TyroCity: Administrative Law Notes

Doctrine of Ultra Vires

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

Doctrine of Ultra Vires means beyond the scope, power or authority of any company, corporation or statutory body. The term ‘Ultra Vires’ implies absence of capacity or power of the person to do any act. It is not necessary that an act to be ultra vires must be illegal; it may or may not be. An act is said to be ‘Ultra Vires’ when it is enacted in excess of the legislative power. A rule is Ultra Vires when it is beyond the rule-making power of the authority. It is the basic doctrine in Administrative law and the foundation of judicial power to control actions of the administration. When the power is conferred on the administrative body, the instrument conferring the power may itself provide for restriction on the exercise of the power. If administrative body goes beyond such restrictions imposed on it, in the exercise of power, it is treated Ultra Vires.

The supreme court of India in Uttar Pradesh Vs Renusagar power co. expressed”If the exercise power is in the nature of subordinate legislation, the exercise must conform to the provision of the statute. All the conditions of the statute must be fulfilled.”Yet in another case, Greater Bombay Municipal corp. Vs Nagpal printing Mills, the court emphatically stated that delegated legislation repugnant to, or inconsistent with, or in contravention of, or in excess of, or overriding the provisions of the parent Act is Ultra Vires.

The doctrine of Ultra Vires has two principles bases or aspects and the bases of doctrine of ultra vires are the method or approaches to control the delegated legislation by the judiciary.

Substantive Ultra Vires
Procedural Ultra Vires

Substantive Ultra Vires
If the delegated legislation involves the defects of substance or if the exercise of any power will be limited by the substance of power i.e., what the administrative authority is empowered to do, it is called substantive Ultra vires. It means that the delegated legislation goes beyond the scope of authority conferred by the parent statute or by the constitution. It is the fundamental principle of law that a public authority cannot act outside the powers i.e. ultra vires. The doctrine refers to the extent; scope and range of power conferred by the parent action the concerned authority to make rules. To be valid a rule must fulfill two conditions, they are:

It must conform to the provisions of statute under which it is framed; and
It must also come within the scope and purview of the rule making power of the authority framing the rule.

If either of these conditions is not fulfilled, the rule would be void as parliament never intended to give authority to make such rules which are unreasonable and ultra vires. A delegated legislation may be held to be invalid on the ground of substantive ultra vires in the following circumstances.

Constitutionality of Parent act
Constitutionality of parent act plays a dominant role for delegated legislation under which it is made. If the parent act, which empowers the administration to form necessary rule, bye laws, regulations or any form of delegated legislation, itself unconstitutional or Ultra vires the constitution, delegated legislation made under it is necessarily bad and will be ipso facto invalid. The parent act may be unconstitutional on the ground breach of fundamental rights, other constitutional provisions and on the ground of excessive delegation.

The supreme court of Nepal under the constitution has the power to declare the inconsistent laws void either ab initio or from the date of its decision but mostly it declares the inconsistent laws void from the date of its decision by calculating their pragmatic values.

Imansingh Gurung Vs HMG] is the first landmark decision in which the full bench of the supreme court declared section 1(3)(d) o the Military act, 1959 (2016) inconsistent with Article 11(1) which guarantees the fundamental right to equality of a citizen. The military Act, 1959, in its third amendment inserted clause (d) in section 1(3) under which all civilians were made the subject matter of Act. This clause of the Act had imposed the military law on Iman singh Gurung who was civilian. He was sentenced to 8 years rigorous imprisonment by the court marital on charges of abetting ltd co. Bharat Gurung to commit an offence under section 45(b) of the military Act 1959. He was also debarred from the trial of an ordinary court and thus his guaranteed right to equality was infringed by the impugned section of the Act. The court declared such defective and discriminatory piece of enactment null and void with effect from the date of its decision.

Delegated legislation ultra vires the constitution
Like the parent act delegated legislation can also be challenged on the ground of its constitutionality. Sometimes, parent act may not be formed unconstitutional but delegated legislation made under it may conflict with the constitution. The courts may be asked to consider the question of constitutionality of delegated legislation itself.

In Reena Bajracharya and others Vs HMG,The court declared that Rule 16.1.3 of RNAC Personnel Service Rules, 1974 null and void abinitio on the ground of ultra vires with the constitutional right to equality.

Delegated legislation is ultra vires the parent act
The validity of delegated legislation can be questioned on the ground that it is ultra vires the parent act. It has become an accepted principle of law that the delegated exercise of legislative power must be exercised in conformity with the principal power or authority. If delegated legislation does not conform exactly to the power granted or if it is in direct conflict with any provision of Act, under which it is made, it can be held invalid. Rules whether made under the constitution or a statute, must be intra vires the parent law under which power has been delegated. Thus, delegated legislation, repugnant to or in excess of or overriding the provision of parent act is ultra vires.

In Advocate Bal Krishna Neupane Vs HMG, secretariat of the council of Ministers the court declared sub-rule 4(a),(b) and (c) of Rule 3 of citizenship Rules, 1992 void abinitio as it had fixed some additional grounds except the grounds determined under the constitution and citizenship act for the acquisition of citizenship without the delegation of legislative power. The court observed that a rule making body is not competent to frame rules without the authority of law. If the rules which are made to fulfill the objective of the Act, fix some additional grounds or criteria of acquisition citizenship without the delegation of legislative power, such rules or the criteria underlying therein are ultra vires the Act and therefore void.

Delegated legislation Ultra vires the General rule
The validity of delegated legislation can be challenged on the ground that it is ultra vires the general law. It takes place, when the delegated legislation makes a law in force unlawful and unlawful act lawful.

In A.V Nachane Vs union of India, in this case the rules framed by union government under delegated authority by L.I.C with regard to bonus to class iv employees was held ultra vires since it supersedes the terms of Bonus settlement 1974.

