the works of the president.[1] The auditeurs are also of two types-‘Master of Petitions’ and ‘Councilor of State’ The council has been given very wide powers over the administrative tribunal. The council goes into the merits of questions of law as well as fact. The council also entertains on application in recession to test the legality and propriety of the decisions of the tribunal and the council may take up the error or law apparent on the face of the record, even in case of revision..

With regard to statutes, it is formally provided that all bills introduced into parliament by the government must have been submitted for the Counseil’s advice. The parliament may or may not accept it. In principle, it can present to parliament a new bill containing provisions which conform neither to its original bill nor to the modifications suggested by the Counseil d’Etat; for, although this appears to frustrate the requirement of consultation, parliament must retain complete freedom to adopt whatever text it pleases.[2]

Quite apart from the legislative process, the Counseil d’Etat has the duty of acting as general legal adviser to the government and to individual ministers.

BASIC PRINCIPLES OF DROIT ADMINISTRATIF:

The power of administration to act ‘suo motu’ and to impose directly on the subject the duty to obey its decision.
The power of administration to take decisions and to execute them ‘suo motu’ may be exercised only within the scope of the law which protects individual liberties against administrative arbitrariness.
The existence of a specialized administrative jurisdiction. One speaks of administrative jurisdiction because there decision relate to the superior control of the counseil d’Etat either by means of appeal.

This is principle laid down by the counseil d’Etat, that from administrative decisions. There is a right of appeal to the counseil even where the law is silent or if it provides. That the tribunals are the final authority.

One good result of this is that an independent body reviews every administrative action. The counseil d’Etat composed of eminent civil servant deals with a variety of matters like claim for damages for wrongful acts of government servants, income tax, pensions disputed elections, personal claims of civil servants against the state for wrongful dismissal or suspension and so on.[1]

SIMILARITIES BETWEEN THE ENGLISH RULE OF LAW AND DROIT ADMINISTRATIF OF FRANCE:

The Droit administratif of France resembles (have a similarity to) the English rule of law, because both are the result of ‘Case law’ or judge made law.
The counseil d’Etat of France has been converted from an executive into a judicial or quasi-judicial body by the gradual (not rapid) process of its judicial from and its executive function. In England, the judicial system has grown as a result of transfer to parts of the King’s council of judicial powers originally exercised by the ‘King-in-council. However, the parliament destroyed the arbitrary authority of courts like the Star Chamber and of the council. In France, Droit administratif and administrative tribunals were not only tolerated (sustain) but progressively thrived (prosper) and have come to stay.
In England, the crown and its servants was something beyond and above the ordinary law. Such a concept of administration thrived in France.

DIFFERENCES BETWEEN THE ENGLISH RULE OF LAW AND DROIT ADMINISTRATION

The following points of differences have been mentioned[1]:

Droit administratif is not the law of a class and it is a distinct body of law which may affect and does affect the rights of French citizen. In England, there are laws, customs or regulations which determine the positions of civil servants of the Head of the State. These laws, customs and regulations constitute the law of a class. The powers exercisable by the civil servants under these laws, customs and regulations must be exercised in accordance with ordinary common law principle.
If an official in England exceeds (be more) the authority given to him, he incurs (suffer) the common law responsibility for his wrongful act and he can not plead in his defense strict obedience to official orders and he becomes amenable (responsible to law) to the authority of ordinary courts for the tort he has committed. But in France the government and its servant exercise wide discretionary powers which is not under the control of any court. The executive or its servant can not be made amenable to the jurisdiction of any tribunal for an act of the state.

REASONS OF SUCCESS TO DROIT ADMINISTRATIF:
Droit administratif has been quite successful in subjecting the rule of law. This success may be attributed to a combination of the following factors:

The composition and functions of the Droit administratif itself.
The flexibility of its ‘case law’.
The simplicity of the remedies available before the administrative courts.
The special procedure evaluated (natural process) by those courts.
The character of the substantive law which they apply.

