TyroCity: Administrative Law Notes

Administrative Law

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

Introduction

Development of Administrative Law

Classification of Administrative Power / Action

Delegated Legislation

Control of Delegated Legislation

Reasons and Type of Control

Administrative Discretion

Administrative Adjudication

Quasi Judicial Bodies

Quasi Judicial Bodies

Principles of Natural Justice

Ombudsman

Role of CIAA as an Ombudsman in Nepal

Public Undertaking

Public undertaking

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

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.)

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.

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

Development of Administrative Law

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

In General
Unlike other fields of law, administrative law is a recent phenomenon and can fairly be described as ‗infant.‘ Historically, its emergence could be dated back to the end of the 19th century. This era marked the advent of the welfare state‘ and the subsequent withering away of ‗the police state.‘ The interventionist role of the welfare state practically necessitated the increment of the nature and extent of power of governments. Simultaneous, with such necessity came the need for controlling the manner of exercise of power so as to ensure protection of individual rights, and generally legality and fairness in the administration. With such background, administrative law, as a legal instrument of controlling power, began to grow and develop too fast. Typically, with the proliferation of the administrative agencies, administrative law has shown significant changes in its nature, purpose and scope.

Presently, administrative law, in most legal systems, is significantly developed and undoubtedly recognized as a distinct branch of law. However the path followed to reach at this stage is not uniform and similar in most countries. Administrative law is unique to a specific country. Such uniqueness can be explained by the fact that it is the outcome of the political reality, economic circumstances and the nature of the legal system prevailing in that country. It is also highly influenced by the constitutional structure, the system of government and principles of the public administration adopted by that country.
Generally, the proliferation of the administrative agencies and the expansion of delegated legislation were two significant factors for the growth of the administrative law in most countries. The 20th century marked with the vast increase of administrative agencies with vast and wide-ranging powers. This necessitated legislative measures and judicial interference aimed at controlling the manner of exercise of power of these entities so as to ensure protection of individual rights and freedoms. As a result, most countries introduced specific and comprehensive rules and procedures governing administrative adjudication and rule-making. In US, the Administrative Procedure Act which was made law in 1946 is one such example of a comprehensive response to deal with the growing power of agencies. Since then, the landscape of the history of the American administrative law has been changed significantly. Similarly, in England the Statutory Instrument Act was promulgated in the same year (1946) even though it was not as comprehensive and influential as the American counterpart. The Act was a direct response to the ever increasing power of agencies, more specifically, the delegation power of agencies. In the 1920s fear developed about the volume and nature of the delegated legislation being produced, which was not receiving parliamentary scrutiny; many sought necessary or desirable.
In 1929, lord chief justice Lord Hewart published The New Despotism in which he railed against what he saw as dangerous and uncontrolled growth of bureaucratic power. In 1932, the report of the Donoughmore-Scott Committee on Ministers‘ powers was issued. The report, amongst other things, explained the inevitability of the delegated legislation, and also suggested some safeguards. The report also recommended better scrutiny of the vesting in Ministers of ‗oppressive‘ powers. This, finally, led to the enactment of the Statutory Instruments Act of the 1946.
However, the growth of the administrative law is not limited to statutory prescriptions of rules and procedures governing the administrative process. Courts have also played important roles in shaping the form, substance and scope of the administrative law. In England, until the Second World War and in the period immediately following 1945, courts continued limiting the scope of their controls. Such judicial restraint was relaxed after the 1960s and there was judicial revival and activism with the judiciary reclaiming their proper role of ensuring the legality and fairness of exercise of governmental powers. In America, where the judiciary has firmly asserted its strong position in checking the constitutionality of parliamentary legislation, the courts didn‘t hesitate to review administrative decision, including delegated legislation.
In France, Italy, Germany and in a number of other countries, there is a separate system of administrative courts which deal with administrative cases exclusively. As a natural consequence, administrative law has developed on its own independent lines, and is not enmeshed with ordinary private law as it is in the Anglo-American system.

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.

Control over Administrative Adjudication

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

Through the judicial review, judicial control is exercised over administrative adjudication.

