TyroCity: Administrative Law Notes

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.

Structure and Procedure of Quasi-Judicial Bodies/Administrative Tribunals

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

Structure

Quasi-judicial body/administrative authority exercising adjudicatory powers/administrative adjudication

(i) Not based on any uniform conventional pattern, and is derived from a statute or a statutory rule

(ii) Sometimes they are an integral part of the administration, and sometimes autonomous.

(iii) Adjudicatory powers may be given to a single individual or to a multi-member body.

(iv) Besides exercising adjudicatory powers, they may also exercise other regulatory and administrative powers.

(v) No uniform formal qualification is prescribed. Sometimes, a legal qualification is prescribed and sometimes a technical qualification

unlike courts where the structure is based on uniform pattern, and judges are required to have the necessary legal qualifications and experience, and they exercise only judicial functions.

However, there are administrative tribunals which are autonomous and their members are required to have prescribed qualifications and exercise only judicial powers.

The only difference between a court and an administrative agency exercising adjudicatory powers/administrative tribunal/quasi-judicial body seems to be the legislative classification. A court is a court because it has been classified as such, and an administrative tribunal is an administrative tribunal because it has been designated as such.

Procedure

(i) No uniform procedure which administrative tribunals are required to follow. Differs from agency to agency.

(ii) Sometimes procedure is prescribed by the statute which creates the adjudicatory authority, sometimes the agencies are left free to prescribe their own procedure

(iii) ALL of these administrative tribunals follow the rules of natural justice in adjudication.

(Courts follow a uniform, fixed statutory procedure)

(iv) Many administrative tribunals are vested with the powers of a general court for the purpose of summoning witnesses, examining them on oath, compelling the production of document, etc.

(v) Courts of law are bound by precedents, principle of res judicata and technical rules of the Evidence Act and procedural law; but administrative tribunals are not uniformly and strictly bound by them.

(vi) There is more emphasis on policy considerations, compared to a court of law which is more concerned with application of law in its decision.

(vii) Quicker, cheaper than courts usually.

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.

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.)

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.

Administrative Power

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

Administrative power is the residual power that is neither legislative nor judicial. It is concerned with the treatment of a particular situation and is devoid of generality. It has no procedural obligations of collecting evidence and weighing argument. It is based on subjective satisfaction where decision is based on policy and expediency. It does not decide on a right though it may affect a right. Advisory and investigative power of agencies may be mentioned as two typical examples of administrative power. In its advisory function, an agency may submit a report to the president or the head of executive and the legislature. Cases falling under advisory function include proposing a new legislation to the legislature, and informing the public prosecutor the need to take measure when there is violation of law. Disclosing information to the general public that should be known in the public interest and publishing advisory opinions are also regarded as advisory (administrative) functions.

Investigation is one of the major functions of administrative agencies. While exercising their investigative powers, agencies investigate activities and practices that may be illegal. Because of this investigative power, agencies can gather and compile information concerning the organization and business practices of any corporation or industry engaged in commerce to determine whether there has been a violation of any law. In exercising their investigative functions, agencies may use the subpoena power. A subpeona is a legal instrument that directs the person receiving it to appear at a specified time and place either to testify or to produce document require reports, examine witnesses under oath, examine and copy documents, or obtain information from other governmental offices. This power of investigation complements the exercise of the agency‘s powers, especially the power to adjudicate.

Reasons for Growth of Delegated Legislation

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

Delegated legislation is not a new phenomenon. Ever since the statutes came to be made by Parliament, delegated legislation also came to be made by an authority to which power was delegated by Parliament- The Statue of Proclamation, 1539 under which Henry VIII was given extensive powers to legislate by proclamations. There was, and always will be, the need for delegated legislation.

The exigencies of the modern state, especially social and economic reforms, have given rise to delegated legislation on a large scale, so much so that a reasonable fear arises among people that they are being ruled by the bureaucracy.

Modern welfare and service state.
Lack of Time (of legislature)
Lack of Technicality on Subject-matter (of legislature)
Need for Flexibility -easier to make changes than to Acts
Need for Confidentiality until law comes into operation- legislative process may compromise confidentiality
Emergency situation- legislature may not be in session or naturally too slow to respond.

Preventive Measure- to prevent adverse situations, administration is most effective

Classification of Powers of Administrative Agencies

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

Administrative agencies, in order to realize their purpose efficiently and effectively, need wider power and discretion. For this reason, they blend together three powers of government: executive, legislative and judicial powers. Even though in principle the later two powers belong to the legislature and courts, granting such powers has become a compulsive necessity for an effective and efficient administration.
Administrative agency rules and regulations often have the force of law against individuals. This tendency has led many critics to charge that the creation of agencies circumvents the constitutional directive that laws are to be created by elected officials. According to these critics, administrative agencies constitute an unconstitutional, another bureaucratic branch of government with powers that exceed those of the three recognized branches (the legislative, executive, and judiciary). In response, supporters of administrative agencies note that agencies should be created and overseen by elected officials, or the president. Agencies are created by an enabling statute; a state or federal law gives birth to agency and outlines the procedures for the agency’s rule-making. Furthermore, agencies include the public in their rule-making processes. Thus, by proxy, agencies are the will of the electorate.
Supporters of administrative agencies also note that agencies are able to adjudicate relatively minor or exceedingly complex disputes more quickly or more flexibly than the state and federal courts, which helps to preserve judicial resources and promotes swift resolutions. Opponents argue that swiftness and ease at the expense of fairness are not virtues, the thrive of the administrative agencies.

Rule of law/ Droit Administrative

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

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

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

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

Council d’Etat:

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

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

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

BASIC PRINCIPLES OF DROIT ADMINISTRATIF:

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

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

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

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

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

DIFFERENCES BETWEEN THE ENGLISH RULE OF LAW AND DROIT ADMINISTRATION

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

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

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

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

Analysis of Nepalese situation with reference to Droit administratif:

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

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

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

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

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

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

Judicial (Decision – Making) Power

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

Efficient and effective administration also requires that those entities in charge of implementing the law be armored with judicial power, to some extent, similar to the power of the ordinary courts. Enforcement of law demands imposition of sanction and taking administrative measures and decisions. When agencies exercise their judicial powers, they are in effect applying the facts to the law just like a court. Consequently, they determine rights, entitlements and benefits of individuals. The decisions may greatly affect individual‘s rights and benefits, for example, revocation of license, deportation of aliens, determining whether an applicant is entitled to pension, imposition of administrative fines for non- compliance, dismissal of a civil servant, dismissal of a university student, etc … are judicial decisions that by nature that affect the rights of individuals.
When an agency exercises its judicial function it is engaged in adjudication, a process very much similar to a trial court. While adjudicating a case, it will conduct an oral hearing with direct and cross-examination, administers oath, decides on the admissibility of evidence and may compel an individual or a company to produce evidence. Then by weighing evidence of the applicant and respondent applies and interpreters the law to give a reasoned decision. To ensure impartiality and fairness the person deciding the matter should be relatively neutral from agency influence.

Still there is likelihood that agencies may abuse their decision- making power. As a result, the lawmaker, while granting such powers, is expected to provide minimum procedures applicable in the adjudication process.

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

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

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

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

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

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

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

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

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

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

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

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

Excess of Jurisdiction/authority

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

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

Jurisdiction of the SC
Alternate Remedy

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

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

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

Reasoned Decision or Speaking Orders

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

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

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

Right to Notice

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

Right to Present Case and Evidence

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

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

Public Interest Litigation / Locus Standi

Limit on discretionary power

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

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

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.