Unreasonableness
Generally statute cannot be challenged on the ground of unreasonableness. But, in exceptional cases, it can be challenged on the ground of unreasonableness. Unreasonableness is an implied restriction on delegated legislation. It is presumed that legislature does not intend to confer power to make unreasonable rules. Therefore, such rules, which are not reasonable, may be declared ultra vires by the court. But unless a rule is manifestly unjust, capricious, inequitable or partial in operation it cannot be invalidated on the ground of unreasonableness.

If we observe the decision of supreme court, we see the cases like Keshav Bd Thapa, Dhrub Bhaktarki Vs Ministry of General Administration and others, Babu Ram poudel Vs HMG secretariat of the council of ministries, Sita Bista Keshtri Vs HMG, Ministry of Home affairs etc the petitioners have raised the voice against unreasonable restrictions imposed on their basic right by the law and supreme court has also very affectively taken the matter into concern but petitioner have challenged laws, either supreme or subordinate and begged before the court to invalidate the same on the ground of the principle of unreasonableness, as it is an implied restriction of any law. Therefore, the court has not utilized this principle in the real sense of the term.

Mala fide
Mala fide means ‘bad faith’ or ulterior motive. Delegated legislation can be challenged on the ground of mala fide, if it has no relation to the purpose for which the law making power was delegated. But in practice, it is extremely difficult to substantiate these grounds before the court. For example, under section 3(1) of D.I.A the government promulgated the Gold control rules. These rules were challenged on the ground that they did not sub serve the purpose mentioned in section 3(2). It was argued that there must be some real and proximate connection between the rules and specified purposes. There is however, no Nepali case where a statutory rule has been held invalid on the ground of mala fide.

Excessive Delegation
A statute which is invalid on account of excessive delegation, or delegated legislation which is ultra vires the statute, will not cease to be so merely because the legislature has made certain amendment to the statute not directly curing the defect.

Sub-delegation
If the Executive i.e. the delegate further delegates such power to any subordinate authority or agency it is called sub-delegation. The principle of sub-delegation is subject to criticism and not accepted, unless there is a provision express as implied, to that effect. Hence, the validity of an act under sub-delegation can be questioned ulta vires.

Procedural Ultra Vires
If the administrative authority fails to follow required procedure prescribed by parent act or by the general rule, it is known as procedural ultra vires. To apply the doctrine of Ultra vires, the first question for the courts to decide is whether the provision in the act prescribing the procedure is mandatory or directory. Rules become invalid only in the case of non compliance with the mandatory procedure. Non compliance of directory procedure does not render them invalid. So, an absolute enactment must be obeyed or fulfilled exactly but it is sufficient if directory enactment be obeyed or fulfilled substantially. Basically non compliance of following procedure declares delegated legislation void.[7]

Publication of delegated legislation
Consultaton with export body or approval of an authority
In Prakash Shrestha Vs HMG, Prime Ministers and the office of the council of Ministers, The petitioner challenged, Bye-Law 21 and Bye Law 22(1) of the Nepal Electricity Authority Administrative personnel Bye Laws, 2050 as they were inconsistent with Art 11 of the constitution, which guarantees the right to equality of all citizens.

Court issued a directory order in the name of the electricity authority to necessarily perform the task of publication for the purpose of Bye Law 22 and 27(1) of the said Bye-Laws.

Reasons and Type of Control

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

Reasons for Control

Separation of Power. Representativeness. Constitutional supremacy. Rule of law. Not arbitrary or discriminatory.

Constitutional and Parliamentary Control
Judicial Control
Other Control Mechanisms

-Judicial Control

Constitution of Nepal 2015, Article 133. Judicial review and extraordinary jurisdiction of the Supreme Court:

Any Nepali citizen may file a petition in the Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this Constitution, because it imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by this Constitution or on any other ground, and extra-ordinary power shall rest with the Supreme Court to declare that law void either ab initio or from the date of its decision if it appears that the law in question is inconsistent with the Constitution. . .

The principles on which the constitutionality of statutes is judged and that of subordinate legislation, are different.

Judicial review grounds:

(i) Enabling act is ultra vires the constitution

If the enabling Act is ultra vires the Constitution which prescribes the boundaries within which the legislature can act, the rules and regulations framed thereunder would also be void. The enabling Act may violate the implied or express limits of the Constitution.

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

(ii) Administrative legislation is ultra vires the constitution

It may happen that the enabling Act may not be ultra vires the constitution, yet the rules and regulations framed thereunder may violate any provision of the constitution.

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).

(iii) Administrative legislation is ultra vires the enabling Act

– It is in excess of power conferred by enabling Act

– It conflict with enabling Act

– It is in conflict w/ the prescribed procedure of the enabling Act

– It is in conflict with the terms of some other statute

E.g. Rule 3(4) of Nepal Citizenship Rules, 2049 which prescribes additional mandatory criteria than that was prescribed by the Citizenship Act 2020, has been held invalid on grounds of conflict with the parent Act and the constitution.

(iv) If delegated legislation is mala fide

Administrative rule-making can be challenged on the ground of bad faith or ulterior purpose.

Mala fide is generally not a ground against legislature or an administrative authority exercising rule making powers

In the US, challenge on the ground or bad faith can be sustained under the Due Process clause of the constitution.

(v) 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.

(vi) Excessive delegation: 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.

Court will examine:
(a) scheme of statute including preamble,
(b) facts, circumstances and background under which statute was enacted,
(c) history of legislation,
(d) complexities of problem which State has to face,
(e) liberal construction to be given to statute, its policies and guidelines.

(vii) Unreasonable, arbitrary and discriminatory

(viii) Vagueness. E.g., does not mention the commencement date.

– Parliamentary control

Every delegate is subject to the authority and control of the principal. The exercise of delegated power can always be directed, corrected or canceled by the principal.