Constitution of Nepal 2015- Article 133 – This provision applies to all administrative actions. It falls under the extraordinary jdx of SC, and review is done by a different judge than judge who decided earlier. The principles of review contained in this Article are recognition of judge-made principles, and hence are not inconsistent with the court-recognized grounds of judicial review but rather supplement it.

Exercise of Fundamental Rights
Exercise of legal rights, if another remedy is absent, or if another remedy is present but is inadequate or ineffective
Resolution of constitutional or legal question involving an issue of pubic right or interest
Ultravires– partially or in entirety, void ab initio or from decision date

Any law w/ the constitution

Provincial statute w/ federal statute

Local (municipality or village) statute w/ federal or provincial statue

(constitutional and legal) Grounds for judicial review:

1. Principle of Ultra-vires:
Beyond powers conferred by the constitution and statute, beyond limits set, beyond prescribed jurisdiction

Substantive/excess of power ultra-vires

– Errors of procedure/procedural ultra-vires

2. Lack of Jurisdiction
If adjudication is done without authority given by constitution and laws

Decisions taken by such officials or agency is invalid.

(a) Error in formation

If the administrative tribunal is not formed in accordance with the law.

(b) Subject matter beyond jurisdiction
If the subject-matter of the dispute is beyond the jurisdiction of the decision-maker.

(c) If the parent Act is ultra-vires the Constitution

If the parent Act or its provisions contradicts with the constitution, to the extent of contradiction the provisions of the Act invalid, and decisions taken pursuant to such provisions is invalid.

(d) Error in determination of preliminary question

The jurisdiction of the tribunal may depend upon the existence of certain facts or conditions. The questions as to whether such facts or conditions exists is called collateral or preliminary question.

If preliminary question is beyond jurisdiction of decision-maker, then decision taken is invalid.

Appropriate person, proceeding and remedy are considered in determining if preliminary question is within jdx. Right remedy sought by right person in the right proceeding.

(e) To use jurisdiction for another purpose

Use power for an objective other than or beyond the objective of the Act.

(f) Excess of Jurisdiction

Where the quasi judicial body or administrative tribunal exceeds the jurisdiction conferred on it.

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.

(vii) To review one’s decision himself

If an administrative tribunal decides a case as well as reviews its own decision, unless authorized to do so by a statute, then the SC can deem it invalid on ground of lack of jdx

3. Decline of Jurisdiction
Administrative tribunal or agency declines to perform its functions as per its jurisdiction.

SC can issue mandamus ordering the administrative agency or tribunal to perform in accordance with its jurisdiction.

(i) 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 decline or jdx and violation of fair hearing.

(ii) Delegate its Power

An administrative tribunal or agency should not delegate its judicial functions to a lower or assisting employee or to another agency or person. If it does then its decline of jdx.

(iii) Fails to exercise its powers

If the administrative agency or tribunal fails to exercise it authority, because of inability to resolve any procedural or doctrinal issue or due to erroneous interpretation of its jdx

4. Questions of Facts and Questions of Law
Both need to be correctly determined by the decision-maker, else subject to judicial review.

5. Principles of Natural Justice
(a) No one should be judge in own case

(b) Right to fair hearing

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.

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.

Separation of Power and Check and Balance

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

Administrative law deal with the nature of the power of the administration and the manner in which the power are exercised but does not go into an examination of the content of those exercised powered.

Administrative law is that branch of public law which deals with organization and powers of administrative and quasi- administrative agencies and prescribes principle and rules by which official actions reached and reviewed in relation to individual life, liberty and property.

The theory of separation of power has engaged in several forms at different periods, it was originated by Aristotle and it was developed by Locke. In the 16th and 17th centuries, French Philosopher John Bodin and British politician locke respectively had expressed their views about the theory of separation of power. But, the rule (Or doctrine) of separation of power was propounded for the first time by the French Jurist, Montesquieu. He formulates this theory in his famous book “The spirit of laws”, published in 1718. According to him, there are three main organs of the government in a state.

