TyroCity: Administrative Law Notes

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.

Judicial control over delegated legislation

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

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

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

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

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

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

Public undertaking

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

Public undertaking. An undertaking over which the public authorities directly or indirectly exercise dominant influence by virtue of their ownership, financial participation, or the rules which govern it.

Public Sector Undertaking, known as PSU, is a company in which majority of the stake (more than 50%) is owned by the Government.

An undertaking over which the public authorities directly or indirectly exercise dominant influence by virtue of their ownership, financial participation, or the rules which govern it. A dominant influence of public authorities is in particular presumed when they: a) hold the major part of the undertaking’s subscribed capital, b) control the majority of the votes attached to shares issued by the undertaking or c) are in a position to appoint more than half of the members of the undertaking’s administrative, managerial or supervisory body.

Administrative Discretion

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

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

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

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

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

Powers to act and to exercise discretion

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

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

Relevant administrative law principles

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

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

Other principles of administrative law preclude public officials from:

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

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

Policies and practices to guide the exercise of discretionary power

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

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

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

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

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

Limitation of Delegated Legislation

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

(i) Constitutional supremacy.

(ii) Not contradictory to Acts.

(iii) Judicial Review –principle of ultra vires.

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

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

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

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.”

Doctrine of Bias/ Fair Hearing

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

NEMO JUDEX IN RE SUA

Literally, meaning of NEMO JUDEX IN RE SUA “It means no man can be a judge in his own case”. In other words it means rule against bias and it is based on three maxims-:

“No man shall be judge in his own case”
“Justice should not only be done, but manifestly and undoubtly be seen to be done”
“Judges, like ceaser’s wife should be alone suspicion”.

In Franklin v. Minister of Town and Country planning[1] Lord Thankerton defines bias as follows-:

“My lord, I could wish that the use of the word ‘bias’ should be confined to proper sphere. Its proper significance in my opinion is to denote a departure from the standard of even handed justice which the law requires from those who occupy judicial office, or those who are commonly regarded as holding a Quasi-judicial office, such as an arbitrator.”

The first requirement of natural justice is that the judge should be impartial and neutral and to be in a position to apply his objectively to the dispute before him. He cannot act as judge of a cause which he himself has same interest either pecuniary or otherwise it is against the neutrality. If the judge is subject to bias in favor or against either party to the dispute or in a position that a bias can be assumed, he is disqualifies to act as a judge. It is a well settled principle of law that justice could not only be done but manifestly and undoubtedly be seen to be done. Justice can never be seen to be done if a man acts as a judge in his own cause or is himself interested in its outcome. This principle applies not only to judicial proceeding but also to Quasi-judicial as well as administrative proceeding.

TYPES OF BIAS

Official Bias or Subject-matter bias

Bias may arise because the adjudicator may have a general interest in the subject matter in dispute because of his association as a member of otherwise with a private body or with the administration in his official company. An administrator adjudicator cannot develop the same kind of neutrality and objectivity towards the issues and institution being presented before him as is the characteristic of a judge.

According to Griffith and street, “only rarely will this bias invalidate proceeding”. A mere general interest in the general object to be pursued would not disqualify a judge from deciding the matter. There must be some direct connection with the litigation[2].

According to wade, mistrial or departmental policy cannot be regarded as a disqualifying bias[3]

Also, in many adjudicatory proceeding before bureaucratic authorities one of the parties is usually the administration itself. Therefore an authority may have official bias towards the department to which it has attached in a dispute between the department and a private party or may have a policy bias i.e. it may be interested in projecting and pursuing policies of the department.

Personal Bias A number of circumstances may give rise to personal bias. Here a judge may be a relative or business associate of a party. He may have some personal grudge, enmity or grievance or professional rivalry against him. In view of these factors there is every likelihood that the judge may be biased towards one party or prejudiced towards the other.

A crude form of personal bias is when the manger of a factory himself conducts inquiry against the workmen who are alleged to have assaulted him[4]or when a person sits on a gram panchayat bench to hear appeal against his conviction[5] or when the adjudicator is a relation of the parties[6] or when a person sits on the selection board to select person for a post for which he himself is a candidate even though he may not participate in it’s deliberation when his name is considered [7]or when the selection committee to select person for civil posts includes the son-in-law of a selected candidate. [8]

Section 30, of Court management of Country code, talks about personal Bias

Pecuniary Bias
There is a presumption that any direct financial interest howsoever small in the matter in dispute disqualifies person from adjudicating. So, a direct pecuniary interest however small will disqualify a person from acting as a judge.
The rule against bias (nemo iudex in causa sua, or “no man a judge in his own cause”)
Bias means an operative prejudice, whether conscious or unconscious, in relation to a party or issue.