(i) Direct general control – through debates, questions, notices, resolutions and votes in the house

(ii) Direct special control – through ‘laying’ (presentation of) the delegated legislation before the parliament

(iii) Indirect control – parliamentary committee recommendations

-Other Control Mechanisms

-Procedural Control

To provide effective vigil over administrative rule-making, and guarantee effective people participation for better social communication, acceptance and effectivity of the rules.

Procedural control mechanism provides for specific audit of rules by those for whose consumption they are made.

(i) Drafting

The drafting of delegated legislation by an expert draftsmen who are, at the same time, in a position to advise whether the proposed rules and regulations are ultra vires is a valuable safeguard.

(ii) Antenatal publicity

Before rules are passed, the proposed/draft rules to be published in order to inform the public and take their feedback. Practice in democratic countries.

Nepal: no clear provision in law for antenatal publicity, no precedent in this regard by Nepal SC

US: Federal Administrative Procedure Act provides for the publication of proposed rules in the Federal Register.

England and India: no general provision by law, parent Act may make provisions.

(iii) Consultation

(a) Consultation with affected persons

This control mechanism makes administrative rule-making a democratic process and increases its acceptability and effectivity.

(b) Consultation with experts

Nepal: Gov of Nepal or concerned authority authorized by the Act make laws, and they do not consult with relevant experts.

(iv) Postnatal publicity

– Ignorance of law is no excuse.

– It is mandatory to publish laws, including delegated legislation made by the executive by exercising powers delegated by the legislature.

Nepal:

Rules, orders, notices, etc. made under delegated legislation is mandatorily published in Nepal Gazette.

Sec. 5 of Evidence Act, 2031 provides that judicial notice shall be taken of such published rules, orders and notices.

England- Statutory Instruments Act- Rules shall not come into force unless published.

US- Federal Register Act- Unless rules are published in the Federal Register, it cannot be enforced against any person except the one who has actual notice of it.

India- No general law prescribing the mode of publication of rules. Publication is necessary in either the Official Gazette or any ‘recognizable’ or ‘customary’ manner.

Audi alteram partem

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

Audi Alteram Partem (Right to Hearing)

As lord Denning “if the right to be heard is to be a real right which is worth anything if must carry with it a right in the acussed man to know the case which is made against him.” The development of audi alteram partem principle has like many other legal concepts been eclectic. An early group of cases was concerned with deprivation of offices requiring notice and a hearing prior to deprivation. Another somewhat later group involved in the clergy penalties or disciplinary measures to which the clergy were subjected had to be preceded by notice and a hearing. In 19th century the audi alteram partem principle was applied to wide variety of bodies’ private as well as public clubs, associations and trade unions were included within its ambit. The increase in the regularity role of public authorities provided further opportunity for the generalized application of maxim. Thus in cooper v wandsworth board of works it was held that the demolition powers vested in the defendant Board were to be subject to notice and hearing requirements. The generality of application of audi alteram partem maxim and its flexibility in operation were brought out by Lord Loreburn L.C who stated that the maxim applied to everyone who decides anything while recognizing also that the manner in which a person’s case was heard did not necessarily have to be the same as an ordinary trial.

To be a fair hearing an assumption is made that there must be three rights:

Sufficient notice is given to allow the case to be adequately prepared
That at any hearing a person will be entitled to know what evidence has been produced against him or her.
There must be proper opportunity to contest correct or contradict any such evidence to sates one’s case and raise any relevant matters before the tribunal.
to an opportunity to reply in a way that is appropriate for the circumstances
for his/her reply to be received and considered before the decision is made
to receive all relevant information before preparing his/her reply
to a reasonable chance to consider their position and prepare a response. However, what is reasonable can vary according to the complexity of the issue, whether an urgent decision is essential or any other relevant matter, and
to genuine consideration of any submission. The Delegate needs to be fully aware of everything written or said by the clearance subject, and give proper and genuine consideration to his/her case.

In addition a fair hearing may also include being provided with legal representation, the right to cross examination, witness or reasons for a decision.

It means, Hear the other side, or both the sides, It is the first principle of the civilized jurisprudence that a person, against whom any action is sought to be taken or whose right or interest beinf affected should be given a reasonable opportunity to defend himself hearing, means a fair hearing.

This is basic requisition of rule of law; it has been described as fundamental and foundation concept. The situations of cases of different nature, as the norms of fair hearing can vary from body to body and cases to case there is no rigid formula or invariable standard to deal with the concept of fair herring like tight to notice , right to present case and evidence, right to rebut evidence through cross examination and legal representation or right o council, reasoned decision , specking order, institutionalized or one who decides must hear , rule against dictation, financial incapacity to attend the inquiry officers report etc, these decision principles as not embodied rules contemplated in a single frame work nor are they flexible in number with certain limitation . Components of fair hearing are

Notice–before any action is taken, the effected party must be given a notice to show cause against the proposed action and seek his explanation ,it is a sine qua non of the right of fair hearing and any passed with out giving notice is against the principle of nature justice is void in ab initio.

Hearing- A basic principle of the natural justice is that before of the adjudication starts the authority concerned should of the cases against him and the action purposed to be taken against him so that he may accurately defendant, notice is the first and extremely important step in haring procedure, any proceeding taken without notice would violate natural justice and would be invalid.

The doctrine of ‘audi alteram partem’ is the basic notion of the principle of natural justice. The doctrine says that no one should be condemned unheard. In the field of administrative decisions, this principle has been applied to unsure fair play and justice to affected persons.

The right to a fair hearing requires that individuals are not penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the cases against them, a fair opportunity to answer them, and the opportunity to present their own cases.

Administrative agencies are not bound by the technical rules of procedure of law courts; this accentuates the need to follow the minimum procedure of fair hearing.

(i) Right to Notice

Notice=information=knowledge

Notice embodies rule of fairness, and must precede an adverse order. Adequate time must be given to respond. If requirement of notice is a statutory requirement, then notice must be given in a manner provided by law.