The legislature
The judiciary, and
The executive

[1]. S. P. Sathe, Administrative law, LexisNexis Butterworths, Seventh Edition, Page No.8

[2]. B. P. Acharya, Administrative Law, Pairavi books and stationery centre First edition, Page No.15

Meaning of Separation of Power and Check and Balance

Montesquieu states in De L’Esprit des lois (1748) that when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be not liberty… Again, there is no liberty, if the judicial power be not separated from the legislative and executive where it joined with the legislative, the life and liberty of the subject would be exposed to arbitory control; for the Judge might behave with violence and oppression. There would bean end to everything, were the same man, or the same body… to exercise those three powers. (Book XI, chapter 6, quoted in vile 1967)

Montesquieu, a French scholar, conceived the principle of separation of power. He found that concentration of power in one person or a group of persons resulted in tyranny. He therefore, felt that government power should be vested in three different organs, the legislature, the executive and the judiciary. The principle can be stated as follow.

Each organ should be independent of the others;
No one organ should perform function that belongs to the other.

According to this theory of separation of powers, those three powers and functions of the Government in a free democracy must be kept separate organs of the government. One organ of the government should not exercise the function of the other two organs. In other words,

The legislature cannot exercise the power of the Executive or Judiciary.
The Executive cannot exercise the power of the legislature or Judiciary.
The Judiciary cannot exercise the power of the legislature or Executive.

[1]. Peter Leyland and Gordon Anthony, Textbook on Administrative Law, Oxford University Press, fifth edition, Page No.21

[2] . S. P. Sathe, Administrative law, LexisNexis Butterworths, Seventh Edition, Page No.20

According to Berkley and Rouse:

Each branch of government is assigned a particular task; Legislature makes the law, the Executive branch administers the law, and the judicial system enforces and interprets the law. The separation of power concept operates in tandem with the limited government powers. Separation of power doctrine restrains one branch from usurping the power of the others; the limitation of government powers inhibits the national government from overpowering the right of the state and restricts the intrusion of government into private lives.

Wade and Phillips say that the doctrine of separation of power means the following three things:-

The same set of person should not compose more than one department of the three departments.
One department should not exercise the function of the other two documents.
One department should not control, or interfere with the work of the other two departments

According to the above statement, we can say that the Separation of powers means the three branch of the government are institutional autonomous, functional non-intervention & personal nonalliance between and among each other. As per the above description a pure form of the separation of powers doctrine has some features: (i) the function of government are to be divided into the Legislative, the Executive, and the Judiciary; (II) Different functions are to be vested in separate and appropriate institutions; (III) the members of one institution should not be member of any other institution; and (IV) the function of one institution should not encroach on the functions of another.

This doctrine of the ‘separation of power’ develop as a political theory to prescribe what ought to happen in relation to the distribution of powers within a constitution. Essentially it suggest that the abuse of power will be limited by distributing different functions, legislative, executive and judicial, between governmental institutions to prevent any one of them from predominating, thus preventing power from being concentrated in a single person or body.[3]

2.2 Doctrine of Separation of Power in Nepalese context.

In context of Rana resime, the doctrine of separation of power was not used properly. It is so because Rana prime minister possage the right of law making, law interpreting and law enforcement. So the three organ of government was not there at that time. But in Interim Sashan Bidhan 2007, there was a provision of three organ of government.

After the promulgation of constitution of constitution of 2007, the three organ of government has different right as today i. e law making body as legislative, law enforcement body as executive and law interpretive body as Judiciary. Similarly, after the promulgation of constitution of kingdom of Nepal 2047, The sovereign power are vested upon people and the doctrine of separation of power was establish to protect and promote the interest of people and liberty of Nepalese people.

[1]. George Berkley and John Rouse (1997), the Craft of public Administration, 7th edition, Chicago: Brown & Benchmark, page no 14

[2]. B. P. Acharya, Administrative Law, Pairavi books and stationery centre, First edition, Page No. 88-89

[3]. Peter Leyland and Gordon Anthony, Textbook on Administrative Law, Oxford University Press, fifth edition, Page No.21-22

Doctrine of Separation of Power and its effects on Administrative law

Administrative law is totally opposite to the Rules/Doctrine of separation of power. Both aim at the maximum protection of the rights and liberties of individuals. The doctrine of separation of power resist to delegated legislation. But administrative law’s main province is delegated legislation, Judicial Review, adjudication and decentralization separation of power does not accept to the delegated of power.