Such operative prejudice may be the result of a preconceived opinion or a predisposition or a predetermination to decide a case in a particular manner, so much so that it does not leave the mind open.

A person cannot take an objective decision in a case in which he has an interest, for, as human psychology tells us, very rarely can people take decisions against their own interest.

The rule against bias is concerned with appearances- actual bias need not be established.

(i) Personal bias

Personal bias arises from a certain relationship equation between the deciding authority and the parties, which incline him unfavorably or otherwise on the side of one of the parties before him.

Two main tests of personal bias are: ‘reasonable suspicion’ test- looks to outward appearance, and ‘real likelihood’ test- focuses on the court’s own evaluation of possibilities. In most cases though, they lead to the same result.

Muluki Aain, Chapter on Court Management, Sec. 30- Judge may not hear his or his relative’s case.

(ii) Pecuniary bias

Judicial approach is unanimous and decisive on the point that any financial interest, howsoever small it may be, would vitiate administrative action.

A pecuniary interest will disqualify a judge even though it is established that the judge was not influenced by the interest in reaching a decision.

But the rule sometimes is not applied where the judge has no direct financial interest in the outcome of the case, though having a pecuniary interest.

(iii) Subject-matter bias

Those cases fall within this category where the deciding officer is directly, or otherwise, involved in the subject-matter of the case. Here, mere involvement would not vitiate the administrative action unless there is real likelihood of bias.

In Gullapalli Nagewara Rao v. APSRTC (AIR 1959), the Indian SC quashed the decision of the Andhra Pradesh government to nationalize road transportation on the ground that the Secretary of the Transport Department who gave the hearing was interested in the subject-matter.

In the USA and England, predisposition in favour of a policy in the public interest is not considered as legal bias vitiating administrative action.

(iv) Departmental Bias

The problem of departmental bias is something that is inherent in the administrative process, and if it is not effectively checked, it may negate the very concept of fairness in administrative proceeding.

In Gullapalli Nagewara Rao v. APSRTC (AIR 1959), the Indian SC quashed the decision of the Andhra Pradesh government to nationalize road transportation. One of the grounds for challenge was that the Secretary who gave the hearing was biased, being the person who initiated the scheme and also being the head of the department whose responsibility it was to execute it.

Thereafter the Act was amended and the function of hearing the objection was given to the minister concerned. The Gov. decision was again challenged In Gullapalli Nagewara Rao. However, on this occasion the Supreme Court rejected the challenge on the ground that the minister was not a part of the department in the same manner as the Secretary was.

The problem of department bias also arises in a different context- when the functions of judge and prosecutor are combined in the same department. It is not uncommon to find that the same department which initiates a matter also decides it.

In the US and England, there have partially resolved this issue with the institution of hearing officers and inspectors.

(v) Preconceived notion bias

Bias arising out of preconceived notions is a very delicate problem of administrative law. On the one hand, no judge as a human being is expected to sit as blank sheet of paper, and on the other hand, preconceived notions would vitiate a fair trial.

The decision-maker must remain open to persuasion. This may seem especially unlikely in circumstances where the minister has formulated a policy and then hears representations against that policy. The courts accept that in such circumstances an element of bias must be accepted.

Doctrine of Necessity

Bias would not disqualify an officer from taking an action if no other person is competent to act in his place. This exception is based on the doctrine of necessity.

The doctrine of necessity makes it imperative for the authority to decide, and considerations of judicial propriety must yield.

Cases Relating to Natural Justice
3.1 Rajkumar Adhikari v. HMG[9]

According to court management act no. 30 of Muluki Ain of Nepal it is said that one cannot be a judge in his/her own case and in this case therefore, the decision of the judge failed where judge document and his/her signature was itself in question.