Notice is the starting point of any hearing. Unless a person knows the formulation of subjects and issues involved in the case, he cannot defend himself. Notice must also be adequate, which generally means it must state: (i) time, place and nature of hearing, (ii) legal authority under which the hearing is to be held, and (iii) specific charges which the person has to meet.

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.

(ii) Right to know evidence against him

Every person before an administrative authority exercising adjudicatory powers has the right to know the evidence to be used against him.

Nothing should be used against the person, which has not been brought to his notice.

(iii) Right to present case and evidence

The adjudicatory authority should afford reasonable opportunity to the party to present his case. This can be done orally or through writing.

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.

(iv) Right to rebut adverse evidence
It is not enough that the party should know the adverse material on file but it is further necessary that he must have an opportunity to rebut the evidence. Rebuttal can be done either orally or in writing.

The opportunity to rebut evidence necessarily involves the consideration of two factors: cross-examination and legal representation.

Cross-examination: Courts do not insist on cross examination in administrative adjudication, unless the circumstances are such that in the absence of it a person cannot put up an effective defence.

Legal Representation- A fair hearing in administrative proceeding will not necessarily include the right to legal representation. Representation will, however, normally be permitted.

(v) No evidence should be taken at the back of the other party

Whatever information (evidence) is obtained by the administrative authority must be disclosed to the other part, and an opportunity to rebut it must be provided.

(vi) Report of enquiry to be shown to the other party

In very many cases, especially in disciplinary matters, it happens that the inquiry is entrusted to someone else and on the report being submitted, action is taken by the competent authority.

A copy of the report of the inquiry officer should be supplied to the affected party before the authority takes a decision on the guilt and the consequential punishment on the basis of the report of the inquiry officer.

(vii) 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.

(viii) One who must hear must decide, or Institutional Decision

The term institutional decision is popular in American law.

Unlike law courts, the decision in many administrative proceedings is not the decision of one man from start to finish. Often one person hears and another decides. The divided responsibility may work contrary to the concept of fair hearing.

Whatever may be the merit of this rule, the fact remains that in view of the complexity of modern administration, a literal application of this rule will bring the wheels of administration to a grinding halt. Thus, the person or authority charged with the responsibility of taking a decision may take help from subordinates, but be must be personally consider and appraise the evidence and independently come to a decision.

(ix) Rule against dictation

Any administrative authority invested with the power of decision-making must exercise this power in exercise of its own judgment. If a decision is taken at the direction of any outside agency, there is violation of fair hearing.

(x) Decision post-haste

Fundamentals of fair hearing demand that the administrative authority must not rush decision. It may compromise procedures related to fair hearing.

Exceptions to the Rule of Natural Justice (situations when these rules do not apply)

(i) Emergency

In cases of emergency where prompt action, preventive or remedial, is needed, the requirement for notice and hearing may be removed.

(ii) Confidentiality

Eg., access to police surveillance register

(iii) Purely administrative matters

In Nepal,

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. – Mukti Sharma v. Tek Bahadur (NKP 2017, p.101).

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.

(iv) Based on Impracticability

If it is administratively impracticable to ensure fair hearing to all (usually very larger numbers) of affected persons.

(v) Interim preventive action

If the action of the administrative authority is a suspension order in the nature of a preventive action and not a final order, the application of the principles of natural justice may be excluded.

(vi) Legislative action

Legislative action, plenary or subordinate, is not subject to the rules of natural justice because these legislation lay down a policy without reference to a particular individual.

(vii) Where no right of the person is infringed

Where no right has been conferred on a person by any law, the principles of natural justice are not applicable.

(viii) Statutory Exception or Necessity

Disqualification on the ground of bias against a person will not be applicable if he is the only person competent or authorized to decide that matter or take that action.

(ix) Contractual Arrangement

Termination of an arrangement/agreement is neither a quasi-judicial act, so the duty to act judicially is not attracted.

(x) Government Policy Decision

If in exercise of executive powers the government takes any policy decision, principles of natural justice can be excluded because it will be impossible and impracticable to give formal hearing to all those who may be affected whenever a policy decision is taken and at times it will be against the public interest to do so.

(xi) Useless formality theory

Where on the admitted or undisputed facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not insist on the observance of the principles of natural justice.

(xii) Disciplinary Action

In public or govt. services, especially army and police, to enforce discipline

But usually not total exclusion of natural justice rules.

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

Legislative (Rule Making) Power

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

Legislative power of administrative agencies, usually known as rule- making power and more formally delegated legislation, is the power of agencies to enact binding rules through the power delegated to them by the legislator. The complex nature of the modern state is that such elected representatives are not capable of passing laws to govern every situation. Many of their lawmaking powers, as well as the power to administer and implement the laws, are therefore delegated to administrative agencies. These agencies are involved in virtually every area of government activity and affect ordinary citizens in many ways, whether these citizens are home owners needing a building permit to erect a new room, or injured employees seeking workers’ compensation, or farmers selling their produce.

Efficient and effective administration necessarily requires promulgation of laws, flexible to the existing situation and dealing with detailed technical matters. These laws have to be provided in the required quantity and quality. However, due to the limitation of the on parliament as regards to the availability of sufficient time and expertise, the lawmaker will be compelled to delegate some of its powers to the administrative agencies.
When legislative power is delegated to administrative agency, it has to be exercised fairly and only with a view to attain its purpose. The agency should also enact rules within the limits of delegation set by the lawmaker.

Practically, it is difficult to avoid instances in which power may corrupt. Thus the lawmaker when delegating power should simultaneously introduce controlling mechanisms to ensure that individual‘s liberty and freedom is not violated by the administration. Most importantly, the lawmaker, when granting power, is expected to provide specific procedure of rule-making. In most countries, an administrative agency exercising its legislative function is required to give notice to the public of the proposed rule and incorporate comments from the public. This ensures public participation in the administrative process. The rules issued by the agencies should also be published in a formal instrument, which is easily accessible to the public, thus, encouraging openness in the public administration.