Analysis of Nepalese situation with reference to Droit administratif:

There is no clear constitutional provision about the administrative tribunal in Nepal. There is operating a revenue tribunal and some special tribunal make-up timely. There is one administrative court established by civil service Act, 2049 (and regulation 2050) section 75. It has not effectiveness. Its name and function is contradiable with other countries.[1] Rules, regulations, bylaws, schemes, orders, notification, directions and circulars are main forms of delegated legislation which makes the effectiveness to the administrative function.

So far the province of administrative law is concerned, it embraces the existence of various administrative bodies such as wage board, central board of revenue, commission of inquiry and advisory boards, tariff commission and also there are administrative tribunals for the judicial function. Provisions of adjudicatory authority, (e.g. decisions of the administrative authorities or tribunals i.e. regional administrator, C.D.O., D.D.C., V.D.C., ministerial, departmental decisions etc. It gives the social justice and to fulfill the administrative purposes. The informal sources of administrative law in Nepal are:- Public Service Commission procedure Act, direction, rule, Karbhai Bandej Act, 2009, Nepal Corruption elimination Act, 2010, Nepal Civil Service Act, 2013 and rule 2021, Administrative reform commission report, Citizen Right Act, 2012, Muluki Ain, 2020, Administrative function reform karya toli, 2056 etc.

Historically, the executive was identified with sovereign, in whose name many acts were performed by the prime minister, cabinet, and other ministers. But the executive today includes all those officials, public authorities and other agencies by which functions of government are performed within the executive are therefore to be included the civil service, the armed forces, the police, local authorities(who exercise executive functions within a defined locality) and independent statutory bodies (e.g. DDC, VDC, ward office etc.). The budget is framed by the executive and after being finally approved by the legislature the executive at different levels spends vast sum of money and all revenues are also collected by the executive at lower levels.

In France, the counseil d’Etat is the supreme authority to correct the decisions of various administrative authorities. This council functions for all practical purposes like a judicial body the proceedings are conducted in public and the parties many represent themselves through counsels. The council give comprehensive judgments and these constitutes valuable precedents for the future.

Administrative law governing the conduct, powers and procedures of administrative agencies. It is control mechanism of the public administration. It deals in particular with the quasi-legislative and quasi-judicial powers of administrative authorities along with their executive powers and their control. There is greater emphasis upon the study of judicial exercise of their diversified powers. For e.g. Administration procedure (regulation) Act, 2028, Corruption elimination Act, 2017, Authority abuse investigation, commission Act, 2048, Civil Service Act, 2049 and regulation 2050, Public Service Commission (procedure) Act, 2048, Health Service Act, 2052, Administrative court rule, 2051, VDC, DDC Act, 2048, Local autonomous govern Act, 2055 etc.

The English administrative law is based on the concept of the Rule of Law, French administrative law is conducting according to the theory of Droit administratif. Nepalese administrative law is regulating according to mixed system of heterogeneity, though, Droit administratif or administrative law studied as separate subject from long ago. The scope of administrative law in our country is very much similar to that in the United States and India.

Meaning of Administrative Law

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Administrative law

Administrative law is primarily concerned with the manner of exercising governmental power. The decision making process is more important than the decision itself. Secondly, administrative law cannot fully be defined without due regard to the functional approach. This is to mean that the function (purpose) of administrative law should be the underlying element of any definition. The ultimate purpose of administrative law is controlling exercise of governmental power. The control aspect‘ impliedly shades some light on the other components of its definition.

Austin has defined administrative law, as the law which determines the ends and modes to which the sovereign power shall be exercised. In his view, the sovereign power shall be exercised either directly by the monarch or indirectly by the subordinate political superiors to whom portions of those powers are delegated or committed in trust.

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.‖

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”

It studies powers of administrative agencies. The nature and extent of such powers is relevant to determine whether any administrative action is ultra-vires 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 the 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.

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.

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 habeas corpus.

Differences between Constitutional and Administrative Law

Therefore, Keith observed:

“It is logically impossible to distinguish administrative from constitutional law and all attempts to do so are artificial”.