Separation of power not only provides each branch with somewhat different authority over public administration but may also frustrate coordination among them. Basic political science tells us that chief executive, legislature and courts are responsive to different constituencies, pressure and constrains. All three branches have legitimate interest in public administration. However, they often differ with regard to what they think agencies should do and how they ought to do it.[1]

Separation of power control to the state organ’s authority and resist to the arbitrary and capricious power. Administrative law does control to Administrative authority and protection government to people. So Administrative law and separation of power with check and Balance Future is golden-bright.

The logic behind this doctrine is of Polarity (the tendency of a lodestone rather than strict classification meaning there by that the centre of authority must be dispersed over a wide area to avoid absolutism) the acceptance of in the same manner. Prof. Wade, writes that the objection of Montesquieu was against accumulation the act and monopoly rather interaction.

The separation of power is not in essence concerned with the allocation of functions as such. Its primary purpose … is the prevention of the arbitrary government, or tyranny, which may arise from the concentration of power… . This point is perhaps most clearly appreciated if we consider what has become one of the most complex areas for separation of powers analysis; the organization, and control, of administrative authorities and agencies.

Public administrators make rules (Legislation), implement these rules (an executive function), and adjudicate questions concerning their application and executions ( a judicial function). The collapsing of the separation of power has been well recognized. [2]

Institutions of Government

Legislature can do:		Executive can do:	Judiciary can do:
Legislature	To make laws	Ø Veto Legislation Ø Recommend leg.	Ø Review legislature acts
Executive	Ø Confirm executive appointments (senate) Ø Override Executive Veto	To enforce the Law	Ø Review executive acts Ø Issue injunctions mandamus strictures
Judiciary	Ø Impeach Ø Create or Eliminate court	Ø Grant pardons Ø Nominate Judges	To interpret laws

Sources: Keneth Janda, Jeffrey M. Berry, and Jerry Goldamnt, (1992), the Challenge of Democracy Government of America, 3rd Edition, Boston; Houghton Mifflin company, at 85

The doctrine of separation of powers was championed as a device for limiting governmental power by taking from the monarch his ancient law making power and vesting it in a legislature, Montesquieu[1] argued, For example that under an oppressive and despotic government, which concentrated all power into a single hand, liberty would never be attained by the people.

Application of the rule by the Supreme Court of Nepal

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

Application of the rule by the Supreme Court of Nepal:

In Nepal the requirement of hearing is particularly observed and spelt out by the Supreme Court in connection with the fundamental rights of citizens guaranteed under the constitution. The extraordinary power of the court to review the administrative action through writs enriches the applicability of the principles of natural justice in diverse ways.

The following cases show the role of the Supreme Court in administering justice through the rule of Audi Alteram Partem:

P. Koirala v. HMG, 2016: –
It is regarded as the first landmark case in the judicial history of Nepal in which the rule of natural justice was highlighted by the court in connection with the invalid action of the executive action. Here, the court expressed, that the constitutional guaranteed right could not be taken away by an administrative order in the name of public security and welfare without providing the detainee the sufficient grounds and reasons for such detention order. The court further stated that it is the fundamental principle of law and justice that a person, against whom an action is taken, must be properly informed with reasons. Any legal proceeding if initiated against him without notice and grounds, it is a violation of the rules of justice.

Rishikesh Shah v. the Chief Zonal Commissioner, 2027: –
The Supreme Court stressed that the petitioner hold the right to know the grounds of detention as it was inherent under the equality clause of the constitution and a part of the natural justice.

Moona Acharya v. the Kathmandu District Court, 2048: –
The court stated that a concerned authority who is confiscating the property of a citizen is under the obligation to provide an opportunity to the petitioner to defend his/her case. The court further expressed, though procedural fairness is the requirement of justice, it does not mean that this requirement can be fulfilled at the disposal and convenience of the petitioner. Therefore, if a reasonable opportunity is given for a hearing, that is quiet sufficient to satisfy the requirement of natural justice.