Rule of Law

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

The expression ―Rule of law‖ plays an important role in administrative law. It provides protection to the people against the arbitrary action of the administrative authorities. The expression rule of law‘ has been derived from the French phrase ‗la principle de legalite‘, meaning a government based on the principles of law. In simple words, the term ‗rule of law, indicates the state of affairs in a country where, in main, the law rules. Law may be taken to mean mainly a rule or principle which governs the external actions of human beings, and which is recognized and applied by the state in the administration of justice.

Procedural Elements
Almost all administrative lawyers or anyone embarking a research on this dynamic concept usually starts to treat the subject by espousing the approach and definition given to it by the renowned English constitutional lawyer, Dicey. (1888)gave the most influential definition of rule law which mainly comprises the following three elements.

A. The supremacy of Law (Principle of Legality)
For Dicey (1888 🙂 the primary meaning of rule of law is supremacy of the ordinary laws of the land over the actions of public officials and administrative agencies. He writes:
It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government.

Hence, one aspect of the concept of rule of law is absolute predominance, or supremacy of law over arbitrary, government actions. Simply stated, it means every administrative action that should be taken according to law. Applied to the powers of government, this requires that every government authority which does some act which would otherwise be a wrong (such as taking a man‘s house), or which infringes a man‘s liberty (as by refusing him a trade license), must be able to justify its action as authorized by law. An administrative agency or public official is required to justify its action by clearly establishing that it is expressly or impliedly empowered or authorized by act of the parliament (i.e. proclamation issued by the House of People‘s Representatives). This means also that in the absence of any authority, the affected party whose rights and liberties have been violated as a result of the action of government, should be able to take the case to court and have it invalidated.

However, acting according to law does not satisfy the meaning of rule of law in the presence of wide discretionary powers. Parliament may confer on the specific administrative agency, wide discretionary powers that enables the agency to take unpredictable and in some cases of the arbitrary actions. Hence, the government should be conducted within the framework of the recognized rules and principles that restrict discretionary power. In many countries, typically in England, many of the rules of the administrative law are rules for restricting the wide powers, which acts of parliament confer very freely on ministers and other authorities.

B. Principle of Equality
“ . . .It means equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.”
One meaning of the above statement is that disputes, as to the legality of acts of government, are to be decided by judges who are independent of the executive. This aspect of the rule of law, which is typical characteristics of English administrative law, is largely based on the principle of the separation of powers which prohibits interference among the three government branches, Hence, not only civil cases, but also administrative disputes that should be adjudicated by the ordinary courts; not by the separate administrative courts.
In France, the same principle of separation of powers resulted in a totally opposite conception of the rule of law. According to French administrative law ( droit adminstratif), disputes between the individual and the government are settled by separate administrative courts, the conseil de etat being the supreme administrative court. It is said that this system was developed in France based on the strict interpretation of the separation of powers. Dicey emphatically rejected the French system of the administrative law (droit adminstratif). because of his emphasis on the ordinary law courts as opposed to any specialized administrative law courts as ultimate arbiter of disputes between the government and the individual.
Another aspect of the principle of equality is that the issue that states the law should be even- handed between government and citizen. In other words, those laws governing the relationship between individuals should also similarly be applicable to the relationship between individuals and government. This implies that government officials should not entertain different, or special privileges. However, the intensive form of the government and the complexities of administration sometimes necessitate granting special powers (privileges) to the government. What the rule of law requires is that the government should not enjoy unnecessary privileges, or exemptions from the ordinary law.

C. Constitution Is a result of the Ordinary Law of the Land
“ It means the constitution is the result of the ordinary law as developed by the courts through the common law tradition and provides for the legal protection of the individual not via a bill of rights, but through the development of the common law”
The rule of law lastly means that the general principles of the constitution are the result of judicial decisions of the courts in England. In many countries rights such as right to personal liberty, freedom from arrest, freedom to hold public meetings are guaranteed by a written constitution. However this is not so in England. These rights are the result of judicial decisions in concrete cases that have actually arisen between the parties. The constitution is not the source but the consequence of the rights of the individuals. Thus, Dicey emphasized the role of the courts as ultimate guarantors of liberty.

Substantive Elements
The modern concept of the rule of law is fairly wide and, therefore, sets up an ideal for government to achieve. This concept was developed by the international commission of jurists, known as Delhi Declarations, in 1959, which was later on confirmed at Logos in 1967. According to this formulation, the rule of law implies that the functions of government in a free society should be exercised so as to create conditions in which the dignity of man, as an individual, is upheld.
In recent years, wide claims have been made as to the proper sphere of rule of the law. The presence of representative democracy, beneficial social and economic services and conditions, personal independency (privacy) and independent judiciary has all been taken as indicators and elements of the rule of law. One way to understand the concept is making a contrast between the two approaches which are the ‗formal‘ and ‗substantive‘ (ideological) versions of the rule of law. The former is not much more than the principle of legality, and the latter insists on a wide range of positive content.