3.2 Jyoti Baniya v. house of representative[10]

In this case a pursuant to the Section 60 of forest act, if there is prosecution and decision maker in same office that is known as official bias. So court held that, second forest officer must file the sue in front of district officer who was appointed as jury with taking opinion of prosecutor as per the mentioned law.

3.3 Yagmurti Banjade V. bagmati special court.[11]

No one can be judge in subject in which he is involved. The judge should do his work on the basis of evidence and he should give judgment which gives logic and argument And should always work in the legal framework and he should be obedient while doing so.

3.4 Babu RamPoudel v. HMG[12]

It is also a landmark case from the point of view of natural justice where the court by issuing the writ of Mandamus ordered HMG to reinstate the petitioner in the same post by quashing the illegal decision of the administration and the right of the petitioner to the hold the post and continue the service was protected by applying the principle of natural justice.

3.5 Iman Singh Gurung v. HMG [13]

The Supreme Court emphasized the importance of natural justice and stated that presentation of evidence an opportunity of legal aid and fairness in the legal proceeding are all necessary requirement of Justice. The court further expressed that a citizen has a right to go to the independent and competent court or judicial body for the determination of his basic rights and liabilities and these requirement of a citizen cannot be infringed without essential or justified reason.

[1] 1948, AC 87

[2] J.J.R UPADHAYA, Administrative Law,(Allahbad : Central law Agency, 2001), 162

[3] H.W.R Wade, ADMINISTRATIVE LAW,(Walton street ,Oxford University press, 1993, 6th edition), 489-493

[4] Meengal tea state v. workmen, AIR 1963 S.C

[5] Ram jag singh v. Bihar, AIR 1958 PAT 7

[6] Amalok Chand V. SDO AIR 1962 AS 580

[7] A.K Kraipak V. India, AIR, 1970 SC

[8] D K Khanna V. India, AIR 1970 HP 30

[9] NKP 2055,Decision no. 3495, 33

[10] Supreme court bulletin 2055, no. 17, 2-3

[11] NKP 2027, p 157

[12] NKP 2051

[13] NKP 2049

No man shall be judge in his own case, or no man can act as both at the one and the same time a party or as suitor and also as a judge, or the deciding authority must impartial and with out bias and, This natural justice consists of the rule against bias or interest and is based on two maxim

No man shall be judge in his own cause
Justice should not only be done, but manifestly and undoubtedly be seen to be done

According to the dictionary meaning any thing which tends or may be regarded as to cause such a person to decide a case other wise than on evidence must be held to be biased. So the first requirement of natural justice is that the judge should be impartial and natural and must be free bias. Usually, there are three kinds and are namely as pecuniary Bias, personal bias, departmental bias they all carry the same sense, thought tin different ways that impartiality is the most important ingredient of justice

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.

Judicial review on the abuse of Administration discretion

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

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

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

Improper purposes

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

Irrelevance

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

Bad faith

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

Unreasonableness

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

Substantive review

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

Judicial review on the abuse of administrative discretion

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

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

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

Case description

Baburam Poudel v. HMG and council of ministers

Fact of the case

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

Ratio Decidendi

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

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

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

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

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

Court Verdict

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

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

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

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

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

Role of CIAA as an Ombudsman in Nepal

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

Introduction to the Ombudsmen

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

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

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

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

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

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

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

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

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

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

Introduction to CIAA

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

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

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

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

Role of CIAA as an Ombudsman in Nepal

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

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

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

Investigative and Prosecutive Role

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

Corrective and Recommendatory Role

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

Preventive Role

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

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

Some cases relating to effectiveness of CIAA:

Mr. Badri Bahadur Karki v CIAA[37]

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

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

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

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

Laya Prashad Khatri v CIAA[38]

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

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

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

[2] Ibid

[3] Supranote 1

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

[5] Supranote 3

[6] Supranote 3

[7] Supranote 3

[8] Supranote 3

[9] Supranote 3

[10] Supranote 3

[11] Supranote 3

[12] Supranote 6, p 918

[13] Supranote 6, p 918

[14] Supranote 6, p 918

[15] Supranote 6, p 918

[16] Supranote 6, 918

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

[18] Ibid, p 366

[19] Id, p 366

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

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

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

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

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

[25] Ibid

[26] id

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

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

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

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

[31] ibid

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

[33] ibid

[34] id

[35] id

[36] Supranote 32

[37] NKP 2058, 239