However, according to Holland, “Constitutional law describes the various organs of the government at rest, while administrative law describes them in motion”

Therefore, according to this view, the structure of the legislature and executive comes within the purview of the constitutional law but there functioning comes within the sphere of administrative law.

According to Jennings– administrative law deals with the organization, functions, powers, and duties of administrative authorities while constitutional law deals with the general principles relating to the organization and powers of the various organs of the state and their mutual relationship of these organs with the individuals. In other words, constitutional law deals with fundamentals while administrative law deals with details.

Differences Between the Constitutional and Administrative Law of India

Accordingly to Keith: “It is logically impossible to distinguish administrative law from constitutional law and all attempts to do so are artificial.” But still some of the most important differences between the constitutional and administrative law of India are:

Constitutional Law:

It is the supreme and highest law of the country. No law can be regarded above the law of the constitution of India.
The constructional law is always regarded as the genus. It is the main law.
This law mainly deals with various organs of a state.
It mainly deals with the structure of the state.
It touches all the branches of law and gives guidelines with regard to the general principle relating to organization and powers of organs of the state, and their relations between citizens and towards the state.
It also gives guidelines about intentional relations.
It deals with the general principle of state pertaining to all branches.
It demarcates the constitutional status of Ministers and public servants.
It imposes certain negative duties on administrators if they are found violating the fundamental rights of the citizens and etc. It also imposes certain positive duties on administrators, viz, implementation of social welfare schemes.
The constitutional laws have complete control over the administrative law and administrators of the country.

Administrative Law:

It is not the supreme law of the country rather it is subordinate to the constitutional law.
Administrative law is the species of constitutional law.
It deals with the organs of the state as motion.
It mainly deals with the various functions of the state.
It doesn’t deal with all branches of law, rather it details with the powers and functions of administrative authorities.
It does not deal with international law. It deals exclusively with the powers and functions of administrative authorities.
It deals with the powers and functions of administrative authorities, including services, public departments, local authorities and other statutory bodies exercising administrative powers, quasi-judicial powers, etc.
It is concerned with the organization of the services or the working of the various government departments.
The administrators have to follow constitutional law first and next to the administrative law.
The administrators should perform their functions with utmost obedience to constitutional law. Administrative law is just a subordinate to constitutional law.

Definition

On his part, Foulks: Administrative law 7th edition, page 1, defines:
Administrative law is the law relating public administration. It is concerned with the legal forms and constitutional status of public authorities; with their powers and duties and with the procedures followed in exercising them; with their legal relationships with one another, with the public and with their employees; which seek, in varied ways, to control their activities.

H.W.R.Wade & C.F.Forsyth, (1994), Administrative law, 7th edition

In his view, Wade: Administrative law 7th edition pg 4, defines Administrative law in the following words:

A first approximation to a definition of Administrative law is to say that “it is the law relating to the control of government power”

Wade asserts “the primary purpose of Administrative law, therefore, is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse. The powerful engines of authority must be prevented from running ‘amok’.” Wade further contends that “abuse”, it should be made clear, carries no necessary innuendo of malice or bad faith. He further elaborates this by stating that government departments may misunderstand their legal position as easily as many other people and the law which they have to administer is frequently complex and uncertain. Abuse is therefore inevitable, and it is all the more necessary that the law should provide means to check it. In addition to this, Wade further asserts that it is also the concern of administrative law to see that public authorities can be compelled to perform their duties if they make default. At page 5, Wade tries to distinguish functions of Administrative law from the structure by giving a second approximation to a definition of Administrative law. He thus states “It may be said to be a body of general principles which govern the exercise of powers and duties by public authorities”. In this regard, Wade contends that “the whole of Administrative law may indeed be treated as a branch of Constitutional law since is flows directly from the constitutional principles of the rule of law, the sovereignty of parliament and the independence of the judiciary; and, it does much to determine the balance of power between the state and the citizens.” To this extent, Wade further asserts, “As liberty is subjected, justice must be added. That the more power the government wields, the more sensitive its public opinion to any kind of abuse or unfairness. The machinery of Administrative justice therefore combines Administrative authorities, Administrative functions, judicial control and how that control and authority can be exercised.