Rule of Law as a Foundation of Administrative Law
In simple terms, the rule of law requires that government should operate with in the confines of the law; and that aggrieved citizens whose interest have been adversely affected be entitled to approach an independent court to adjudicate whether or not a particular action taken by or on behalf of the state is in accordance with the law. In these instances, the courts examine a particular decision made by an official, or an official body to determine whether it falls with in the authority conferred by law on the decision maker. In other words, the courts rule as to whether or not the decision is legally valid. It is in this way that the principle of rule of law serves as the foundation of the administrative law. It has been repeatedly said that the basic purpose of the administrative law is to control excessive and arbitrary governmental power. This purpose is mainly achieved through the ordinary courts by reviewing and checking the legality of any administrative action. Therefore, administrative law as a branch of law, is rooted in the principle of the rule of law. This principle mainly stipulates that every administrative action should be according to law. The different control mechanisms of power in administrative law by preventing government not to go beyond the authority granted to it by law ensure that rule of law is respected.
Hence, the expression ―Rule of Law‖ plays an important role in administrative law. It provides protection to the people against arbitrary action of the administrative law.
To clearly understand the relationship between the rule of law and the administrative law, it is important to examine a related doctrine of the administrative law, which is the doctrine of ultra virus. The doctrine to some extent is a derivation of the principle of the rule of law. The former underlines that power should be exercised according to law. The later, goes one step further and states that an action of any official or agency beyond the scope of power given to it is ultra virus (i.e. beyond power), hence it is considered as null and void. An ultra virus act does not have any binding effect in the eyes of the law.
The simple proposition that a public authority may not act outside its powers (ultra virus) might fitly be called the central principles of the administrative law. The juristic basic of judicial review is the doctrine of ultra virus. According to Wade & Forsyth an administrative act that is ultra virus or outside of jurisdiction (in case of action by administrative court) is void in law, i.e. deprived of any legal effect. This is, in order to be valid, it needs statutory authorization, and if it is not within the powers given by the act, it has no legal leg to stand on it. Once the court has declared that some administrative act is legally a nullity, the situation is as if nothing has happened. Administrative law by invalidating an ultra virus act ensures that every administrative action is in conformity with the law; indirectly guaranteeing the observance of rule of law.

Rule of law as a foundation of the administrative law has been briefly explained above. But at the same time, you should also be aware of the fact that the principle also serves as a limitation on the scope of administrative law.
It has been clearly pointed out in chapter one that the proper scope of the administrative law is procedure, not substance. This means, it is concerned with the decision-making procedure (how power is exercised), rather than the decision itself. To a wider extent the study of the administrative law has been limited to analyzing the manner in which matters move through an agency, rather than the wisdom of the matters themselves. Whether a certain decision is right is not a matter to be investigated under the administrative law, rather it should be left to the decision-making agency since it purely involves policy considerations. Similarly, the principle of the rule of law does not go to the extent of ensuring whether a certain agency‘s decision is right or wrong. Its primary meaning is attached to the principle of the legality or the superiority of law. Its concern is to ensure that a administrative action is taken according to law.
The court, in reviewing an administrative action, is expected to see or examine the legality of the action only. In judicial review, the judges do not substitute their own discretion and judgment for that of the government. They simply rule whether the government or its officials have acted within the ambit of their lawful authority. Thus, the judges do not ―govern‖ the country, and do not ―displace‖ the government when government decisions are challenged in the courts.
The principle of the rule of law, by limiting its scope only to legality, or in some cases to fairness of the administrative action, simultaneously serves as a limitation to the scope of the administrative law.

Sub Delegation

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

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.

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.

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

Role of CIAA as an Ombudsman in Nepal

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

Introduction to the Ombudsmen

The origin of the word is found in Old Norse umbuðsmann (accusative) and the word umbuds man, meaning representative (with the word umbud/ombud meaning proxy, that is someone who is authorized to act for someone else, a meaning it still has in the Scandinavian languages).[1]

The modern use of the term began in Sweden, with the Swedish Parliamentary Ombudsman instituted by the Instrument of Government of 1809, to safeguard the rights of citizens by establishing a supervisory agency independent of the executive branch.[2]It is a unique institution which leads to an ‘open government’ by providing a democratic control mechanism over the powers of the State.[3]Ombudsman acts as an external agency, outside the administrative hierarchy, to probe into administrative faults. [4]

The Commonwealth Ombudsman in Australia was established in 1976. The Ombudsman can investigate complaints about the actions and decisions of Australian Government departments and agencies, the services delivered by most private contractors for the Australian Government, and oversee complaint investigations conducted by the Australian Federal Police.[5] In Brazil the office of Ombudsman is called the Ouvidor, usually heading a service called Ouvidoria, and each government agency defines its own service. These organizations usually lack full independence.[6] The Ombudsman’s Office of Colombia (Spanish: Defensoría del Pueblo, or People’s Defender) is the national agency in charge of overseeing the protection of civil and human rights within the legal framework of the state.[7] The European Ombudsman was established by the Maastricht treaty.[8] The European Union Ombudsman investigates claims by companies which reside or have their interests within the European Union against incidents of bad administration by bodies or institutions of the European Union.[9] In India, Ombudsman is called as Lokpal or Lokayukta.[10] The Russian ombudsman position is called Commissioner for Human Rights.[11] From a survey of the working of the Ombudsman systems in New Zealand, England and Australia, one thing stands out, viz., the purpose of the Ombudsman is to control the administration and thus give protection to the citizen against injustice brought about by faulty administration.[12]

Ombudsman also helps in gradually improving administrative procedures by making recommendations for modifying these procedures.[13]
Ombudsman provides a valuable method of investigating complaints against government departments.[14]
Ombudsman assists an individual to secure an appropriate remedy by the department. The remedy make take several forms, e.g, apology, fresh decision, payment of ex gratia compensation; any other financial benefit (as for e.g, waiver of arrears of tax, payment of interest or refunding of expenses), departmental review of his case and similar other cases, review of relevant departmental policy, or review of delegated legislation contributing to injustice to the citizen.[15]
On the whole, Ombudsman seeks to hold the balance between the citizen and the state and thus he contributes to the greater efficiency and humanity of the administrative process.[16]

Garner rightly states that he is ‘an officer of the Parliament, having his primary function, the duty of acting as an agent for Parliament, for the purpose of safeguarding citizens against abuse or misuse of administrative power by the executive.[17]

According to Prof.S.K.Agrawal, the term ‘Ombudsman’ refers only to institutions which have three basic and unique characteristics[18]:

Ombudsman is an independent and non-partisan officer of the legislature who supervises the administration.
He deals with the specific complaints from the public against administrative and mal-administration.
He has the power to investigate, criticize and report back to the legislature, but not to reverse administrative action.