Lalit Ratna Shakya v. Ministry of Forest and Soil Conservation, 2050: –
The Supreme Court here observed that the principle of audi alteram partem includes a reasonable amount of time to be given to the litigant to present his case, a clear statement of the charges made against him and a favorable environment in which he may state his position.

Rukma Shamsher Rana v. HMG, 2054: –
The court observed, if any action is taken against any member of the national games and sports, he is required to be given an opportunity to be heard as hearing has become an essential phenomena in the present age. Therefore, if a person is dismissed from his post without any notice and ground, there can exist the monopoly of the administration and good governance of the country can become meaningless.

Haribanta Lal Shrestha v. Managing Committee, the Nepal Bank Ltd. : –
The court once again highlighted the importance of the rule of natural justice. The petitioner in this case was debarred from the opportunity to be heard and to produce evidence in his favor. The court condemned the action of the executive and ruled that the principles of natural justice are not founded merely on formalities rather they are the meaningful rules to provide the substantive justice. They help and facilitate in providing definite, solid and concrete justice.

Krishna Prasad Pande v. HMG: –
The petitioner was detained under sec. 3(1)of the Public Security Act, 1989. He was not given the chance of hearing. Grounds for his detention were also not provided to him. The court quashed such detention order of the authority as the order was inconsistent to the principle of natural justice. The court issued the writ of Habeas Corpus to set the petitioner free.

Nature, Scope and Sources of Administrative Law

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

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

The Constitution
The F.D.R.E constitution contains some provisions dealing with the manner and principle of government administration and accountability of public bodies and officials. It mainly provides broad principles as to the conduct and accountability of government, the principle of direct democratic participation by citizens and the rule of law. It also embodies the principle of separation of powers by allocating lawmaking power to the house of people‘s representatives, executive power cumulatively to the Prime Minister and Council of Ministers, and finally the power to interpret the laws to the judiciary.

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

Delegated Legislation
Rules, directives and regulations issued by Council of Ministers and each administrative agencies are also the main focus of administrative law. Administrative law scholarship is concerned with delegated legislation to determine its constitutionality and legality or validity and ensure that it hasn‘t encroached the fundamental rights of citizens. One aspect of such guarantee is subjecting the regulation and directive to comply with some minimum procedural requirements like consultation (public participation) and publication (openness in government administration). Arbitrary exercise of power leads to arbitrary administrative action, which in turn, leads to violation of citizen‘s rights and liberty. Hence, the substance and procedure of delegated legislation is an important source of administrative law.

Judicial Opinion
Much, but not most, of the doctrine that envelops and controls administrative power is found in judicial analysis of other sources. However, much of administrative law will not be found solely in judicial opinions. Furthermore, the opinions themselves must be carefully pursued to avoid generalizations about controls on agency behavior that may not be appropriate, as the outcome of many cases may turn on particular statutory language that may not necessarily reflect the nature of disputes in other agencies.
The American experience as to judicial opinion influencing administrative law is characterized by lack of generalization and fluctuating impacts. These may be due to two reasons. First, cases coming before the courts through judicial review are insignificant compared to the magnitude of government bureaucracy and the administrative process. Second, even as between two apparently similar cases, there is a possibility for points of departure.

Scope of Administrative Law
I- Public Law/Private Law Divide
The boundaries of administrative law extend only when administrative agencies and public officials exercise statutory or public powers, or when performing public duties. In both civil and common-law countries, these types of functions are sometimes called ―public law functions‖ to distinguish them from ―private law functions‖. The former govern the relationship between the state and the individual, whereas the later governs the relationship between individual citizens and some forms of relationships with the state, like relationship based on government contract.
For example, if a citizen works in a state owned factory and is dismissed, he or she would sue as a ―private law function‖. However, if he is a civil servant, he or she would sue as a ―public law function‖. Similarly, if residents of the surrounding community were concerned about a decision to enlarge the state- owned factory because of environmental pollution, the legality of the decision could be reviewed by the courts as a ―public law function.‖ It is also to be noted that a contract between an individual or business organization with a certain administrative agency is a private law function governed by rules of contract applicable to any individual – individual relationship. However, if it is an administrative contract it is subject to different rules (see civ. code art 3136 ff).
The point here is that the rules and principles of administrative law are applicable in a relationship between citizens and the state; they do not extend to cases where the nature of the relationship is characterized by a private law function.
B) Substance vs. Procedure
Many of the definition and approaches to administrative law are limited to procedural aspects of the subject. The focus of administrative law is mainly on the manner and procedure of exercising power granted to administrative agencies by the legislature. Fox describes the trend and interaction between substance and procedure as:

It is the unifying force of the administrative process – in dramatic contrast to the wide variety of substantive problems with which agencies deal- that has persuaded most administrative law professors to concentrate on agency procedure rather than agency substance. Hence, to a wider extent, the study of administrative law has been limited to analyzing the manner in which matters move through an agency, rather than the wisdom of the matters themselves.‘
With respect to judicial review, the basic question asked is not whether a particular decision is ―right‖, or whether the judge, or a the Minister, or officials have come to a different decision. The questions are what is the legal limit of power or reasonable limit of discretion the law has conferred on the official? that power been exceeded, or otherwise unlawfully exercised? Therefore, administrative law is not concerned with the merits of the decision, but with the decision making process.

Presently, the perspectives on administrative law are summarized by two contrasting models labeled by Harlow and Rowling as red light‘ and green light‘ theories. The former is more conservative and control-oriented; the latter is more utilitarian (socialist) in orientation and facilitative in nature. Both significantly serve to describe the concept of administrative law, and to act as normative (i.e. moral and political) suppositions about what its role in society ought to be.
A) Red Light Theory
The red light approach advocates strong role for the courts to review administrative decisions. It considers that the function of law is to control the excesses of state power. ―The red light view can be seen to originate from a political tradition of 19th century laissez faire (minimal state) theory. It embodied a deep-rooted suspicion of governmental power and a desire to minimize the encroachment of the state on the rights (especially property rights) of individuals.
According to this theory of state, the best government is the one that governs least. Wider power means danger to the rights and liberty of citizens. Hence, the red- light theory serves the function of controlling excess and arbitrary power, mainly by the courts. Its descriptive feature is that, on the one hand, it gives much attention on control of governmental power, and on the other hand, it is confident that the effective controlling instrument are the courts through judicial review; As Harlow and Rawlings put it:
―Behind the formalist tradition, we can often discern a preference for a minimalist state. It is not surprising, therefore, to find many authors believing that the primary function of administrative law should be to control any excess of state power and subject it to legal, and more especially judicial control. It is this conception of administrative law that we have called red light theory‖.

B) Green Light Theory
The green light approach considers that the function of administrative law is to facilitate the operation of the state. It is based on the rationale that bureaucrats will function most efficiently in the absence of intervention. Administrative law should aim to help simplifying the procedures and enhance efficiency. It starts from the standpoint of a more positive, largely social and democratic view of the state.
The green light theory is originated from the utilitarian tradition, which proposes promoting the greatest good for the greatest number. According to the utilitarian theory, the state is expected to provide the minimum standards of provision, including housing, education, health, social security, and local services. To provide maximum satisfaction for most of its people, the state should assume a broader role, hence, should possess wider powers. The green light theory broadly supports the introduction of policies aiming at developing public service provisions. Law is perceived as a useful weapon and an enabling tool. It is something very concrete and can provide in principle, at least, the proper authority and framework with which to govern consensually. It regards law not as a controlling mechanism, rather as a facilitative tool. Consequently, it considers the court‘s intervention as an obstacle to efficiency.

Harlow & Rawling write:
“Because they see their own function as the resolution of disputes and because they see the administrative function from the outside, lawyers traditionally emphasize external control through adjudication. To the lawyer, law is the policeman; it operates as an external control, often retrospectively. But a main concern of green light writers is to minimize the influence of the courts. Courts, with their legalistic values, were seen as obstacles to progress and the control which they exercise as unrepresentative and undemocratic. To emphasis a crucial point in green light theory, decision making by an elite judiciary imbued with a legalistic, rights-based ideology and eccentric vision of the „public interest‟ was never a plausible counter to authoritarianism.”