It is important to note is that the whole essence of Administrative law is to advocate for or uphold natural justice most especially for public servants or any other person appearing before an administrative tribunal.

Reasons for the Growth of Administrative agencies/ Administrative Adjudication

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Agencies are created and assigned specific tasks by the legislature. They carry out the tasks making decisions of various sorts and supervising the procedure by which the decisions are carried out. There are many reasons why administrative agencies might be needed. Almost every governmental agency has been created because of a recognized problem in society, and from the belief that an agency may be able to help in solving the problems. The following are the main reasons for the creation of the administrative agencies.

A. Providing Specificity
The legislative branch of government cannot legislate in sufficient detail to cover all aspects of many problems. The house of the people‘s representatives cannot possibly legislate in minute detail and, as a consequence, it uses more and more general language in stating its regulatory aims and purposes. For instance, the house of people‘s representatives cannot enact a tax law that covers every possible issue that might arise. Therefore, it delegates to the council of ministers and ministry of revenue the power to make rules and regulations to fill in the gaps, and create the necessary detail to make tax laws workable. In many areas, the agency has to develop detailed rules and regulations to carryout the legislative policy.
It is also true that courts could not handle all disputes and controversies that may arise. They simply do not have the time or the personnel to handle the multitude of cases. For instance, the labour relations board entertains and resolves so many number of collective labour disputes between employees and employers. Similarly, the tax appeal commission and the welfare (pension) appeal tribunal adjudicate and decide vast number of administrative litigations within their jurisdiction. The creation of such adjudicatory agencies (usually known as quasi- administrative agencies) is necessary, because of the fact that they have, specialized knowledge and expertise to deal effectively with the detailed, specific and technical matters, which are normally beyond the competency of judges of ordinary courts.

B. Providing Protection
Many government agencies exist to protect the public, especially from the business community. Business has often failed to regulate itself, and the lack of self- regulation has often been contrary to the public interest. For instance, the Environmental Protection Agency is created to regulate environmental pollution. In the absence of such agency, business could not voluntarily refrain from polluting the environment. The same can be said with respect to quality of private higher education and unjustified and unreasonable increase in the price of essential goods. The Ministry of Education and Ministry of Trade and Industry, regulate respectively both of these cases to protect consumers and the public at large.

C. Providing Services
Many agencies are created simply out of necessity. If we are to have roads, the Nepal Roads Authority is necessary. Welfare programs require government personnel to administer them. Social security programs necessitate that there should be a federal agency to determine eligibility and pay benefits. The Nepal Social Security Authority is established to process pension payment and to determine entitlement to such benefit. The mere existence of most government programs automatically creates new agencies or expands the function of the existing ones.

The following may be summarized as purposes of the administrative agencies.

A) Regulation
One of the key reasons for regulating economic activities by the government is the inability of business to regulate itself. When the government decides to regulate a certain sector, it entrusts the task to the administrative agencies. Agencies offer several advantages over regulation through the legislature and courts in the management of complex and technical regulatory problems. Because they are specialized bodies, they can consider technical details more effectively than the legislature.
When the government regulates business its aim is to minimize the negative impacts of a free economy. In the absence of regulation, business does not respond to concerns over the environment and consumers. Some of the justifications for regulation include:

To control monopoly power
Agencies are often created to replace competition with regulation. In this case the agency may determine rate (e.g. transportation, or electricity). Sometimes the difference in bargaining power may be a ground for regulation, avoiding monopoly power of one party. Such instances include regulation of banking, insurance and labour relations.

To control excess profit
The agency regulates business to ensure that business is not collecting excess profit, which may endanger the laws of free market and also may pose a danger to consumers.

To compensate for externalities
―Externalities‖ occasionally referred to as ―spillovers‖, that occur when the cost of producing something does not reflect the true cost to society for producing the goods. One example is manufacturing process that creates air pollution for which society pays the clean up costs. A business organization, unless otherwise it becomes sure that there is also corresponding participation by other companies, will not install costly pollution control equipment. Doing so will drive up that company‘s costs which makes it unable to compete with other companies in producing the same product without equipment and selling their products at a lower price. So, some entity i.e. a government agency must require all companies to make those investments (installing equipments) in order to spread the costs of pollution control over the entire industry..