He is appointed by the Parliament and thus, he is not an officer in the administrative hierarchy. He is above the party politics and is in a position to think and decide objectively.[19]

The basic idea of an ombudsman (a ‘grievance person’) can be stated simply: a complaint of administration from a relevant source is investigated by an official with appropriate powers, clearly independent of the administrative authorities.[20]

The ombudsman follows an administrative, inquisitorial and private process of investigation, with full access to departmental files, full power to question civil servants and the right to expect the co-operation of the department being investigated.[21]

Introduction to CIAA

The Commission for the Investigation of Abuse of Authority (CIAA), Nepal is an apex constitutional body to curb corruption and its tentacles in the country.[22] Commission for the Investigation of Abuse of Authority Act was enacted in 1991. A regulation thereof was also promulgated to lay down the procedural details for implementing the provisions of act. The above Act and Regulation define in detail the scope, functions and procedures of investigation and prosecution.[23]

CIAA is the distinctive anti-corruption agency in South Asia, which plays the role of an ombudsman, investigator and prosecutor as well.[24] It aims to crack down the corruption issues at a national level with system-based approach.[25] It also focuses on detection and punishment of corrupt acts on the one hand and social, cultural and institutional reform on the other.[26]

There shall be a commission for the investigation of abuse of authority in Nepal consisting of a chief commissioner and as many other commissioners as required. If additional commissioner is appointed apart from the chief commissioner, the chief commissioner shall act as chairperson of the Commission for the Investigation of Abuse of Authority.[27] The president shall on the recommendation of the constitutional council, appoint the chief commission and other commissioners.[28] The tenure of chief commissioner and other commissioners is six years from the date of appointment.

Thus, CIAA is a Constitutional body made for the prevention of Corruption.

Role of CIAA as an Ombudsman in Nepal

There is no equivalent of an ombudsman in Nepal. However, the Commission for the Investigation of Abuse of Authority (CIAA) serves as a forum for complaints by the citizens against government employees and entities.[29] Nepal does not have an ombudsman per se, but the Commission for the Investigation of Abuse of Authority (CIAA) covers the same functions as an ombudsman as it mediates citizens’ complaints against government employees and entities.[30] No existing laws or regulations in Nepal clearly define the role of the CIAA or the NVC as an ombudsman.[31]

The Commission for the Investigation of Abuse of Authority (CIAA) is a top Constitutional Body, which serves as the watchdog against vice, such as the abuse of authority and the resultant chain of corruption which exists in the country.[32]

The CIAA is considered as the Ombudsman in Nepal because of the following reasons as referred to from the definitions dealt above:

Investigative and Prosecutive Role

It conducts inquiries and investigations into corruption and improper conduct as defined by the law, allegedly committed by persons holding public positions. It has authority to investigate all officials holding public positions, from the Prime Minister to low-ranked public servants. However, it has no jurisdiction over any official in relation to whom the constitution itself separately provides for such action and any official to be prosecuted under the Army Act. Based on the findings, the Commission may file a case against the persons, alleged to have committed corruption, in the court of law. A special court has now been established to look into such cases.[33]

Corrective and Recommendatory Role

If investigation leads to a finding of an “improper act”, the Commission may admonish, recommend departmental actions (in the case of Judges and chiefs and members of constitutional bodies) or ask for recovery of the loss inflicted by such an act. The Commission may make suggestions or recommendations to the government for amending laws or making certain improvements in the functions and procedures of the government, or part thereof, with a view to enhancing and improving good governance practices in the country.[34]

Preventive Role

The law provides for the CIAA to undertake appropriate awareness, information dissemination and sensitization programmes to prevent officials of the government and the public at large from indulging in corrupt practices.[35]

The commission received 4,149 complaints in the fiscal year 2008-2009. Out of these complaints, it settled 3,303 cases and filed 47 cases in the Special Court after it conducted the necessary investigations.[36]

Some cases relating to effectiveness of CIAA:

Mr. Badri Bahadur Karki v CIAA[37]

Sunil maske has been trying to export the Indian money. And he was under the prosecute and he was acquitted by the court with return that money. CIAA initiates to appointed a investigator officer. He asked clarification with setting some legal question to attorney general about the acquittal of Sunil Maske.

Petitioner contention: as being an attorney General, decision made on the basis of Article 110(2) is valid. CIAA does not have authority to inquiry and find out right or wrong upon the decision. The action of CIAA is out of jurisdiction and illegal.

Defendant submission: On the basis of the article 98 of the constitution kingdom of Nepal, Attorney general does not have the immunity to be inquiry from CIAA. Article 98(3) provides to prosecute or not prosecute in regard of abuse of authority or corruption to CIAA. Article 98(3) is not narrowed by Article 110(2), they have equal status. There is no clear constitutional provision to be out of the jurisdiction to attorney general. CIAA has authority to ask clarification to Attorney General. Sunil Maske has been arrest with illegal money and he was acquitted with return that money. In this regard to ask for clarification is the due process of CIAA. In this situation the writ was not necessary to file by Attorney General.

Verdict of the court: Abuse of authority doing by unreasonable act or corruption by Attorney General, in this regard CIAA have right to investigate upon it. CIAA does not have right to do investigate upon the decision given by the Attorney General is not acceptable statement. Petition should be given the answer of the question set out by CIAA. No existing situation to file writ so it is declared void.

Laya Prashad Khatri v CIAA[38]

In this case the person who is second class officer made the forged and fabricated certificate of M.A. passed in political science from C.N. Mithila University for the purpose of promotion. CIAA after the investigation found that the certificate presented to Public Service Commission is forged. Then CIAA filed the case being base on the provision of ‘Corruption Prevention Act 2017’ sec.7 (1) and sec (12).

The Supreme Court held that the document shows that certificate is forged. So the demand of CIAA and punishment (decision) of special court is (seems) lawful and reasonable.

