Private: Legislative Principles and Law Making Process Content
Use of legislation as a state’s tool power to administer governance
In simple language, ‘what government does is governance’. Governments are empowered to establish and regulate the interrelationships of the people within their territorial confines, the relations of the people with the community as a whole, and the dealings of the community welfare.
The word government may refer to the people who form the supreme administrative body of a country, as in the expression “the government of Prime Minister Churchill.”
The system or manner of government is governance, which is run by the administrative law of the nation or state. Administrative law is the area of law dealing with the affairs of agencies of the executive branch of a government, and with the judicial review of public bodies generally.
Administrative bodies or government agencies (VDC, Municipalities, Forest department, CDO office, Tax Revenue office, etc.) are created as the government’s agencies and given power by federal or state legislation.
The administrative law is basically concerned with whether proper standards are applied by government’s agencies in exercising their powers and in making and enforcing regulations. If an agency does not apply the proper standards, its failure may be redressed by application to the courts.
Government require to maintain peace and security, generate and control the economy etc. there are many function of democratic government, therefore to run and regulate these action a government requires different legislation as ‘administrative laws’. Administrative Law is body of law applicable to the operations of agencies established by the legislature to carry out the functions of the executive branch of government. Administrative law are used in a way to maintain peace and security crime control act, police act; to regulate the economy income tax act, VAT, Nepal Rastriya Bank act and other banking acts; for regulation of industrial and other business activities there are company act, contract act etc.
Legislative just promulgate the constitution and act which determine the substantive or principle aspects like the framework, structure, jurisdiction, role and responsibility. But legislative can’t determine procedural aspect of each and every activities, it is not practicable to determine each and every procedure of an act. That’s why legislative provided delegated legislative authority to executive. For ex: there is ‘Forest Act’ which is enacted by legislative. This ‘Forest act’ provided the substantive aspect to run forest and forest administration, they are administrative power- authority to forest office, administrative discretionary power to forest officials, administrative adjudication (quasi-judicial) authority, etc. But in case of its procedure to run an administration, ‘Forest act’ provides delegated legislative authority to forest office to formulate its own procedure by formulating ‘Rules and Regulation’ by forest office themselves.
In this way government use the legislation (use of administrative law) as a state’s tool power to administer governance like forest department use ‘Forest act’ as its tool to administer forest governance.
Two major aspects arises (i) why? And other is (ii) how?
Answer to Why?
- To protect individual right and liberty (Fundamental rights).
- To maintain Rule of law
- Control the behavior of the people through criminal laws.
- Reform and adopt new laws with the social change.
- Public welfare
- Strengthen democratic process
- To establish government of people
- Separation of power with effective check and balance
- Equality before law
Answer to how?
Through administrative laws like: Local government Act and regulation, Civil service Act and regulation etc.
Elements to Administer governance are:
1.By delegated legislation
Allowing minor laws (rule) making authority under the scope provided by act and regulation.
2. By administrative power and authority
Executive has an authority to govern and enforce. For ex: Village Development Committee and Municipality are autonomous to govern themselves.
The freedom or authority to judge something or make a decision about it by an executive authority is an administrative discretion. Ex: traffic police and tax official discretionary power to impose the amount of fine.
Resembling power of court by an executive body, it describes decision making power of executive that are similar to court. Ex: Quasi-Judicial body.
5.Control over administrative abuse of power and authority by supreme source of law (Constitution)