To compensate for inadequate information
Compensating for inadequate information is a justification for a great deal of legislation for consumer protection. Purchasers of food, for instance, cannot analyze the nutritional content or the health hazards of various food products so that there has to be some organ that ensures these tests are fulfilled.

To compensate for unequal bargaining of powers
Contracts between banks & customers, insurers & the insured, employees & employers are adhesive in their nature. Either the consumer has to take it or leave it. Hence, it becomes self-evident to regulate and set minimum standards to minimize the effect of unequal bargaining of power.

B) Government exactions
In addition to regulation, administrative agencies may also engage in government exactions. Government exactions are the traditional powers and responsibilities of agencies. Such functions include collection of tax and military conscription.

C) Disbursement of money or other commodities
This purpose of administrative agencies is also the prominent one which characterizes the welfare state. In this regard, through the social security programme and other government systems of insurance or compensation, agencies disburse public money as payment of pensions for veterans or assistance for the aged, the disabled, the unemployed and generally the needy. The payments may be directly through cash or food rations.

D) Provision of goods and services
Nowadays, the government is in charge of building and maintaining roads, high ways and dams, the provision of police force and other protective services. Funding public education and the health service may also be mentioned as additional examples. More recent additions include mass transit communications, satellite systems, government research and development programmes, public hospitals and public housing.

Other Reasons

i) Intensive form of government; welfare state

(ii) Informal, cheap and quick vs. expensive, time-consuming litigation in court

(iii) Expertise, specialization and experimentation needed to develop and apply new public law standards

(iv) Growing emphasis on preventive justice rather than punitive justice

(vi) To reach decisions not strictly according to law as such, but on the ground of policy considerations and mutual give and take

(vii) Courts are groaning under the weight of pending cases and if the whole mass of fresh litigation arising in an intensive form of government is diverted to them, the judicial system would virtually collapse

Importance/ Purpose of Administrative law

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Importance/ Purpose of Administrative law:

Administrative law embodies general principles applicable to the exercise of the powers and duties of authorities in order to ensure that the myriad and discretionary powers available to the executive conform to basic standards of legality and fairness. The ostensible purpose of these principles is to ensure that there is accountability, transparency and effectiveness in exercising of power in the public domain, as well as the observance of rule of law.

Peer Leyland and Tery Woods have identified the following as the underlying purposes of administrative law.

It has a control function, acting in a negative sense as a brake or check in respect of the unlawful exercise or abuse of governmental/ administrative power.
It can have a command function by making public bodies perform their statutory duties, including the exercise of discretion under a statute.
It embodies positive principles to facilitate good administrative practice; for example, in ensuring that the rules of natural justice or fairness are adhered to.
It operates to provide accountability and transparency, including participation by interested individuals and parties in the process of government.
It may provide a remedy for grievances at the hands of public authorities.

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 safeguarded.
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.

Quasi Judicial Bodies

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

a. Administrative Court
The Administrative Court in Nepal hears appeals related to removal of government employee only.

It decides on appeals related to removal of gov employee only, does not hear all disputes concerning government employee, such as those related to promotion, deployment, departmental action, corruption, etc.

No relation to cases regarding ordinary citizens.

In this sense, Administrative Court in Nepal does not really reduce the burden of cases on the regular courts.

Public Service Act, 2049 is the special governing Act

Constitution and Qualification of members– 1 chairperson and 2 members’ panel. Tenure of member is 5 years. Chairperson is person who was, is or qualified to be judge of appellate court. Other 2 members, 1 is from legal and another from administrative background.
Jurisdiction– Hear appeal against departmental action to remove gov employee from service, with or without restriction on future government employment.
Exercise of jdx– Collectively by the 3 members based on majority opinion.
Decision on Appeal– to endorse or invalidate the earlier decision, or decrease punishment or to acquit, within 6 months from date of filing of appeal
Parties may appoint lawyer or plead themselves
Enforcement of decision- via Ministry of Public Administration
Contempt of court- proceedings may be held against those who do not comply with this Court’s decisions or orders or one who commit contempt of this court. Up to 6 months imprisonment or not exceeding Rs. 5,000 fine or both for contempt.