[1] Available at http://en.wikipedia.org/wiki/Ombudsman, accessed on 3rd April, 2011

[2] Ibid

[3] Supranote 1

[4] M.P. Jain and S. N. Jain, Principles of Administrative Law, 4th Ed, Wadhwa and Company Law Publishers, Agra, India, p 917

[5] Supranote 3

[6] Supranote 3

[7] Supranote 3

[8] Supranote 3

[9] Supranote 3

[10] Supranote 3

[11] Supranote 3

[12] Supranote 6, p 918

[13] Supranote 6, p 918

[14] Supranote 6, p 918

[15] Supranote 6, p 918

[16] Supranote 6, 918

[17] J.J.R.Upadhaya, Administrative Law, Central Law Agency, Allahbad, 2001, p 366

[18] Ibid, p 366

[19] Id, p 366

[20] Peter Leyland and Terry Woods, Textbook on Administrative Law, Oxford University Press, 4th Ed, p 141

[21] Beatson, Matthews and Elliot’s, Administrative Law Text and Materials, Oxford University Press, 3rd Ed, p 719

[22] Commission for the Investigation of Abuse of Authority (CIAA), Nepal, An INTRODUCTION available at http://www.ciaa.gov.np/nepali/jhola/CIAA_Brochure_Final.pdf, accessed on 2nd April, 2011

[23] Available at http://www.ciaa.gov.np/funcfeat.htm, accessed on 5th April, 2011

[24] Commission for the Investigation of Abuse of Authority (CIAA), Nepal, An INTRODUCTION available at http://www.ciaa.gov.np/nepali/jhola/CIAA_Brochure_Final.pdf, accessed on 6th April, 2011

[25] Ibid

[26] id

[27] The Interim Constitution of Nepal, 2063, Article 119(1)

[28] The Interim Constitution of Nepal, 2063, Article 119(2)

[29] Available at http://baseswiki.org/en/Nepal, accessed on 8th April, 2011

[30] Global Integrity Report, 2009, available at http://report.globalintegrity.org/Nepal/2009/scorecard/69/56h, accessed on 9th April, 2011

[31] ibid

[32] Available at http://www.icac.org.hk/newsl/issue19eng/button4.htm, accessed on 1st April, 2011

[33] ibid

[34] id

[35] id

[36] Supranote 32

[37] NKP 2058, 239

Administrative Discretion

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

Discretionary powers are permissive, not mandatory. They are powers granted either under statute or delegation which do not impose a duty on the decision-maker to exercise them or to exercise them in a particular way. Within certain constraints, decision-makers are able to choose whether and/or how to exercise discretionary powers.

No public official has an unfettered discretionary power. Public officials must exercise discretionary powers in accordance with any applicable legal requirements, reasonably, impartially and avoiding oppression or unnecessary injury.

Agencies should adopt policies and procedures which set out the general approach to be followed in at least each major area of activity for which they are responsible. This should ensure that the agency’s powers are exercised consistently from case to case, unless the merits of any particular case justify a different approach.

Administrative decisions often include the exercise of discretion. Discretion exists when the decision-maker has the power to make a choice about whether to act or not act, to approve or not approve, or to approve with conditions. The role of the decision-maker is to make a judgement taking into account all relevant information.

Powers to act and to exercise discretion

For public sector decision-making, legislation generally provides the lawful authority for action to be taken and for decisions to be made. Public sector decision-making may be undertaken:

As part of fulfilling responsibilities to ensure the efficient and effective management and performance of a public authority, eg, under the general public sector legislation; or
As part of taking action or making decisions under agency or department-specific legislation relating to the services delivered by the public authority.

Relevant administrative law principles

In exercising discretionary powers, various principles of administrative law require public officials to:

use discretionary powers in good faith and for a proper purpose (ie, honestly and only within the scope of and for the purpose for which the power was given)
base their decision on logically probative material (ie, logical reasons, information that proves the issues in question, relevant and reliable evidence)
consider only relevant considerations and not consider irrelevant considerations
give adequate weight to a matter of great importance but not give excessive weight to a relevant factor of no great importance
exercise their discretion independently and not act under the dictation or at the behest of any third person or body
give proper, genuine and realistic consideration to the merits of the particular case, and not apply policy inflexibly, and
observe the basic rules of procedural fairness (ie, natural justice).

Other principles of administrative law preclude public officials from:

making decisions in matters in which they have an actual or reasonably perceived conflict of interests
Improperly fettering their own discretion (or that of future decision-makers) by, for example, adopting a policy that prescribes decision-making in certain circumstances
exercising a discretion in a way that is so unreasonable that no reasonable person would have exercised the power in that way
exercising a discretionary power in such a way that the result is uncertain
acting in a way that is biased or conveys a reasonable perception of bias
making decisions that are arbitrary, vague or fanciful
refusing to exercise a discretionary power in circumstances where the decision-maker is under a duty to do so, or
unreasonably delaying the making of a decision that the decision-maker is under a duty to make.

It is a serious matter for public officials to ignore valid advice or valid considerations, particularly for the purposes of avoiding discomfort or embarrassment on the part of the government, agency or decision-maker.

Policies and practices to guide the exercise of discretionary power

Not every situation demands a policy, and policies are not a panacea capable of properly addressing all circumstances. However, policies are an important means of guiding decision-makers in exercising discretionary powers appropriately, consistently and fairly.

Policies should include an objective and the criteria to be used in decision-making to help ensure that:

all relevant legal requirements are complied with
all relevant factors are considered
there is consistency in decision-making, and
the decision-making process is transparent and accountable.

As a matter of principle, it is unacceptable for an agency to adopt and implement a policy that adversely affects, or could adversely affect, the rights or interests of any member of the public where the existence or content of the policy is kept secret or the policy document is not available for inspection and purchase on request.

Policies adopted by agencies should be communicated to relevant staff and members of the public. In this regard, s.15 of the Freedom of Information Act requires that agencies must ensure each of their policy documents are available for inspection and purchase by members of the public.

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.)