Ujjwal P. Devkota v. Office of Audit Controller (NKP 2057)

Appeals relating to termination of government employment should be filed with the Administrative Court, which is the prescribed legal remedy, and not as a writ application under the extraordinary jurisdiction of the Supreme Court. Administrative Courts is an alternate legal remedy.

This decision put an end to the practice, after the enforcement of Constitution of 1990, of directly filing writs by employees against whom departmental action had been taken , instead of filing appeal at Admin Court.

b. Revenue Tribunal

Hears appeals against decisions related to revenue taken by various agencies and official pursuant to Revenue Tribunal Act, 2031

Constitution and Qualification of members– 1 chairperson and 2 members’ panel. Chairperson is person who is or qualified to be judge of appellate court. Other 2 members, 1 is from revenue and another from audit background.
Jurisdiction– Initial complaint: relating to its contempt (of court).

Appeal: Hears appeals against decisions related to revenue taken by various agencies and official

Appeal against Decision of Revenue Tribunal- Decision of RT is final. May file appeal against decision of RT at the Supreme Court on the following legal grounds:

(i) question of jurisdiction

(ii) admission of irrelevant evidence and exclusion of relevant evidence, or

(iii) violation of mandatory procedural laws.

. . .

c. District Administrative Office . . .
d. Local Authorities
e. Others (Forest, Land, Police, etc.)

Supreme Court’s Role in Development of Administrative Law in Nepal

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Read the cases of Rajiv Parajuli v. RCCC and Baburam Poudyal v. Secretariat of Council of Ministers in greater details. Previous exam questions point of view.

Below is merely a suggestion of possible topic discussion, and some (not exhaustive or the most illustrative) corresponding cases.

You are free to judge the role in either positive or negative light as long as you support your view evidence, i.e. case laws in this regard. Or, to discuss in terms of time-periods and trends of the court.

Classification of Administrative Action
Mukti Sharma v. Tek Bahadur (NKP 2017, p.101)

The principles of natural justice apply to only judicial and quasi-judicial decisions. The discretion of HMG to grant approval for prosecution of corruption related allegations is a purely administrative function and not a quasi-judicial function, and hence, the principle of natural justice do not apply to it.

Yagyamurti Banjade v. Bagmati Special Court (NKP 2027, p. 57)

The decision of a judge is judicial, the judicial decision taken by administrative official is quasi-judicial, and the decision regarding administration that is taken by an administrative official (where there is more discretion) is (purely) administrative decision.

Constitutional Supremacy / Rule of Law
Mithilesh Kumar Singh v. PM Girija Prasad Koirala et al (NKP 2056) (certain sections of Land Act 2021 declared ultra vires)

Ultra vires
Mithilesh Kumar Singh v. PM Girija Prasad Koirala et al (NKP 2056) (certain sections of Land Act 2021 declared ultra vires)

Padam Kumar Nepali v. Council of Ministers Secretariat (NKP 2052) (some rules of Police Rules 2049 ultra vires)

Ramchandra Gautam v. Ministry of Information and Communication NKP 2052 (certain bylaws of the Gorkhapatra Corporation Employees Service Bylaws ultra vires).

Excess of Jurisdiction/authority

Ramji Shrestha v. District Administration Office Nuwakot (NKP 2042, p.117)

The DAO received a petition regarding a transaction agreement between individuals, upon which it ordered for the execution of a document. The decision was held invalid by SC.

Jurisdiction of the SC
Alternate Remedy

Ujjwal P. Devkota v. Office of Audit Controller (NKP 2057)

Principles of Natural Justice
Mukti Sharma v. Tek Bahadur (NKP 2017, p.101)

Yagyamurti Banjade v. Durga Das Shrestha (NKP 2027, p.157)

The rule was reinforced in the case of Yagyamurti Banjade v. Durga Das Shrestha (NKP 2027, p.157), where the court expressed the difference between judicial, quasi-judicial and purely administrative, and held that the rule of natural justice must be adopted in quasi-judicial decisions, not in purely administrative decisions.

Reasoned Decision or Speaking Orders

Kalar Thakur Hajam v. District Land Reform Office Saptari (NKP 2043, p.304)-

An official with authority to take a judicial or quasi-judicial decision, while deciding, must consider evidence and decide by giving reasons for the decision.

Use of judicial conscience – The SC of Nepal at times uses the term ‘judicial conscience’, similar in meaning to reasoned decision.

Right to Notice

Gajendra Bahadur v. District Land Reform Office Kathmandu (NKP 2050, p. 671)- Decision cannot be taken in the absence of the concerned party, by merely publishing notice in a newspaper, without duly serving notice pursuant to the law.

Right to Present Case and Evidence

Nyuchhemaya Tuladhar v. Rupandehi Dist. Court (NKP 2050, p.231)- Where proceedings required inclusion of registered persons other than the borrower, and the auction notice which was published did not include such registered persons, therefore, the proceeding requiring such registered persons to make payment without the opportunity to be heard is against the principle of natural justice. SC order Rupandehi and Ktm dist courts to issue notices to the registered persons.

Due Process of Law
Gajendra Bahadur v. District Land Reform Office Kathmandu (NKP 2050, p. 671)- Decision cannot be taken in the absence of the concerned party, by merely publishing notice in a newspaper, without duly serving notice pursuant to the law.

Public Interest Litigation / Locus Standi

Limit on discretionary power

Baburam Poudyal v. Secretariat of Council of Ministers (NKP 2048)

Discretionary power should be exercised not in arbitrary manner, but in a proper and rational way.

Constitutionality of Delegated Legislation

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Constitutionality of delegated legislation means the permissible limits of the constitution of any country within which the legislature, which as the sole repository of law making power, can validly delegate rule making power to other administrative agencies.

Meera Gurung Vs central Immigration Department Themel: Rules 14(4) of Foreign Immigration Rules was declared null andvoid.

Reena Bajracharya and others v. RNAC and others: Rule 16.1.3 of Royal Nepal Airlines Corporations Workers Rule ultra vires.

Balkrishna Neupane vs. Cabinet Secretariat and other: Rule 3.4(a) (b) (c) of Citizenship Rules 2049 was quashed.

Lilamani Poudel v. HMG: Rules 6(2) of Legal Aid Regulation 2055 was declared void as it is inconsistence to Art. 14(5), 11 of the constitution.

Chandra Kant Gyawali and others v. HMG and others: Bye-law 21(1) of the Prison Rules was declared null and void as it violate the Article 11(1)(2)(3) of the Constitution.

Aachuta Prasad Kharel vs. prime Minister, Office of Council of Minister and others: Rule 5(2)(3) of Appointment and Service/ facilities Regulation of Official of Nepal council of Legal Professional, 2055was against the principle of natural justice and Art. 24(9) of the of the constitution.

So, constitutionality test of the delegated legislation is the one of the strong mechanism to control the delegated legislation in context of Nepal. This constitutionality test of the delegated legislation protect the essence of the Constitution i.e. Right to equality and non discrimination. Thus any rule inconsistence with the Constitution will be the matter of judicial review and court declare it void ab initio. Thus, Constitutionality test of the delegated legislation make administrative action accountable towards the citizens and keep within the preview of the Constitution for the protection of the Constitutional rights and the welfare of the country.

Constitution is the fundamental law of the land and any laws, bylaws or the regulation promulgated should be consistent with the constitution. If any laws inconsistent with the constitution is declared null and void to the extent of inconsistency with the constitution. If parliament exceeds its legislative power and makes any law contrary to the constitution provisions and principles, Supreme Court under Article 107(1) and (2) of the constitution has power of judicial review can declare these laws ultra vires